H. C. Macaulay Foundry Co.

National Labor Relations Board - Board DecisionsApr 8, 1976

223 N.L.R.B. 815 (N.L.R.B. 1976)

H. C. MACAULAY FOUNDRY CO. H. C. Macaulay Foundry Company and George An- drew Sottero International Molders & Allied Workers Local Union No. 164, AFL-CIO and George Andrew Sottero. Cases 20-CA-10554 and 20-CB-3605 April 8, 1976 DECISION AND ORDER BY MEMBERS JENKINS , PENELLO, AND WALTHER On February 20, 1976, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, the Respondent Compa- ny filed exceptions and a supporting brief, and the General Counsel filed its brief to the Administrative Law Judge in support of the Administrative Law Judge's Decision and a letter in response to the Re- spondent Company's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order as herein modified.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, H. C. Macaulay Foundry Company, Berkeley , California, its officers , agents , successors , and assigns , and Re- spondent International Molders & Allied Workers Local Union No. 164, AFL-CIO, San Francisco, California , its officers , agents , and representatives, shall take the action set forth in the said recommend- ed Order , as so modified: 1. Substitute the following for paragraph A, 1, (b): "(b) In any other manner restraining or coercing employees of H. C. Macaulay Foundry Company in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act." 2. Substitute the following for paragraph B, 1, (b): "(b) In any other manner restraining or coercing employees of H. C . Macaulay Foundry Company in 815 the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act." 3. Substitute the attached notices for the Adminis- trative Law Judge's notices. ' The Respondent Company has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge' s resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In pars. A, 1, (b) and B, 1, (b) of his recommended Order, the Adminis- trative Law Judge uses the narrow cease-and-desist language, "like or relat- ed," rather than the broad injunctive language , "in any other manner," the Board traditionally provides in cases involving serious 8 (a)(3) and/or 8(b)(2) discrimination conduct. For cases involving Sec. 8(a)(3), see N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); Electrical Fittings Corporation, a subsidiary of I-T-E Imperial Corporation, 216 NLRB 1076 (1975). For cases involving Sec. 8(b)(2), see Glaziers and Glassworkers Local Union No. 513, affiliated with International Brotherhood of Painters and Allied Trades, AFL-CIO (Joseph J. Cermak, d/b/a Southern Glass Company), 200 NLRB 617 (1972); Morrison-Knudsen Company, Inc., 122 NLRB 1147 (1959). Accordingly, we shall modify the Order to require the Respondents to cease and desist from in any other manner infringing on employee rights. This change is also made in the revised notice. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT encourage your membership in International Molders & Allied Workers Local Union No. 164, AFL-CIO, or in any other labor organization, by discriminating in regard to your hire or tenure of employment or any term or condition of employment, except to the ex- tent permitted by the proviso to Section 8(a)(3) of the amended Act. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights guaranteed in Section 7 of the Act. WE WILL offer to George Sottero, if we have not already done so, immediate and full rein- statement to his former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, during the peri- od from August 28, 1975, to the date we offer him reinstatement, and, together with the above- named Union, will jointly and severally reim- 223 NLRB No. 125 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD burse him for any loss of earnings suffered dur- ing the period from August 21 through 27, 1975. H. C. MACAULAY FOUNDRY COMPANY APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause H. C. Macaulay Foundry Company to discriminate against George Sottero or any other employee in violation of Section 8(a)(3) of the Act. WE WILL NOT in any other manner restrain or coerce employees of the above-named Employer in the exercise of the rights guaranteed in Sec- tion 7 of the Act. WE WILL jointly and severally with the above- named Employer make whole George Sottero for any loss of earnings he may have suffered because of the discrimination against him dur- ing the period from August 21 through 27, 1975. INTERNATIONAL MOLDERS & ALLIED WORKERS LOCAL UNION No. 164, AFL-CIO FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT EMPLOYER Respondent Employer is a California corporation with its principal place of business located in Berkeley, Califor- nia, where it manufactures metal materials and where, dur- ing the last calendar year, it purchased and received goods and materials Valued over $50,000 directly from suppliers located outside California. Respondents admit and I find that Respondent Employer is an employer. engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The Respondents admit and I find that Respondent Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE QUESTIONS FOR DECISION The essential questions to be decided are: (1) Whether Respondent Union caused Respondent Employer to dis- charge George Sottero for being in arrears in his member- ship dues without giving him an opportunity to comply with the governing union-security agreement; and (2) whether Respondent Employer had reasonable grounds for believing that Respondent Union's discharge request did not afford Sottero this opportunity. IV. THE UNFAIR LABOR PRACTICES DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO , Administrative Law Judge: The hearing in these cases was held on December 18, 1975, and is based upon unfair labor practice charges filed by an individual, George Sottero, on August 26, 1975, and a con- solidated complaint issued on October 10, 1975, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director of Region 20, alleging that H. C. Macaulay Foundry Com- pany, herein called Respondent Employer, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act, and that International Molders & Allied Workers Local Union No. 164, AFL-CIO, herein called Respon- dent Union, has engaged in unfair labor practices within the meaning of Section 8(b)(2) of the Act. Respondents filed answers denying the commission of the alleged unfair labor practices. Upon the entire record, from my observation of the de- meanor of the witnesses, and having considered the post- hearing briefs and Respondent Union's oral argument, I make the following: A. The Facts Respondents are parties to a collective-bargaining agree- ment effective April 1, 1973, through March 13, 1976, which contains a union-security provision (section VI, paragraph d), requiring employees covered by the agree- ment to become and remain members of Respondent Union. The union-security proviso also requires that when Respondent Union notifies the Respondent Employer that an employee is delinquent in the payment of dues, the Em- ployer "shall immediately terminate such employee" and is not obligated to reemploy the employee until notified by the Union that the employee is "a member in good stand- ing" or the employee gives the Employer a "work clearance from Union" (section VI, paragraph e). The collective-bar- gaining agreement does not contain a checkoff provision. Employees pay their dues in person or by mail. The Charging Party, George Sottero, was employed by Respondent Employer from January 6, 1975,1 until August 21, the date when he was discharged at the request of the Respondent Union. Sottero's employment was not contin- uous, as he was injured at work and as a result, was absent from May 27 until August 13, when he returned. Shortly after his employment commenced, Sottero, pur- 1 All dates herein, unless specified otherwise, refer to the year 1975. H. C. MACAULAY FOUNDRY CO. 817 suant to the contractual union-security agreement, joined Respondent Union and paid the required initiation fee and dues but thereafter became delinquent and at the time of his injury, May 27, was behind in his dues payments? On July 10 the Respondent Union's Financial Secretary John Bray, by letter, notified Sottero of his suspension from Re- spondent Union for the nonpayment of dues and advised him "you may reinstate under the conditions set forth in the accompanying letter." The "accompanying letter," signed by Bray and addressed "To Shop Committeeman," in relevant part, reads: [George Sottero] has permission to work pending rein- itiation, which will cost him $57, balance due $64, which he agrees to pay at once; the first pay date... . Failure to comply with above condition will result in the application of Section VI, paragraph (e) of the col- lective bargaining agreement . . . . [Emphasis sup- plied.] When he received this letter in July, Sottero, as described above, was absent from work because of a back injury. Sottero did not pay the money owed the Respondent Union because he believed that he was not obligated to pay it until the "first pay date" after his return to work. Respondent Union, however, did not know that Sottero was on a leave of absence. On Wednesday, August 13, Sottero returned to work. The first payday following his return was Friday, August 22. On August 21, Respondent Employer received a letter dated August 13 from the Respondent Union's financial secretary, John Bray, requesting Sottero's discharge. The letter, in pertinent part, reads: This is to inform you that your employee, George Sottero has failed to live up to his obligation per [the contractual union-security agreement]. Therefore, pursuant to [the contractual union-security agreement] we respectfully request the IMMEDIATE TER. MINATION of [George Sottero]. Upon the receipt of this letter, Respondent Employer's controller, Remo Sabatini, met with Sottero in the presence of Foreman Betz and Shop Steward Koyle. Sottero was told by Sabatini that the Respondent Union had requested his discharge for failure to meet his obligation under the contractual union-security agreement. Sottero in response informed Sabatini that he had received a letter from Re- spondent Union stating that he did not have to pay his money until Friday, August 22, the first payday after his return to work. Sabatini stated that this "was between [Sottero] and the Union" and proceeded to effect Sottero's discharge? 2 The record does not reveal the extent of Sottero 's delinquency. 7 The description of Sottero's termination interview is based upon Sottero's testimony . Sabatini testified that Sottero "informed me ... that he had a letter from the Union stating certain conditions "-" that he could pay the dues at a certain time," and further testified that he (Sabatini) asked Shop Steward Koyle whether he was aware of this agreement , to which Koyle expressed a lack of knowledge . Sottero impressed me as the more trustworthy and reliable witness; thus, I have credited his version of what occurred. The next day, Friday, August 22, Sottero visited the of- fice of Respondent Union and spoke to Business Agent Tucker and one of the office clericals. Sottero showed them the July 10 correspondence from Financial Secretary Bray and explained that when he had received Bray's letter he was on a leave of absence from work due to an injury and that thereafter, upon his return to work and before the first pay date, the Respondent Employer, at the request of Re- spondent Union, had discharged him. In response, the cler- ical informed Sottero that Bray, who normally handled matters of this nature, was on vacation but that Respon- dent Union had never intended to have anyone terminated who was absent from work on disability and unable to pay money to the Union and explained that Bray's letter re- questing Sottero's discharge may have been sent as the re- sult of a clerical mixup. At this point Business Agent Tuck- er, in Sottero's presence, phoned Respondent Employer and spoke to Sabatini and explained to him in effect that the Respondent Union's request for Sottero's discharge had been a mistake, that the Union had not realized that Sottero had been absent from work on disability, and asked that the Respondent Employer reinstate Sottero. Tucker then hung up the phone and told Sottero that Saba- tini, the person whom he had spoken to, had referred him to Joe Otzos, the manager of manufacturing who was un- available at that time. Sottero asked that Tucker notify him as soon as he determined Sottero's employment status .4 On Monday, August 25, Sottero returned to Respondent Union's office and was informed by Tucker that Respon- dent Employer had refused to reinstate him. On September 5, Respondent Union' s financial secre- tary, Bray, who had apparently returned from his vacation, sent Respondent Employer a letter rescinding the previous letter requesting Sottero's termination. Bray's letter , in rele- vant part, reads: This letter is to rescind our letter of termination, sent to you on August 13, 1975, on George Sottero. We were not informed that Sottero was off work on disa- bility. Hoping you will comply with our wishes ... . On September 9, Sabatini, by letter, acknowledged Bray's letter of September 5 and stated: Paragraph (e) of Section VI [of the collective-bargain- ing agreement] requires that an employee, who has been terminated for failure to pay union dues, may not be reemployed by the Employer until notified by the Union that the employee is a member in good standing in the Union, or such employee presents 4 The description of what occurred in the Respondent Union's office on Friday, August 22, is based on the credible and undenied testimony of Sottero. Although Sottero was unable to identify Tucker as the man who spoke to him , it is plain from Sabatini's testimony that it was Tucker on August 22 who phoned Sabatini. However, Sabatini testified that Tucker did not ask for Sottero's reinstatement, but that Tucker simply asked to speak with Sabatini about Sottero's termination and that Sabatini referred him to Otzos. As indicated previously, Sottero impressed me as a more trustworthy witness. Moreover, Sottero's version of what Tucker said to Sabatini seems more probable. Tucker's reason for phoning Sabatini was his belief that Respondent Union had mistakenly requested Sottero's discharge. Under the circumstances, it seems likely that Tucker in speaking to Sabati- ni, the person who discharged Sottero, would advise him of the Union's error and its desire that Sottero be reinstated. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work clearance from Union to Employer. Does your letter of September 5 mean that Sottero is once again in good standing in the Union? Your prompt clarification of this point will be appreci- ated. The Respondent Union apparently did not answer this let- ter.' B. Discussion and Ultimate Findings 1. The case against Respondent Union The General Counsel contends that Respondent Union violated Section 8(b)(2) of the Act by failing to fulfill its fiduciary duty toward Sottero when it requested his dis- charge. I agree. Both the Board and the courts have held that a union seeking to enforce a union-security agreement against an employee has a "fiduciary" duty to "deal fairly" with the employee affected. "At a 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." N.LR.B. v. Hotel, Motel and Club Employees' Union, Local 568 [Philadelphia Sheraton Corp.], 320 F.2d 254, 258 (C.A. 3), enfg. 136 NLRB 888 (1962). The facts clearly disclose that this "minimum" obliga- tion was not met in this case. Sottero, suspended from the Respondent Union because of his dues delinquency, on about July 10 was advised by Respondent Union that to protect his job it was necessary for him to pay a reinstate- ment fee on "the first pay date." When he received this notification, Sottero was on a leave of absence from work due to a back injury, thus, he interpreted the notification as meaning that it was necessary to reinstate himself on "the first pay date" upon his return to work. That this was what Respondent Union meant by the notification is demon- strated by its conduct after Sottero's discharge. Thus, un- aware Sottero had been absent from work on a leave of absence, Respondent Union, when informed of this by Sottero, promptly admitted in effect that Sottero had until the first pay date after his return to reinstate himself and that Respondent Union had erred in requesting his dis- charge.6 Under these circumstances, I am of the opinion that, in not reinstating himself in good standing with Re- spondent Union prior to his first payday after returning to work, it was reasonable for Sottero to rely on Respondent's July 10 notification? Sottero, therefore, on August 21 had S The record shows that Sottero had not paid the money for his reinitia- tion , thus, at that time he was not a member in good standing. 6 The result in this case would be the same even assuming Respondent Union , in writing the July 10 letter, intended that Sottero reinstate himself on the first pay date following this letter regardless of his absence from work . Viewed most favorably to Respondent Union, the language of the letter when applied to Sottero's situation is ambiguous , and Sottero's con- struction , in his situation , was both reasonable and predictable. ' Sottero's failure to use the money be received when terminated to rein- state himself in good standing does not , as urged by Respondents , impugn his good faith, for Respondent Union when it heard Sottero's story, rather than ask for its money , agreed that Sottero was not obligated to pay the money prior to August 22. Moreover , Sottero's testimony that he did not pay the Respondent Union the money prior to being reinstated because "I no knowledge that his job was in jeopardy on that date, but due to Respondent Union's conduct believed that he had until August 22 to reinstate his membership. Based on the foregoing, I find that Respondent Union failed to fulfill its fiduciary duty to afford Sottero an op- portunity to comply with the governing union-security agreement so that he could protect his job tenure and that it unlawfully caused his discharge in violation of Section 8(b)(2) and 1(A) 8 of the Act.' 2. The case against Respondent Employer Section 8(a)(3) of the Act provides in relevant part: That no employer shall justify any discrimination against an employee for nonmembership in a labor organization . . . (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining mem- bership. The Charging Party, Sottero, was delinquent in the pay- ment of dues to Respondent Union. I have nevertheless found that Respondent Union violated Section 8(b)(2) and (1)(A) in causing Sottero's discharge because, in derogation of its fiduciary duty, it did not afford him an opportunity to comply with the governing union-security agreement so that he could protect his job. General Counsel contends that Respondent Employer had reasonable grounds to be- lieve that Respondent Union had failed to perform the fi- duciary duty it owed Sottero. I agree. When it discharged Sottero on August 21, Respondent Employer was confronted by Sottero's clear-cut avowal that Respondent Union had agreed that he was not obli- gated to reinstate himself until August 22. During his Au- gust 21 discharge interview, Sottero told Sabatini that he had received a letter from Respondent Union stating he did not have to pay the money owed the Union until Au- gust 22, the first pay date after his return to work. In the face of this avowal, Respondent Employer, under the pro- viso to Section 8(a)(3), was obligated to seek verification of the validity of Sottero's claim before effecting his dis- charge. Conductron Corporation, 183 NLRB 419, 426-429 (1970). Instead, Sabatini replied that Respondent Union's letter was a matter between Sottero and the Union. If Sa- batini had merely phoned Respondent Union's office, would have been out of a job with no money" is a very reasonable and understandable explanation of his conduct. 6 The complaint alleges a violation of Sec. 8(b)(2) of the Act. It does not allege a violation of Sec. 8(b)(1)(A) which is derivative of the 8 (b)(2) viola- tion . However, as the underlying facts pertaining to a violation of Sec. 8(bxl)(A) are identical to those upon which the 8(bX2) violation is premised and the legal theory for both violations is identical , I find that Respondent Union by its misconduct has also violated Sec. 8 (b)(l)(A) of the Act. 9 In reaching this conclusion I considered the fact that the Respondent Union , in causing Sottero's discharge , acted in good faith and immediately upon learning of its mistake attempted to secure his reinstatement. None- theless, under the principles enunciated in Philadelphia Sheraton, supra, and its progeny, the extremity of the penalty against employees-loss of employ- ment-requires that unions in enforcing union -security agreements be held to a strict fiduciary standard of fair dealing with employees regardless of the unions' good faith or lack of evil intentions. H. C. MACAULAY FOUNDRY CO. Sottero's claim would have been verified and, as later events demonstrate, Respondent Union would have at that time rescinded its discharge request. But Sabatini did not investigate Sottero's claim and proceeded to effectuate his discharge. I am of the opinion that Sottero's protest was sufficient to furnish reasonable grounds for the Respon- dent Employer to believe that the Respondent Union, in requesting Sottero's discharge, had not afforded him an opportunity to comply with the contractual union-security agreement so that he could protect his job. Moreover, the following day, August 22, Business Agent Tucker phoned Sabatini and asked that Respondent Em- ployer reinstate Sottero, explaining that Respondent Union had mistakenly sought his termination and, on September 5, Respondent Union's financial secretary, Bray, reiterated this request in writing, explaining to Respondent Employer that it had not known that Sottero had been absent from work on disability. Thus, Respondent Employer no longer was being asked to reinstate Sottero based on his unsup- ported claim. His claim was supported by Respondent Union. Tucker's phone call on August 22 gave Respondent Employer additional reasonable grounds to believe that Respondent Union's request for Sottero's discharge had been made without affording Sottero an opportunity to comply with the union-security agreement .1° Accordingly, I find Respondent Employer could no longer justify its continuation of its discrimination against Sottero, and that under the proviso to Section 8(a)(3) was obligated to either investigate the circumstances which Sottero, Tucker, and Bray had disclosed or to reinstate Sottero. As Respondent Employer did neither, the protection of the proviso was lost. Based on the foregoing, I find without merit the Respon- dent Employer's contention that its actions were taken in compliance with the contract, rather I find that Respon- dent Employer had reasonable grounds to believe that Re- spondent Union had requested Sottero's discharge without affording him an opportunity to comply with the union- security agreement and protect his job and 'that, under these circumstances , Respondent Employer was not justi- fied in accepting Respondent Union's request without in- vestigation. Accordingly, by discharging Sottero, the Re- spondent Employer violated Section 8(a)(3) and (1) of the Act.11 Conductron Corporation, 183 NLRB 419, 426-429 (1970). 10 There is no evidence that when Tucker spoke to Sabatini that Respon- dent Employer was no longer in a position to reinstate Sottero or that Sottero's job was unavailable . To the contrary , Sabatini in his reply to Re- spondent Union's September 5 letter asking that Sottero's discharge be res- cinded, rather than indicate Sottero's job was no longer available, expressed only a concern that Sottero was not "in good standing in the Union." 1 In its posthearing brief and in its letter of September 9, refusing Re- spondent Union's request that it reinstate Sottero, the Respondent Employ- er in effect urges that it was not obligated to reinstate Sottero inasmuch as the contract provides that an employee such as Sottero "shall not be re- employed by the Employer until notified by the Union that the employee is a member in good standing in the Union, or such employee presents work clearance from Union to Employer." The short answer to this is that "an interpretation of a private contract" cannot "curtail the power of the Board to enforce the statute ." N.L.R.B. v. Bell Aircraft Corporation, 206 F.2d 235, 237 (C.A. 2). The decisions make clear, as described supra, that an employee may be discharged under a union-security agreement only if he has ade- CONCLUSIONS OF LAW 819 1. H. C. Macaulay Foundry Company, the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Molders & Allied Workers Local Union No. 164, AFL-CIO, the Respondent Union, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. By attempting to cause and causing the discharge of George Sottero, the Respondent Union engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 4. By discharging George Sottero and refusing to rein- state him, the Respondent Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent Employer and Respon- dent Union have engaged in and are engaging in unfair labor practices within the meaning of the Act, I shall rec- ommend that they cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent Employer unlawfully discharged George Sottero, I shall recommend that Re- spondent Employer be ordered to offer Sottero immediate and full reinstatement to his former position or, if that is not available, to a substantially equivalent one, without prejudice to his senority or other rights and privileges, if it has not already done so.12 Such an offer of reinstatement shall toll Respondent Employer's backpay liability. Normally, as a condition for tolling Respondent Union's backpay liability, I would recommend that Respondent Union be required to notify Sottero and Respondent Em- ployer that it no longer objects to Sottero's employment. However, it is settled that "where ... prior to a Board finding that a union has violated Section 8(b)(2) the union voluntarily notifies both the employer and the employee that it has no objection to the reemployment of the em- ployee, the Board has held that such notification consti- tutes compliance with the usual Section 8(b)(2) order and effectively terminates the union's backpay liability" 5 days after such notification. Westwood Plumbers, 131 NLRB 562, 562-563 (1961). Here, as described above, Respondent Union through Business Agent Tucker on August 22, as soon as it learned that it had mistakenly requested Sottero's termination, notified both Sottero and Respon- dent Employer of its mistake and that it had no objection quate notice of his obligations in order that he may take whatever action is necessary to protect his job tenure, and that the employer must reemploy such employee if it had reasonable grounds for believing that the union, in requesting the employee's discharge, had not afforded him this opportunity. 2 The record indicates Sottero was reinstated several weeks after his dis- charge. Whether his reinstatement complies with the aforesaid remedy was not litigated. Accordingly, it is a matter for the compliance stage of this proceeding. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the reemployment of Sottero. Under these circum- stances , I find that Respondent Union's backpay liability terminated August 27, 1975.. Accordingly, I shall recom- mend that Respondent Union and Respondent Employer jointly and severally make whole Sottero for any loss of earnings incurred from August 21 through 27, 1975, but that Respondent Employer shall be solely liable for any loss of earnings which Sottero may have incurred thereaf- ter. The loss of earnings shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and with interest on the backpay due in accordance with the Board policy set out in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 13 A. Respondent, H. C. Macaulay Foundry Company, Berkeley, California, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Encouraging membership in International Molders & Allied Workers Local Union No. 164, AFL-CIO, or in any other labor organization of its employees, by discrimi- nating in regard to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by the proviso to Section 8(a)(3) of the amended Act. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the amended 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 by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer to George Sottero immediate and full rein- statement to his former job or, if that no longer exists, to a substantially equivalent one, without prejudice to his se- niority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him during the period from Au- gust 28, 1975, to the date of its offer of reinstatement, in the manner set forth above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- 13 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall , as provided in Sec. 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. roll records, social security payment records, timecards, personnel records and reports, and all other data necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this Order. (c) Post at its Berkeley, California, facility copies of the attached notice marked "Appendix A." 14 Copies of Ap- pendix A to be furnished by the Regional Director for Re- gion 20, shall, after being duly signed by the Respondent Employer's representative, be posted immediately upon re- ceipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps it has taken to comply herewith. B. Respondent, International Molders & Allied Work- ers Local Union No. 164, AFL-CIO, San Francisco, Cali- fornia, its officers, representatives, and agents, shall: 1. Cease and desist from: (a) Causing or attempting to cause H. C. Macaulay Foundry Company to discriminate against George Sottero or any other employee in violation of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coercing employees of H. C. Macaulay Foundry Company in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Post in its office and meeting halls copies'of the at- tached notice marked "Appendix B." 15 Appendix B to be furnished by the Regional Director for Region 20, shall, after being duly signed by Respondent Union's official representative, be posted immediately upon receipt thereof and be maintained and caused to be maintained for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union and its agents to insure that such notices are not altered, defaced, or covered by any other material. (b) Forward to the said Regional Director signed copies of Appendix B for posting by Respondent Employer, the Respondent Employer willing, at its Berkeley facility for 60 consecutive days in places where notices to employees are customarily posted. 10. 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 15 See In. 14. H. C. MACAULAY FOUNDRY CO. 821 C. The Respondent Employer, H. C. Macaulay Found- shall jointly and severally make whole George Sottero for ry Company, its officers , agents , successors , and assigns , any loss of earnings he may have suffered because of the and the Respondent Union, International Molders & Al- discrimination against him during the period from August lied Workers Local Union No. 164, AFL-CIO, San Fran- 21 to and including August 27, 1975, in the manner set cisco, California, its officers, representatives, and agents, forth in the section entitled "The Remedy."