McDonnell Douglas Corp.

National Labor Relations Board - Board Decisions

Jun 16, 1970

183 N.L.R.B. 419 (N.L.R.B. 1970)

CONDUCTRON CORPORATION 419
Conductron Corporation , a subsidiary of McDonnell
Douglas Corporation and Paul V. Hinkle,
Aerospace District Lodge No . 837, International As-
sociation of Machinists and Aerospace Workers,
AFL-CIO (Conductron Corporation , a subsidiary
of McDonnell Douglas Corporation ) and Paul V.
Hinkle . Cases 14-CA-5090 and 14-CB-1920'
June 16, 1970
DECISION AND ORDER
BY MEMBERS MCCULLOCH, BROWN , AND JENKINS
aminer 's credibility resolutions are not contrary to the clear preponderance
of all the relevant evidence and , accordingly , find no basis for distrubing
them Standard Drv Wall Products , Inc , 91 NLRB 544, enfd 188 F 2d 362
(CA 3)
2 Modify paragraph 2(a) of the Recommended Order directed against
Respondent Conductron Corporation to read as follows
Offer Paul V Hinkle immediate and full reinstatement to his former
job or , if that job no longer exists , to a substantially equivalent posi-
tion, without prejudice to his seniority or other rights and privileges
and invoke such powers or rights as it may have , arising out of its rela-
tionship with McDonnell Douglas Corporation , to insure its coopera-
'ion in effectuating the terms of this Recommended Order
Modify the last indented paragraph of Appendix A to read as follows
WE WILL offer to Paul V Hinkle immediate and full reinstatement to
his former job or , if that job no longer exists , to a substantially
equivalent position, without prejudice to his seniority or other rights
and privileges previously enjoyed , and make him whole for loss of pay
he may have suffered as a result of the discrimination against him
On March 4, 1970, Trial Examiner David S.
Davidson issued his Decision in the above-entitled
consolidated proceeding, finding that the Respond-
ents had engaged in and were engaging in certain
unfair labor practices and recommending that they
cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, both Respondents
filed timely exceptions and briefs in support
thereof, to the Trial Examiner's Decision.
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
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 the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent Conductron Corporation,
St. Charles, Missouri, its officers , agents, succes-
sors, and assigns, and Respondent Aerospace Dis-
trict Lodge No. 837, International Association of
Machinists and Aerospace Workers, AFL-CIO,
Hazelwood , Missouri , its officers, agents, and
representatives , shall take the action set forth in the
Trial Examiner 's Recommended Order.2
' The findings and conclusions of the Trial Examiner are based in part
upon his credibility determinations to which Respondents have objected
After a careful review of the record herein, we conclude that the Trial Ex-
183 NLRB No. 54
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Trial Examiner: The charge
in Case 14-CA-5090 was filed by Paul V. Hinkle,
an individual, on May 1, 1969, against Conductron
Corporation, hereinafter referred to as Conduc-
tron.' The charge in Case 14-CB-1920 was filed by
Hinkle on October 8, 1969, against Aerospace Dis-
trict Lodge No. 837, International Association of
Machinists and Aerospace Workers, AFL-CIO,
hereinafter referred to as the Union.
On October 17, 1969, the Regional Director is-
sued an order consolidating the two cases and a
consolidated complaint, alleging that Conductron
and the Union maintained in effect a collective-bar-
gaining agreement pursuant to which the Union
caused Conductron to discharge Hinkle without in-
forming him of his dues obligations and without af-
fording him a reasonable opportunity to satisfy
them. The complaint also alleges that despite a
protest by Hinkle that he had not been informed of
his obligations and had not been afforded a
reasonable opportunity to satisfy them, Conductron
discharged Hinkle pursuant to the Union's request
without investigating and ascertaining the circum-
stances underlying the Union's request. The com-
plaint alleges that the Union accordingly violated
Section 8(b)(2) and (1)(A) of the Act and that
Conductron violated Section 8(a)(3) and (1) of the
Act.
On October 22, 1969, and October 31, 1969, the
Union and Conductron filed their respective an-
swers denying the commission of any unfair labor
practices. In its answer Conductron also denied that
it was the Employer of Hinkle.
On November 5, 1969, the Regional Director is-
sued an amendment to the complaint changing the
description of Conductron in the opening para
graph to read "Conductron Corporation, a subsidi-
ary of McDonnell Douglas Corporation, herein
' The charge as filed named as the employer "Conductron-Missouri, a
Division of McDonnell Douglas Corporation " The complaint names the
Employer as set forth-in-the case caption above
427-258 O-LT - 74 - 28
420 DECISIONS OF NATIONAL
sometimes jointly called Respondent Employer."
The complaint was further amended to add para-
graphs relating to the business operations of Mc-
Donnell Douglas Corporation and to allege that
Conductron and McDonnell are affiliated busi-
nesses with common offices, owners , directors, and
operators who formulate and administer a common
labor policy for the aforementioned companies af-
fecting the employees of said companies.
Thereafter, Conductron amended its answer to
deny that McDonnell and Conductron were joint
employers , that Conductron was the Employer of
Hinkle , jointly or otherwise , and that McDonnell
and Conductron were affiliated in the manner al-
leged in the complaint. -
On December 9, 1969, a hearing was held before
me at St . Louis, Missouri . At the close of the hear-
ing, oral argument was waived . The parties were
given leave to file briefs which have been received
from the General Counsel and Conductron.
Upon the entire record in this case , including my
observation of the witnesses and their demeanor
while testifying , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
Conductron is and has been at all times material
a Missouri corporation with its principal office and
place of business located at St. Charles, Missouri,
where it is engaged in the manufacture, sale, and
distribution of flight simulation equipment and re-
lated products. McDonnell Douglas Corporation,
hereinafter referred to as McDonnell, is and has
been at all times material a Maryland corporation
with its principal office and place of business
located at St. Louis, Missouri, where it is and has
been engaged in research, development, and manu-
facture of aeronautics, astronautics, automation,
electronics, and allied equipment. During the calen-
dar year 1968, a representative period, Conductron
sold and shipped products valued in excess of
$50,000 from its St. Charles plant directly to points
outside the State of Missouri. While no similar
commerce facts were pleaded or adduced as to Mc-
Donnell, McDonnell is an employer over whom the
Board has asserted jurisdiction in the past,' and no
one disputes the assertion of jurisdiction. I find that
Conductron and McDonnell are employers engaged
in commerce within the meaning of the Act and
that assertion of jurisdiction herein is warranted.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of the Act.
2 International Association of Machinists and Aerospace Workers, District
No 9 (McDonnell Douglas Corporation), 171 NLRB No 35
' Conductron reimbursed McDonnell for wages paid the employees as-
signed to Conductron plus overhead and profit factors
LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The relationship between Conductron and
McDonnell
At all times material herein, Conductron em-
ployed a number of persons in a variety of capaci-
ties other than production and maintenance, and
McDonnell furnished from 600 to 800 of its em-
ployees on what was described as a "lease" or
"rental" basis to perform all production and main-
tenance functions for Conductron. These em-
ployees remained on McDonnell's payroll' and a
part of the overall bargaining unit of more than
10,000 McDonnell employees covered by a con-
tract between McDonnell and the Union. Conduc-
tron is not a party to the contract.
In performance of their duties for Conductron,
these employees were supervised by Conductron
supervisors, who assigned them work, directed their
work, and made recommendations based on the
quality of their work. Rules for employees were
established by McDonnell but enforced by Conduc-
tron supervisors, who imposed discipline in the first
instance. Grievances of the employees assigned to
Conductron were raised at the first step with Con-
ductron supervisors. Thereafter, in the remaining
steps of the procedure, grievances were discussed
with representatives of McDonnell.
Only one witness, Warren Flynn, labor relations
manager for McDonnell, was questioned as to the
corporate relationship between McDonnell and
Conductron. He testified that McDonnell bought its
interest in Conductron 4 or 5 years earlier, after
Conductron had been in existence for several years,
and at the times here material McDonnell owned a
controlling interest in Conductron. Flynn did not
know whether McDonnell and Conductron had any
common officers or directors. McDonnell is one of
Conductron's larger customers, but the percentage
of Conductron's work done for McDonnell was not
known to Flynn.
2. The employment of Hinkle
Paul Hinkle, the Charging Party, was hired by
McDonnell on or about November 15, 1967, and
was assigned to work for Conductron. He con-
tinued to work there until October 4, 1968, when
he was laid off.
Under the terms of the agreement between the
Union and McDonnell then in effect Hinkle was
required to join the Union after his hire.4
The agreement provided in this respect:
' The contract in effect at the time of his hire expired in January or
February 1969, and was replaced by a new contract The union-security
provisions were unchanged in the new agreement
CONDUCTRON CORPORATION 421
ARTICLE XVIII- UNION SECURITY
Section 1
As a condition of employment all employes
[sic] subject to the provisions of this Contract
shall become and remain members of the
Union in good standing. Good standing shall
consist only of the payment of dues.
The Company shall be required to terminate
an employe for non-membership in the Union
only if the Union certifies that membership in
the Union was denied or terminated solely by
reason of the employe's failure to tender the
periodic dues and initiation fees uniformly
required as a condition of acquiring or retain-
ing membership in the Union.
Section 2
New employes shall, before the expiration of
their probationary period (forty (40) working
days for all employees except Learner-Helpers
who are on probation for sixty-five (65) work-
ing days) make application for membership.
The agreement also provided for checkoff of
union dues upon written request, and that checkoff
authorizations shall continue in effect for the dura-
tion of the agreement or until a written withdrawal
of the authorization is received.
At the time of hire, McDonnell gives each new
employee a copy of the collective-bargaining agree-
ment. Employing personnel tell new employees
they are required to join the Union and remain
members after completing their probationary
period and give them a printed or mimeographed
form provided by the Union relating to membership
Dbligations.
Insofar as applicable herein, the form states.5
Union Membership .... NOTICE FROM
District No. 9, I.A. of M. & A. W.
Greetings:
In accordance with Article XVIII, Sections 1
& 2 of your Union contract you will receive
notification from the Company at the end of
your probationary period regarding Union
membership. If, however, you fall into catego-
ries (1) or (2) or (3) listed below, you must
take the necessary action to receive the indicated
benefits. Please also follow the instructions set
forth in categories (4) and (5).
(4). UNEMPLOYMENT STAMPS-Any
members who, through no fault of their own,
are unemployed for a major portion of the
month due to layoff, sickness or disability will
receive an unemployment stamp for that
month at the cost of 50 cents per month,
providing they apply to the Union Office
within a 3 month period after unemployment.6
At the time of Hinkle's hire, the usual procedures
were followed by McDonnell. Following his hire,
Hinkle did not join the Union immediately, but
waited until he received a notice from McDonnell.
The notice, dated January 24, 1968, was on a
mimeographed form, and was addressed to his su-
pervisor, and indicated that it was from "Labor
Relations." It stated:'
1. We have been notified by the Union that
subject employee has not complied with Arti-
cle XVIII of the Articles of Agreement which
requires that, as a condition of employment, all
employees subject to the provisions of the
Contract shall become and remain members of
the Union in good standing.
2. The Union has requested that subject em-
ployee be terminated and not permitted to
work after 1/26/68.
3. Please arrange for subject employee's ter-
mination in accordance with the above. Should
subject employee for any reason feel that the
Union's request is in error, please have him
contact the Union directly at PE 1-0644, im-
mediately, so that the matter can be cleared
up.
Upon its receipt, Hinkle went directly to the
union hall and joined the Union.' He was not
discharged. At the time Hinkle joined the Union,
Hinkle also signed a checkoff authorization, and
thereafter Hinkle's dues were withheld from his pay
until he was laid off.
A new member of the Union is usually given a
copy of the International union constitution at the
time he joins. Although Hinkle denied that he
received one at that time, I find that he had
received one prior to his layoff.'
'The form given Hinkle at the time of his hire was supplied by District 9,
IAM, which then represented McDonnell employees Later Lodge 837
replaced District 9 as the representative and a new form under its letter-
head was used Its contents were somewhat changed , but there is no show-
ing that Hinkle was ever given a copy of the new form -
"Other categories mentioned are not material herein On the form put
out by Lodge 837 to replace the quoted form, the last sentence of the in-
troductory paragraph was omitted and the paragraph equivalent to (4)
above was unchanged except that the 3-month period was reduced to a 30-
day period
' All but the date was printed on the forms
" Hinkle 's receipt for his initiation fee was dated January 29, 1968 Hin-
kle testified that his delinquency was attributable to confusion on his part
as to when his probationary period ended
Hinkle testified that he first received a copy of the constitution when
they were distributed to employees at work on April 25, 1969, the last day
he worked However, the testimony of McClintock and Flynn is convincing
that no such distribution occurred , and I do not credit Hinkle in this regard
As the constitution which he had was amended and replaced by a later edi-
tion around the time of his recall , I conclude that Hinkle had been given a
copy of the constitution at some earlier date
422 DECISIONS OF NATIONAL
3. Hinkle 's layoff and failure to maintain his union
membership
As set forth, Hinkle was laid off on October 4,
1968.10 A letter listing laid-off employees, including
Hinkle, was routinely sent to the Union at the time.
On October 8, 1968, Hinkle visited the union hall,
and spoke to Jacquelyn Forkan, an employee of the
Union, asking if he could obtain a withdrawal card
from the Union. She replied that he could not
because he was unemployed and that he would
have to obtain an unemployment stamp. Hinkle
agreed, paid 50 cents, and obtained an unemploy-
ment stamp for October.
According to Hinkle, Mrs. Forkan said nothing
further about Hinkle's obligation to obtain unem-
ployment stamps thereafter and he did not know
that he was required to ask for any more. Mrs. For-
kan testified that she had a general recollection of
having seen Hinkle before, but could not recall her
conversation with him in October. However, she
testified that her records indicated that she had
received Hinkle's payment for the unemployment
stamp, and that her normal procedure was to tell
laid-off employees that they have to pay 50 cents
for an unemployment stamp, which is due between
the 18th and 22d of each month and which they
should either bring or mail to the union office. She
testified that she also tells them that they are car-
ried for 90 days without any payment, but they are
dropped at the end of that period if they have not
paid."
Shortly after his layoff, Hinkle went to California.
He did not notify the Union of his change of ad-
dress, although he testified that he received a copy
of a union newspaper while there. He paid no
further unemployment dues.
The constitution of the International Association
of Machinists and Aerospace Workers provides that
delinquency for 3 months in the payment of dues or
special levies shall automatically cancel member-
ship. It provides also in article G for the issuance of
inemployment stamps, upon a charge of 50 cents
per month, "for the purpose of aiding members to
maintain their good standing." The conditions of
issue set forth in article G are:"
Sec. 3 Members who, without fault on their
part, are unemployed for the major portion of
any month, and therefrom suffer a total or pro-
portionate loss of earnings, due to separation
from employment, layoff or furlough, sickness
or disability, are entitled to unemployment
stamps for that month and are thereby excused
from the payment of regular dues, upon com-
10 At the time of his layoff, Hinkle 's supervisor gave him a set of mimeo-
graphed sheets entitled " Instructions to Laid Off CBU [Collective
Bargaining Unit] employees ," setting forth the rights and benefits avail-
able to laid-off employees It contained no reference to union obligations
"Mis Forkan testitieo furtner that she usually also tells laid -off em-
ployees that if they are recalled to work, they do not serve another proba-
tionary period , but must come back into the Union immediately and pay a
$35 reinstatement fee if they have not kept their memberships up How-
LABOR RELATIONS BOARD
plying with the following conditions relating
thereto:
They shall register their names and addresses
in the out-of-work book or communicate with
the F.S., S.T., or business representative of the
L.L. stating they are unemployed, or sick or
disabled, any time within a 3-month period.
The matter of reporting is entirely the mem-
ber's responsibility.
Their monthly dues and assessments must be
paid within the 3 month's limit.
They -shall make application for the unem-
ployment stamps before the expiration of 3
months from the month for which their last
dues were paid.
The F.S. or S.T. shall place the unemploy-
ment stamp in the square of the month next
following that of the month in which the last
dues stamp was placed.
Members who have received unemployment
stamps shall, immediately upon securing em-
ployment, report to the F.S., S.T., or business
representative.
Some reference to these obligations appeared in
the dues book issued to Hinkle which had various
statements printed on the blank pages where
stamps were to be affixed. These included: "A good
member pays dues promptly .... Lapsed member-
ship cancels accumulated benefits ... Don't lose
your benefits because you are out of work, Get
Unemployment Stamps."
In January 1969 Hinkle became 3 months
delinquent in the payment of unemployment dues
and was dropped from the Union's membership
rolls. Although the Union usually sends a letter to
delinquent employees notifying them at the time
they are dropped, no letter was sent to Hinkle. Ac-
cording to Union Secretary-Treasurer McClintock,
at the time Hinkle was dropped the Union was on
strike, office operations were reduced to a
minimum, and no letters were sent to any em-
ployees who became delinquent and were dropped
during that period.
4. Hinkle's recall from layoff
Hinkle was recalled from layott ana returned to
work on April 8, 1969. He was again assigned to
work at Conductron. Upon returning to work, Hin-
kle did not go to the union office to inquire as to
his obligation to the Union. However, he testified
that after his return to work he spoke to a shop
steward on two occasions and asked him what he
should do about the Union. According to Hinkle
ever, on cross- examination, when asked to restate what she tells laid-off
employees , Mrs Forkan did not mention the obligation of a laid-off em-
ployee upon being recalled Secretary -Treasurer McClintock also omitted
this from his recital of the instructions given the Union 's employees as to
what to tell laid-off employees seeking unemployment stamps
1L The abnreviatiuns in the passage set forth stand for Financial Secreta-
ry, Secretary-Treasurer, and Local Lodge
CONDUCTRON CORPORATION 423
the steward said he would contact the business
agent but a few days later said he had been unable
to do so as yet, and Hinkle heard nothing further
from him. Hinkle conceded that he was aware that
he was required to pay dues, but testified that he
assumed that the checkoff system was still in effect.
After his recall he received two pay checks from
which no dues were deducted, but he assumed they
would be deducted from the first paycheck of the
next 'month in accordance with previous practice.
No union representative contacted Hinkle after his
recall, and he heard nothing from the Union.
According to McClintock, when employees are
recalled from layoff, their checkoff authorizations
are not automatically reinstated, but they are
required to execute new authorizations. McClin-
tock testified that ordinarily when the Union
receives notice of the recall of a laid-off employee,
it attempts to contact him through a business agent
to get him back in good standing. However, no
agent was instructed to contact Hinkle. McClintock
assigned two reasons for the failure to do so. One
was that the Union did not receive notice of Hin-
kle's recall until April 20, a few days before the
time of the month when it customarily sends letters
to McDonnell requesting the discharge of
delinquent employees. The other was that the busi-
ness agents were tied up in the confusion of the
strike aftermath and were not notified.
5. Hinkle's discharge
On April 22, 1969, the Union sent McDonnell's
labor relations manager a letter, stating:
The following listed employees have failed to
pay their period [sic] dues within the ninety
(90) day period, are therefore, no longer mem-
bers in good standing in accordance with Arti-
cle XVIII of Articles of Agreement between In-
ternational Association of Machinists, District
No. 837 and the McDonnell Douglas Corpora-
tion.
There followed a list of 38 names and clock num-
bers, including Hinkle's name. The letter con-
cluded:
The undersigned wishes the Company to un-
derstand that if the above listed employees fail
to become members of District No. 837 on or
before April 25, 1969, they are to be denied
employment on the next working day which
would be April 28, 1969.
The letter was received by McDonnell on April
23, 1969. Following_itc receipt, the labor relations
department checked to determine whether any of
the employees listed either had left their jobs or
had been promoted to jobs out of the bargaining
unit. A number of the employees on the list fell in
these categories. The Union was notified by
telephone that these employees were not subject to
discharge. As for the remainder, the identity of
their superv:-irs was determined, and each super-
visor was called by telephone and instructed not to
let the named employees under his supervision
work on April 28, unless previously notified by the
labor relations department that the employee was
paid up.13 Hinkle's foreman at Conductron was
given such notice, either directly or through Mc-
Donnell's labor relations representative at the Con-
ductron plant.'' The record does not indicate when
this instruction was transmitted, but Hinkle was
given no notice of it by McDonnell or Conductron
until April 28.'1
On April 28, when Hinkle arrived at work, Con-
ductron Supervisors Michaels and Meyerson ap-
proached him and told him that they had a letter
from the Union asking for his termination. Hinkle
asked if he could call the union hall, and Michaels
gave him permission to do so. Hinkle asked
Michaels to come with him and witness or wait
while he called. They went to a pay station where
they were joined by Conductron's production
manager, Shaw. Hinkle telephoned McClintock,
leaving the door of the telephone booth open. He
told McClintock he was being terminated because
of the Union's letter and asked why the Union
requested his discharge. McClintock explained that
he was delinquent because he failed to obtain
unemployment stamps while he was on layoff. 16
Hinkle asked if it would be all right for him to come
in the next day and pay whatever was necessary to
reinstate himself. McClintock told Hinkle that the
Union could accept his payment if he was still em-
ployed. Hinkle then asked Michaels to take the
phone and speak to McClintock, so that McClin-
tock could tell Michaels that it would be all right if
Hinkle came in to reinstate himself on the following
day. Michaels started to take the phone, but Shaw
stopped him, stating that a verbal agreement was
unacceptable and any agreement had to be in writ-
ing. Hinkle asked Michaels and Shaw if he could
leave the plant to go to the union hall to straighten
the matter out, but they refused him permission."
Immediately after terminating his conversation
with McClintock, Hinkle told Michaels and Shaw
that this was the first he knew of his obligation to
pay unemployment dues. He did not recall their
response, but immediately thereafter, Hinkle was
terminated."'
" Flynn also testified that an employee would be permitted to work if he
showed his supervisor a membership book showing that he was paid up
" According to Flynn the practice followed in April was the same as that
followed whenever similar letters were received from the Union
" Flynn testified it takes a day or two to locate the employees and to
determine if they are still in the unit , leaving time only to telephone the de-
partments and instruct them to discharge the delinquent employees
" According to Hinkle this was the first he knew that he was supposed to
pay for unemployment stamps each month while he was on layoff
" Labor Relations Manager Flynn testified employees were allowed to
leave to pay dues if they were about to lose their jobs because of delinquen-
cy and it was necessary for them to do so to reach the union hall before it
closed Although not entirely clear, I construe his testimony to mean that
employees were allowed to leave the plant to pay dues if they requested
permission to do so before the deadline set in the Union's letter for their
discharge
" Except for the conversation with McClintock, to which McClintock
also testified, only Hinkle testified to these events
424 DECISIONS OF NATIONAL
6. Hinkle's attempts to secure reinstatement
On the day after his discharge Hinkle went to the
McDonnell labor relations department and was told
to speak to a Mr. Firks, one of Flynn's assistants,
whom he located by phone at the Conductron
plant. Hinkle told him he had been terminated
because of the Union's letter. Firks said there was
nothing he could do, but suggested that Hinkle talk
to union officials. Firks said that if there had been
an error on the part of the Union he could possibly
get his job back.
Hinkle went to the union hall and asked McClin-
tock how he could reinstate himself with the Com-
pany and the Union. McClintock told him he had
been dropped from membership for failure to pay
unemployment dues for 3 months, and that he
would have to pay a $35 reinstatement fee to regain
good standing with the Union. Hinkle said he was
willing to pay the fee but believed he should first
determine whether he would be reinstated on his
job if he paid. McClintock agreed, and Hinkle
asked McClintock to incuire as to the possibility of
his reinstatement. McClintock telephoned Flynn,
out of Hinkle's presence, and asked Flynn to rein-
state Hinkle. Flynn reminded McClintock that it
was Respondent's policy not to reinstate or rehire
employees after they had been discharged.19
McClintock sought to persuade Flynn to make an
exception, but Flynn declined. McClintock then in-
formed Hinkle that he had called Flynn and that
Flynn would not reinstate Hinkle.
At McClintock's suggestion, Hinkle next spoke
with Union Business Representative Ashcraft. Hin-
kle explained to Ashcraft that he had been ter-
minated because of the Union's letter. He told Ash-
craft that the form notice from the Union given em-
ployees at the time of their hire did not state when
he should pay dues or what amount he should pay
during the period of his layoff.20 Hinkle asserted
that his obligations while on layoff were not clear
from the union notice. Hinkle also told Ashcraft he
had received no notice of his delinquency. Ashcraft
read the notice, and according to Hinkle, he said
the Union must have made a mistake.21 Ashcraft
also told him that he did not receive a notice of his
delinquency while he was on layoff because the
Union did not have his current address.22
While Hinkle was in Ashcraft's office, Ashcraft
called Firks, an assistant to Flynn.23 According to
Hinkle, Ashcraft told Firks that Hinkle had been
" Flynn testified that it is McDonnell's policy to rescind a discharge
requested by the Union for nonpayment of dues only if the Union notified
McDonnell that the dues had been paid before the deadline for discharge
or that the request for discharge was the result of a clerical error by the
Union Flynn testified that it is also its policy not to rehire employees im-
mediately after discharge at the Union's request, because it does not want
to be a collection agent for the Union, explaining that McDonnell did not
want employees to put off paying their dues until after discharge thus
requiring McDonnell to go to the expense of processing unnecessary
discharges and hires and shifting personnel around pursuant to seniority
p. c•.,^wn:. of the contract
- we •ime of this conversation another employee was present in Ash-
LABOR RELATIONS BOARD
terminated pursuant to the Union's letter and that
"obviously the Union had made an error" in its
form notice to employees of their obligations in
that it was not completely clear as to when or how
often they should pay dues or what was required to,
maintain good standing in the Union. He asked
Firks to reinstate Hinkle, but Firks refused.
Ashcraft then called Flynn. According to Hinkle,
Ashcraft repeated to Flynn what he had told Firks,
telling him that "the union was in error on the
letter that they had given us as an instruction sheet
as to when we should pay, not giving a specific
time."
Ashcraft testified that to the best of his
knowledge, he did not tell Flynn the Union had
made an error or mistake with respect to Hinkle.
However when asked if he was certain that he made
no statement to Flynn that there was error com-
mitted by the Union, Ashcraft replied, "I'm not
positive, no, sir. I don't think that there was. I don't
think that I had made any kind of a statement what-
ever along that line. It's been a long time ago, and
I'm not positive of every word that was said, but I
don't think so." According to Flynn, when Ashcraft
asked him to reinstate Hinkle, he reminded Ash-
craft of McDonnell's consistent policy of refusing
to reinstate employees after discharge at the
Union's request, and asked Ashcraft why he was
even raising the matter. Flynn testified that Ash-
craft replied that Hinkle said he had not received
some of the notices and was confused. Flynn
testified that he did not ask if Hinkle received the
notice or ask what the confusion was but replied
that employees always have interesting stories when
caught for nonpayment of dues, and that he would
not go along with them and was not going to on this
occasion. Flynn denied that Ashcraft said that the
Union had been in error in any way. Both Ashcraft
and Flynn testified that Ashcraft "rattled the tin
cup" for a while in Hinkle's behalf before giving up.
After talking to Flynn, Ashcraft went to the of-
fice of Union President Brock and asked him to in-
tervene to see if there was anything he could do to
get Hinkle's job back. Brock then called Flynn.
Flynn told Brock that he would only take action
if there had been a gross error in the union office,
such as a clerical error resulting in putting a name
on the list by mistake or a failure to notify McDon-
nell that an employee paid his dues before his
discharge. Flynn also said that in that event, he
wanted written notice of the error. Brock said he
craft's office to make a complaint similar to Hinkle's That employee, who
was not identified by name, had a copy of the form notice with him
=' Ashcraft did not mention any discussion of the union notice in his
testimony He initially denied that he told Hinkle that the Union had made
a mistake, but then testified that he perhaps told Hinkle that his failure to
receive a notice was a mistake because the Union normally notified em-
ployees that they were delinquent
: According to Ashcraft, McClintock told him the Union had sent Hin-
kle a notice which was returned for lack of a current address McClintock,
however, made no such claim in his testimony
Hinkle so testified Ashcraft did not mention his conversation with
Firks in his testimony but did not deny that it occurred
CONDUCTRON CORPORATION 425
would check to see if this was the case. Brock in-
formed Ashcraft of the conversation, and Ashcraft
told Hinkle that Brock had called and the answer
was still negative.
Flynn testified that he insists on a written state-
ment of error from the Union so that he can
establish that company policy has not been changed
:end that the Company has merely corrected an er-
ror. Flynn also testified that he did not ask any of
those who called him if the Union had given notice
t:1 Hinkle because he assumed that it always did.
Hinkle was never reinstated. However, if he had
been, he would have been laid off again because of
low seniority on June 13, 1969.
B. Concluding Findings
1. The alleged violation of Section 8(b)(1)(A) and
8(b)(2)
The General Counsel contends that the Union
violated Section 8(b)(2) and (1)(A) by failing to
fulfill its fiduciary duty to inform Hinkle clearly of
his union-security obligations under the contract
before demanding his discharge.24
In Hotel, Motel and Club Employees' Union, Local
568 [Philadelphia Sheraton Corp.] v. N.L.R.B.,25 the
court of appeals held as to a union seeking to en-
force a union-security agreement:
The comprehensive authority vested in the
union, as the exclusive agent of the employees,
leads inevitably to employee dependence on
the labor organization. There necessarily arises
out of this dependence a fiduciary duty that
the union deal fairly with employees. [Cita-
tions omitted.] 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
jou tenure. [Citation omitted.] The union may
not evade this duty, as the Local did here, and
then demand the dismissal of the employee
when he becomes delinquent in the payment of
his dues.
In that case and most of those following its prin-
ciple, including those cited by the General Counsel
in his brief, unions sought the discharge of newly
hired employees without previously advising them
of their obligations to the union.26 However, in
N.L.R.B. v. International Union of Electrical, Radio
and Machine Workers, AFL-CIO [General Motors
Corporation], 307 F.2d 679 (C.A.D.C.), cert. de-
2' The complaint raises no issue as to the validity of the union-security
clause in the agreement or as to its application to require maintenance of
his membership during the period of his layoff
320 F 2d 254, 258 (C A_ 3), en_fg_136 NLRB 888
Local545, Operating Engineers (Joseph Saraceno & Sons), 161 NLRB
1114, Local No 113, Hod Carriers (James Lutherbach Construction Co ),
167 NLRB 39, Granite City Steel Company, 169 NLRB 1009, Local 98D,
nied 371 U.S. 936, the court enforced a Board
order27 applying this principle where the employee
had been employed for a considerable period of
time, had been a member of the union pursuant to
a union-security provision, had permitted his mem-
bership to lapse during a contract hiatus, and had
made a tender improper in form and amount which
the union rejected without explanation after a new
union -security agreement was executed. Although
the facts in that case differ from those present here,
it stands for the proposition that despite prior mem-
bership in a union, an employee is not presumed to
be on notice as to the extent of his obligations to
the union during successive contract terms.
Moreover, it follows from the rationale of the Hotel
Employees case, that the obligation of a union with
respect to the employees it represents is a continu-
ing obligation, and that in each case in which a
union seeks the discharge of an employee for
failure to comply with a union-security agreement,
all of the circumstances must be examined to deter-
mine whether the union has adequately informed
the employee of his obligations relative to its
request for discharge
In this case, when Hinkle was first hired, he was
given adequate notice of his obligations as a new
employee. Thus, Hinkle was given specific notice
that he was required to join the Union, and when
he failed to do so within the proper time, he was
given an opportunity to join before being
discharged.
It is less clear how explicitly Hinkle was informed
of his obligations to the Union while on layoff.
Although I have found that Hinkle was given a copy
of the union constitution at some time before his
layoff; the provisions of the constitution (article G,
sections 1-4) are less than clear as to whether a sin-
gle unemployment stamp suffices for the entire
period of unemployment or monthly stamps are
required. Neither the form notice given Hinkle at
the time of his hire nor the printed statements in
Hinkle's dues book resolve that ambiguity.
Although Mrs. Forkan testified that she explains to
laid-off employees that they must pay unemploy-
ment dues each month until recalled, she had no
specific recollection of her conversation with Hin-
kle, and Hinkle denied that she explained his con-
tinuing obligation to him. In view of the fact that
Hinkle came to the office at a busy time, that Mrs.
Forkan has other duties which may interrupt her at
times while receiving dues from employees, and in
he absence of any reason to discredit Hinkle, I
,. onclude that Hinkle's obligation to continue pay-
International Union of Operating Engineers, AFL-CIO (Construction Field
Surveys), 156 NLRB 545, Teamsters Local Union No 122 (August A Busch
& Co ), 173 NLRB 1283, Associated Transport, Inc , 156 NLRB 335, 169
NLRB-1 143, enfd 401 F 2d 509 (C A 2) In the latter case the dischargee
had been employed for same time but had never been apprised of his duty
to join the union pursuant to a collective -bargaining agreement
27 129 NLRB 1379, 130 NLkB 1286
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing unemployment dues during the period of his
layoff was not explained to him in October.28
But even, assuming that Hinkle had adequate
notice at the time of his layoff of what was required
to retain membership during the period of his
layoff, I find that the Union had a further obliga-
tion, which it failed to meet, to inform him that his
job was in jeopardy after his reemployment and be-
fore his discharge. Although Hinkle was aware that
he was required to be a member of the Union after
recall, the contract was not explicit in spelling out
that he was required to continue his membership
during the period of his layoff as a condition of em-
ployment. It may well be that a more diligent em-
ployee would not have waited after reinstatement
but would have gone to the union hall to determine
what obligation, if any, he had, and that for the
Union's internal purposes, the Union had fulfilled
its organizational responsibilities. But here we are
not simply weighing Hinkle's membership rights
against the Union's organizational right to demand
some initiative on the part of its members. Here we
must weigh the Union's right to require member-
ship to the extent of paying dues and initiation fees
as a condition of employment against the em-
ployees' right to keep his job. Under the principle
of the Hotel Employees case, the extremity of the
penalty against the employee for nonpayment of
dues requires that it should not be sanctioned un-
less as a practical matter the Union has taken the
necessary steps to make certain that a reasonable
employee will not fail to meet his membership
obligation through ignorance or inadvertence but
will do so only as a matter of conscious choice.
Here Hinkle was sent no notice during the period
of his layoff to inform him of his delinquency.29
After Hinkle was recalled to work, despite the
Union's normal practice, he received no notice
from the Union, either in writing or through per-
sonal contact, explaining what he must do to
restore himself to good standing in order to retain
his employment. The Union's explanations for these
omissions may be reasonable in terms of its internal
operating problems due to the strike, and there is
nothing to indicate that there was the slightest
animus against Hinkle, but that fact remains that
whatever the reason Hinkle was never told what he
was required to do to avoid discharge until after he
was discharged.
Z" 1 have also rejected Mrs Forkan's testimony that she customarily ex-
plained to laid-off employees their obligation upon recall, which she did
not repeat on cross-examination and was not corroborated by McClintock
Although the Union also pointed to an issue of a union newspaper as notice
of these obligations, that issue dated March 15, 1968, described a situation
dissimilar to Hinkle's in which a member had been required to pay a rein-
statement fee as a consequence of failing to pay an increased amount of
dues and to notify the Union of a change of address It did not spell out the
obligation of a laid-off employee to pay unemployment dues or the nature
of his obligation after recall
1H Although Ashcraft quoted McClintock as saying that he had sent a
notice to Hinkle which was returned to the Union for lack of a proper ad-
dress, McClintock conceded that no notice had been sent One cannot
speculate over whether it would have been forwarded to Hinkle if sent
This is not a case in which a union member, ac-
customed to paying dues, simply permitted his dues
to lapse during his employment. Hinkle was laid off
for some 6 months. fhe contract under which he
was discharged was not explicit in setting forth the
obligations of a recalled employee. Hinkle was not
totally passive, but inquired of a union steward
about his obligation. He received no effective reply.
When Hinkle was initially employed, he was given a
clear notice of his failure to join the Union in time
to avoid discharge, and was permitted to become a
member of the Union and retain his employment
even after the date on which his discharge was
requested had passed. Hinkle had signed a checkoff
card which he had never revoked.30 To be sure Hin-
kle might well have taken further initiative to con-
tact the Union upon reemployment to assure com-
pliance with the agreement, but so also the Union
might have taken steps, which it did in the usual
case, to make certain that Hinkle knew of his
obligations. As between the two, I conclude that
the burden was on the Union to do so before seek-
ing his discharge. Having -failed to give Hinkle
notice of his obligations, I find that the Union vio-
lated Section 8(b)(2) and 8(b)( I )(A) of the Act in
causing Hinkle's discharge.
2 The alleged violation of Section 8(a)(3) and (1)
of the Act
a. The responsibility of Conductron
The alleged employer violations raise two prin-
cipal issues. The first is whether Conductron was
the employer of Hinkle and accountable for his
discharge. The second is whether the discharge vio-
lated Section 8(a)(3) and (1). The evidence con-
cerning the relationship between McDonnell and
Conductron is set forth in section A, 1, above, and
need not be repeated. Conductron contends that it
was not the employer of Hinkle, while the General
Counsel contends that Conductron and McDonnell
were joint employers of Hinkle and that Conduc-
tron may be held responsible for the discharge of
Hinkle.31
Conductron relies upon the Board's decision in
Roane-Anderson Company, 95 NLRB 1501, 1503,
in support of its contention. There the Board
stated:
'" The agreement in evidence provides that a checkoff authorization
shall be valid only for the duration of the agreement and that agreed-upon
checkoff forms will be used A copy of the form signed by Hinkle was not
placed in evidence It is thus not known whether the authorization expired
by its terms with the previous contract or contained terms providing for au-
tomatic renewal in the event of contract renewal
" The General Counsel does not contend that McDonnell is a party to
this proceeding or that an order may be directed against McDonnell if a
violation is found Although the Board has held that it is appropriate for the
General Counsel to secure an amended charge to add a party when it ap-
pears that the original charge may be insufficient , that was not done in this
case See Petersen Construction Corp , 128 NLRB 969, vacated in part for
other reasons , 134 NLRB 1768, 1770
CONDUCTRON CORPORATION 427
The decisive elements in establishing an em-
ployer-employee relationship are complete
control over the hire, discharge, discipline, and
promotion of employees, rates of pay, supervi-
sion, and determination of policy matters.
In that case although the entity contesting
its status as employer paid the employees in
question, carried them on its payroll, and was
identified as their employer on their passes and
driver's licenses, the Board found that it was not
their employer, as complete control over the enu-
merated matters resided in the Atomic Energy
Commission. Here control over the employees per-
forming Conductron's production and maintenance
functions was divided. They were hired and
discharged by McDonnell and their terms and con-
ditions of employment were determined by McDon-
nell's contract with the Union. Their grievances
after the first step were processed by McDonnell's
labor relations department, but they were super-
vised by Conductron supervisors, who initiated
disciplinary action against them, made recommen-
dations based on the quality of their work, and han-
dled their grievances at the first level. Thus while
Conductron delegated to McDonnell responsibility
for furnishing its workers and establishing many of
the terms a'nd conditions of their employment, it
retained control over the performance of their
work anc'their conduct on the job. McDonnell was
not an independent contractor retained to perform
Conductron's production and maintenance work as
it saw fit. Rather McDonnell was a source of em-
ployees for Conductron with whom Conductron
shared the normal functions of an employer.
Moreover, while the record fails to establish that
McDonnell and Conductron were a single in-
tegrated employing entity, the record does establish
that Conductron is a subsidiary of McDonnell and
that McDonnell is a substantial customer of Con-
ductron. In these circumstances I conclude that
McDonnell and Conductron were joint employers
of the employees who performed Conductron's
production and maintenance work and that Con-
ductron is responsible for the conduct of McDon-
nell with respect to these employees as well as its
own.32
b. The alleged violation
Section 8(a)(3) of the Act, which is closely
parallel to Section 8(b)(2), provides that it is an
unfair labor practice for an employer to dis
criminate in regard to hire or tenure of employment
to encourage or discourage union membership, pro-
vided that nothing in the Act shall preclude an em-
ployer from entering into a union-security agree-
ment satisfying prescribed conditions, and
Provided further, That no employer shall justify
any discrimination against an employee for
nonmembership in a labor organization (A) if
he has reasonable grounds for believing that
such membership was not available to the em-
ployee on the same terms and conditions
generally applicable to other members, or (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 the initiation
fees uniformly required as a condition of
acquiring or retaining membership, ....33
Thus, under the scheme of the Act it is dis-
crimination for an employer to discharge an em-
ployee for nonmembership in a labor organization,
but the discrimination is excused if the conditions
of the proviso to Section 8(a)(3) are satisfied. The
burden placed upon an employer to excuse such
discrimination is less than that upon a labor or-
ganization. Although an employer may inform an
employee of his union obligations prior to
discharge, the duty to do so rests with the labor or-
ganization and not the employer. Similarly, while
the labor organization may not lawfully cause a
discharge pursuant to a union-security clause for
reasons other than a loss or denial of membership
caused by a failure to tender periodic dues and in-
itiation fees, an employer may lawfully respond to a
request for a discharge unless it has reasonable
grounds to believe that membership was not availa-
ble to the employee on the same terms applicable
to other members or that membership was denied
or terminated for reasons other than failure to
make a tender of the required fees. Only when an
employer has such reasonable grounds does a duty
arise to investigate the circumstances of the
discharge.34 In most of the cases coming before the
Board and courts in which the employer's duty to
investigate has been considered, the question has
been whether the employer had reasonable grounds
to believe that a tender had been made and not
whether failure to make a tender was due to a
union's failure to inform an employee of his obliga-
" Hoskins Ready-Mix Concrete, Inc , 161 NLRB 1492 See also Man-
power, Inc of Shelby County, 164 NLRB 287, The Greyhound Corporation,
153 NLRB 1488, enfd 368 F 2d 778 (C A 5)
" The parallel provision of Section 8(b)(2) provides that it is an unfair
labor practice for a labor organization to cause or attempt to cause an em-
ployer to discriminate against an employee in violation of Section 8(a)(3)
or
to discriminate against an employee with respect to whom member-
ship in such organization has been denied or terminated on some
ground other than his failure to tender the periodic dues and the initia-
tion fees uniformly required as a condition of acquiring or retaining
membership,
" Granite Cite Steel Company, 169 NLRB 1009, Associated Transport,
Inc, 169 NLRB 1143, Stoats Dairy Transport, Inc, 162 NLRB 995, Zoe
Chemical Co , Inc, 160 NLRB 1001, enforcement denied 406 F 2d 574
(C A 2), Air Flo" Sheet Metal, Inc , 160 NLRB 1653, enfd 396 F 2d 506
(C A 7), Leece-Neville Company, 140 NLRB 56, enfd as modified 330
F 2d 242 (C A 6), cert denied 379 U S 819, Philadelphia Sheraton Cor-
poration, 136 NLRB 888, 892-893, May Department Stores, Inc, 133
NLRB 1096, International Union of Electrical, Radio and Machine Workers,
AFL-CIO (General Motors Corporation), 129 NLRB 1379, enfd 307 F 2d
679 (C A D C ), cert denied 371 U S 936
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion.35 Nonetheless, if a union's failure to-fulfill its.
statutory obligation removes discrimination trom
the protection of the proviso to Section 8(b)(2),
then it follows that the discrimination is removed
from the parallel protection of the second proviso
to Section 8(a)(3) when the employer has reasona-
ble grounds to believe that the union has failed to
fulfill its fiduciary obligation.36 Accordingly, it is
necessary to determine whether Conductron and/or
McDonnell had reasonable grounds to believe that
Hinkle was not notified of his membership obliga-
tions.
Here at the time the request to discharge was
made, neither McDonnell nor Conductron had any
reason to believe that the Union's request was
based on any reason other than dues delinquency.
Although McDonnell or Conductron might have
given Hinkle advance notice of his impending
discharge, it had no statutory duty to do so, and
there is no indication that either withheld notice for
any improper reason. The first inkling that the
Union's request was improper came when Hinkle
informed his Conductron supervisors he had not
previously known of his obligation to pay unem-
ployment dues. The Conductron supervisors took
no action in response. If they had communicated
this information to the labor relations department,
a telephone call to the Union might well have
verified Hinkle's claim, and in the light of Hinkle's
recent return from layoff, it might well have been
concluded that Hinkle should be given time to pay
his dues. To be sure, if the Union failed to verify
the claim, the Employer's duty might have been
satisfied '31 but Conductron's supervisors made no
effort to communicate Hinkle's claim, and
proceeded to effectuate the discharge. I conclude
that Hinkle's protest, coupled with his claim that
the Union would accept his dues if tendered then,
was sufficient to furnish reasonable grounds to be-
lieve that Hinkle's discharge was not protected by
the proviso to Section 8(a)(3).
Moreover that was not the end of the matter. On
the following day, Flynn received three separate
telephone calls from union officials seeking Hin-
kle's reinstatement. If the mere fact that three offi-
cials called to plead for Hinkle did not put Flynn on
notice, the content of Ashcraft's call should have,
for, as Flynn conceded, Ashcraft told him that Hin-
kle had not received some of the notices and was
confused. Whether or not Ashcraft specifically con-
fessed an error or mistake, as Hinkle testified, Ash-
craft and Flynn both summarized a portion of Ash-
craft's remarks as "rattling the tin cup," and I find
" In Associated Transport, Inc , 169 NLRB 1143, the Board held that the
employer had no reasonable ground to believe that the union had failed to
perform its fiduciary obligation The Board thus was not required to decide
what the consequences would have been if the employer had reasonable
grounds to believe that the union had failed to perform its fiduciary obliga-
tion
" In such circumstances, it may be said that the employee has in a literal
that in the course of Ashcraft's plea he did refer to
the lack of clarity in the Union's form notice given
to new employees as well as Hinkle's failure to
receive specific notice of his delinquency and
obligation.38 Flynn concededly did not inquire as to
the details of Hinkle's lack of notice, but instead
took the position that he would reinstate Hinkle
only if the Union had made a mistake placing Hin-
kle's name on the list or had failed to notify
Respondent of receipt of his dues before Hinkle's
discharge. With the inquiry thus narrowed, the
Union conceded that neither of the specified errors
had occurred.
In his response to the calls of the union officials
and particularly Ashcraft's, Flynn took an unduly
narrow view of the circumstances which might
render Hinkle's discharge improper. For the lack of
notice to Hinkle of his obligations rendered the
Union's request unlawful, and when Ashcraft raised
the lack of notice to Hinkle and Hinkle's confusion,
Flynn was placed on notice that the request for his
discharge was probably defective. At this point,
Flynn was no longer being asked to reinstate Hinkle
based simply on Hinkle's unsupported claim, but
the claim was supported by a union business
representative. At the very least, Ashcraft's call
furnished reasonable grounds to believe that the
Union's request for Hinkle's discharge had been for
reasons other than the failure of Hinkle to tender
the periodic dues and initiation fees within the
meaning of the proviso to Section 8(a)(3).
It is true that Flynn's conversation with Ashcraft
did not occur until after Hinkle had been
discharged and in connection with a request for
Hinkle's reinstatement. But when Flynn received
the telephone calls from the union officials on the
following day, he was in effect asked to reconsider
the discharge in the light of newly discovered
evidence not previously brought to his attention.
That evidence supplied reasonable basis to believe
that Hinkle's discharge could not be based upon his
failure to tender dues and an initiation fee and that
his Employer could no longer justify the discrimina-
tion against him. These conversations occurred
only a day after Hinkle's discharge. There is no
showing that Hinkle's job was unavailable or that
his Employer was no longer in a position to rein-
state him. Indeed, Flynn indicated that if the Union
confessed to error of a different sort, reinstatement
would be considered. Accordingly, I conclude that
Flynn could no longer justify continuation of the
discrimination against Hinkle under the proviso to
Section 8(a)(3) and that he was obligated either to
sense failed to tender his dues and initiation fee However , in the absence
of notice of his obligation , his duty to tender does not arse and in that
sense he cannot have "failed " t^ make a tender
17 See Plidadelp/na Sheraton Corporation, supra
'" Moreover , it is undenied that Ashcraft called attention to the in-
adequacy of the Union's form notice in his conversation with Firks
CONDUCTRON
investigate further the circumstances which Ash-
craft disclosed or to reinstate Hinkle . 39 As Flynn
did neither , the protection of the proviso to Section
8(a)(3) was lost. Accordingly , as I have found that
Conductron was responsible for the discharge of
Hinkle , I conclude that Conductron violated Sec-
tion 8(a)(3) and ( 1) of the Act by discharging and
refusing to reinstate Hinkle.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents set forth in sec-
tion III, above, occurring in connection with the
operations of Conductron Corporation and Mc-
Donnell Douglas Corporation described in section
I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondents violated Section
8(a)(3) and (1) and 8(b)(2) and (1)(A) of the
Act, I shall recommend that they cease and desist
therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent Union caused
McDonnell and Respondent Conductron to
discharge Paul V. Hinkle for reasons other than
failure to pay periodic dues and initiation fees
within the meaning of the proviso to Section
8(b)(2) and 8(a)(3) of the Act, I shall recommend
that Respondent Union be ordered to notify Mc-
Donnell and Conductron, in writing, with copies to
Hinkle, that it has no objection to his immediate
and full reinstatement to his former or a substan-
tially equivalent position without prejudice to his
seniority or other rights and privileges. I shall also
recommend that Respondent Conductron be or-
dered to otfer Hinkle immediate and full reinstate-
ment to his former or a substantially equivalent
position without prejudice to his seniority or other
rights and privileges and, to the extent necessary, to
invoke such powers and privileges as it may have by
virtue of its relationship with McDonnell to insure
the cooperation of McDonnell in effectuating the
terms of the order.40
I shall further recommend that Respondent
Union and Respondent Conductron be ordered
jointly and severally to make Hinkle whole for any
loss of earnings he may have suffered as a result of
the discrimination against him by payment to him
" While it is true that Flynn asked Brock to write a letter if the Union
claimed that an error was made, he was specific in detailing the kind of
error he would consider, and the defect in the request for Hinkle's
discharge was not of the kind that Flynn specified Accordingly, the
Union's failure to send a letter did not relieve Flynn of the duty to reinstate
Hinkle or investigate further the circumstances of the discharge
'" Peterson Construction Carp, etc , 128 NLRB 969, vacated in part for
CORPORATION 429
of the amount he normally would have earned from
the date of his discharge to the dates set forth
hereafter, less net earnings, to which shall be added
interest at the rate of 6 percent per annum, in ac-
cordance with the formula set forth in F. W. Wool-
worth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716. In the case of the
Union, its backpay liability shall terminate 5 days
after it notifies the Employers and Hinkle that it has
no objection to his reinstatement, as provided
above. In the case of Conductron, its backpay lia-
bility shall terminate on the date that Hinkle is of-
fered reinstatement.
Upon the basis of the above findings of fact and
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Conductron Corporation and McDonnell
Douglas Corporation are employers engaged in
commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Aerospace District Lodge No. 837, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By causing Conductron and McDonnell to
discharge Paul Hinkle without first informing him
of his dues obligations pursuant to a union-security
agreement and affording him a reasonable opportu-
nity to satisfy them, Respondent Union has engaged
in and is engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(b)(2)
and (1)(A) and 2(6) and (7) of the Act.
4. By discharging Paul Hinkle and thereafter
refusing to reinstate him without investigating and
ascertaining the circumstances underlying the
Union's request for his discharge in the face of
reasonable cause to believe that Hinkle had not
received notice of his dues obligations and had not
been afforded a reasonable opportunity to satisfy
them, Respondent Conductron has engaged in and
's engaging in unfair labor practices affecting com-
,nerce within the meaning of Sections 8(a)(3) and
(I) and 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, con-
clusions of law, and the entire record in the case,
and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I recommend
that:
other reasons, 134 NLRB 1768, 1770 The record indicates that sometime
after the discharge of Hinkle, Conductron began to employ production and
maintenance employees directly, but it does not indicate whether Hinkle
would have thereafter been considered an employee of McDonnell or Con-
ductron In the compliance stages of this proceeding it can be determined
what position Hinkle would have held after the change in Conductron's
method of operation
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Despondent Conductron Corporation, and its
officers, agents , successors, and assigns , shall:
1. Cease and desist from:
,a) Encouraging membership in Aerospace Dis-
trict Lodge No. 837, International Association of
Machinists and Aerospace Workers, 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 employ-
ment, except as authorized in Section 8(a)(3) of
the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
(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 af-
fected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act as
modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Offer Paul V. Hinkle immediate and full
reinstatement to his former or substantially
equivalent position without prejudice to his seniori-
ty or other rights and privileges and invoke such
powers or rights as it may have, arising out of its
relationship with McDonnell Douglas Corporation,
to insure its cooperation in effectuating the terms
of this Recommended Order.
(b) Jointly and severally with Respondent
Aerospace District Lodge No. 837, International
Association of Machinists and Aerospace Workers,
AFL-CIO, make Paul V. Hinkle whole for any loss
of earnings suffered as a result of the discrimination
against him in the manner set forth in the section of
the Decision entitled "The Remedy."
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ments records, timecards, personnel records and re-
ports, and all other records relevant and necessary
to a determination of compliance with paragraph,
(a) and (b) above.
(d) Notify the above-named employee, if
presently serving in the Armed Forces of the
United States, of his right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(e) Post at its St. Charles place of business, co-
pies of the attached notice marked " Appendix
A."41 Copies of said notice , on forms provided by
the Regional Director for Region 14, after being
duly signed by Respondent Conductron 's represen-
tative , shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter , in conspicuous places, in-
cluding all places where notices to employees are
customarily posted . Reasonable steps shall be taken
by the Respondent Conductron to insure that said
notices are not altered , defaced , or covered by any
other material.
(f) Notify the Regional Director for Region 14,
in writing , within 20 days from the receipt of this
Decision , what steps have been taken to comply
herewith.42
B. Respondent Aerospace District Lodge No.
837, International Association of Machinists and
Aerospace Workers, A1L-CIO, and its officers,
representatives , and agents , shall:
1. Cease and desist from:
(a) Causing or attempting to cause Conductron
Corporation or McDonnell Douglas Corporation to
discriminate against any of their employees in viola-
tion of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act, except to the
extent that such rights are affected by an agreement
requiring membership in a labor organization as a
condition of employment , as authorized in Section
8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of
195 Q.
2. Take the toliowing atfirmative action which is
necessary to effectuate the policies of the Act:
(a) Jointly and severally with Respondent Con-
ductron Corporation make Paul V. Hinkle whole
for any loss of earnings he may have suffered as a
result of the discrimination against him in the
manner set forth in the section of the Decision
above entitled "The Remedy."
(b) Notify Conductron Corporation and Mc-
Donnell Douglas Corporation, in writing , that it
withdraws its objection to Hinkle's employment and
requests them to offer him reinstatement, and
furnish Hinkle with copies of such notification.
(c) Notify the above -named employee if
presently serving in the Armed Forces of the
United States of his right to full reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
" 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, recommendations, 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 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 Na-
tional 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 -
41 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
CONDUCTRON
Service Act, as amended, after discharge from the
Armed Forces.
(d) Post at its offices copies of the attached
notice marked "Appendix B."43 Copies of said
notice, on forms provided by the Regional Director
for Region 14, after being duly signed by an
authorized representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to members are customarily posted. Reasonable
steps shall be taken by the Respondent Union to in-
sure that said notices are not altered, defaced, or
covered by any other material.
(f) Deliver to the Regional Director for Region
14, signed copies of said notice in sufficient number
to be posted by Conductron Corporation and Mc-
Donnell Douglas Corporation, the Employers
willing, in all places where notices to employees are
customarily posted.
(g) Notify the Regional Director for Region 14,
in writing , within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith .41
"See fn 41
44 See fn 42
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 membership in
Aerospace District Lodge No. 837 , Interna-
tional Association of Machinists and
Aerospace Workers, AFL-CIO, or any other
labor organization by discharging or in any
other manner discriminating against any em-
ployee in regard to hire or tenure of employ-
ment or any term or condition of employment
except as authorized by Section 8(a)(3) of the
Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of 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 in
Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL offer Paul V . Hinkle immediate
and full reinstatement to his former or a sub-
stantially equivalent position without prejudice
CORPORATION 431
to his seniority or other rights and privileges
and WE WILL make him whole for any loss of
earnings suffered by reason of the discrimina-
tion against him.
CONDUCTRON
CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 1040 Boatmen's Bank Building, 314
North Broadway, St. Louis, Missouri 63102,
Telephone 314-622-4167.
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
Conductron Corporation or McDonnell
Douglas Corporation to discriminate against
Paul V. Hinkle or any other employee in viola-
tion of Section 8(a)(3) of the Act as modified
by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be af-
fected by an agreement requiring membership
in a labor organization as a condition of em-
ployment, as authorized in Section 8(a)(3) of
the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
WE WILL notify Conductron Corporation
and McDonnell Douglas Corporation, in writ-
ing, that we withdraw our objections to the em-
ployment of Paul V. Hinkle and request his
reinstatement to his former or a substantially
equivalent position and WE WILL furnish him
with copies of such notification.
WE WILL make Paul V. Hinkle whole for any
loss of earnings suffered because of the dis-
crimination against him.
432
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AEROSPACE DISTRICT
LODGE No. 837,
INTERNATIONAL
ASSOCIATION OF
MACHINISTS AND
AEROSPACE WORKERS,
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 consecu-
tive days from the date of posting and must not be
altered, defaced , or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 1040 Boatmen 's Bank Building, 314
North Broadway , St. Louis, Missouri 63102,
Telephone 314-622-4167.