Alco Standard Corp.

National Labor Relations Board - Board Decisions

Sep 7, 1972

198 N.L.R.B. 1229 (N.L.R.B. 1972)

MCDOWELL MFG. CO., DIVISION OF ALCO 1229
McDowell Mfg. Co ., Division of Alco Standard Corp.
and International Union of Operating Engineers,
Local 66, AFL-CIO. Case 6-CA-5527
September 7, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On May 1, 1972, Trial Examiner James M.
Fitzpatrick issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions and to adopt his
recommended Order, to the extent consistent here-
with.
The General Counsel has excepted to the Trial
Examiner's recommended Order in that it only
requires Respondent to make whole Howard L.
Hunter, Sr., and Arthur Holes, for loss of earnings
which they may have suffered as a result of
Respondent's discrimination. We agree with the
General Counsel that, as Hunter and Holes were on
disability leave when they were terminated and were
then receiving certain contractual benefits, both
employees should also be made whole for any loss of
benefits which they might have suffered as a result of
Respondent's discrimination. Accordingly, we shall
so modify the Trial Examiner's recommended Order.
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 as modified below
and hereby orders that Respondent, McDowell Mfg.
Co., Division of Alco Standard Corp., its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended
Order, as so modified:
1. Delete paragraph 2(a) and insert the following
in its place:
"(a) Offer Howard L. Hunter, Sr., and Arthur
Holes immediate and full reinstatement to their
former employment status without prejudice to their
seniority or other rights or privileges, and make each
198 NLRB No. 187
whole for any loss of earnings or benefits suffered as
a result of discrimination against them in the manner
set forth in the section of the Trial Examiner's
Decision entitled `The Remedy.' "
2. Substitute the attached notice for the Trial
Examiner's notice.
I We agree with the Trial Examiner that Respondent was obligated to
give employees Hunter and Holes adequate notice and opportunity to
comply with the contractual union-security clause before invoking it
unilaterally to effectuate their discharge Under the circumstances,
Respondent stood in the same position as the Union with respect to
enforcement of the union -security clause and thus had to advise Hunter and
Holes in explicit terms exactly what their current obligations were under the
contract See Insulation Specialties Corp, 191 NLRB No. 38. Inasmuch as
we have adopted the Trial Examiner 's findings that Respondent violated
Section 8 (a)(3) and (1) by its conduct, we need not pass upon his additional
findings with respect to the General Counsel's alternative theories of the
case.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a trial, that we violated Federal law by
discharging Howard L. Hunter, Sr., and Arthur
Holes because they did not comply with the union-
security requirement of a collective-bargaining agree-
ment without giving them reasonable notice and
opportunity to comply:
WE WILL NOT encourage membership in Inter-
national Union of Operating Engineers, Local 66,
AFL-CIO, or any other labor organization, by
discharging or in any other manner discriminat-
ing against any employee in regard to hire or
tenure of employment of any term or condition of
employment except as authorized by Section
8(a)(3) of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed them 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 condi-
tion of employment, as authorized in Section
8(a)(3) of the Act.
WE WILL offer Howard L. Hunter, Sr., and
Arthur Holes immediate and full reinstatement to
their former employment status without prejudice
to their seniority or other rights and privileges
and WE WILL make each of them whole for any
loss of earnings or benefits suffered by reason of
the discrimination against them.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MCDOWELL MFG CO.,
DIVISION OF ALCO
STANDARD CORP.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1536 Federal Building, 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222, Telephone
412-644-2977.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Trial Examiner: This is a unique
situation in which an employer invoked a union-security
clause to terminate two employees on disability leave who
had not joined the Union, even though the Union did not
request their termination. The question is whether the
terminations were discriminatory. As noted below, I find
they were.
This proceeding under Section 10(b) of the National
Labor Relations Act, as amended (herein called the Act),
initiated with charges filed May 27, 1971 (amended
November 22, 1971), by International Union of Operating
Engineers, Local 66, AFL-CIO (herein called the Umon or
Local 66). Based on the charges, a complaint issued
November 30, 1971, alleging that McDowell Mfg. Co.,
Division of Alco Standard Corp. (herein called Respon-
dent or Company) committed unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act by
discharging Howard L. Hunter, Sr., and Arthur Holes on
March 26, 1971, because they had not complied with
union-secunty provisions of the current collective-bargain-
ing agreement with Local 66 by joining the Union,
although Local 66 had not requested their termination and
they had not been advised of their union-security obliga-
tions. Respondent answered, admitting most of the factual
allegation of the complaint, including the terminations, but
alleging that the terminations were voluntary and effective
as of December 1, 1969. The answer also admits that
failure to comply with the union-security requirements was
the reason for the terminations, and also that Local 66 had
not requested the terminations. It asserts that Hunter and
Holes knew or should have known of their union security
obligations. The answer denies that the terminations were
unfair labor practices. The issues were tried before'me at
Pittsburgh, Pennsylvania, on January 6, 1972.
Upon the entire record, my observation of the witnesses,
and consideration of the brief filed by the Respondent, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE EMPLOYER INVOLVED
Respondent, an Ohio corporation, operates a plant at
DuBois, Pennsylvania, for the manufacture and nonretail
sale of metal stampings. It annually receives at the DuBois
plant goods and materials directly from outside Pennsylva-
nia valued at over $50,000 and annually ships from DuBois
directly to points outside Pennsylvania goods valued at
over $50,000. It is an employer within the meaning of
Section 2(2), engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS AND UNION-SECURITY
PROVISIONS
The initial union representing company employees was
International Union of District 50, United Mine Workers
of America (herein called District 50) which on July 16,
1965, was certified by the Board as the collective-bargain-
ing representative of the production and maintenance
employees at the DuBois plant. Thereafter District 50 and
the Company entered into two successive collective-bar-
gaining agreements, the latest for the period October 31,
1966, to September 15, 1969. On June 20, 1969, Local 66
filed a petition with the Board seeking representation of
these employees. Following a Board-conducted election on
August 12, 1969, Local 66 was certified by the Board on
August 20, 1969, as the new collective-bargaining repre-
sentative. District 50 and Local 66 are labor organizations
within the meaning of Section 2(5) of the Act.
The first District 50 collective-bargaining agreement.
noted above, contained no union-security provisions.
Strenuous bargaining preceding agreement on the second
District 50 contract resulted in the inclusion of provisions
requiring union membership as a condition of employ-
ment. However, for employees employed prior to Septem-
ber 16, 1966, enforcement of the provisions was postponed
for a year.
Following its certification in 1969, Local 66 and the
Company negotiated a new contract for the period
September 16, 1969, through September 15, 1972. This
agreement also included union-security provisions, but
they were applicable to all employees in the bargaining
unit, with no postponement of the effectiveness of the
provisions similar to the earlier District 50 agreements.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Summary of the Facts
In a nutshell what happened here was that in February
1971 when the Company needed quickly to enlarge its
work force, the Umon (Local 66), delayed and obstructed
the recall of laid-off employees by the way in which it
insisted on enforcement of the union-security clause as to
21 recalled employees. While this was going on, Local 66,
in answer to company inquiries, advised the Company that
two other employees in disability status (Hunter and
Holes) not only were not members of the Union, but, in the
eyes of the Union, were not employees of the Company. In
MCDOWELL MFG. CO., DIVISION OF ALCO 1231
that context the Company terminated Hunter and Holes
for failure to comply with the union-security clause.
B. The Work History of Hunter and Holes
1. Howard Hunter
Hunter was first employed by the Company on March
29, 1966, as a laborer. At the time of his termination on
March 26, 1971, he was classified as a large press operator.
In January or February 1938 he was off work for 16 days
as a result of an injury. After returning he continued
working until August 28 or 29, 1968, when he sustained an
injury to his back resulting in his being off work for
something over 2 weeks. He then returned to work until
October 30, 1968, when he again ceased working because
his back bothered him. This time he remained off a full
year, returning to the job October 30, 1969. He remained
on the job only until November 10 or 11, 1969, when he
again ceased working, presumably because of continuing
back trouble. He has not returned to work since. The
Company continued to carry him on its rolls as an
employee in absentee status until March 26, 1971, when it
advised him by letter that it considered that he voluntarily
terminated his employment as of December 1, 1969,
because of his failure to comply with the union-security
requirements of the collective-bargaining agreement with
Local 66.
2. Arthur Holes
Holes was first employed by the Company on March 24,
1966, as a laborer. He was later promoted to large press
operator. On April 18 or 19, 1968, he was injured on the
job. As a result of the injury he was unable to work after
July 1968 and since then has not worked at the plant
except for one day in November 1969 when he returned for
the purpose of determining whether he would be able to
perform the work and avoid the necessity of an operation.
He learned he could not perform the work. On March 26,
1971, he was terminated in the same way as Hunter.
C. Union Membership of Hunter and Holes
1. Participation in District 50
During the incumbency of District 50 both Hunter and
Holes were members of that organization, and Hunter was
chairman of the union grievance committee and active in
enforcing the District 50 union-security clause. Both were
familiar with union-security clauses.
2. Efforts to join Local 66
Following certification of Local 66 on August 20, 1969,
neither Hunter nor Holes actually joined Local 66.
However, following the certification Local 66 and the
Company engaged in negotiations resulting in agreement
on a new contract entered into on October 30, 1969,
retroactive to September 16, 1969 , and continuing to
September 15, 1972. In the meantime Local 66 held
meetings of employees for the purpose of reporting on and
discussing the progress of negotiations. At one such
meeting in October Local 66 Business Representative
Lester Smiley was asked if employees who were not
working could be given a reduced rate for union dues. At
another such meeting a week later he replied that this was
not possible. Hunter, who was not then working but
attended the meetings, pointed out that it was impossible
for him to pay union dues through a checkoff system while
he was off. He offered to pay dues directly if Smiley would
advise him the amount and the place to pay. Smiley told
him not to worry about checkoff authorization while he
was in disability status because he could take care of it
when he returned to work, and that his dues could start
from that time. Shortly thereafter, on October 30, Hunter
returned to work for about a week and a half but he did
not authorize a checkoff of dues nor did he formally join
Local 66. It was May 1971, about the time charges were
filed in the present matter, and long after his termination,
when he actuallyjoined.
Although Holes had been a member of Distract 50, he
was not particularly active. After Local 66 took over the
representation of the employees at the plant, he learned
from Hunter that there was a new union. He then
contacted a Local 66 representative Smiley and inquired
about the procedure to join Local 66 and pay union dues.
Smiley advised him it was not necessary to pay dues as
long as he was off work injured because that could be
taken care of when he returned to work. He told Holes that
all District 50 members were automatically members of
Local 66. On that basis Holes testified he believed he was a
member of Local 66 although he never had a union card
and never paid dues.
D. The Company Invokes the Union-Security Clause
1. Background
Historically the Company has opposed union-security
clauses, having successively negotiated to keep one out of
the first District 50 agreement and to delay the enforce-
ment date for the clause incorporated in the second
District 50 agreement. In negotiations with Local 66 union
security was a matter of strenuous bargaining, but the
Union eventually succeeded in having a union-security
clause incorporated in the current agreement. It is
undisputed here that the language of the clause is lawful.
The level of Company business fluctuates from time to
time. Accordingly its need for personnel is not constant.
On October 16, 1970, 21 employees were laid off for lack of
work. Hunter and Holes were already on disability at the
time.
In February 1971 the Company obtained new orders
calling for strict delivery dates for its products. To meet
these delivery dates the 21 employees in layoff status (not
including Hunter or Holes) were needed. With the help of
the union stewards the Company on February 12 began
recalling those on layoff in accordance with their seniority.
At this point the Company had no idea whether those on
layoff were in good standing with Local 66 or not. The first
employee recalled reported for duty on Monday, February
15. The Local 66 steward at the plant objected to his
working on the ground that he was not a member in good
standing. After some discussion he was allowed to work the
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
balance of the day but was directed by the steward not to
thereafter return to work until he was in good standing
with Local 66.
The following morning Plant Superintendent Emerson
Yount discussed with Local 66 Business Representative
Edward Zielinski the Company' s immediate need for all
employees in layoff status. The Union was unable to
immediately clarify its position in the matter, but asked the
Company to send it a list of the laid-off employees. In
response to this request the Company gave Local 66 a
letter setting forth its need to know which employees were
in good standing with the Umon and asking it to advise the
Company which of the laid-off employees were in good
standing . It included a list of all employees, including the
21 laid-off employees and the two ( Hunter and Holes)
listed as absentees . The seniority date of each employee
was also indicated.
Three to four days later Local 66 returned the list,
indicating thereon which of the layoffs were in good
standing and the suspension date of those who were not.
With regard to Hunter and Holes the Union indicated
"Have no record of application for." Local 66 instructions
to the Company regarding recall were to bypass those not
in good standing and recall those in good standing. A day
later these instructions were revised and the Company was
told to recall all laid -off employees in accordance with
their seniority, irrespective of whether they were or were
not in good standing with the Union , and to have Local 66
stewards advise those not in good standing to achieve that
status prior to reporting for work, and upon reporting for
work to produce proof of good standing . Some suspended
employees had to show receipts for payments of anywhere
from $40 to $60 to Local 66 before they could begin
working.
As a result- return of the laid-off employees to work was
substantially delayed. Of the 21 layoffs, Local 66 had
reported 6 in good standing , These six first returned to
work on March 1. Of the 15 remaining on the list who were
not in good standing , the first returned on March 9 and it
was the end of March before all of the others reported. The
delay caused substantial production problems including
some additional expense for overtime . Yount credibly
testified that had there been no objection he would have
contacted all 21 by February 15 and would have known by
then who was returning and who was not . In his opinion
overtime could have been avoided if the laid-off employees
had been able to return promptly.
2. Company efforts to clarify future status of
employees on layoff
Sometime in March in a regular meeting with two Local
66 stewards and Business Representative Zielinski, Plant
Superintendent Yount explained the production problems
caused by the delay, pointing out that neither he nor the
stewards had up-to-date information on the membership
status of laid-off employees. He inquired of Zielinski what
to do if the situation arose again . He asked about the two
men on the list (Hunter and Holes ) who were not even
members of Local 66. Zielinski replied that he did not
know them and as far as he was concerned they did not
work at the Company and never had.
About the same time in March , Hunter , whose anniver-
sary date of employment was March 29, requested an
advance on his vacation pay. Company President Law-
rence Parrott refused on the ground that he possibly was
no longer an employee since he had not joined Local 66.
In normal practice when an employee passes his
anniversary date of employment he becomes entitled to a
paid vacation . Employees also receive pay for certain
holidays and the Company pays premiums for hospitaliza-
tion and life insurance for the employees. Although Hunter
and Holes were not actively working , they continued to
enjoy these benefits as employees in disability status.
3. Termination of Hunter and Holes
In letters of March 26 to both Hunter and Holes the
Company quoted the union-security language of the Local
66 contract and noted that Local 66 had advised the
Company they had never been members in good standing
of Local 66 . The letter then declared they had voluntarily
terminated their employment on December 1, 1969, and
that they would receive no further payments such as
holiday or vacation pay nor have insurance premiums paid
on their behalf.
Local 66 immediately thereafter on April 1 made it clear
that it was not seeking the termination of Hunter or Holes.
It contended that the union -security clause was not
applicable to disability cases and that the Union would
accept their applications at a later time when they had
returned to good health. As noted earlier Hunter did
subsequently join Local 66 in May 1971.
E. Discussion
It is clear that the Company did not intend to recall
either Hunter or Holes at the time it recalled the other 21
from layoff status . It is also clear that the Union did not
specifically request their discharge , although at the time it
was generally insisting on union membership as a condi-
tion of employment for those recalled from layoff. The
Company's purpose in discharging Hunter and Holes, as
stated by its president at the hearing , were : (1) To bring a
resolution to questions regarding the application of the
union-security clause and thereby avoid future financial
burdens and disruptions in production which might occur
if the questions were left unresolved ; (2) to terminate
existing costs involved by way of insurance premiums and
holiday and vacation pay for Hunter and Holes; and (3) to
enforce union-security requirements of the contract which
Local 66 should have invoked but had failed to do.
The rights of employees to engage in union activity and
to of the Act. "Employees shall have the right to self-
organization . . . and shall also have the right to refrain
from any or all such activities except to the extent that such
right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment
as authorized in Section 8(a)(3)." Thus the existence of a
valid union-security clause such as the one in this case
places some limitation on employee Section 7 rights.
Section 8 (a)(3), being a prohibitory, addresses the matter
in more negative language . Thus an employer is forbidden
to discriminate in employment to encourage or discourage
MCDOWELL MFG. CO., DIVISION OF ALCO
membership in a union. But, nevertheless, valid union-
security agreements are permitted in the sense is that an
employer does not commit an unfair labor practice by
discriminating against an employee pursuant to a valid
union-security clause . This reading is further buttressed by
language , which, amounts to exceptions to the union-
security exception, to the effect that no employer shall
justify discrimination against an employee for nonmember-
ship in a union where there is reasonable ground for belief
that membership was not available on an equal basis or
was denied or 'terminated for some reason other than
nonpayment of dues.
In its termination letters to Hunter and Holes, the
Company here relied entirely upon their failure to fulfill
the requirements of the union-secunty clause of the Local
66 contract. The General Counsel argues that for the
Company to invoke the union-security clause unilaterally
without any request for discharge from the Union is per se
.L violation of Section 8(a)(3) and (1). The essence of this
argument is that union security relates to internal union
affairs and as such is available exclusively to the Union
and is not available to the Company as a device for
terminating employment. The General Counsel relies on
Long Transportation Company, 191 NLRB No. 22. In that
case the employer discharged an employee for conduct
construed to be inconsistent with continued union mem-
bershipmin a subsequent Board proceeding it sought to
justify the dismissal on the grounds of a union-security
clause . The Trial Examiner found that the contract
containing the union-security clause had expired and the
union-security clause had not thereafter continued in
effect. He further opined that even if the contract had
remained in effect, since the Union had not requested the
employee's dismissal pursuant to the union-security clause,
the employer could not unilaterally justify the dismissal
pursuant to the union-security clause because the retention
or revocation of union membership was a matter of
internal union concern and of no moment or concern to
the employer. In the present matter the General Counsel
relies on that reasoning. But in Long the majority of the
Board panel, which adopted the Trial Examiner's conclu-
sion that the employer had violated Section 8(a)(3), found
unequivocally that no contract existed at the time, saying
nothing whatever about the additional reasoning of the
Trial Examiner assuming continued existence of a union-
security clause . Also, the Board plainly found that the
employee was discharged for engaging in protected
activity, a question which the Trial Examiner did not
reach. Long is thus distinguishable from the present case
because there the Board did not address itself to the union-
security question. It is also factually distinguishable
because there, in contrast with the present matter, no
union-security provision existed at the time of the
dismissal.
In further support of his position the General Counsel
notes that in James Luterbach Construction Co. Inc., 167
NLRB 39 at 41, the Trial Examiner, whose decision was
adopted by the Board, described a union-security clause as
"obviously for its [the Union's] sole benefit." The General
Counsel contends that one of the philosophical founda-
tions of the Act is the concept that acquisition and
1233
retention of union membership is a matter for the Union
alone, referring to the proviso in Section 8(b)(1)(A).
Reference to that section, however, is not particularly
material because no one here contends that union-security
provisions are not a matter for union concern.
The Company contends that it as well as the Union has a
right to enforce the union-secunty clause of the collective-
bargaining agreement . In support of its claimed legitimate
interest in enforcing the provision it points to the
circumstances and history in the present matter, particular-
ly the circumstance that Local 66 was insisting that the
Company enforce the union-security provision with regard
to the 21 employees recalled from layoff status. The
Company relies on M & M Wood Working Co. v. N.L.R.B.,
101 F.2d 938 (C.A. 9), in which a union took the general
position that the employer should comply with a collective-
bargaining agreement but did not request the termination
of specific employeesmthe court held that the employer
there did not violate Section 8(3) of the Wagner Act by
releasing from employment employees who refused to
maintain their membership in the incumbent union where
the existing collective-bargaining agreement required such
membership.
No recent holding dealing with the question has come to
light. I deem it unnecessary to dispose of the matter on a
per se basis because, as pointed out hereinafter, the
Company did not give the two discharged employees
adequate notice and opportunity to comply with the
contract provision invoked against them.
The General Counsel argues alternatively that even
assuming the law allows an employer to unilaterally invoke
a union-security clause, the circumstances in the present
matter show that Respondent's conduct was unlawful. In
this regard he makes three points: (1) The Company failed
to give adequate notice and opportunity to Hunter and
Holes to comply with the union-secunty clause; (2) the
Company had reasonable grounds to believe that member-
ship in Local 66 was not available to Hunter and Holes on
the same terms and conditions as generally available to
other employees; and (3) the Company invoked the union-
security clause in order to terminate Hunter and Holes but
for reasons other than their failure to pay dues and
initiation fees.
Concerning the first of these points, that the Company
failed to give adequate notice of or opportunity to comply
with the union-security clause, the General Counsel notes
that a union in invoking a union-secunty clause had a
fiduciary obligation in some circumstances to give the
subject employees such notice and opportunity, citing
Aerojet-General Corporation, 186 NLRB No. 77, and
Philadelphia Sheraton Corporation, 136 NLRB 888, enfd.
320 F.2d 254 (C.A. 3). In Aerojet, as in the present matter,
the employee's failure to comply with the union-secunty
clause had gone on for several years when the union,
without further notice to the employee, requested his
discharge and the employer complied. The Board held the
union had not fulfilled its fuduciary duty to deal fairly with
the employee, saying, "When Johnson [the employee]
continued to work for years after that without any attempt
by respondent [the union] to enforce against him a union-
security provision, he could well have assumed that
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent was not interested in him as a member and that
he could work freely for the employer as a nonmember."
As the court of appeals noted in Philadelphia Sheraton (at
258), "At the minimum, this duty requires that the union
inform the employee of his obligations in order that the
employee may take whatever action is necessary to protect
his job tenure." In its decision in that case the Board noted
that the employees involved (who were new employees)
had not been told the amount of dues owed or when such
payments were to be made. The Board said (at 896), "To
permit a union to lawfully 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." In the present
matter, as in Philadelphia Sheraton, neither Hunter nor
Holes was told the amount of dues or how such could be
paid although both had sought to learn this information
from Union Representative Smiley in October 1969. In
effect Smiley put them off by saying it would be soon
enough to join the Union when they returned to work.
From that both could reasonably believe that membership
was not being required of them, at least for the time being,
by Local 66.
For its part an employer has an obligation of establishing
that employees discharged under a union-security clause
have been fully and unmistakably notified of their
obligations thereunder (Pacific Iron and Metal Co., 175
NLRB 604), or that the employer has reasonable grounds
for believing that they have been so notified (Conductron
Corporation, 183 NLRB No. 54). Here the Company
purported to act, at least in part, because the Union failed
to act, and in that sense it stands in the shoes of the Union.
The General Counsel urges that it therefore should be held
to the same fiduciary obligation to which unions are held
when they invoke a union-security clause. I agree. Cf.
Conductron Corporation, supra, Trial Examiner's Decision.
In the circumstances it seems to me that the Company
should have afforded Hunter and Holes the opportunity to
comply with the union-security requirements in order to
preserve their employment rights. With respect to Holes, it
is clear that no notice whatever was given to him prior to
his termination letter of March 26. With respect to Hunter,
the matter is not as clear because prior to his discharge he
had two conversations with Company President Parrott,
the first being around mid-March, in which Parrott voiced
the belief that Hunter might no longer be an employee
because he had not joined Local 66, and Hunter explained
why he had not. Thus Hunter had some notice that union
membership could be a current condition of continued
employment. But it was not clear, unmistakable, notice.
Nothing was said about terminating his employment status
if he did not take action. The question of his status was
raised in a limited context of his entitlement to vacation
pay. In the circumstances I find adequate notice was not
given Hunter and that legally he was in the same situation
as Holes.
The General Counsel points to these same conversations
between Hunter and Parrott as the circumstance which
gave the Company reasonable grounds for believing that
union membership was not available to Hunter and Holes
on the same basis generally applicable to other employees,
because in answer to Parrott 's statement that he had not
become a member of Local 66 , Hunter told Parrott he had
made an attempt to join . His testimony is not entirely
clear , but I infer that Hunter explained his conversations
with Smiley in October 1969. If so, all Parrott learned was
that Local 66 had not then insisted that Hunter be a
member during his disability and that he could defer
joining until he returned to work . This was no indication
that membership was not available to Hunter on the same
terms and conditions generally applicable to other employ-
ees and did not afford reasonable grounds for so believing.
There is no evidence at all that this conversation pertained
in any way to Holes.
It was around the same time (as the Hunter-Parrott
conversations) that Local 66 Representative Zielinski,
when queried by Yount about the union status of Hunter
and Holes, replied that he did not know them and as far as
he was concerned they did not work at the Company and
never had. In the circumstances I find that the Company
did not have reasonable grounds for believing that
membership in Local 66 was not available to Hunter and
Holes on the same terms and conditions generally
applicable to other employees . Accordingly , General
Counsel's reliance upon the second circumstance noted
above to support a violation lacks merit.
The third circumstance urged by the General Counsel is
that the Company admittedly harbored reasons over and
above lack of membership in Local 66 for terminating
Hunter and Holes. These included business reasons to
guard against future financial costs and the disruptions in
production and to put an end to what the Company
considered unjust enrichment of Hunter and Holes in the
form of paid holidays, paid vacations, and paid hospitali-
zation and life insurance premium , all of which involved
some expense for the Company. The argument is that the
permissible discrimination under the union -security excep-
tion to Section 8(a)(3) is strictly limited to efforts to compel
payment of dues and initiation fees and may not be used
for any other purpose . If used for another purpose Section
8(a)(3) is violated . The General Counsel cites A. Nabakow-
ski, 148 NLRB 876, 882 , enfd . 359 F .2d 46 (C.A. 6), and
Radio Officers v. N.L.R.B., 347 U.S. 17. This general
proposition is beyond question . Nabakowski, however, is
distinguishable . In that case the terminated employees
either failed a journeyman test given by the union or
refused to take the test and the union for that reason
requested their termination pursuant to the union-security
clause. Passing the test was a prerequisite to union
membership . The Board , with court approval , held that the
union -security clause could not be used to enforce that
requirement . Here neither Hunter nor Holes actually
tendered initiation fees and dues, nor did they in fact join
Local 66 prior to their termination . It is uncontroverted
that they never satisfied the initiation fee and dues
requirements for membership in Local 66, and this record
reveals no other prerequisite for membership. Failure to
obtain such membership was the reason stated for their
termination . If the matter ended there there would be no
question . But at the hearing, Company President Parrott
indicated there were the additional motivations indicated
MCDOWELL MFG. CO., DIVISION OF ALCO
above. The fact that these additional reasons existed does
not mean that they replaced failure to pay initiation fees
and dues as a basis for invoking the union-security clause
as was the case in Nabakowski. Because of this dintinction
I find that General Counsel's argument in this regard lacks
merit.
In sum, I find that the Company terminated Hunter and
Holes for discriminatory reasons, to encourage member-
ship in Local 66, and that this discrimination may not be
condoned under the union-security exception in Sections 7
and 8(a)(3) because no adequate notice affording them
reasonable opportunity to comply with the union security
requirements of the collective-bargaining agreement was
given. Accordingly, I find that the terminations were and
are unfair labor practices forbidden by Section 8(a)(3) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above , occurring in connection with its operations de-
scribed in section I , above , have a close , intimate, and
substantial relation to trade , traffic , and commerce among
the several States. Those found to be unfair labor practices
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce , and are unfair
labor practices within the meaning of Sections 8(a)(3) and
( 1) and 2(6) and (7) of the Act.
V. THE REMEDY
Having found that Respondent violated Section 8(a)(3)
and (1) of the Act, I recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. I recommend that
Respondent offer to Hunter and Holes immediate, full,
and unconditional reinstatement to their former employ-
ment status, without prejudice to their seniority and other
rights or privileges, and make each of them whole for any
loss of earnings suffered by reason of the discrimination
against them by paying each a sum of money equal to the
amount he would have earned from the date of discrimina-
tion on March 26, 1971, to the date Respondent offers such
reinstatement, less net earnings during that period in
accordance with the Board's formula stated in F. W.
Woolworth Company, 90 NLRB 289, with interest thereon
at the rate of 6 percent per annum as set forth in Isis
Plumbing and Heating Co., 138 NLRB 716. I also
recommend that Respondent post appropriate notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: I
I In the event no exceptions are filed as provided by Section 102 46 of
the rules and regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102 48 of the rules and regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes
2 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
ORDER
1235
Respondent, McDowell Mfg. Co., Division of Alco
Standard Corp., its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Encouraging membership in International Union of
Operating Engineers, Local 66, AFL-CIO, or in any other
labor organization of its employees, by discharging, or in
any other manner discriminating against any employee in
regard to hire or tenure of employment or any term or
condition of employment, except as authorized in Section
8(a)(3) of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing its employees 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 the labor organization as a
condition of employment, as authorized in Section 8(a)(3)
of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer Howard L. Hunter, Sr., and Arthur Holes
immediate and full reinstatement to their former employ-
ment status without prejudice to their seniority or other
rights or privileges, and make each whole for any loss of
earnings suffered as a result of discrimination against them
in the manner set forth in the section hereto entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board and its agents for examination and copying all
payroll and other records containing information concern-
ing compliance herewith.
(c) Notify the above-named employees, if presently
serving in the Armed Forces of the United States, of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(d) Post at its plant in DuBois, Pennsylvania, copies of
the attached notice marked "Appendix." 2 Copies of the
notice on forms provided by the Regional Director for
Region 6, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of the receipt of this Decision,
what steps Respondent has taken to comply herewith.3
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 Order of the National Labor Relations Board "
3 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 6, in wnting, within 20 days from
the date of this Order, what steps Respondent has taken to comply
herewith "