Kaiser Steel Corp.

National Labor Relations Board - Board Decisions

Jun 12, 1974

211 N.L.R.B. 446 (N.L.R.B. 1974)

446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kaiser Steel Corporation and Jerry Lynn Copeland 3. Substitute the attached Appendixes A and B
Laborers' International Union of North America, for the Administrative Law Judge's.
Local No. 1184 and Jerry Lynn Copeland. Cases
21-CA-11529 and 21-CB-4534
June 12, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On February 21, 1974, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, Respondent Union and
Respondent Employer filed exceptions and support-
ing briefs and the General Counsel filed limited
exceptions and a brief, in addition to a brief in
answer to exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions 1 of the Administrative Law Judge
and to adopt his recommended Order as herein
modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent
Kaiser Steel Corporation, its officers, agents, succes-
sors, and assigns, and Respondent Laborers' Interna-
tional Union of North America, Local No. 1184, its
officers, representatives, and agents, shall take the
action set forth in the recommended Order of the
Administrative Law Judge as modified below: 2
1. Insert the following as paragraph A, 2,(c),
relettering following paragraphs consecutively:
"(c) Jointly and severally with Respondent Labor-
ers' International Union of North America return to
Jerry Lynn Copeland the $100 initiation fee paid by
him on September 5, 1972, to which shall be added
interest at the rate of 6 percent per annum."
2. Substitute the following as paragraph B, 2(a):
"(a) Jointly and severally with Respondent Kaiser
Steel Corporation return to Jerry Lynn Copeland the
$100 initiation fee paid by him on September 5, 1972,
to which shall be added interest at the rate of 6
percent per annum."
i As we find that payment of a second initiation fee to the Laborers was
invalid in the circumstances of this case , consistent with our holding in
Kaiser Steel Corporation, 205 NLRB No. 34 , we find it unnecessary to reach
the Administrative Law Judge 's conclusion here that Respondent Union
met its "minimum obligation" of informing Copeland of his obligations, as
well as his conclusion that Respondent Employer additionally violated Sec
8(a)(3) and ( l) by failing to implement the checkoff of initiation fee that
Copeland executed.
2 We deny the General Counsel 's request for a broad order in these
circumstances which show no substantial continuous pattern or practice
herein violative of the Act to warrant it.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, under article 3 of our contract
with The Building and Construction Trades
Council of Riverside and San Bernardino Coun-
ties, AFL-CIO, discharge or discriminate against
Jerry Lynn Copeland, or any other employee,
who has once satisfied the union membership
requirement of that contract, by requiring him to
pay an initiation fee to another labor organization
because he has been transferred from one job to
another within the unit.
WE WILL offer immediate and full reinstate-
ment to Jerry Lynn Copeland to his former
position or, if that job no longer exists, to a
substantially equivalent position, without preju-
dice to his seniority or any other rights and
privileges.
WE WILL jointly and severally with Laborers'
International Union of North America, Local No.
1184, make good to him with interest, all pay he
lost by reason of his discharge of August 31, 1972,
and
WE WILL jointly and severally with Laborers'
International Union of North America, Local No.
1184, return to Jerry Lynn Copeland the $100
initiation fee paid by him on September 5, 1972,
to which shall be added interest at the rate of 6
percent per annum.
KAISER STEEL
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
211 NLRB No. 50
KAISER STEEL CORPORATION
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, Room
600, 849 South Broadway, Los Angeles, California
90014, Telephone 213-688-5254.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, under article 3 of the collective-
bargaining agreement between Kaiser Steel Cor-
poration and The Building and Construction
Trades Council of Riverside and San Bernardino
Counties, AFL-CIO, cause , or attempt to cause,
Kaiser Steel Corporation to discharge or other-
wise discriminate against Jerry Lynn Copeland,
or any other employee, who has once satisfied the
union membership requirement of that contract,
by requiring him to pay another initiation fee
because he has been transferred from one job to
another within the unit.
WE WILL write Kaiser Steel Corporation and
Jerry Lynn Copeland that we withdraw our
objections to its employment of Copeland or to
his reinstatement.
WE WILL, jointly and severally with Kaiser
Steel Corporation, make good to him with interest
all pay he lost by reason of his discharge on
August 31, 1972.
WE WILL also jointly and severally with Kaiser
Steel Corporation return to Jerry Copeland the
$100 initiation fee paid by him on September 5,
1972, to which shall be added interest at the rate
of 6 percent per annum.
WE WILL NOT condition the withdrawal of our
objection of Jerry Lynn Copeland's being em-
ployed by Kaiser Steel Corporation upon pay-
ment of the above-described initiation fee.
LABORERS'
INTERNATIONAL UNION
OF NORTH AMERICA,
LOCAL No. 1184
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
447
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, Room
600, 849 South Broadway, Los Angeles, California
90014, Telephone 213-688-5254.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in these cases was held on January 17, 1974, and is
based upon unfair labor practice charges filed by an
individual, Jerry Lynn Copeland, on February 7, 1973, and
a consolidated complaint issued on December 7, 1973, on
behalf of the General Counsel of the National Labor
Relations Board, herein called the Board, by the Acting
Regional Director of the Board, Region 21, alleging that
Kaiser Steel Corporation, herein called the Company or
Respondent Employer, has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the National Labor Relations Act, herein called the Act,
and that Laborers' International Union of North America,
Local No. 1184, herein called Laborers' Union or the
Respondent Union, has engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) and 8(b)(2) of the
Act. The Respondents filed answers denying the commis-
sion of the alleged unfair labor practices.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
posthearing briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
Kaiser Steel Corporation , the Respondent Employer, is
engaged in the operation of iron ore mining and milling
facilities in the area of Eagle Mountain , California. In the
conduct of this operation the Respondent Employer
annually purchases and receives goods valued in excess of
$50,000 directly from points located outside the State of
California. The Respondents admit, and I find , that the
Respondent Employer is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Laborers' International Union of North America, Local
No. 1184, the Respondent Union, is admittedly a labor
organization within the meaning of Section 2(5) of the Act.
III. THE QUESTIONS PRESENTED
1. Whether the Respondent Union violated Section
8(b)(2) and (1)(A) of the Act by demanding and obtaining
the discharge of employee Copeland for nonpayment of a
second initiation fee upon transfer from one job to another
within the certified bargaining unit and whether the
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Employer violated Section 8(a)(3) and (1) of
the Act by acceding to this demand.
2. Whether the Respondent Union violated Section
8(b)(l)(A) of the Act when its agent , Sanders, threatened
Copeland that it would not seek his reinstatement if he
failed to comply with the Laborers' Union membership
requirements.
IV. THE UNFAIR LABOR PRACTICES
A. Background
The Building and Construction Trades Council of
Riverside and San Bernardino Counties , AFL-CIO,
hereinafter called the Council, is the certified collective-
bargaining representative of all production and mainte-
nance employees , including truckdrivers and warehouse-
men at the Respondent Employer 's Eagle Mountain iron
ore mining facilities . There have been successive collective-
bargaining agreements between the Respondent Employer
and the Council for a number of years, the agreement
material to this case being effective from September 16,
1970, to September 15, 1973. The Council is composed of
five labor organizations-the Respondent Union (the
Laborers '), Teamsters , Operating Engineers , Carpenters,
and Electricians-who participate in the Council's collec-
tive-bargaining negotiations with the Respondent Employ-
er and ratify the resulting agreement . The collective-
bargaining agreement in effect between the Council and
the Respondent Employer during the time material to this
case contained the following union-security clause:
ARTICLE 3 UNION SECURITY
All employees covered by this agreement shall within
thirty-one (31) days after employment . . . become
members of the appropriate Craft Union and shall
remain members of said Craft Union as a condition of
employment ... .
There is no employee membership as such in the
Council . The union-security requirement in the collective-
bargaining agreement is met by membership in one of the
five unions comprising the Council, depending upon an
employee's job and the union craft or work jurisdiction.
The collective-bargaining agreement permits job transfer
across union jurisdictional lines and sets forth procedures
both for progression to a higher paying job classification
and for "bumping" back to a lower classification in order
to avoid a layoff.
If there is a transfer from the work jurisdiction of one
union to that of another, the transferee , under the terms of
the union-security agreement as applied by the parties,
pays an initiation fee and monthly dues to the union into
whose work jurisdiction the employee has transferred. The
separate unions, not the Council, determine the amount of
dues and initiation fee paid by the transferee and whether
the transferee is a member in good standing . The unions
each have a procedure whereby a transferee may take out a
withdrawal card from the union whose work jurisdiction he
is departing.
B. The Discharge of Jerry Lynn Copeland
Jerry Lynn Copeland was first employed at the Respon-
dent Employer's Eagle Mountain operation in May 1968 as
a mine laborer earning $3 .27 per hour . He joined the
Laborers' Union, paying an initiation fee of $60 and
regular dues . In November 1968, Copeland was promoted
to the higher paying job of shovel operator within the work
jurisdiction of the Operating Engineers Union . Copeland
joined the Operating Engineers , paying an initiation fee
and monthly dues which were paid by checkoff .' Copeland
revoked his checkoff previously executed on behalf of the
Laborers' Union and allowed his membership in the
Laborers' Union to lapse, since he believed that his
promotion out of the work jurisdiction of the Laborers'
was permanent . Copeland remained a dues-paying mem-
ber of the Operating Engineers Union from November
1968 until May 31, 1972, when he was issued a withdrawal
card from this union.
In January 1972,2 the Respondent Employer temporarily
shut down part of its Eagle Mountain mining operation
and temporarily laid off about 1,100 employees, one of
whom was Copeland . Copeland was recalled to work in
March as a cable mover within the work jurisdiction of the
Laborers' Union . Under the collective-bargaining agree-
ment a cable mover earned $3 .85 per hour, in contrast with
the $4 .25 previously paid to Copeland as a shovel operator.
Copeland accepted the Company 's offer to return to work
as a cable mover knowing that, under the collective-
bargaining agreement , he had the option of refusing this
job and remaining unemployed until a higher paying job
became available within the work jurisdiction of the
Operating Engineers Union.
On March 27 , Copeland reported for work. He knew that
under the union-security agreement, as enforced in the
past, he was obligated to pay an initiation fee and monthly
dues to the Laborers' Union after 30 days as a condition of
employment as a cable mover. But, at about the time he
returned from layoff, Copeland heard rumors from other
employees to the effect that perhaps this policy had been
changed and now an employee , upon transferring from the
work jurisdiction of one union to another , was only
obligated to pay monthly dues.3
On Thursday , April 27 , his 31st day of work as a cable
mover , Copeland went to the office of a company
personnel assistant, Charles Thaxton, to find out whether
I The contract between the Council and the Company contains the
following provision for the voluntary payment of union dues through
checkoff:
ARTICLE 4 CHECK-OFF
A. During the term of this agreement , Employer shall deduct from
the first pay of each month the monthly Craft Union dues and
Initiation fees if requested (but not assessments or fines) of each
employee whose signed voluntary check -off authorization ... has
been submitted to Employer ... .
C. All amounts deducted by Employer under the foregoing check-
off system shall be remitted by Employer to the appropriate Craft
Unions.'. . .
2 All dates hereafter , unless otherwise specified , refer to 1972.
3 There is no evidence that an agent of the Respondent Union by word
or conduct was responsible for this rumor.
KAISER STEEL CORPORATION 449
he was obligated to pay an initiation fee as well as monthly
dues to the Respondent Union. Copeland asked Thaxton if
he was required to join the Respondent Union and pay an
initiation fee as well as monthly dues. Thaxton stated he
did not know if Copeland was required to pay an initiation
fee and , without any instruction from Copeland, prepared
a checkoff authorization form for Copeland' s signature
which authorized the Respondent Employer to deduct and
transmit to the Respondent Union only monthly dues.
Also, Copeland signed a document instructing the Respon-
dent Employer to cancel his previously executed checkoff
form on file at the Company for the Operating Engineers
Union.
Pursuant to the checkoff authorization executed by him
on April 27, Copeland paid monthly dues to the Respon-
dent Union from about that date until his discharge on
August 31. His failure to pay an initiation fee was
discovered in late May or early June by Jackie Under-
wood, the Building Trades steward who is an agent for all
of the bargaining unit's unions at certain stages in the
contractual grievance procedure. Underwood discovered
that several laid-off employees, one of whom was Cope-
land, had been recalled to jobs in areas different from their
prelayoff work jurisdiction and had not paid an initiation
fee to the union under whose work jurisdiction they now
worked. Underwood in about early June posted a notice
listing each of these employees by name, stating that they
should report to the Company's personnel office and sign a
checkoff authorization for the Respondent Union's initia-
tion fee. This notice which included Copeland's name was
posted for several weeks on the bulletin board at the
Company reserved for notices posted by the unions, which
is located in the time shack where the employees, including
Copeland, punch their timecards.4
At approximately the same time Underwood posted the
notice naming Copeland and others as delinquent in
paying an initiation fee to the Laborers, Copeland was
informed that Personnel Assistant Thaxton wanted to talk
with him. Copeland assumed that Thaxton wanted to
speak to him about the Laborers' Union initiation fee and,
upon entering Thaxton's office, in response to Thaxton's
greeting , Copeland stated that the Company had not
deducted an initiation fee for the Respondent Umon from
his paycheck. Whereupon, Thaxton prepared a checkoff
authorization form for Copeland to sign which authorized
the Company to deduct this initiation fee from Copeland's
paycheck. Thaxton asked Copeland to sign this checkoff
authorization, explaining that it would take care of the
Laborers' Union initiation fee. Copeland signed and
returned the authorization to Thaxton who left the office.5
When Thaxton did not return in a few minutes, Copeland,
so as not to be late for work, left to punch in for work.6
The Respondent Employer did iot ever deduct the
Laborers' Union initiation fee from Copeland's pay and
4 It is reasonable to infer that Copeland read this notice He did not
specifically deny doing so
5 Copeland signed this authorization, he testified, because he believed
that if he did not pay an initiation fee he might be discharged
6 The description of Copeland's two meetings with Thaxton, the one
described above and the one on April 27 described, supra, are based upon
Copeland's credible testimony Thaxton, who was employed by the
Respondent Employer at the time of the hearing, was not called upon by the
transmit it to the union. Respondent Employer did not call
Thaxton as a witness to explain what he did with the
above-described checkoff executed by Copeland authoriz-
ing the Respondent Employer to deduct and transmit
Copeland's Laborers' Umon initiation fee. Copeland
credibly testified that the reason he never questioned
anyone from the Company about its failure to deduct this
money from his pay was that he believed that eventually
the Company would get around to deducting the money.
In early August, Underwood, the Building Trades
steward, checked with the Company's personnel depart-
ment to determine if the employees listed on the notice he
had previously posted had paid their Laborers' Union
initiation fee. He learned that six employees, one of whom
was Copeland, had not paid the initiation fee. As a result
of his discovery, Underwood in the middle of August
approached Foreman Clois Hamilton and asked him to
speak to Copeland about paying the Laborers' Union
initiation fee. Normally, on a matter of this sort Under-
wood, following his customary procedure, would have
spoken directly to Copeland. Instead, Underwood decided
to use Hamilton as an intermediary, he testified, because
Copeland and Hamilton came from the same town and
Copeland's brother was married to Hamilton' s sister.
Underwood asked Hamilton if he would tell Copeland that
he needed to join the Laborers' Union to keep his job and
to advise him to visit the Company's personnel office and
sign a checkoff authorization for the Laborers' Union
initiation fee or pay it personally. Hamilton agreed to talk
to Copeland and, in fact, talked with him on Friday,
August 25. He advised Copeland that it would be a good
idea to visit the Company's personnel office at the first
chance to take care of his "union problems." Copeland, in
response, stated that he had already talked to the people in
the Company's personnel office but he would return there
and look into the matter. That same day, August 25, the
Company's personnel department, by letter, notified the
Respondent Union that "Copeland's foreman has been
notified that Copeland should come in and sign up for
initiation fee." 7
Copeland lives about 62 miles from work and rode to
work in a car pool.'Because of this, and the fact that the
Company's personnel,office is 9 miles from the work site,
Copeland decided to wait until Thursday, August 31, a
payday, to visit the Company's personnel office, as advised
by Foreman Hamilton. On this day he would have to stop
off anyway at the personnel office to pick up his paycheck.
Events, however, did not wait for August 31. The day
before, August 30, the Respondent Union' s business
manager, John Smith, by letter, notified the Respondent
Employer:
We understand that {Copeland] was personally in-
formed by his foreman that he should complete
necessary cards for collection of initiation fee which is
Respondent Employer to refute Copeland's testimony
4 Previously, on or about August 8, John Smith, the Respondent Union's
business manager , by letter, notified the Company that Copeland and other
named employees had been working on a "pay dues only" basis for at least
3 months and told the Company " we feel that they are to be considered as
regular employees and should pay the $100 initiation fee Please
arrange for necessary payroll deductions."
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payable. Since he has ignored this request, we now ask
that this man be removed from job at once.
This letter was received by the Respondent Employer at I
p.m. on August 31 s
On August 31, at approximately 3:30 p.m. shortly before
the start of the swing shift, Foreman Hamilton received a
phone call at the jobsite from the Respondent Employer's
administrative superintendent, Dale, asking if Hamilton
had talked with Copeland about the financial matters that
Copeland had with the Respondent Union. Hamilton
indicated that he had talked to Copeland that past Friday
and stated that Copeland, in effect, had assured Hamilton
"he [Copeland] had talked to them and everything was
okay." Dale at this point decided that Copeland would be
discharged immediately unless the Respondent Union, in
writing, before the end of the day rescinded its letter of
August 31 asking that "[Copeland] be removed from the
job at once." Dale immediately contacted the Respondent
Union's business agent, Sanders, and advised him of this
decision. In the meantime, Copeland, who was employed
on the swing shift, had arrived at the personnel office
shortly before 4 p.m. for the purpose of picking up his
paycheck and to check with the personnel office as
requested by Foreman Hamilton. Copeland, however,
never went to the personnel office because a fellow
employee (his brother) indicated to him that he had
already been discharged which seemed to be confirmed, in
Copeland's eyes, by a notice posted near the paycheck
window stating: "Cancel [Copeland's] Bond." Copeland,
instead of going into the personnel office, sought out the
Company's pit superintendent, Charlie Smith, who con-
firmed the fact that Copeland had been discharged and
asked Copeland to sign a form stating he was "terminated-
-in conformity with the Agreement: Article 3 and letter
from [the Respondent Union] dated 8-30-72."9 Copeland
refused to sign this separation notice. He immediately
contacted Underwood, the Building Trades steward, who
advised him that he had been discharged because of his
failure to pay the Laborers' Union initiation fee and told
him to contact the Laborers' Union Business Agent
Donald Sanders.
The same day, August 31, Copeland's brother phoned
Business Agent Sanders, who suggested that Copeland
come to Sander's office in Indio, California, with the $100
initiation fee, which Copeland did on September 5.
Copeland on that date asked Sanders to help him get his
job back. Sanders' response was that Copeland would first
have to pay his $100 Laborers' Union initiation fee before
the Union would help him. Copeland gave Sanders the
$100, whereupon Sanders prepared a letter notifying the
Company "that [Copeland] is a paid up member of
[Respondent Union] as of this date." Copeland personally
delivered this letter that same day to the Company's
s Based upon the Company's date time stamp affixed to the letter. I
reject the contrary testimony of Robert Dale, the Company's administrative
superintendent.
9 This separation notice was mailed to Copeland the next day by the
Company.
10 Referring to employee Louis Morgan, who at the Respondent Union's
request was discharged on February 9 for his failure to pay a second
initiation fee to the Respondent Union under circumstances similar to
Copeland's. On July 31, 1973, the Board found that the Respondent Union
personnel office . Upon receipt of this letter, Administrative
Superintendent Dale told Copeland that it was not what
the Company wanted and , in speaking to Sanders about
the letter , Dale told him that the letter was untimely.
On ,September 11, the Respondent Union's business
manager, Smith, by letter, informed the Company "Cope-
land is now a member in good standing and we request
that you disregard the letter requesting termination and
that he be reinstated ." Copeland did not see this letter. The
Respondent Employer considered this letter and decided
not to reinstate Copeland for the reason that reinstatement
was contrary to its longstanding policy against reemploy-
ing employees whose employment has been terminated.
Dale, the Company's administrative superintendent, per-
sonally told Copeland of the Company's decision not to
reinstate him, indicated that he felt Copeland was being
treated unfairly and suggested that Copeland file a
grievance with the Respondent Union.
Copeland followed this advice and grieved over his
discharge to Underwood, the Building Trades steward,
who agreed to file a grievance on his behalf. A contractual
grievance meeting was conducted between representatives
of the Company and unions in late September, at
which time a representative of the Respon dent Union
advised Copeland that he did not have time to
investigate Copeland's grievance and, because of this, its
consideration had been postponed for 1 month. At the next
meeting when employees ' grievances were considered by
the Company and unions, Underwood notified Copeland
that his grievance was not being considered because the
Respondent Union was going to wait and see what
happened in the case of employee Morgan .10 Copeland
testified that it was his understanding that his grievance
was awaiting the outcome of either "this proceeding or the
Morgan proceeding before it is reactivated."
Finally, the Respondents stipulated that but for his
discharge Copeland on September 11 would have been
promoted to the position he occupied at the time of his
layoff, assistant shovel operator.
C. Ultimate Findings and Analysis
The Respondent Union, through its letter of August 30,
demanded and obtained the discharge of Copeland
pursuant to the collective-bargaining agreement 's union-
security clause.'1 The Respondent Union caused the
Respondent Employer to discriminate against Copeland
because he was not a member of the Respondent Union.
There is also no question that his lack of membership
resulted from Copeland's failure to pay a second initiation
fee. The issue raised is whether this second initiation fee,
applied during Copeland's continuous employment in the
bargaining unit and occasioned solely by an intraunit
unlawfully caused the Respondent Employer to unlawfully discharge
Morgan . Kaiser Steel Corporation, 205 NLRB No. 34.
ii I reject the testimony of Respondent Union's business manager,
Smith, that it was not his intent to cause the Company to discharge
Copeland . The August 30 letter, signed by Stith , which requested that
Copeland "be removed from the job at once," on its face was calculated to
cause Copeland's discharge . Indeed, Smith in his letter to the Company of
September II referred to the August 30 letter as "the letter requesting
termination."
KAISER STEEL CORPORATION
transfer , qualifies as a fee "uniformly required" for union
representation.12
It is settled that a single lump sum initiation fee regularly
exacted from employees entering a certified bargaining
unit falls readily within the statutory phrase "uniformly
required." In the instant case, however, the Respondent
Union's second fee was based solely on Copeland's
transfer from another job classification within the bargain-
ing unit and bore no relationship to the wages he received.
Thus, Copeland paid his first initiation fee to the
Respondent Union in 1968 and thereafter worked continu-
ously in the certified bargaining unit. The single factor
underlying the Respondent Union's demand for a second
initiation fee was Copeland's 1972 transfer from shovel
operator to a Laborers' Union job classification. In other
words, the second initiation fee was not uniformly required
of unit employees, but was dependent upon the irregular
occurance of a transfer back into a Laborers' Union job
classification. Nor did the second initiation fee relate to
Copeland's earnings in his new job classification. Cope-
land's transfer back to the Laborers' Union classification
resulted in a decline in Copeland's wages from $4.25 an
hour as a shovel operator to $3.85 as a laborer.
For all of the aforesaid reasons, I find, as contended by
the General Counsel, that the Respondent Union violated
Section 8(b)(1)(A) and (2), and the Respondent Employer
violated Section 8(a)(3) and (1) of 'the Act. Kaiser Steel
Corporation, 205 NLRB No. 34. Also, as contended by the
General Counsel, I find that, in these circumstances, the
Respondent Union violated Section 8 (b)(1)(A) when its
agent, Sanders, refused to represent Copeland in grieving
over his discharge and to secure his reinstatement unless he
complied with the Respondent Union's membership
requirements.
This should end the matter but, in the event the Board
disagrees with my evaluation of the evidence, I shall
consider the alternative theory advanced by the General
Counsel, namely, that "Respondent union caused Respon-
dent Employer to discharge Copeland without first
informing Copeland that Respondent Union is of the
position that he had an initiation fee obligation to
Respondent Union . . . and without first affording
Copeland a reasonable opportunity to satisfy the payment
of such initiation fee" (par. 14 of the complaint). This
theory is based upon those cases which express a concern
that employees should not be deprived of their jobs
arbitrarily under union-security agreements; that, as a
minimum, an employee must be informed of his obliga-
tions under such an agreement "in order that the employee
12 Section 8(a)(3) and (b)(2) of the Act makes it an unfair labor practice
for an employer to discriminate , and for a union to cause or attempt to
cause an employer to discriminate , against an employee under a union-
security agreement for nonmembership in the union, if such membership
was denied or terminated for reasons other than the employee's failure "to
tender the periodic dues and initiation fees uniformly required as a condition
of acquiring or retaining membership [emphasis supplied]." I note that by
demanding another "initiation fee" the Respondent Union clearly
indicated it was treating Copeland as a new employee rather than an
employee who had allowed his membership in the Union to lapse.
Accordingly, this is not a situation involving a "reinstatement fee" imposed
upon a former union member who is entering or reentering the represented
unit. See Food Machinery and Chemical Corp., 99 NLRB 1430, 1431-32.
451
may take whatever action is necessary to protect his job
tenure." 13 I am of the opinion that the Respondent Union
met this minimum obligation.
Copeland knew of the contractual union-security agree-
ment and, more specifically, knew that because of this
agreement he was obligated to pay an initiation fee to the
Respondent Union as a condition of employment when he
was recalled from layoff into a Laborers' Union work
classification. There is no evidence that an agent of the
Respondent Union either by word or conduct indicated
that the Respondent Union was no longer administering
the union-security agreement in this manner. To the
contrary, Copeland observed the notice posted for several
weeks on the bulletin board at the Company, reserved for
the Respondent Union (as well as the other unions) which
advised Copeland, by name, to report to the Company's
personnel office and sign a checkoff authorization for the
Respondent Union's initiation fee. And, on or about May
27, to protect his job Copeland went to the Company's
personnel office and signed such a checkoff authoriza-
tion.14 For these reasons, I find that Copeland at all times
material was clearly informed of his obligation under the
union-security agreement and that the evidence does not
preponderate in favor of a showing that the Respondent
Union acted in derogation of its fiduciary obligation
toward Copeland. But I am convinced, assuming the
legality of the second initiation fee charged Copeland by
the Respondent Union, that the Respondent Employer
violated Section 8(a)(3) and (I) of the Act when it
discharged Copeland for failing to pay this fee. For it is
undisputed that Copeland on or about May 27, for the
purpose of protecting his job, executed a checkoff form
authorizing the Respondent Employer to check off the
Laborers' Union initiation fee. This checkoff was never
implemented by the Respondent Employer.
Although the cases cited at footnote 13, supra, involve
instances where unions requested employee terminations
and the relevant Board and court opinions speak of the
fiduciary duty of unions to treat employees fairly in the
application of union-security contracts, there is no reason
why the same principle is not equally applicable to
employers in the enforcement of such contracts. The
requirement of fair dealing vis-a-vis employees covered by
union shop contracts is not found in the words of the Act
but, as shown by the cited case , has been engrafted by
Board and court decisions. The same equitable decisions
that warrant imposing such a requirement on unions also
warrant its imposition on employers. So far as Copeland is
concerned, it is immaterial whether his discharge resulted
from the arbitrary action of the Respondent Union or the
13 N.L.R.B. v. Hotel, Motel and Club Employees' Union, Local 568,
[Philadelphia Sheraton Corp.], 320 F.2d 254, 258 (C.A. 3, 1963); Internation-
al Union of Electrical, Radio and Machine Workers, Frigidaire Local 801
[General Motors Corp.] v. N.L.R.B., 307 F.2d 679, 683-684 (C.A.D.C.,
1962); N.L.R.B. v. International Woodworkers of America, Local 13-433
[Ralph L Smith Lumber Co.], 264 F.2d 649, 657-658 (C.A. 9, 1959);
N. L. R. B. v. Local 182, International Brotherhood of Teamsters [Associated
Transport, Inc.], 401 F.2d 509, 510 (C.A. 2, 1968); N.L.R.B. v. Aluminum
Workers, International Union, Local 135 [Metalware Corp.], 230 F.2d 515,
520 (C.A. 7, 1956).
14 There is no evidence or contention that the Respondent Union was
notified that Copeland had executed such a checkoff.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Employer . The license to terminate his
employment was provided by the union-security contract
and he was entitled to protection against its arbitrary use
by either of the contracting parties . Here the whole record
evinces a good-faith effort on the part of Copeland to
tender his initiation fee. In fact , he arranged with the
Respondent Employer to transmit the initiation fee to the
Laborers ' Union by executing a checkoff authorization' but
the Respondent Employer , for an unexplained reason,
failed to implement this authorization . "The [Respondent
Employer's ] action in this regard is not excused by the fact
that through its agent 's carelessness or error, it was
unaware that the [checkoff ] was in its possession ." Local
1908, United Transport Union (Cottrell Bus Service Inc.), 199
NLRB No. 126. In these circumstances, even if the
Respondents could lawfully compel Copeland to pay the
second initiation fee, I find that the Respondent Employer,
by discharging Copeland because he was not a member of
the Respondent Union , violated Section 8(a)(3) and (1) of
the Act . Cf. McDowell Mfg. Co., Division of Alco Standard
Corp., 198 NLRB No. 187.
Upon the basis of the foregoing findings of fact and the
entire record , I make the following:
CONCLUSIONS OF LAW
1. Kaiser Steel Corporation, the Respondent Employer,
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Laborers' International Union of North America,
Local No. 1184, the Respondent Union, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By discharging Jerry Lynn Copeland on August 31,
1972, the Respondent Employer has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
4. By causing the Respondent Employer to discharge
Jerry Lynn Copeland, the Respondent Union has engaged
in unfair labor practices within the meaning of Section
8(b)(2) and (1)(A) of the Act.
5. By notifying Jerry Lynn Copeland that the with-
drawal of its objection to Copeland's employment with the
Respondent Employer was conditioned upon the payment
by Copeland to the Respondent Union of an unlawful
initiation fee, the Respondent Union has engaged in unfair
labor practices within the meaning of Section 8(bXl)(A)
of the Act.
6. The aforesaid unfair labor practices are unf ' abor
practices affecting commerce within the meaning 01-
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents violated Section 8(a)(3)
13 In this regard I note that , but for Copeland 's discharge , he would have
been promoted during the normal course of business on September 11, 1972,
back to the position he held immediately before his layoff.
16 1 also note that the Union did not show or give a copy of the letter to
Copeland (see Local 595, International Association of Bridge, Structural and
Ornamental Iron Workers, AFL (R. Clinton Construction Co. ), 109 NLRB
73. On the other hand , the record establishes that the Respondent Union, in
effect , clearly notified Copeland and it was understood by Copeland that
the Union had withdrawn its objection to his employment The fault with
and (1) and 8(b)(2) and (1)(A) of the Act, I shall
recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
As I have found that the Respondent Union caused the
Respondent Employer to unlawfully discharge Jerry Lynn
Copeland , I shall recommend that Respondent Union be
ordered to notify Respondent Employer, in writing, with
copies to Copeland, that it has no objection to his
employment or to his reinstatement . I shall also recom-
mend that the Respondent Employer be ordered to offer
Copeland immediate and full reinstatement to his former
position or, if that is not available, to a substantially
equivalent one, without prejudice to his seniority or other
rights and privileges.15
I shall further recommend that Respondent Union and
Respondent Employer be ordered jointly and severally to
make Copeland whole for any loss of earnings he may have
suffered as a result of the discrimination against him by
payment to him of the amount he normally would have
earned from the date of his discharge to the dates set forth
hereafter, less net earnings, to which shall be added interest
at the rate of 6 percent per annum, in accordance with the
formula set forth in F. W, Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716. In
the case of the Union, its backpay liability shall terminate
5 days after it notifies the Respondent Employer and
Copeland that it has no objection to his reinstatement, as
provided above. In the case of Respondent Employer, its
backpay liability shall terminate on the date that Copeland
is offered reinstatement . I do not regard the Respondent
Union's letter of September 11 as being sufficient to toll its
backpay liability inasmuch as the letter was conditioned
upon Copeland meeting an unlawful condition, the
payment of the unlawful second initiation fee. Neither the
Respondent Union nor the Respondent Employer can
require Copeland to forfeit his statutory rights as a
condition of employment.16
Having found that the $100 initiation fee paid by
Copeland to the Respondent Union on September 5 was
directly related to the requirement that Copeland pay an
unlawful second initiation fee as a conditio p of employ-
ment, I shall recommend that the Respondent Union
restore the status quo by reimbursing Copeland with this
sum of money to which shall be added interest at the rate
of 6 percent per annum.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 17
A. Respondent, Kaiser Steel Corporation, Eagle Moun-
the Respondent Union's conduct was that it did not withdraw the unlawful
condition it had attached to Copeland's continued employment.
17 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions, and Order , and all objections thereto shall
be deemed waived for all purposes.
KAISER STEEL CORPORATION 453
tain, California, its officers, agents, successors and assigns,
shall:
1. Cease and desist from:
(a) Invoking article 3 as contained in the contract of
September 16, 1970, or as contained in any future contracts
with the Building and Construction Trades Council of
Riverside and San Bernardino Counties, AFL-CIO, to
discharge or discriminate against any employee who has
once satisfied the union membership requirement of the
union-security clause of said contract, by requiring the
payment of an initiation fee to another labor organization
because he has been transferred from one job to another
within the unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the National Labor Relations
Act, as amended.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Jerry Lynn Copeland immediate and full
reinstatement to his former position or, if that no longer
exists, to a substantially equivalent one, without prejudice
to his seniority or other rights and privileges.
(b) Jointly and severally with Respondent, Laborers'
International Union of North America, Local No. 1184,
make Jerry Lynn Copeland whole for any loss of pay by
reason of his discharge on August 31, 1972, in the manner
stated in the section of the Decision entitled "The
Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other data relevant
to compliance with paragraphs (a) and (b) above.
(d) Post at its Eagle Mountain, California, facility copies
of the attached notice marked "Appendix A." 18 Copies of
Appendix A to be furnished by the Regional Director for
Region 21, shall, after being duly signed by the Company's
representative, be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(e) Upon being furnished the same by the Regional
Director, post the notice marked "Appendix B" in the
same manner as Appendix A.
(f) Notify the Regional Director for Region 21, in
writing , within 20 days from the date of this Order, what
steps it has taken to comply herewith.
B. Respondent, Laborers' International Union of
North America, Local No. 1184, its officers, representa-
tives, and agents, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Kaiser Steel Corpora-
tion to discharge or discriminate against any employee
under article 3, as contained in the contract of September
16, 1970, or as contained in any future contract between
the Building and Construction Trades Council of Riverside
and San Bernardino Counties, AFL-CIO, and Kaiser Steel
Corporation, for nonmembership in Respondent Laborers'
International Union of North America, Local No. 1184,
because an employee, who has once satisfied the union
membership requirement pursuant to the union-security
clause of said contract, has not paid an initiation fee to it
when he has been transferred from one job to another; and
from notifying employees that their continued employment
at Kaiser Steel Corporation is conditioned upon paying the
aforesaid initiation fee.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the National Labor Relations
Act, as amended.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Return to Jerry Lynn Copeland the $100 initiation fee
paid by him on September 5, 1972, to which shall be added
interest at the rate of 6 percent per annum.
(b) Notify Respondent Kaiser Steel Corporation, with a
copy to Jerry Lynn Copeland, that it withdraws its
objection to its employing Jerry Lynn Copeland and will
not oppose his reinstatement.
(c) Jointly and severally with Respondent Kaiser Steel
Corporation make whole Jerry Lynn Copeland for any loss
of earnings suffered by reason of his discharge on August
31, 1972, in the manner set forth in the section of the
Decision entitled "The Remedy."
(d) Post in its offices and meeting halls, copies of the
attached notice marked "Appendix B."19 Appendix B, to
be furnished by the Regional Director for Region 21, shall,
after being duly signed by Respondent Laborers' official
representative, be posted by it immediately upon receipt
thereof and be maintained and caused to be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken by
Respondent Laborers and its agents to insure that such
notices are not altered, defaced, or covered by any other
material.
(e) Forward to the said Regional Director signed copies
of Appendix B for posting by Kaiser Steel Corporation at
its Eagle Mountain, California, facility for 60 consecutive
days in places where notices to employees are customarily
posted.
(f) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
Is In the event that the Board's Order is enforced by a Judgment of a "Posted Pursuant to _a Judgment of the United States Court of Appeals
United States Court of Appeals , the words in the notice reading "Posted by Enforcing an Order of the National Labor Relations Board."
Order of the National Labor Relations Board" shall be changed to read 19 See In. 18.