Local 98D, Int'l Union of Operating Engineers

National Labor Relations Board - Board Decisions

Jan 3, 1966

156 N.L.R.B. 545 (N.L.R.B. 1966)

LOCAL 98D, INT'L UNION OF OPERATING ENGINEERS 545
per hour.' However, the printshop employees, with two exceptions,
receive from $2.50 to $3.50 per hour. They are not only higher paid
than virtually all other nonsupervisory employees, but in addition
many of the printshop employees receive higher wage rates than super-
visors in other departments.
In these circumstances, we are satisfied that the printshop employ-
ees are a functionally distinct departmental group constituting an
appropriate bargaining unit .2
Accordingly, we find that the following employees of the Employer
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act :
All printshop employees engaged in letterpress presswork on verti-
cals, Kluges, Heidelbergs, horizontals, and platen presses; engaged in
typesetting operations, including hand composition, operating Lud-
lows, and Linotype machines; operating papercutters; and engaged in
proofreading; 3 but excluding all other employees.
[Text of Direction of Election omitted from publication.]
1 The only exceptions, are the cutting department where the wage rate ranges from
$2 to $2.60 per hour , and the assembly department where the range is $1 30 to $2 35
per hour. Four of the five nonsupervisory employees in the cutting department, how-
'ever , receive $2 40 per hour , or less
2 J L. Hudson Company, 103 NLRB 1378.
3 The Joint Petitioners took no position on the unit placement of the proofreader
Since he does most of his-work in the printshop and since he is on the payroll of Cal-
Sample Printers , Inc., we shall also include him in the unit.
Local 98D, International Union of Operating Engineers, AFL-
CIO (Construction Field Surveys, Inc.) and Marcus B. Dunn.
Case No. 1-CB-956. January 3,1966
DECISION AND ORDER
On August 17, 1965, Trial Examiner Horace A. Ruckel issued his
Decision in the above-entitled proceeding, finding that the Respond-
-ent had not engaged in^ the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
'Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Decision and a,brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
'delegated its powers in connection with this case to a three-member
panel ['Chairman McCulloch and Members Brown and Zagoria].
156 NLRB No. 57. '
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations only to the extent consistent herewith.
The complaint alleged that the Respondent Union unlawfully
caused the Employer to discharge Marcus B. Dunn because of his
nonmembership in the Respondent Union. The Employer is engaged
in land surveying and similar engineering activities over some 11
miles of highway in Massachusetts. In March 1963, the Employer
and the Respondent Union entered into a contract covering the Em-
ployer's transitmen and rodmen, and requiring, as a condition of
employment, that such employees join the Respondent Union after
31 days of employment. Paul E. MeWade, International Representa-
tive for Region 1, International Union of Operating Engineers, AFL-
CIO, testified that he was one of the "union representatives connected
with the consummation of the agreement," that he has "actively been
one of their representatives in connection with the operation of the
contract in the Boston area," and that "I am an International Repre-
sentative and any place we have jurisdiction, that is my work."
During the spring and summer of 1963, McWade and Kenneth Wright,
the president and business manager of the Respondent Union, pre-
pared two notices informing employees of their union obligations and
telling them how such obligations might be satisfied, and arranged
for copies of these notices to be distributed up and down the highway
to the Employer's approximately 140 employees.'
Dunn was hired as a transitman on March 2, 1964. The Employer's
office manager, Shapiro, in accordance with his practice with all new
employees, told Dunn at the time he was hired that employees in the
unit were represented by "the Union" and that after 31 days they
were subject to becoming members; he did not, however, specifically
mention the name of the Respondent Union. About May 1, Don-
nelly, an employee of the Employer and a job steward for Local 4E,
International Union of Operating Engineers, AFL-CIO, which rep-
resented certain undisclosed classifications of the Employer's employ-
ees, gave Dunn the address of Local 4. The nexte day, Dunn, after
telling Parker, the Employer's field supervisor, that he had thought
it over and preferred to join the union and stay with the Employer,
went to Local 4's office, where a clerk accepted Dunn's application, but
refused his offered $10 payment, saying that "the Union" would con-
1 The Trial Examiner's finding that these notices were distributed in May 1964, while
Dunn was employed by the Employer, is not supported by the record.
LOCAL 98D, INT'L UNION OF OPERATING ENGINEERS 547
tact him. The record shows that Dunn made another trip to that
office about 2 weeks later for the purpose of paying his union dues,
but there is no evidence as to what took place on that occasion.
By letter dated June 25 McWade demanded that the Employer dis-
charge Dunn because of his failure to pay either his initiation fee or
periodic dues, as required by provisions of the collective-bargaining
agreement. By letter dated July 1, the Employer communicated this
information to Dunn and informed him that he would be terminated
on July 3 at the end of the work day. On July 2, Shapiro told Dunn
that unless he got squared away with "the Union" within the pre-
scribed period of 7 days after the date of the letter 2 he would be
automatically discharged. Dunn thereupon again went to Local 4's
office, but was told by the girl in charge that no one else was there, so
Dunn left. On the next day, Friday, July 3, Dunn returned to Local
4's office for the fourth time. He asked to see McWade, who was not
there, but he did see Ryan, Local 4's business manager, and showed
Ryan the Employer's letter of July 1. Ryan told Dunn that he
should get in touch with Kenneth Wright, business manager of the
Respondent Union, and gave him Wright's telephone number. On
Monday, July 6, Dunn reported for work, and worked from 7 to 8 :30
a.m., but was then replaced. Shapiro testified that later in the day
on July 6, McWade told Shapiro that he would do his best to get
Dunn reinstated at "the meeting which followed the next day";
Shapiro thereupon communicated this information to Dunn, and gave
him the telephone number of Local 98 in Springfield. Dunn told
Shapiro that he had enough money to pay his initiation fee and back
dues, "whatever it was," whereupon Shapiro told him that he could
telephone "the Union in Springfield" and find out the amount of his
indebtedness, that he should report the following evening at 7:30 at
"the Union Hall" with his money, and that he would then be allowed
to join "the Union" and return to work. At or about the prescribed
time, Dunn went, for the fifth time, to Local 4's meeting place. When
he arrived, a meeting of the steering committee of Local 98 was going
on, at which Ryan, Local 4's business manager, was present. On this
occasion , Dunn finally saw McWade, who told Dunn he was surprised
that Dunn, a union man of so many years, had been doing a lot of
talking about the Union. Dunn replied that he had been talking
"about" not "against," the Union. Neither Dunn's termination nor
reinstatement was mentioned.
The Trial Examiner recommended that the complaint be dismissed
on the following grounds: (1) Although no one representing the
Respondent Union approached Dunn to tell him how much his dues
2 The record indicates that the letter referred to was Mcwade' s letter of June 25,
demanding Dunn' s discharge.
217-919-66-vol. 156-36
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and initiation fees were, or where to go to pay them, Dunn knew these
facts as (a) Dunn's employer, the representative of a sister local, and
various fellow employees told him what his union obligations were,
and (b) in view of the systematic attempts of the Respondent Union
to so notify all the Employer's employees by handbills and Dunn's
failure to deny knowing the amount of his initiation fees and dues,
the handbills did in fact come to Dunn's attention; (2) Dunn at no
time had any intention of applying for membership in the Respondent
Union, but whether he had or not he did not apply and tender his dues
and initiation fees as required by the provisions of the valid union
shop contract; (3) because of Dunn's failure to apply, the Respond-
ent Union was not required to inform him. what his membership
obligations were, but could lawfully demand his discharge by the
Employer. We do not agree.
Contrary to the Trial Examiner, the evidence fails to show that
Dunn was informed by the Respondent Union, the Employer, or any-
one else what his union shop obligations were or the identity of the
union to whom he owed such obligations. Thus, the notices to, employ-
ees on the job were circulated by the Respondent Union before Dunn
was employed, and there is no evidence that these notices came to
Dunn's attention. Neither the Employer nor his fellow employees
told Dunn the name of the Respondent Union, or the amount owed.
On the contrary, the record shows that Dunn was apprised, for the
first time, of the name of the Respondent Union on July 3, the effec-
tive date of his discharge. Nor do we agree that Dunn had no inten-
tion of complying with the union-shop provision of the contract. On
the contrary, he informed field supervisor Parker that he intended to
do so, and made four trips to the office of Local 4 where he applied
for membership and unsuccessfully attempted to pay his dues, under
the mistaken impression that it was this Union to which his union
shop obligation accrued. In these circumstances, it is clear that Dunn's
failure to comply was not due to any lack of intention or diligence on
his part, but was due to his lack of knowledge.
In Philadelphia Sheraton Corporation, 136 NLRB 888, enfd. 320
F. 2d 254 (C.A. 3), the Board found that when a union requires an
employee to perfect membership under a lawful union-security agree-
ment, it has a duty to notify the employee, at some point, as to what
his membership obligations are, and that to permit a union lawfully
to request the discharge of an employee for failure to meet his dues-
paying obligations, where the provisions relating to such obligations
are not disclosed to the employee, would.be "grossly inequitable and
contrary to the spirit of the Act." As Dunn was not notified what
his obligations were and to whom they were owed, we find that the
Respondent Union's demand, communicated by McWade acting as its
LOCAL 9 SD, INT'L UNION OF OPERATING ENGINEERS 549
agent, that Dunn be discharged caused the Employer to discrimina-
torily discharge Dunn in violation of Section 8(a) (3), and therefore
violated Section 8(b) (2) and 8(b) (1) (A) of the Act.
Accordingly, the Board adopts the Trial Examiner's conclusions
of law Nos. 1 and 2, but not No. 3, and hereby makes the following
additional :
CONCLUSIONS OF LAW
3. By causing the Employer discriminatorily to discharge Marcus
B. Dunn in violation of Section 8(a) (3), the Respondent Union has
engaged in and is engaging in unfair labor practices within the mean-
ing of Sections 8(b) (2) and (1) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
within the meaning of Section 2 ( 6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged' in and is engaging
in certain unfair labor practices, we shall order that it cease and desist
therefrom and take certain affirmative action usually ordered in such
cases, as provided in the Order below, which action we find, necessary
to remedy and remove the effects of the unfair labor practices and to
effectuate the policies of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Local 98D, International Union of Operating Engineers,
AFL-CIO, its officers, agents, and representatives, shall :
1. Cease and desist from : _
(a) Causing or attempting to cause Construction Field Surveys,
Inc., to discriminate against Marcus B. Dunn or any other of its
employees, in violation of Section 8(a) (3) of the Act.
(b) In any like or related manner restraining or coercing employ-
ees of Construction Field Surveys, Inc. in the exercise of the rights
guaranteed in Section 7 of the Act, except- to the extent that such
rights may be affected by an. agreement requiring membership in a
labor organization as a condition of employment in accordance with
Section 8(a) (3) of the Act, as modified by the Labor Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Notify Construction Field Surveys, Inc., in writing, that it has
no objection to the reinstatement of Marcus B. Dunn, and furnish
the said employee with a copy of such notification.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement
upon application in accordance with the Selective Service Act and
the Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces.
(c) Make whole Marcus B. Dunn for any loss of pay which he may
have suffered as a result of the discrimination against him by payment
to him of a sum of money equal to that which he would normally have
earned from the date of the discrimination to the date of the Respond-
ent's notice to Construction Field Surveys, Inc., as provided in the
foregoing paragraph, less his net earnings during said period (Cros-
sett Lumber Company, 8 NLRB 440), said backpay to be computed
on a quarterly basis in the manner established by the Board in
F. W. Woolevorth Company, 90 NLRB 289, together with interest
thereon at the rate of 6 percent per annum Isis Plumbing d Heating
Co., 138 NLRB 716.
(d) Post at its office at Springfield, Massachusetts, and at all other
places where it customarily posts notices to its members copies of the
attached notice marked "Appendix A." 3 Copies of said notice, to
be furnished by the Regional Director for Region 1, shall, after being
signed by a representative of the Respondent, be posted immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where the Re-
spondent customarily posts notices to its members. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Deliver to the Regional Director for Region 1 signed copies of
the said notice in sufficient number to be posted by Construction Field
Surveys, Inc., the Employer being willing.
(f) Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX A
NOTICE TO ALL MEMBERS OF LOCAL 98D , INTERNATIONAL
UNION OF OPERATING ENGINEERS , AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT cause or atteempt to cause Construction Field
Surveys, Inc., to discriminate against Marcus B. Dunn or any
other of its employees in violation of Section 8(a) (3) of the Act.
LOCAL 98D, INT'L UNION OF OPERATING ENGINEERS 551
WE WILL NOT in any like or related manner restrain or coerce
employees of Construction Field Surveys, Inc., in the exercise of
their rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
ment in accordance with Section 8(a) (3) of the Act, as modified
by the Labor Management Reporting and Disclosure Act of 1959.
WE WILL notify Construction Field Surveys, Inc., in writing,
that we have no objection to its reinstatement of Marcus B. Dunn,
and we shall furnish the said employee with a copy of such
notification.
WE WILL make whole Marcus B. Dunn for any loss of pay he
may have suffered by reason of the discrimination against him.
LOCAL 98D, INTERNATIONAL UNION or
OPERATING ENGINEERS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
NOTE.-We will notify the above-named employee if presently serv-
ing in the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Boston Five Cents Savings Bank Building, 24 School Street,
Boston, Massachusetts, Telephone No. 223-3300, if they have any
question concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case came on to be heard before Trial Examiner Horace A. Ruckel at
Springfield , Massachusetts, on October 13, 1964, and February 1, 1965, upon a
complaint issued on August 21, 1964, by the Regional Director for Region 1
(Boston, Massachusetts ) on August 21, 1964, pursuant to a charge filed on July 8,
1964, by Marcus Dunn, an individual , against Local 98D, International Union of
Operating Engineers , AFL-CIO, herein called Respondent . The complaint alleged
in substance that from about June 21 , 1964, Respondent committed unfair labor
practices in violation of Section 8 (b) (1) (A) of the National Labor Relations Act,
by restraining and coercing employees of Construction Field Surveys, Inc., herein
called the Employer or the Company, by compelling the Employer to discriminate
in regard to terms or conditions of hire against Dunn because of his nonmembership
in Respondent Union. Respondent 's answer denied the commission of any unfair
labor practices. The charge stated that Dunn had made tender of his membership
fee and dues which Respondent refused. This was not alleged in the complaint.
At the hearing on October 13, 1964, upon the conclusion of the General Counsel's
case, I dismissed the complaint on motion by Respondent on the ground that a
prima facie case had not been presented . The Board on November 23, 1964, by its
552 DECISIONS OF N-ATIONAL LABOR RELATIONS BOARD
associate executive secretary, issued an 'order, remanding the proceeding to the
Regional Director for further hearing in the light of the Board's decision in the
Philadelphia Sheraton Corporation case.' I conducted this hearing at Boston,
Massachusetts, on February 1, 1965.
Upon the entire record in the case, and from my observations of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Construction Field Surveys, Inc., is a Massachusetts corporation with its principal
office and place of business in Boston , where it is engaged in the furnishing of land
surveying and engineering services to the Massachusetts Turnpike Authority, an
instrumentality of the Commonwealth of Massachusetts . It performs services for
which it receives more than $ 50,000 annually from the Massachusetts Turnpike
Authority which in turn is engaged in the construction of an extension of the Massa-
chusetts Turnpike , a link in commerce between the several States.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization admitting employees of the Company to
membership.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The discharge of Marcus Dunn
The Company and Respondent Union in March 1963, entered into a contract
covering transitmen and rodmen in its employ, and containing a union shop provi-
sion requiring, as a condition of continued employment, that employees join the
Union after 31 days of employment. The validity of this provision is conceded.
The Company hired Dunn as a transitman on March 2, 1964. Gale Shapiro, the
Company's office manager in charge of personnel, testified that upon hiring him he
told him, as he did all new employees covered by the contract, that the Company
had a union-shop contract with the Union and that he would have to join the Union
after 31 days to hold his job. Harry Parker, the Company's field supervisor to
whom newly employed transitmen including Dunn were sent for assignment of
duties, testified, like Shapiro, that he told such employees that they would have to
join the Union at the termination of the 31-day grace period if they wished to con-
tinue on the job.
Respondent's operations are spread out over 11 miles of highway, with no general
gathering place where the Union might make contact with the employees. More-
over, the contract does not provide that the Company notify the Union of the names
of new employees, nor is this done in practice, with occasional exceptions. To over-
come these impediments to personal contacts with the employees Kenneth Wright,
president and business manager of the Union, in May 1964 prepared about 500
copies of the following letter for distribution among the Company's employees:
INTERNATIONAL UNION OF OPERATING ENGINEERS
LOCAL UNION NO. 98
AFL-CIO
Room 31, 26 Willow Street
Springfield 3, Massachusetts
Tel. REpublic 4-3053
NOTICE
To all Employees on Massachusetts Turnpike who are employed as Field
Survey Engineers in the classification of "Chief of Party," "Transit Man," or
"Rodman":
Your initiation fee and first months dues are due and payable to the Operat-
ing Engineers Local No. 98-D at Springfield, Mass.
The amount due is forty dollars ($40.00) and must be paid in no less than
the following amounts: -
May 7, 1963----------------------------------------- $20.00
May 14, 1963---------------------------------------- 10.00
May 21, 1963----------------------------------------- 10.00
- This may be mailed direct to this office or paid to International Representa-
tive Paul McWade or Business Agent James Mullen.
1136 NLRB 888.
LOCAL 98D, INT'L UNION OF OPERATING ENGINEERS 553
Copies of this letter were given to Paul McWade, international representative, and
McWade gave them to the two or three stewards on the job who distributed them
among the approximately 140 employees up and down the highway . Shortly after-
ward , McWade himself prepared and had distributed by the same method copies of
the following notice:
NOTICE
TO
ALL EMPLOYEES OF CONSTRUCTION FIELD SURVEYS, INC.
(FORMERLY NEW ENGLAND SURVEY SERVICE, INC.)
PLEASE READ CAREFULLY
Your Employer has a contract with Local # 98, I.U.O .E. which provides
that all Employees covered by the Contract shall become and remain Members
of the Union 31 days after the 11th day of March , 1963, or 31 days after your
employment date, whichever applies.
In May a circular letter was passed out instructing you how to make your
payments to the Union . If you have not taken advantage of the arrangements
provided for in the letter, the total amount is now overdue and must be paid in
full by June 20th without fail-to the following extent-$40.00 Initiation Fee
which includes the first month's dues of $4 .00 and $4.00 per month for each
month thereafter in which you have worked under the Contract.
As per the Contract , and in fairness to the dues paying Union Members, all
Employees who do not comply with the above instructions shall have their
names submitted to the Company for discharge.
Brothers James McGowan and John Holad have been appointed as Shop
Stewards to cover the Turnpike Job. You may make your payments to them
or mail them directly to Local # 98, 26 Willow Street , Springfield , Massachusetts.
Union Meetings are held the fourth (4th) Thursday of each month at the
VFW Hall, Boylston St ., Brookline . Matters affecting your job and plans to do
something about the sub-standard wages and benefits, which exist for Field
Engineers because of a lack of determination and unity , will be discussed at
these Meetings . George won ' t be there to do it for you . If you want it done
you be there , or please don 't complain about what the Union hasn 't done or can't
do.
Dunn admitted while testifying that he knew that he had an obligation to join the
Union, derived from conversations with fellow employees as well as with his employer.
Nevertheless , in his 126 days of employment from March 2, through July 6, 1964,
he admittedly did not sign an application for membership or approach any repre-
sentative of the Union to seek membership , or to inquire about the Union. On June 25,
after being employed a little less than 4 months, a union representative notified the
Company by letter that Dunn and seven other employees had failed to pay either their
initiation fee or dues and requested their discharge in accordance with the terms of
the contract . On July 1, the Company communicated this information to Dunn by
letter, and on July 2, Shapiro spoke to Dunn personally and told him that unless he
got squared away with the Union within the prescribed period of 7 days after the date
of the letter he would be "automatically " discharged.
On July 6, Dunn, not having made any contact with the Union , was replaced on
the job by another employee. Later the same day Shapiro talked with McWade on
the telephone and asked if it was possible to get Dunn "straightened out," and McWade
said that it was and that Dunn should get in touch with the Union. He gave Shapiro
Local 98's telephone number and office address. Shapiro conveyed this information
to Dunn that evening and told him that he was supposed to go to the union hall the
following day and pay his dues, and that he would be put back to work immediately.
He asked Dunn if he had enough money to cover his dues and Dunn, according to
his own testimony , said that he had enough to pay whatever they were.
The record further shows that previous to this, on Friday, July 3, Dunn came to
the office of Walter Ryan, business manager of Local No. 4, International Union of
Operating Engineers , which represented certain classifications of employees of the
Company, and showed him the Company's letter of July 1. Ryan told him that he
should get in touch with Kenneth Wright, business manager of Local 98D, at once,
and gave Dunn Wright 's telephone number. In spite of Ryan's good offices and of
the Company 's prodding , Dunn made no effort to get in touch with Wright, or any
other representative of the Union , and for reasons which he did not explain , instead
of going to the office of Respondent Union as arranged by Shapiro , he went with a
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
friend to the place of meeting of Local 4. Fortuitously, McWade, International rep-
resentative, was present. Dunn testified that he saw McWade but admitted that even
then he did not speak to him about his dues, or about joining the Union, or what he
had to do to be put back to work. Asked why he did not seize this opportunity to
speak to McWade he testified that he "did not have an opportunity." I do not find
this credible.
Conclusions
Prior to his discharge, Dunn knew not only that he was obligated to join the
Union after 31 days of employment , but he knew where the Union 's office was located
and to whom he was to pay his initiation fee and dues . He did not deny knowing
the amount of his initiation fees and dues . In the absence of such a denial, and in
view of the systematic attempts of the Union to notify all the Company 's employees by
handbills, up and down the highway , of the exact amount of these obligations and
where, when , and in what manner they could be discharged , I find that Dunn did in
fact have this knowledge.
The General Counsel's whole contention with regard to the issue in this case is
epitomized in the following question put to Dunn, and his answers:
Q. [By Mr. MCIVERNY.] During your time of employment with Construction
Field Surveys and prior to the time you were notified of your discharge , did any-
one from Local 98 or 98D approach you or tell you how much the dues were?
A. No.
Q. During the same period did anyone from Local 98 or 98D approach you
and tell you where to go to pay the dues?
A. No.
Q. In this same period did anyone from Local 98 or 98D approach you and
tell you how much the initiation fees were?
A. No.
Q. Or where to go to pay these fees?
A. No.
All this is literally true. No one representing the Union approached Dunn
to tell him how much the dues or initiation fees were , or where to go to pay them.
Only Dunn's employer and the representative of a sister local did so . The distribution
of the two circulars in May, which I have concluded did come to Dunn's attention,
and which did convey this information , falls short of "approaching " and "telling."
For that matter , no one representing the Union approached Dunn and told him that
he was obligated to join the Union after 31 days , only his employer , the representative
of a sister local, and various fellow employees who themselves had joined the Union.
It is by directing attention to these naked , isolated, facts that the General Counsel
seeks to invoke the applicability of the Board 's decision in the Philadelphia Sheraton
case. There , the Board held with respect to the employees whose discharge had been
demanded by the bargaining representative for failure to tender their dues and initia-
tion fees , that the union had a duty to notify the employees as to what their dues-
paying obligations were. The Union had the names and addresses of each employee.
Each employee applied for membership in the Union and paid initiation and certain
reinstatement fees. In each case the Union accepted the application . Each employee
came to the Union for educational and training meetings and each voluntarily made
a tender of dues prior to his discharge . The Union , although the dues had been ten-
dered, forced the discharge of the employees.
The factual situation is quite different here. Dunn did not at any time approach
the Union, or any representative , to obtain an application for membership , to make
application for membership , to tender his initiation fee or dues , to inquire what they
were, or for any purpose whatever . The obligations of the Union which the Board
speaks of in the Philadelphia Sheraton case were all obligations arising, like most
obligations , out of the relationship of the parties . The relationship there was one
between the Union and employees who were applicants for membership , if not full
pledged members. They had made a tenure of their dues and done all that they could
to comply with the union shop provision of the contract.
No such relationship existed here . There was no nexus between Dunn and the
Union, because Dunn had not done what he was required to do before any relation-
ship could arise, namely apply for membership . Philadelphia Sheraton is no author-
ity for what the General Counsel seems to contend here, that a union is obligated to
seek out all new employees to ascertain if they intend to apply for membership within
30 days after employment . On the contrary , I believe the first move is with the
employee If he does not apply, or seek to apply , for membership as the contract
here provides that he do within 31 days after employment , he is eligible for discharge
if it is demanded by the Union. It is only when he does apply that any question of
CLIFTON PRECISION PRODUCTS DIVISION, ETC . 555
dues or initiation fee arises. The Union then, as the Board held in Philadelphia
Sheraton, is bound to inform him fully as to his membership obligations. The failure
of an employee to apply for membership may simply mean that he is not interested
in working for more than 31 days; or having had a free ride for that period, he may
believe he will thereafter be overlooked if he does not file an application, and ride
free for a longer period. Dunn did so for nearly 3 months after the initial escape
period.2
This was the posture of this matter when I granted Respondent's motion to dismiss
for lack of a prima facie case at the end of the General Counsel's case. Dunn, it was
apparent, had never approached the Union. On remand, Respondent adduced the
evidence related above as to the circularization of the Company's employees along the
11-mile worksite. Though not in my opinion required as a defense against a charge
of violation of the Act, in view of Dunn's failure to approach the Union, it neverthe-
less did undertake to inform every eligible employee of his obligations under the con-
tract, specifically the amount of the dues, the manner in which they might be paid, and
the proper time and place of payment. In the absence of any comprehensive list of
employees and their residence, I know of no more reasonable or effective way of
conveying this information.
In my opinion Dunn did not want to join the Union, and played hide-and-seek with
it, much easier to do here than in a factory or in the Philadelphia Sheraton hotel.
Even on the last day of his employment, when he has been advised by his employer
that arrangements have been made with McWade, the Union's International repre-
sentative, to have him reinstated in his job if he will go to the Union's hall the follow-
ing night, he nevertheless deliberately stays away. Even when on the same night he
by chance encounters McWade in another place, he conspicuously avoids asking him
what arrangements he has made for him with Local 98D, and what his financial
obligations are to that organization.
I conclude and find that Dunn at no time had any real intention of applying for
membership in the Union. Whether he had or not he did not apply and tender his
membership dues and initiation fees as required by the provisions of a valid union
shop contract. By reason of this failure Respondent Union could lawfully request
his discharge by the Company.
CONCLUSIONS OF LAW
1. Respondent Local 98D, International Union of Operating Engineers, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
.2. Construction Field Surveys, Inc., is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
3. Respondent Union has not engaged in any unfair labor practices in violation
of Section 8(b)(1)(A) of the Act.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
"Dunn testified that as late as May 1, 2 months after his employment, he was not
certain whether he would stay in the community and on his job, and a day or so later
asked Shapiro If the Company was going to send him'back to a project he had formerly
worked on. Shapiro told him he could go back to the other project but if he- stayed
with the Company he would have to join the Union. The following day he Informed
Parker that he had intended to stay with the Company and join the Union.
Clifton Precision Products Division , Litton Precision 'Products,
Inc. and Local 137, International Union of Electrical , Radio &
Machine Workers, AFL-CIO. Case No. 4-CA-3431. January 4,
1966
DECISION AND ORDER
On September 9, 1965, Trial Examiner Sidney J. Barban issued his
Decision in the above-entitled proceeding, finding that the Respond-
156 NLRB No. 59.