Local No. 749 Intl. Brthd. of Boilermakers

National Labor Relations Board - Board Decisions

Aug 4, 1971

192 N.L.R.B. 502 (N.L.R.B. 1971)

502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 749, International Brotherhood of
Boilermakers, Iron. Ship' - Builders, Blacksmiths,
Forgers & Helpers, AFL-CIO (California-
Blowpipe & Steel Co., Inc.)1 and Sequoia Employ-
ers Council
Local Union No. 749, ' International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers & Helpers, AFL-CIO (California Blowpipe
& Steel Co., Inc.) and Douglas C. Martin. Cases
20-CB-2041 and 20-CB-2253
August 4, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On January 28, 1971, Trial Examiner James R.
Hemingway issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of Section 8(b)(5), (2), and (1)(A)
of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Decision and a
supporting brief,2 the Charging Parties and Interve-
nors filed an answering brief, and the General
Counsel filed limited exceptions and a brief.
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.
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 briefs, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions and recommenda-
tions of the Trial Examiner with the modifications set
forth below.
As alleged in the complaint, we find that the
Respondent violated Section 8(b)(5), (2), and (1)(A)
of the Act in charging employee Louis Daniels an
excessive reinstatement fee and requesting the Com-
pany to discharge Daniels for failure to pay said
excessive fee. We need not pass upon the Trial
1 California Blowpipe & Steel Co., Inc ., was permitted to intervene as a
Party to the Contract.
2 The Respondent excepts, inter aha, to the Trial Examiner's denial to
grant Respondent's motion to strike paragraph IX(b) of the complaint. We
find the Respondent's motion to be without went and it is hereby denied.
Atlas Boot Mfg. Co., 116 NLRB 565; H. N. Thayer Co., 99 NLRB 112;
192 NLRB No. 58
Examiner's alternative finding in, this connection
(TXD, section V, C, 1, 2nd para. and 2, ist par^a).
The General Counsel takes limited-exception `to
apparent dicta by the Trial Examiner wherein he
states:
When Martin asked, "Why so much?" Runyan
replied, again according to Martin; that' it was
because everyone else had'signed' up. The figure of
$300 and Runyan's reply strike me as unusual and
difficult to understand. Runyan was not called as a"'
witness to correct the testimony, but if Runyan
made some such statement, Yam inclined to
believe that he was either not fully, or not
accurately, quoted.3
We find no basis in the record upon which the Trial
Examiner could base such a supposition since the
testimony was totally undenied and uncontradicted;
accordingly, we disavow the Trial Examiner's dicta.
We amend the Trial Examiner's Conclusions of
Law as follows:
By substituting for his Conclusion 4 the following:
4. By attempting to cause the Employer to
terminate the employment of Louis Daniels for
failure to pay a reinstatement fee which was
excessive under all the circumstances, Respondent
engaged in unfair labor practices within the
meaning of Section 8(b)(5), (2), and (1)(A) of the
Act.
By changing Trial Examiner's Conclusion of Law 4
to 5 and modifying it to read as follows:
5. By attempting to cause the Employer to
terminate the employment of Douglas C. Martin,
Jeffrey Roberts, and Michael Roberts for reasons
other than nonpayment of initiation fees or dues
uniformly required as a condition of continued
employment under its lawful union shop agree-
ment, Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of
Section 8(b)(2) and (1)(A) of the Act .4
Renumber Trial Examiner's Conclusion of Law 5 as
6.
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 Trial Examiner, and hereby orders
that the Respondent, Local Union No. 749, Interna-
tional Brotherhood of Boilermakers, Iron Ship Build-
ers, Blacksmiths, Forgers & Helpers, AFL-CIO,
Kohler Co., 220 F.2D 3 (C.A. 7).
3 Trial Examiner's Decision, sec. V, B, 3d para.
4 There is no direct evidence in the record that Respondent requested
the Employer to discharge Jeffrey Roberts but there is conclusive evidence
that Respondent threatened that it would seek his discharge.
LOCAL NO. 749 INTL. BRTHD . OF BOILERMAKERS 503
Escalon, California, its officers, agents, and represent-
atives, shall take the action' set forth in the Trial
Examine>'s recommended' Order.
TRIAL EXAMINER'S DECISION
I. STATEMENT OF TIIE CASE
JAMES R. HEMINGWAY, Trial Examiner: The charge in
Case 20-CB-2041 filed on June-16, 1969, by August
Sommerfeld of -the- Sequoia Employer Council, alleges a
violation of Section 8(b)(2)-and(5) of the National' Labor
Relations Act, as amended, 29 U.S.C. Sec. 151, et seq.,
herein called' the Act. the-charge in Case 20-.CB=2253, filed
on May 25,- 1976; by Douglas C. Martin, an individual,
alleges a violation of Section 8(b)(1)(A) and (2) of the Act.
The cases were consolidated by order of the - Regional
Director and a,' consolidated . complaint, and notice of
hearing was issued-on August 26, 1970. An amendment to
the complaint was issued and served on the parties on
September 25, =1970. Respondent, on October 8, 1970, filed
an answer to the complaint as amended in which it denied
the alleged unfair labor practices.
Pursuant to notice, a hearing was held before 'me at
Stockton, California,, on November 5 and 6, 1970, and at
San Francisco, California, on November 20, 1970. At the
opening of the hearing, the Employer, California Blowpipe
&, Steel Co., Inc., moved to intervene because-the issues
concerned the terms of its agreement with the Respondent
and decision herein could affect those provisions. The
motion was granted. The General Counsel moved to amend
the amended complaint in respect to the expiration date of
the contract involved, byconforming,the description of the
appropriate, unit to that, stated in the contract, and by
deleting the names of certain employees allegedly affected
by the alleged unfair labor practices and to add additional
ones.
if. ISSUES
business in-Escalon, California,- where it is -engaged in the
fabrication and erection of steel products.
During the year preceding the issuance of the complaint,
the Employer sold and provided goods and services valued
in excess of $50,000 directly, to customers located outside
the State of California. During the same period of time, the
Employer purchased and received atits-facility in Escalon,
California, goods and products valued in excess of $50,000
directly from suppliers located outside the State of
California.
I find that the Employer is engaged in, commerce within
the meaning of the Act and that it will effectuate the
policies of the Act to assert jurisdiction.
IV. RESPONDENT LABOR ORGANIZATION AND ITS
AGREEMENT
The, Respondent, a labor organization within the
meaning of 'the Act, has a collective-bargaining agreement
with the Employer, for the term from May 16, 1969,1 to
May 20, 1971, which agreement contains a provision
requiring all 'employees who are present members of
Respondent to maintain their membership in good
standing; all other employees are required, after the 30th
day following `the beginning of their employment or the
effective date , of the agreement , whichever is later, to
become and remain members of Respondent as a condition
of continued employment. There follows it clause reading:
(D) In the application of Paragraphs (B) and (C) above,
when the Employer is notified by the Union in writing that
an employee is delinquent in the payment of Union dues,
or, within the time required by the Union, hasfailed to make
proper application and pay^the initiation fee required, the
Employer shall immediately terminate such employee. Such
employee shall not be reemployed by the Employer during
the life of this agreement, until notified by the Union that
the employee is a member in good standing in the Union, or
such employee presents a work clearance from the Union to
the Employer. [Emphasis supplied.]
1. Whether or not Respondent required, pursuant to a
union-shop -contract, that certain dues-delinquent employ-
ees pay reinstatement I fees which were excessive under all
the circumstances.
2. Whether or not Respondent attempted to cause the
Employer to terminate the employment of an employee for
nonpayment of an excessive reinstatement fee.
3. Whether or not' Respondent attempted to cause the
Employer to `terminate the employment of-three employees
for' reasons ' other than the failure of such employees to
tender initiation fees and periodic dues.
III. THE BUSINESS OF THE EMPLOYER
California Blowpipe & Steel Co., Inc., herein called the
Employer, is a California corporation with a place of
t This is the effective date shown at the top of the agreement in
evidence. The agreement in° evidence is not signed or dated , although a
letter of understanding attached to the agreement is dated March ' 24, 1970.
But this-, letter is signed by Respondent's representatives only. In an
affidavit made on, an undisclosed date in 1970 by Ralph Runyan,
secretary-treasurer of the Respondent , in connection with a suit between
Runyan and the Employer in the United States District Court for the
V. THE UNFAIR LABOR PRACTICES
A. The Issue of an Excessive Reinstatement Fee
The complaint alleges that "from or about December 16,
1968, and continuing thereafter, Respondent has required
dues-delinquent employees ... in the unit. '.. covered by
the collective bargaining agreements.... to pay,, as a
condition of employment in said unit, fees which have been
excessive under all the circumstances . . ." and this is
alleged to be a violation of Section 8(b)(5) of the Act.
1. Constitution and bylaws; practice thereunder
The constitution of Respondent's parent organization
which was in effect between 1965 and August 1969, which
Eastern District of California, Runyan avers that the collective -bargaining
agreement was entered into on March 24, 1970, effective May 20, 1969,"
for a term running to May 20, 1971. If this is not an error, the agreement is
made retroactive in effect from March 1970 back to May 1969. The effect
of such retroactive agreement upon the legality of the union shop provision
was not mentioned in the complaint, was not raised at the hearing, and was
not discussed in the briefs of the parties. I therefore ignore it.
504 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD
period embraces the time of certain events, herein related,
provides:
ARTICLE XXVIII
INITIATION FEES AND DUES
Initiation Fees
Section 1. The' initiation fee shall be determined "by
the Local Lodge but shall be not less than Fifteen
Dollars ($15)' and in no event shallibe more'than Four
Hundred Dollars ($400).2 Arrangements for payment of
initiation fees by 'installments may' be made in
accordance with approved Local Lodge By-Laws or an
applicable collective bargaining agreement. Any fees
paid to apply on initiation fees shall be forfeited in the
event payment for such initiation is not completed.
The International President shall have the authority
to- grant a special dispensation reducing initiation and
reinstatement fees. for special cases, where organizing
activities are in progress or are contemplated, for such
period of time as may be determined by him.
Any applicant for membership who presents accepta-
ble evidence of current good standing, in some other
labor organization "with which the International Broth-
erhood has a;reciprocal agreement may be admitted to
membership upon the` payment to the _ International
Brotherhood of one 'month's dues, and upon executing
the Brotherhood's application form.
Dues
Section 2 .' All monthly dues shall be payable on the
first day of each month and should bepaid monthly in
advance...
ARTICLE XXIX
SUSPENSION AND REINSTATEMENTS
Suspension for Non-Payments
Section _ 1. Whenever any member allows his monthly
dues, death benefit contributions, assessments, or fines
to become two (2) calendar months in arrears, he shall
'be:automatically suspended from all rights, privileges,
and benefits of the International Brotherhood. No
monthly dues shall be accepted until all financial
obligations owed to the Brotherhood or any subordi-
nate body, such as field dues, district, lodge dues, fines
or assessments have been,paid.
Reinstatement of Members Suspended for Non-
Payments
Section 2. In order for such member to be recorded
2 The language of art. XXVIII here quoted was taken from the
constitution which became effective in mid-August 1969, since the excerpt
of the earlier constitution in evidence did not include article XXVIII
except as to the last few lines of it, which are immaterial here. The amount
of $400 was presumably an increase from $300 provided in the earlier
constitution.
3 This amount is $400 in the 1969 constitution.
again in good standing,,-he shall-,personally make
application for reinstatement with the Lodge having=
jurisdiction where he is working, and shall be obligated
to pay, in addition to his "financial delinquencies, a'
reinstatement, fee in an. amount determined by the
subordinate body, such fee, however, to be not less than
Twenty-Five ($25) and not more than Three Hundred
Dollars ($300).3 Arrangements for the payment of
reinstatement fees , by installments may be - made in
accordance with approved Local Lodge By-Laws or an
applicable collective bargaining agreement. Any fees,,
paid to apply on reinstatement fees shall be forfeited in
the event payment for such reinstatement,, is not--
completed. The application for-reinstatement' and the
member's _ reinstatement receipt shall, show the full
amount collected and shall bear the, full name and full .
signature of the applicant. ,
Another section covers the procedure for reinstatement of
members expelled, or suspended for- reasons other than
nonpayment of dues.
The bylaws of Respondent, approved March,. 1, -1966,
which continued in effect until December, 29,,1969, so far as
is applicable here, provide for an initiation fee of $200.for, ,
mechanics and $150 fee for helpers,, and a reinstatement, fee
of $300 for mechanics and $250 for helpers.4 ;
If a member, became delinquent in his dues on and' after,
the beginning of the third month, the Respondent usually,
would notify the delinquent member; that he was, delin
quent; when that suspended member would seek to become
current, the Respondent's secretary-treasurer would inform
him that he would have topay a $250 reinstatement fee plus ,
his back dues as a condition of continued employment. The
delinquent member was given 3 months' in- which, to pay this
sum, but his delinquent dues would not be accepted ixntil
payment of the readmission fee. If the -delinquent dues
payer failed to pay in full within the 3-month'-period, the ,
Respondent would make a written demand on the
Employer that such employee be discharged pursuant to
the union-shop clause of the collective- bargaining agree-
ment.
2. Specific instances, of Respondent's requirement
of payment of reinstatement fee and rites of pay
of employees
Ernest Benge, hired by the Employer as a helper about 5-
1/2 years before the date of the hearing, became a member
of Respondent but fell in arrears in the payment of his dues
in -late 1968. The' Responden't's secretary-treasurer, Ralph
Runyan, told Benge that he would have to pay the $250
reinstatement fee. The` alternative was discharge. Benge
paid this required, sum, in ten weekly. installments of $25
each between January 4 and March 8, 1969. During that
time, Benge's take-home pay was about $128 a-week 5
William Haslam, hired as a helper in January 1968,
4 The General Counsel makes no contention , with regard to the
reasonableness of the reinstatement fee required ; under the later bylaws,
approved in December 1969.
5 His gross pay cannot be ascertained,because no.evidence was adduced
to show any'rates of pay in effect before -May 16, 1969, the effective date of
the collective-bargaining agreement introduced into evidence.
LOCAL NO. 749 INTL. BRTHD. OF BOILERMAKERS
joined the Respondent about a month later and paid his
$$.50 monthly dues until 'March or April 1969, when he
failed to pay for 2 months and thus became delinquent in
the payment of his dues. His check for 3 months' dues was
returned to him by the Respondent with a letter notifying
him that he was delinquent . Haslam consulted with Runyan
about the matter and Runyan told him the reinstatement
fee was $250. Haslam borrowed that amount from a relative
and paid it in a lump sum in August 1970. At the time of the
hearing, he still owed his relative $175 on that loan. At the
time he became delinquent , Haslam's wage rate was about
$3.766 an hour, or gross of $151.20 per 40-hour week. There
is no evidence asto his take-home pay.
Louis Daniels was employed by the Employer as a
welder's helper for about 6 years at the time of the hearing.
He became- a member of the Respondent and paid his dues,
but not regularly,each month. In the latter part of 1968, he
became delinquent in the payment of his dues.? When, he
mailed the;Respondent a money order for 3 months' dues in
late December 19b8,-the Respondent returned the payment
with a. statement ,that,it would be necessary for him to be
reinstated and .that that should be done at once . Daniels
returned the money order, in, late January 1969 with a
request that it be applied as part payment on his
reinstatement fee. Respondent acknowledged receipt of
part payment thereof. Daniels paid another $75 in late
January. On an, undisclosed date thereafter, Daniels
protested that he `had paid a sufficient "fine" and that the
money he had paid, in excess of $49.50, should be applied
toward his dues through February. On March 3, 1969,
Respondent returned to Daniels a money order for $8.50,
apparently tendered by` Daniels as his March dues, with a
statement that , since, he was not a member in good
standing, his reinstatement fee would first have to be paid
and that this would 'have to be done by April 13 or
Respondent would notify the Employer to terminate
Daniels.-Later, again on an undisclosed date, since Daniels
did not date his lette'r`s, Daniels wrote the Respondent a
letter of resignation in which he announced that he would
"continue to tender dues as long as they are legally required
of me." On April 21, 1969, Respondent wrote to the
Employer requesting the latter to terminate Daniels.
3. Other circumstances requiring consideration
(a) Wage rates
The wage rates set under the collective-bargaining
agreement going into effect on May 16, 1969, which was
later than the incidents involving Daniels, Haslam, and
Benge, ranged from $3 to $4.71 for nonsupervisory
employees. The fates of journeymen were not on a
progressive scale (as were those of helpers) but varied only
by the shift on which a man worked. The high rate of $4.71
was for a layerout working on the third shift. The first shift
layerout received $4.41. Helpers, such as Haslam and
,e.Haslam testified that his rate was $3.70. The collective-bargaining
agreement indicates that the rate for his job in August 1969 was $3.76 an
hour if he was on the third shift . The second shift rate for him would have
been $3.66 and that for the first shift $3.50. At that time there was no rate
of $3.70,
7 According to a letter from Respondent to Daniels, the latter owed
505
Benge, were hired after May 16, 1969, at $3 an hour on the
first shift (with a differential of 16 cents for the second shift
and 26 cents for the third) and progressed at 6-month
intervals with increases in four stages , before they reached
the top of their classification , the top being $3.50 to $3.76,
depending on their shift. The evidence does not show what
rates of pay were prior to May 16,1969 , when Haslam and
Benge had to pay their $250 reinstatement fees. However,
the rates shown above under the collective-bargaining
agreement going into effect on May 16 , 1969, were the ones
in effect within the Section 10(b) period, and therefore the
question of whether or not the reinstatement fee was
excessive8 will be considered as of that time.
(b) Comparison o} reinstatement fees by other unions in
same industry
The General Counsel introduced in evidence an exhibit
making a comparison of initiation fees, reinstatement' fees,
and rates of pay set by Respondent and four sister locals
and by several other unions at shops in the Northern
California area along with rates of pay for employees
represented by such unions, and the Respondent , in turn,
introduced an exhibit giving similar comparative informa-
tion for journeymen 's wage rates for crafts and employees
in shipyards and/or field construction for other unions. The
Respondent's exhibit contains no rate for a classification of
helper and no rate for any employees working in industrial
plants. All the rates shownon,Respondent's exhibitexceed
the starting wage rate at 'the Employer's plant -by at least
$1.50 (for `carpenters working in shipyards) and by as much
as $6.415 an hour (for steamfitters in building and
construction trades). In the Respondent's exhibit, initiation
fees are shown to range from one craft union to another
from $20 to $500 (the latter being for plumbers and
pipefitters, whose wage rate is $7.22 an hour, and for
steamfitters working in the building and construction
trades, whose wage rate is $9.415 an hour). It is interesting
to note that on the Respondent's exhibit, which is based on
selected unions in different crafts, whose fees are more
favorable to Respondent's contentions, not one union is
shown to charge a higher fee for reinstatement than for
original initiation. Thetwounions with the highest initiation
fee, the Plumbers & Pipefitters and the Steamfitters, each
with a $500 initiation fee, charge for reinstatement 'only $1
and back dues; and, in the case of'the Steamfitters, the $1 is
charged only after 3 . months' delinquency. Operating
Engineers, with an initiation " fee of $100 plus $40
International tax, charges $35 plus delinquent dues for
reinstatement. The painters, with an initiation fee of $200,
charges a reinstatement fee of $200, but only after 6
months' delinquency. The Teamsters and Iron Workers
each have a reinstatement fee the same as the initiation fee,
but apparently (so far as appears from the exhibit they do
not require the payment of back dues in addition.
The General Counsel's exhibit, except for Respondent
dues for September, October, November, and December when, on
December 31,1968, Daniels mailed in 3 months' dues.
8 I use the past tense, since Respondent, in its bylaws going into effect
on December 29, 1969, adopted a sliding scale of fees similar to that of its
sister locals.
506 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
and its sister .locals, who represent employees not only in
shops but also doing field construction work at a higher rate
of, pay, is limited to unions representing shop workers
whose rates of pay are comparable to those of the higher
paid employees of the, Employer. In five unions, other than
Respondent and its sister locals, the reinstatement fee is
identicallto., the initiation fee, with no provision for payment
of back dues. Two others require a reinstatement feeequal
to their initiation fee but only after 6 months' delinquency.
These two also require ;payment of -back dues. Only one
sister ', local of Respondent (Local 94) in the Northern
California '. area has a flat- reinstatement fee $175 for
journeymen and .$150 for helpers) and this is exactly the
same as its initiation fee. Three other sister locals (6,10, and
513) are shown to have a sliding scale of reinstatement fees
progressing in size from.3 ,months to more than 6 months,
with the fee after 6 months being equal to the original
initiation fee ($200 for journeymen and .$150 for helpers).
Assuming themonthly dues to be roughly the same, as those
in effect, for Respondent during, the same period, the
reinstatement fee would, on the sliding scale, .work out to
approximately an amount equal to delinquent dues, current
dues, and -4,, moderate penalty. This contrasts with
Respondent's, requirement of $250 for helpers or $300 for
journeymen after a delinquency of only 2 months, all of
which sum could be viewed as a penalty at that time. Even
if part of -the sum exacted by Respondent could be said to
be partially equivalent to monthly dues, the excess,.would
far,exceed the ,dues; and,-.it will be noted,, Respondent gave
only 3, months in which: to pay the full amount of- the
reinstatement fee as compared to 6 months for sister locals.
There is no indication that Respondent would accept, a
reinstatement, fee at all after the end, of 3 months, and -all
payments made on account in that 3-month period would
be forfeited, if not fully paid in=that .time, according to
Respondents bylaws, , which incorporate the provision, of
the constitution of its International.
4. Conclusions as to alleged violation of
Section 8(b)(5)
The Act provides in Section 8(b):
It shall be, an unfair labor practice for a labor
organization or its agent ... (5) to require of employees
covered by an agreement authorized finder 'subsection
(a)(3) the payment, as a condition precedent to
becoming a member of such organization, of a fee in an
amount which the-Board finds excessive or discrimina-
tory under all the, circumstances. In making such a
finding, the, Board shall consider, among other-relevant
factors, the practices and customs of labor organiza-
tions in the particular industry, and the wages currently
paid to the employees affected...
In the instant case . the General Counsel contends only
9 Food Machinery & Chemical Corp., 99 NLRB 1430; Metal Workers'
Alliance Incorporated (TRW Metals Division, TRW Inc.), 172 NLRB No.
34.
10 Ferro Stamping and Manufacturing Co., 93 NLRB 1459; Local 153,
International Unity, United Automobile, Aircraft and Agricultural Implement
Workers of America, 99 NLRB 1419; Food Machinery & Chemical Corp., 99
NLRB 1430; Local 173, International Molders & Foundry Workers Union of
North America, 120 NLRB 170; Motion Picture Screen Cartoonists, Local
839, 121 NLRB 1192; Local 611, International Brotherhood of Teamsters,
that -the Respondent's reinstatement fee is excessive-not
that it is discriminatory. Although the Act does not speak
expressly of reinstatement fees, it is now, established that a
reinstatement fee is merely An initiation fee` charged to, a
particular class of persons-those who, had previously
joined but are not currently members .9 Accordingly,
reinstatement fees are within the intendment of Section
8(b)(5) -of lthe Act.
This case is not the first case where a .violation of Section
8(b)(5) has been considered, but it is the first case f. have
come upon in which the issue raised did not embrace,, in
part at, least, the "discriminatory,alternative of Section
8(b)(5) of the Act.10 In General Lotngshoremen's'Association,
Local Union No. 1419, AFL-CIO, 186 NLRB No. 94, the
Trial Examiner, whose decision the- Board ^adopted; after
finding that the initiation fee of $1000, admittedlydesigned
to -discourage the entrance of casuals into the ^ stevedoring
industry, was discriminatory,'commented that the case was
tried"onthe basis that the $1000 initiation-fee Was excessive,
but concluded that initiation fees adopted fromdiserimina-
'tor motives "must in the nature of things be excessive" 11
,and therefore found that the $1000'1nitiation°lee' was
excessive as well as discriminatory.
In the case at hand it is impossible to find'excessivetiess
derivatively from a discriminatory motive because itMwas
conceded here that there was no such motive. Hence, if the
reinstatement fee here was excessive, it must be sor
determined on.Brie ground that itis disproportionate to the
emlployees''pay and disproportionate to^the fees charged by
. "other' unions in the industry
The Charging Parties in their brief assert that'paying;the
helper's` fee, of $250 in installments of $25 a Week for 10
weeks' meant paying from 20 to 25 percent of the
employees' weekly take-home pay. R'f'his, of course, would
depend on the classification and rate of pay of employees,
and take-home pay' may ,well vary from 'employee.to
employee._On the basis of gross pay,of helpers, the'$25' a
week would represent ,18 or 20,percent of Weekly gross
earnings; for 10 weeks. But the `same percentage would be
paid on the original initiation fee of $150 which could also
be paid at the rate of $25 a week, albeit for 6 weeks instead
of 10. Yet it is not claimed that the original initiation fee is
excessive. On a total basis, the $250 fee would, represent
roughly 'l weeks' take-home pay (as compared to about 1-
1/4 weeks' pay for the initiation- fee) but, paid on the
installment basis, this does not shock one's conscience.
A shocked conscience is, however, not a reliable gauge of
excessiveness . The line, between a lawful fee and one that is
excessive under Section 8(b)(5) of the Act is not apt to be-,)(
fine one, and to split `the shadowy zone on the degree of
easonable manshock' to the conscience of the^proverbial r '
would 'b e like measuring equity by the ` lengtf of the
chancellor's foot. In comparison with a $100 fee, a fee of
Chauffeurs, Warehousemen, & Helpers -of, America (St. Louis Bakery
Employers Labor Council et al.), 125 NLRB 1392; Television° &, Radio
Broadcasting Studio Employees, Local 804, 135 NLRB 632; New York Local
11, NABET, 164 NLRB , 242; General Longshore Workers,, International
Longshoremen 's Association, Local Union No. 1419, AFL-CIO (New Orleans
Steamship Association). 186 NLRB No. 94.,
11 See also New York Local 11, NABET; 164 NLR8,242, and Television
& Radio Broadcasting Studio Employees, Local 804, 135 NLRB 632. '
LOCAL NO. 749 INTL. BRTHD . OF BOILERMAKERS
$1000 might seem -clearly excessive. However, if you
increase the fee ` $1` at a time from $100, the fee could be
considered excessive before the sum actually, reaches $1000.
But it would not be easy- to say at what point it became
excessive . What might be excessive in one union might not
be excessive in another. This is why the size of the fee must
be measured 'm the light of all the circumstances, for in one
case a $250 fee might be deemed excessive where it would
not under different circumstances. Thus, we may be
assisted in 'f"ixing the figure which will be - considered
excessive by making a comparison with practices in the
same ' industry; by other labor organizations under like
circumstances, one 'of which would be comparable wage
rates. Three of Respondent's sister locals computed the
reinstatement fee on a sliding scale of 3 to 6 months, which
amounted to $50 plus the amount of dues that would have
accrued in that period of time. A fourth sister local (there
being "only five in the area including ' the Respondent)
charged no more for reinstatement than for initiation. In
each-case, the rates-of pay of the represented employees was
the same as those at the Employer's shop. The result is that
the percentage of take-home' pay required 'of employees
represented by those sister locals as a reinstatement fee was
much lower than that exacted by the Respondent.
Pertinent also to a resolution of the problem is the
question of why the Respondent needed $100 more for
reinstatement 'of a delinquent dues 'payer - than for his
original initiation. The Respondent offered no explanation
for the larger sum.12 Indeed, it put no witnesses on the
stand at ,all. Although slow payment of "dues may be'
assumed to result in inconvenience through loss of needed
funds, no showing is made that a figure based on a,
reasonable, amount of interest would not have met the
needs of Respondent. Sister locals of Respondent apparent-
ly found no such figure as $250 necessary to meet their
needs. Accordingly; it was incumbent on the Respondent to
prove a good reason for requiring more. This it failed to do.'
Before the General Counsel amended it, the complaint
referred to the alleged 'excessive fee as a punitive fee.
Section 8(b)(5) of the Act does not concern itself with
penalties ' as such, and the word "punitive" is not-used in
Section 8(b)(5) at all. The propriety of a fine or penalty for
nonpayment of- dues is an internal union matter-except
where membership is a condition of employment, as it is
here, and where employment is sought to be terminated for
nonpayment as it was here. Here, the reinstatement fee was
used 44 form'of penalty. When a penalty is used to'limit
an employee's right to his job, such form of penalty is one
of the several circumstances to be considered in det_ermin--
ingwhetk►er or not the fee is excessive
Here, then the circumstances to be considerednclude (1)
the penal nature of the higher reinstatement fee, ,(2) the fact
that $250 is equal-to something close to 2 weeks' take-home
pay for at least' some of the employees,13 a higher
percentage -of take-home pay than is required by other
12 See Teamsters Local 611 (St. Louis Bakery Employers Labor Council),
supra, fn.10.
13 At a starting rate of $3 an hour it would be more than 2 weeks' gross
pay. -
14 Only a layerout and a boilermaker-on the second or third shift at the
Employer's plant earned more than $4.35, according to the collective-
bargaining agreement in evidence . The 1970 rates ranged from $3.90 to
507
unions in the area, including sister locals of Respondent,
and (3) the fact that, in the industry here involved and in,
the general area of Respondent's location, nine other
unions , including four sister locals of Respondent, have
lower reinstatement fees than Respondent and have
reinstatement fees no higher than their original initiation
fees although their members' rates of pay are the sameas
here. The figures for initiation and reinstatement fees listed
in Respondent's exhibit, heretofore mentioned, which
covered eight unrelated unions, I find are not apposite since
they are, for unions in different industries than the
manufacturing industry here involved and in industries
where rates of pay are considerably higher than those paid
by the Employer. However, even those figures do not give
full support to Respondent's position, for only one union is
there shown to charge a higher reinstatement fee than the
Respondent-that is the Iron Workers, whose reinstate-,
ment fee is - $300, the same as its initiation fee, but ;whose
journeyman rate of pay is almost 50 percent higher than the
Respondent's journeyman's rate at the Employer. Further-
more, the other seven unions listed on Respondent's exhibit
required reinstatement fees ranging from $1 plus delinquent
dues to $200- (for Painters), but She latter sum was due;only
after 6 months' delinquency, and the journeyman's-rate for
painters was $5.92per hour as compared with Respondent's
$4.35 (which presumably is an average rate, since the
journeymen's rates at-the Employer's plant in 1969, ranged
from'$3.70. to $4.71, according to the collective-bargaining
agreement in evidence, and more of the rates shown there
are lower than the $4.35 figure than they.are higher).14
In its brief, Respondent seeks to exclude from considera-,
Lion the disparity between.Respondent's initiation fee and
its reinstatement - fee by relying on - the decision in Food
Machinery & Chemical Corp., 99 NLRB 1430. In that case,
the Board held that a reinstatement fee that was in excess of
an initiation fee was not discriminatory.'However, in that
case, it had been - conceded at the outset that the
reinstatement fee of $60 as against an initiation fee of $30
was not excessive; so the Board' did not consider, the
question of excessiveness. It dealt only with the alternatiye
part of section 8(b)(5); so the only issue-before the Board
was -whether or not the $60 fee -was discriminatory. The,
Board found that it was not. If the question of discrimina-
tion were the only issue here, the result here might have
been the same as in that case. However, here the issue of
excessiveness of the,reinstatement fee was raised, and the,
possible discriminatory character of it was not . Hence,
neither the Food Machinery case nor other cases ' passing
only on an issue of discrimination can be considered
apposite here.15 -
Considering all the circumstances, then, I conclude and
find that Respondent's ,reinstatement fee -charged to
employees between December 16, 1968, ,the, date 6 months
before the date of the filing of the charge, and' December
29, 1969, the date on which . Respondent amended its
$4.96 for journeymen. Helpers still received $3 to $3.50.-
15 See also Local 173, International Molders & Foundry Workers Union of
North America, 121 NLRB 170; International Association of Machinists,
Precision Lodge No. 1600, 120 NLRB 1223 [where no violation of Section
8(b)(5) was involved-only Section 8(b)(l)(A) and (2)1; Metal Workers'
Alliance Incorporate4 173 NLRB No . 34 [also a case under Section
8(b)(1)(A) and (2)1.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bylaws to ,reduce its reinstatement fee to one comparable to
the reinstatement fees charged by the several sister locals,,
which used a sliding scale, was excessive under all the
circumstances, within the meaning of Section 8 (b)(5) of the
Act.16
B. Restraining or Coercing; Attempting To Cause
Discrimination
The complaint, as amended, alleges that , on several dates
in 1969 and 1970, Respondent attempted to cause the
Employer to discharge employees in violation of section
8(b)(2) and (1)(A) of the Act -that it attempted to cause the
discharge of Louis H. Daniels' because of his- failure and
refusal to pay the reinstatement fee which has herein been
found to be excessive and attempted to cause the discharge
of Douglas C. Martin -on April 28 , 1970, Jeffrey Roberts on'
September 17, 1970 , and, Michael -Roberts on October' 7,
1970,1or reasons other than their failure to tender initiation
fees and periodic dues.
The facts concerning Daniels have been related hereto-,
fore in connection with the excessive reinstatement fee.
Douglas Martin was - employed by the Employer as a
welder's helper in late February 1970 '. About a month later,
Ralph Runyan, Respondent's secrets y-treasurer , accom-
panied ' by Al King, a steward, approached Martin and
asked Martin if he would like to join the 'Union .- Martin
replied, laconically, "No." Runyan told him, according to
Martin (Runyan did not" testify): "I€ you don't join, you"
can't work here ." Martin replied, "I know." On a later
occasion,` Runyan returned , showed Martina paper ' (a
membership application ' blank) and asked if Martin was
ready to sign up. Martin again answered , "No," but added
that he would pay the Respondent's dues and initiation fee.
Runyan, according to' Martin, told Martin thatif "he did not
join then it would ' cost him $300. When Martin asked,
"Why so much?" Runyan replied,' again according to,
Martin, that it was because everyone else had signed up.
The figure of $300 and Runyan's reply strike me as unusual',
and` difficult to understand . Runyan was not called as' a
witness to correct the testimony, but if Runyan made some
such statement, - I am inclined to believe that he was either
not fully, or not accurately, quoted.
On April ' 28, 1970, the Respondent wrote -to the
Employer's president "asking that Martin be terminated
because "Mr.' Douglas - Martin has failed to comply, with
Rule 2, Paragraph `C of our existing ., .. Agreement "
Following the date of this demand,"Martin was summoned
to an office by an employer representative. When he
arrived, he found present Willie Oehrlein, the Employer's
plant ,supervisor, David Strituling, a representative of an
employers' council , and employee named Kuening, and Al
King, the Respondent's steward. Strimling told Martin that
this was the day he was supposed to join the Respondent,'
Martin had in his hand $170 which he offered King, who
asked Martin to, sign" an application for membership.
16 Aside from the question of excessiveness of the Respondent's
reinstatement , fee, under , all the circumstances of this case, it is not
suggested here that a reinstatement fee which is higher than an initiation
fee is, by virtue of that fact alone, excessive.
17 The application form contained a statement that the signer would
Martin replied that he "would not , sign an application fdr,,
membership 17 or take the oath but would ,beuwilling to;pay,
the money required by the Respondent . King refused to
take Martin's money unless Martin signed the,application.,
Jeffrey Roberts was hired by the Employer about August
1, 1970, as a welder's helper . Toward the end of that month,,
Runyan approached ,Roberts, told him his 30 -days were
almost , up, said that Roberts had to join ,,the 'Respondent',
and asked Roberts to sign some , papers. Roberts replied
that he was , willing to pay "the fees and initiation" but was,
not willing to sign papers or, take the Respondent's oath.
Roberts said that . if he changed his mind, he would let.
Runyan know. Two or three weeks later,, , Runyan
approached Roberts , again and commented that Roberts.
had not contacted him. Roberts told Runyan thathe had
said he would contact him if he changed his mind and_ he,
had not done so. Runyan asked if Roberts hid $80 with
him. Roberts said he,did not carry that amount around with,
him - t,hat ,he would give Runyan $50 at that time and $100
the next day. Roberts looked , at, the application, blank
Runyan carried with himand noticed the statement `thereon,
that the signer agreed to abide by , Respondents rules.
Runyan asked if Roberts , was going , to ,sign. Roberts' said,
"No," and Runyan lefttafterfremarking ,""Allright . I'll have,
to get you fired." Although the complaint,,as"amended at
the hearing,, alleges that Respondent requested the,
Employer to discharge Jeffrey Roberts on September " 17"
1970, Respondent's ^ answer had, ,before the amendment;
denied the paragraph to which Roberts' name was added.`
Respondent did not amend its answer to, include Roberts'
name in its denial. 3 conclude that there ' was no issue asto
the request for' Roberts' discharge.But if failure to amend
the answer was merely an oversight by''Respondent; it
would still not affect the result hereof because there is no
evidence that Roberts was,,inUct, discharged.
Michael Roberts was hired by the Employer" as a welder's
helper on about' August 28, 19016."', 'bout 30 day 's later,
Runyan, accompanied by, a steward , told Roerts that his
30 days , were up and `that he should join the" Respondent.
He handed Roberts an application form and a beneficiary
form and asked him to fill therq out. Roberts readthem'and'
then asked what would happen if he refused to, sgn.,
Runyan told- him that then he' would , be' ter inated:'
Roberts asked-what would happen if ' he tendered the"dues'
and initiation fee but refused to sign the forms . Runyan
answe'red' that "the lawyers" ha'd' told him not to take the
money if it was `offered under those circumstances because'
he would have no name, address , or social security number
to enter the fees under. Roberts' told Runyan he would'
think about the matter and 'notifyhim" by"August 30. Onll
that day, Roberts went to'anaoffice , presumably, Respon^
dent's,' but Runyan was not in .' Roberts ` left word with a,
clerk to tell Runyan he would not ysign the application but,
would 'send him a money order the next day. On October 1,t'
Roberts mailed Runyan a money order for, $25 as the first'
installment
-
on his initiation fee but again stated that `he'
would "not sign the union contract or take the oath."
..agree to abide by the laws of the International Brotherhood and .. .
subordinate body."
18 As previously stated, the initiation fee, was permitted by Respondent
to be paid in weekly installments of $25.
LOCAL NO. 749 INTL. BRTHD. OF BOILERMAKERS
Runyan returned the money order to Roberts with a letter
dated October 7, 1970, stating that he had told Roberts he
could' not accept his money until he had signed the
application for membership . On°the same date, October 7,
1970, Respondent wrote to the Employer a letter requesting
it to terminate Michael Roberts.'
C. Conclusions as to Attempting To Cause
- Discrimination
1. Daniels
It is alleged in the complaint that Respondent attempted
to cause theEmployer to discharge Daniels because of his
refusal to pay an excessive reinstatement fee, and this, it is
alleged, constituteda violation of Section 8(bX2) and (1)(A)
of the Act.. It may be conceded that Respondent had no
conscious intent to cause a discrimination against Daniels.
It was- seeking - to enforce payment of its reinstatement fee
according to its ,uniform , practice. But if it sought to cause
Daniels' discharge for nonpayment of a fine or assessment,
regardless of whether - ornot,this was its uniform practice,
Respondent would be found to have attempted to cause a
discrimination , for the Act authorizes unions to affect an
employee's employment status only for nonpayment of
initiation fee or periodic dues uniformly required.19
There is no contention that Respondent could not
suspend a member for nonpayment of dues and require him
to -pay - a reasonable readmission fee. Nor is it denied that
the ;Respondent had the right, under its union-shop
agreement, to request Daniels' discharge for failure to pay
dues, alone, regardless of whether or not he had offeredto
pay a reinstatement fee. I find , however, that, by failing to
requestv 'Daniels' discharge for nonpayment of dues -,alone,
as it could have done in January 1969, Respondent waived
any right to do this so far as the facts here are concerned. It
did not request the -Employer to, terminate Daniels until
April -21, 1969, -after it had learned that D els had refused
to pay his reinstatement fee. Meanwhile it refused to accept
any dues from Daniels, delinquent or otherwise, pending
payment of a reinstatement fee. When it finally did request
Daniels' discharge, it did so because Daniels had failed to
-pay areinstatement fee, which has herein been found to be
excessive under all the circumstances . However, the
excessiveness of the fee is really not of vital importance
here. Regardless of Respondent's right to a reinstatement
fee, Respondent's. collective-bargaining agreement gave it a
right to request the discharge , of an employee only for
nonpayment of his initiation fee or dues . The contract does
not authorize the Respondent to waive the default in
payment of dues and.-substitute as a condition of
employment nonpayment of, a, readmission fee, which, in
effect,- is a second initiation fee or penalty imposed for
nonpayment of :dues. If Respondent wishes to enforce -an
obligation to pay - a readmission fee, it must do so in the
same manner in which it would ,enforce the payment of a
fine or, assessment and not -by attempting to cause a
discriminatory discharge . I conclude and find, therefore,
is International Longshoremen 's & Warehousemen's Union 'Local 17, 172
-NLRB No, 227 (fine); Local 959, International Brotherhood of Teamsters,
etc. (RCA Service Company), 167 NLRB ,1042 (working dues regarded as an
assessment); peerless Tool & Engineering Co., Ill NLRB 853 (refusal to
509
that, by attempting to cause the Employer to discharge
Daniels for nonpayment of a second initiation fee (whether
excessive or not), Respondent violated Section 8(bX2) and
(1)(A) of the Act.
2. Martin and the two Roberts
It is clear that Respondent refused to accept payment of
initiation fees and dues from Martin and each of the
Roberts because they would not sign an application for
membership . Each offered payment but it was declined'by
the Respondent because they would not '' sign such
application blank. Even though the Respondent's collec-
tive-bargaining agreement conditioned employment on an
employee's becoming a member in good standing, this
could not be insisted on beyond the requirement of-tender
of periodic dues and the initiation fees uniformly required.
The law on this point has been settled since the. Board's
decision in Union Starch and Refining Co., 87 NLRB 779,
enfd. 186 F.2d 1008 (C.A. 7), cert. denied 342 U. S. 815. The
distinction between- voluntary, full membership and
compulsory membership limited to the payment of
initiation fees and dues is important when considered in the
light of the , decision in N.L.R.$. v. Allis-Chalmers
Manufacturing Co., 388 U.S. 175. If an employee signs a
membership application blank in which he agrees to be
bound to union rules, he is subjecting himself to possible
fines which could not be imposed on those who pay only
the initiation fees and dues which the Act permits to be
charged by a union as a condition of continued employ-
ment. The Act does not require that an - employee sign a
contract imposing on him obligations other than the duty to
pay initiation fee and dues.
In its letters requesting the -termination of Daniels,
Martin, and Michael -Roberts, which are in evidence,
Respondent gave, as the reason for its request for their
termination, only that each had "failed to comply with Rule
2, Paragraph `C' of our ... Agreement." This, does -not
accurately state the real reason for the request for their
termination, and the Employer, presumably knew the real
reason and refused to act on' - the Respondent's request.
Whether or not there has been a violation of Section 8(b)(2)
and (1)(A) depends on the real reason and not on merely
the stated reason . In this case, therefore, I make my
decision based on the reasons which I have hereinabbve
found to be the true ones motivating the Respondent.
Accordingly, I find that the Respondent, by requesting the
termination of employment of 'Daniels , Martin, Jeffrey
Roberts, and Michael Roberts, for the reasons found,
violated Section 8(b)(2) and (1XA).of the Act :: -
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in Section V,
above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several•States,and
take dues without payment of an assessment); Millwrights' Local 2232, 122
NLRB 300 (assessment); Tom's Monarch Laundry & Cleaning ' Company,
Inc.,, 161 NLRB 740, 746; John Deere Planter Workers of Deere & Company,
107 NLRB 1497 ; International Harvester Company, 95 NLRB 730.
510 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
VII. TI-IE REMEDY
I have found that the Respondent violated Section 8(b)(5)
of the Act in exacting a reinstatement fee which was
excessive under all-,the circumstances.' Accordingly, I shall
recommend that it cease and desist therefrom and that it
refund excess payments made to' it by its suspended
members , in the collective-bargaining. unit here involved
during the period from December 16, 194, to December
29, 1969, which includes the time beginning with the earliest
date under, the, limitation of Section 10(b) of the Act and
ending with a „,date M determined- by the, date when
Respondent adopted new by-laws reducing its reinstate-
ment fee. A question may be raised as to whether- the
"excess" ` should be that which exceeds Respondent's
original initiation fee,-of $150 for helpers` and $200 for
journeymen or that which exceeds the reinstatement fees
adopted on December- 29, 1969. Since no contention is
made that the initiation fee, itself, is excessive, I find it-more
reasonable 'here to accept 'that as also a readmission fee
which would- not be excessive, and I shall fashion the
remedy accordingly.
Employees William R_Haslain and Ernest J. Benge were
alleged in the complaint, to have been required to, pay,an
excessive reinsta tement fee. Although they were required to
pay, this feeas a condition of continued, employment, which
has been; found herein to be an illegal, condition, the
complaint did not allege, as to them, or, as to any other
except Daniels, a violation of Section 8(b)(2) of the Act by
requiring the payment of a readmission fee as a condition
of • continued ^ -employment. The complaint alleged only a
violation of Section 8(b)(5)- as to Haslam and Benge: For
this reason, I shall not recommend an order that
Respondent refund the entire $250 reinstatement fee to
each of them but, I -shall recommend an order that
Respondent' repay each of 'them (other than Daniels) only
the amount found to be excessive,'i.e. $100. This is the
appropriate reniedy not only for Haslam and -Benge but
also, for others', in ,the unit who were required to pay such
excessive amount.
Since^nthe Employer, did not, discharge Daniels, Martin,
Jeffrey Roberts,' or Michael Roberts, no reinstatement
remedy is, required. I shall therefore, merely recommend an
order that Respondent cease and desist from attempting to
cause the termination of those or any other employees of
the Employer for,any cause other than-the nonpayment of
initiation fees or periodic dues; and that Respondent return
to said Daniels any sum he may have been compelled by
Respondent,ta:pay on a readmission fee as a condition of
continued employment.
Upon th6,basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
'20 In the event no exceptions are filed a 's'provided by Section 102.46 of
the `Rules -and Regulations ofy the National Labor Relations Board,'the
findings, conclusions and recommended Order herein shall , as provided in
CONCLUSIONS , OF =LAW . , ,
1. The Employer is engaged in ,commerce within the
meaningof Section 2(6) and (7) of theAct.,
2., Respondent is a labor , organizatiot , , %Kithin the
meaning of Section 2(5) of the Act:
3. By requiring dues-delinquent members to pay a
reinstatement , fee which , was -,excessive.-under all the
circumstances , Respondent engaged in unfair labor
practices within the meaning of Section 8 (b)(5) of the Act.
4. By attempting to cause the Employer to terminate the
employment of Louis Daniels , Douglas C . Martin, Jeffrey
Roberts, and Michael Roberts for ,reasons , other than
nonpayment of initiation feesordues uniformly,required as
a condition of continued employment under its lawful
union-shop ' agreement, Respondent =has engaged in, and is
engaging in, unfair labor practices 'within the meaning .of
Section 8(b)(2) and '(1)(A) of the Act.. ' t r
5. The aforesaid unfair labor practices , are- unfair labor
'practices affecting commerce-within the meaning of Section
2(6) and (7) of the Act. -
Upon the foregoing findings of-fact,and conclusions,of
law, and upon the entire record in the case, and pursuant "to
Section 10(c) of the National Labor Relations, -Act,` as
amended , I hereby issue the following recommended: 20,
ORDER -
Respondent, Local Union-No., 749, -International, Broth-
erhood of Boilermakers, Iron Shopbuilders;-, Blacksmiths,
Forgers & Helpers, AFL-CIO, its officers; agents, r-and
representatives, shall:
I.^ Cease and desist from:
(a) Requiring of any employees covered by an,agreement,
authorized under Section 8(aX3) of the Act,' the payment,
as a condition precedent = to . reinstatement,,,as members. Of
such organization, of a fee in an amount which. hasp herein
been found to be excessive under all the circumstances. .
(b). Causing or attempting to cause: the.-Employer to
discriminate against any - employee, (including Louis H.
Daniels, Douglas C. Martin, Jeffrey Roberts- and Michael
Roberts) for failure to pay any-moneys or perform any,act
other than failing to-pay moneys due as an initiation; fee or
periodic dues uniformly . required as a., -condition, of
employment- under an agreement authorized - in - Section
8(a)(3).of the Act. 1 1-11 1, 1, -
(c) In any like -or related manner restraining or coercing
employees of the Employer in the exercise, of the rights
guaranteed in Section?, of the,Act. - . I
- 2. Take the' following affirmative ' action , , which' is
necessary to effectuate -the policies of the Act: -
(a) Refund to each employee of the Employer (including
William , R. Haslam and, Ernest J . Benge)-who, abetween
December 16, 1968, and-December 29, ' 1969, was required
by Respondent-to pay a reinstatement fee,,such as-has been
found herein to. be excessive,; the sum of$100.i,- , ,
(b) Pay to=Louis-H. Daniels any sum he may have&paid in
excess of the dues required of him, to maintain membership
in Respondent as a condition of employment.
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.'
LOCAL NO. 749 INTL. BRTHD. OF BOILERMAKERS 511
° (c) Rescind, in a writing sent to the Employer, its requests
for the termination of Louis H. Daniels,,Douglas C. Martin,
Jeffrey Roberts, and Michael Roberts.
(d) Notify said Daniels, Martin, Jeffrey Roberts, and
Michael Roberts, in writing, if they are still employed by
the Employer, that it has rescinded its request for their
termination'of-employment and that it will not require them
to perform any act or pay any moneys as a condition -of
continued -employment except to pay that sum of money
which is uniformly required as an initiation fee or periodic
dues in accordance with an agreement requiring member-
ship in Respondent as authorized in,Section 8(a)(3) of the
Act.
(e) Post at its offices and at its meeting place where
members who are employed by the Employer meet copies
of the attached notice marked "Appendix." 21 Copies of
said notice, on forms provided by the Regional Director for
Region 20, shall, after- ,having been duly signed by
Respondent's representative, be posted by Respondent
immediately upon receipt thereof and be maintained by
Respondent for 60 consecutive days thereafter, in conspicu-
ous places, including alt places where notices to members
are customarily' posted. Reasonable steps shall be taken by
Respondent `to insure. that said notices are not altered,
defaced, or covered by any-othei material.
(f) Upon receipt from said Regional Director of
additional copies of said notice, sign them and mail them,t to
the Regional Director for Region 20 for posting at the plant
of the Employer at Escalon„ California, the Employer being
willing.
(g) , Notify the Regional Director for Region 20, in
writing, within 20 days from the date of receipt of this
Decision and recommended Order, what steps Respondent
has taken to comply-herewith.22
21 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order, of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment , of the United States Court of Appeals
Enforcing an Orderof the National Labor Relations Board."
22 In ,the event ,-that this recommended Order is adopted by the Board
after exceptions havejbeen filed, this provision shall be modified to read:
"Notify the Regional Director for Region 20, in writing , within 20 days
from the date , of this Order, what -steps `the ,Respondent has taken to
comply herewith."
APPENDIX
NOTICE To
EMPLQYEES AND- MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Decision of a Trial Examiner of the National Labor
Relations.Board: held-that, between December 16, 1968,
and December 29,1969, we required employees (covered by
an agreement with California Blowpipe & Steel Co., Inc.,
requiring membership, in Local 749 as a condition ` of
employment) ._ to pay, _ a reinstatement - fee which was
excessive under all the circumstances, and that, as a
condition of employment, we required the performance of
acts or the payment of an amount other than the payment
of the initiation fees and dues uniformly required to
become and remain members as required under the terms
of our union-shop agreement with said Employer, and that
we thereby violated Section 8(bxl)(A), (2), and (5) of the
National Labor Relations Act, as amended.
To remedy such unfair labor practices:
WE WILL NOT require the payment by any employee
covered by an agreement authorized under Section
8(a)(3) of the Act, of a fee in an amount which the
Board finds excessive under all the circumstances.
WE WILL NOT cause or attempt to cause said
Employer to discriminate in regard to the hire or tenure
of employment of any employee except to the extent
authorized by an agreement made in accordance with
Section 8(a)(3) of the Act. This means that we will not
request the discharge of any employee, who is covered
by a union-shop agreement, for any reason other than
the failure of such employee to tender the payment of
initiation fee or periodic dues.
WE wu.L refund $100 to each employee of said
Employer who, between. December 16, 1968, and
December 29, 1969, was charged an excessive reinstate-
ment fee.
Among others who paid such excessive reinstatement fee
and are entitled to such a refund are: William R. Haslam
and Ernest J. Benge. i
WE WILL pay to Louis H. Daniels whatever sum he
may have paid over and above the initiation fee and the
periodic dues we required him to pay as a condition of
continued employment in 1969.
WE WILL notify said Employer in writing that we
withdraw our request for the termination of employ-
ment of the following employees: Louis -H. Daniels,
Douglas 'C. Martin, Jeffrey Roberts, and Michael
Roberts and we will notify each of said employees in
writing that we have withdrawn our request for
termination of their employment.
Dated By
LOCAL UNION No. 749,
INTERNATIONAL
BROTHERHOOD OF
BOILERMAKERS, IRON
SHIPBUILDERS,
BLACKSMITHS , FORGERS &
HELPERS, AFL-CIO
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 13050
Federal- Building, 450 Golden-Gate Avenue, Box 36047,
San Francisco, California 94102, Telephone 415-556-0335.