Operating Engineers, Local No. 139

National Labor Relations Board - Board Decisions

Sep 6, 1972

198 N.L.R.B. 1195 (N.L.R.B. 1972)

OPERATING ENGINEERS, LOCAL NO. 139
International Union of Operating Engineers, Local
No. 139 and its Agent Leroy Fitzsimons (T. J.
Butters Construction) and Edward G. Preuss. Case
30-CB-441
September 6, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On March 20, 1972, Trial Examiner Thomas D.
Johnston issued the attached Decision in this
proceeding. Thereafter, General Counsel filed limit-
ed exceptions and a supporting brief, and the
Respondent filed cross-exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
Trial Examiner's rulings, findings,' and conclusions
as herein modified.
1. The Trial Examiner relied on three grounds in
finding that Respondent unlawfully caused the
discharge of Preuss: (a) Respondent demanded
payment of back dues for a period which the
discriminatee was not obligated to pay as a condition
of employment; (b) Respondent's demand to pay the
dues or reinstatement free immediately deprived
Preuss of the statutorily imposed contractual grace
period; and (c) Respondent demanded payment of a
reinstatement fee which the Board in a previous case
involving Respondent had found to be unlawful as a
camouflaged attempt to collect back dues.2 For the
following reasons we agree with the Trial Examiner's
conclusion that Respondent violated 8(b)(1)(A) and
(2) of the Act by discharging Preuss, but in doing so
we rely only on the grounds stated in (a) and (b),
above, and find it unnecessary to reach or pass on
whether his discharge was predicated on his failure to
pay Respondent's reinstatement fee.3
Edward G. Preuss was a member in Respondent's
I The Respondent has excepted to certain credibility findings made by
the Trial Examiner . It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A 3) We have carefully examined the record and
find no basis for reversing his findings
2 International Union of Operating Engineers, Local No 139 (Camosy
Construction Co, Inc ), 172 NLRB No 12, enfd on other grounds 425 F 2d
17 (C A. 7) In Camosy, the court , while rejecting the Board 's findings, that
the reinstatement fee was invalid because it was geared to back dues, found
the Union (Respondent herein) caused the discharge in violation of Section
1195
subdivision Local 139 "B" until December 31, 1968,
when he was suspended from membership for
nonpayment of dues. From the date of his suspen-
sion 'until he began working for T. J. Butters
Construction in June 1971, Preuss was not employed
by any company which had a collective-bargaining
agreement with the Union.
On June 8, 1971, Preuss applied for work with T. J.
Butters Construction and on June 9 was hired by
Thomas Butters, its owner. Butters Construction and
Respondent are parties to a collective-bargaining
agreement which provides, in pertinent part, that all
employees who are not union members shall become
members within 8 days of their hire. On June 14,
Representative Fitzsimons arrived at the jobsite and
signaled Preuss to stop working, which he did. The
credible evidence establishes, and we find, that
Fitzsimons told Butters that Preuss was far behind in
his dues and that he shouldn't be working there until
he got , his dues straightened out. After some
discussion, Butters agreed that he would lay Preuss
off at the end of the day. Meanwhile, Preuss
approached Fitzsimons and asked him what was the
trouble. Fitzsimons replied that Preuss had to pay his
entire reinstatement fee immediately. Around quit-
ting time Butters told Preuss he couldn't use him
anymore. The reason he gave Preuss was that
Fitzsimons told him that there were men available in
good standing with the Union and Preuss was 3 years
behind in dues or had been suspended.
In these circumstances, we find that Respondent
unambiguously demanded that Butters discharge
Preuss because of his failure to pay back dues, and
thus violated 8(b)(1)(A) and (2) in the process. It is
well settled that a union's demand for payment of
back dues which arose during a period when there
was no obligation to maintain membership cannot
lawfully be imposed as a condition of employment,
even under a valid union-security agreement.4 We
find this principle applicable to the situation involv-
ing Preuss herein. That Fitzsimons used the term
"reinstatement fee" rather than dues when making
his demands on Preuss for immediate payment does
not warrant a different factual finding from that on
which these findings and conclusions rest.5 By
whatever designation Fitzsimons may have chosen to
8(b)(I)(A) and (2) of the Act by its erroneous, ambiguous demands on
employee Schlitz relating to his payment of the reinstatement fee
3 As the remedy imposed for the violation found , infra, is coextensive
with that provided in Camosy, it is unnecessary for us to reach the issue
presented in that case However, this should not be construed as
abandonment by the Board of its rationale in Camosy Construction Co, Inc,
supra
4 See e.g, Murphy's Motor Freight, Inc, 113 NLRB 524, enfd 231 F.2d
654 (CA 3)
s The Trial Examiner devotes a portion of his Decision to treatment of
the issue of whether Preuss had been given 30 days within which to pay
Respondent 's reinstatement fee by Napstad, another of Respondent's
(Continued)
198 NLRB No. 167
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refer to such dues, it is clear from Fitzsimons'
statements to Butters that Preuss' dues delinquency
was the sole basis for Fitzsimons' objection to the
discriminatee 's continued employment with Butters.6
Furthermore, Preuss was a new employee of
Butters, and although a suspended union member, he
was like any other new employee entitled to the
statutory or contractual grace period before being
required to loin or be reinstated into a union. In the
instant case Preuss had worked for only 6 days at the
time of his discharge. Under Section 8(f) of the
statute he is entitled to at least a 7-day grace period,
which was clearly denied him. Under the union-
security provisions in the collective-bargaining agree-
ment between the Respondent and Butters Construc-
tion , Preuss had 8 days from the date of his hire by
the latter party within which to become a member as
a condition of continued employment with Butters
Construction. It is equally obvious that he was
denied that period of time within which to perfect his
membership. Therefore, Respondent by causing
Butters to discharge Preuss without allowing him the
statutory or contractual grace period violated Section
8(b)(1)(A) and (2) of the Act.7
2. The General Counsel, in his exceptions, con-
tends that Respondent independently violated Sec-
tion 8(b)(1)(A). We agree. On June 14, Respondent's
agent, Fitzsimons, told Preuss that "I understand
that you guys might take your charges against Norm
Heintz [a representative of the Laborers Union] to
the NLRB." Preuss stated, "That has nothing to do
with the Operating Engineers." Fitzsimons replied
that it did and that Preuss might "have an awful time
getting back into the Operating Engineers" if he went
to the N.L.R.B.
The Trial Examiner approached this incident as to
whether it contained a threat to cause Butters to
discharge Preuss, found it did not, and thus found no
violation. Unlike the Trial Examiner, we find that
Respondent, through Fitzsimons, clearly threatened
Preuss with being blackballed from Respondent (and
any benefits that might be derived from membership
therein) if he sought to exercise his rights under the
Act. By its very nature we find that such a threat by a
labor organization has a coercive and restraining
effect upon an employee or member in that it tends
to prevent or restrict his statutory right of access to
the Board's processes. Accordingly, we find that
Respondent independently violated Section
8(b)(1)(A) of the Act by threatening to take action
against employee Preuss if he filed charges with the
Board.8
3. The General Counsel urges the Board to issue a
broad order by requiring Respondent to cease and
desist from unlawfully causing any employer to
discriminate against any employee, and by adding a
corresponding requirement to the notice. We find
merit in the General Counsel's contention.
A broad order is appropriate whenever a proclivity
to violate the Act is established, either by prior Board
decisions against the Respondent at bar based on
similar unlawful conduct in the past or by the facts
within a particular case.9 In view of the Respondent's
similar unlawful conduct in the past,l° we find that a
broad order as requested by counsel for the General
Counsel is warranted and our order below is couched
in such terms.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
International Union of Operating Engineers, Local
No. 139, its officers , agents, and representatives, and
specifically its agent Leroy Fitzsimons, shall:
1. Cease and desist from:
(a) Causing or attempting to cause T. J. Butters
Construction or any other employer to discriminate
against Edward G. Preuss or any other employee in
violation of Section 8(a)(3) of the Act.
(b) Threatening employees in any way or manner
because they intend to or file unfair labor practice
charges with the Board, or otherwise participate or
cooperate in Board proceedings.
(c) In any other 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 may be affected by an agreement requiring
membership in a labor organization as a condition of
employment in accordance with Section 8(a)(3) of
the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Notify T. J. Butters Construction, in writing,
representatives Because of the basis for our finding a violation concerning
Preuss' discharge , we find the aforesaid issue and the facts upon which it lies
immaterial to the determination of this case
6 Respondent contends in its cross -exceptions that it demanded the
dismissal of Preuss from Butters ' employ solely because he was hired in
violation of the contractual requirement that employees be referred by
Respondent through its hiring hall We do not find credible evidence to
support Respondent 's contention Like the Trial Examiner we find that this
was not a reason for the discharge of Preuss
r See Yellow Cab Company, 148 NLRB 620, 624 We agree with the Trial
Examiner that the complaint allegations were broad enough to cover this
issue Moreover, the Respondent was fully apprised at the outset of the
hearing that the General Counsel was relying on this issue in urging that
Preuss' discharge violated the Act, and the issue was fully litigated
8 Cf Local 138, International Union of Operating Engineers, AFL-CIO
(Charles S Skura), 148 NLRB 679
9 See, e g. Brotherhood of Teamsters & Auto Truck Drivers, Local No 70,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America (Sea-Land of California, Inc), 197 NLRB No. 24
iu International Union of Operating Engineers, Local No 139 (Camosy
Construction Co, Inc), supra
OPERATING ENGINEERS, LOCAL NO. 139 1197
that they have no objection to the employment of
Edward G. Preuss with all his former rights and
privileges and furnish Edward G. Preuss a copy of
such notifications.
(b) Make whole Edward G. Preuss for all loss of
pay with interest which he may have suffered as a
result of the discrimination against him in the
manner set forth in the section of the Trial
Examiner's Decision entitled "The Remedy."
(c) Post at its offices located at Madison, Wiscon-
sin, and at all places where it customarily posts
notices to its members copies of the attached notice
marked "Appendix."" Copies of said notice, on
forms provided by the Regional Director for Region
30, after being signed by Respondent's representative
and by its Agent Leroy Fitzsimons, shall be posted
by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to its members are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Deliver to the Regional Director for Region 30
signed copies of the said notice in sufficient number
to be posted by T. J . Butters Construction, the
Employer being willing.
(e) Notify the Regional Director for Region 30, in
writing , within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
11 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing an
Order of the National Labor Relations Board "
agreement requiring membership in a labor
organization as a condition of employment in
accordance with Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL notify T. J. Butters Construction, in
writing, that we have no objection to the
employment of Edward G. Preuss with all his
former rights and privileges, and we shall furnish
him with a copy of such notification.
WE WILL make whole Edward G. Preuss for
any loss of pay with interest he may have suffered
by reason of our discrimination against him.
INTERNATIONAL UNION
OF OPERATING
ENGINEERS, LOCAL No.
139
(Labor Organization)
LEROY FITZSIMONS
(Business Representative)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , Commerce Building , Second Floor,
744 North Fourth Street , Milwaukee , Wisconsin
53203 , Telephone 414-272-8600 , Ext. 3861.
APPENDIX
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 T. J.
Butters Construction or any other employer to
discriminate against Edward G. Preuss or any
other employee in violation of Section 8(a)(3) of
the Act.
WE WILL NOT threaten employees in any way or
manner because they intend to or file unfair labor
practice charges with the Board, or otherwise
participate or cooperate in Board proceedings.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of their rights
guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by an
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Trial Examiner: This case was
heard at Janesville, Wisconsin, on February 3, 1972,
pursuant to a charge filed by Edward G. Preuss, an
individual, on July 23, 1971,1 and an amended charge filed
on September 17, and a complaint issued on December 17.
The complaint alleges the International Union of
Operating Engineers, Local No; 139 (herein referred to as
the Respondent), and its agent , Leroy Fitzsimons , violated
Section 8(b)(1)(A) and (2) of the National Labor Relations
Act, as amended (herein referred to as the Act), by
threatening Edward G. Preuss and by causing and
attempting to cause T. J. Butters Construction (herein
I All the dates referred to are in 1971 unless otherwise stated
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
referred to as Butters Construction) to discharge him for III. THE UNFAIR LABOR PRACTICES
nonpayment of a reinstatement fee which Respondent was
not entitled to insist upon as a condition of his continued
employment. Respondent in its answer filed on January 3,
1972, denied violating the Act and further answered by
alleging as a defense that the court's decision in N.L.R.B. v.
International Union of Operating Engineers, Local No 139
[Camosy Construction ], 425 F.2d 17 (C.A. 7), was res
judicata on the issues of the validity of the reinstatement
fee in the instant case.
The issues involved in determining whether Respondent
and its Agent Leroy Fitzsimons violated Section 8(b)(1)(A)
and (2) of the Act are whether they threatened Preuss or
caused or attempted to cause Butters Construction to
discharge him because of his refusal to pay a reinstatement
fee or because he was hired in violation of the referral
provisions of collective-bargaining agreement between
Respondent and Butters Construction; whether the reins-
tatement fee was unlawful; and whether Preuss was
obligated to pay the reinstatement fee prior to his actual
discharge.
At the hearing the parties were afforded full opportunity
to introduce relevant evidence, to examine and cross-
examine witnesses, to argue orally on the record, and to
submit briefs.
Upon the entire record in the case and from my
observation of the witnesses, and after due consideration of
the briefs filed by General Counsel and Respondent, I
hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER2
T. J. Butters Construction, a sole proprietorship with its
office located in Janesville, Wisconsin, is engaged in the
building and construction industry. During 1971, Butters
Construction performed services valued in excess of
$50,000 for Azco, Inc., which is a Wisconsin Corporation
located in Appleton, Wisconsin, where it is engaged as a
mechanical contractor in the construction industry. In
1971, Azco, Inc., purchased and received goods and
materials valued in excess of $50,000 from points located
outside the State of Wisconsin and performed services
valued in excess of $50,000 for firms located outside the
State of Wisconsin.
Based upon the foregoing evidence I find that Butters
Construction is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find , that it is a labor
organization within the meaning of Section 2 (5) of the Act.
2 An amendment was granted at the hearing without objection amending
certain jurisdiction allegations contained in the complaint
3 The bylaws were amended in January 1970 to include this provision
4 This section provides in pertinent part as follows
A member who has been suspended under the provisions of this sub-
division may be restored to membership in good standing and to his
A. Respondent's Reinstatement Fee
Article VI, section 7, of Respondent's bylaws3 pertaining
to the reinstatement of persons suspended from member-
ship provides as follows:
All persons who have been suspended from member-
ship in this organization for dues delinquency shall not
be taken in as new members but may be restored to
membership in good standing only by the payment of
the Local Union No. 139 reinstatement fee. The fee for
reinstatement in Local Union No. 139 or its branch
sub-divisions shall be an amount equal to the Mother
Local initiation charges or, at the option of the
applicant, an amount equal to the delinquent dues plus
three months dues, plus the reinstatement assessment
charged by the International Union of Operating
Engineers. Payment of the reinstatement fee shall
constitute paid up membership in this Local Union for
three months inclusive of the month in which it is
received, shall be the sole charge levied for reinstate-
ment in this organization and shall be uniformly
required of all suspended members.
Article XXIII, subdivision 7, section (h), of the constitution
of the International Union of Operating Engineers4 (herein
referred to as the International) also pertains to the
reinstatement of suspended members, however, based
upon the evidence in the instant case it is Respondent's
aforementioned bylaws which are directly involved al-
though the constitution is incorporated into the bylaws and
supercede any provisions of the bylaws which are inconsis-
tent with the constitution.
Under article VI, section 1, of Respondent's bylaws the
initiation fee for Local No. 139 which is also referred to as
the Mother Local is $265 and for its branch subdivision
Local 139 "B" it is $97.5
According to the undenied testimony of Respondent's
Business Representative Forrest Napstad the amount of
monthly dues, which are the same for the Mother Local
and Local 139 "B", were $11 a month from October 1,
1970, to December 1 when they were raised to $13 a
month. Business Representative Napstad testified in order
for a member to become reinstated into Respondent's
membership he is required to either pay all of his back dues
owing in addition to a $20 reinstatement fee and 3 months'
dues in advance; or, in the alternative, he can pay the
amount equivalent to the Mother Local' s initiation fee
which is $265 in addition to 3 months' dues in advance.
According to Napstad at the time the hearing was held in
February 1972 changes were in progress to eliminate
payment of the 3 months' dues required in addition to the
$265 which dues are not required by the bylaws. According
to Napstad suspended members are allowed lip to 30 days
in which to pay their reinstatement fee if they execute
membership number only by making application on the form furnished
by the General Secretary-Treasurer , together with the payment of all
dues, assessments and fines then in arrears [sic] the reinstatement
assessment and in addition an amount equal to three months' dues.
5 There are also lesser membership fees for Local 139 "C" and Local 139
registered apprentice, however, these subdivisions are not involved
OPERATING ENGINEERS , LOCAL NO. 139 1199
checkoffs authorizing their employer to withhold such
payments.
I credit Napstad's undenied testimony, which is further
corroborated by other evidence in the record, concerning
Respondent's reinstatement fee.
B. Background
Respondent and the Associated General Contractors of
America, Inc., Wisconsin Chapter, are parties to a current
collective-bargaining agreement. Butters Construction,
which is not a member of this association, is bound by this
agreement through an assumption agreement executed
with Respondent on November 24, 1970. The agreement
contains both union-security and referral provisions.
Article II of the agreement which covers union-security
provides in pertinent part as follows:
Section 2.1 Membership: All present employees of the
Contractor covered by this Agreement who are
members of the Union as of the date of execution of
this Agreement shall, as a condition of continued
employment with said Contractor, maintain member-
ship during the life of this Agreement to the extent of
tendering the periodic dues and initiation fees uniform-
ly required by the Union as a condition of acquiring or
maintaining membership. All present employees of the
Contractor covered by this Agreement who are not
members of the Union and all employees of the
Contractor covered by this Agreement shall become
members of the Union within eight (8) days following
the date of this Agreement or within eight (8) days
following the date of hire, whichever is later , and shall,
as a condition of continued employment with said
Contractor, maintain membership during the Agree-
ment to the extent of tendering the periodic dues and
initiation fees uniformly required by the Union as a
condition of acquiring or maintaining membership.
Section 2.2 Failure to Maintain Membership or Join-
Upon written notice from the Union, advising that an
employee covered by this Agreement has failed to
maintain membership in the Union in good standing as
covered above, by payment of uniform initiation fees
and/or dues as required, the Contractor shall forthwith
discharge the employee unless the Contractor has
reasonable grounds for believing that membership was
not available to the employee on the same terms and
conditions generally applicable to other members, or
that membership was denied or terminated for reasons
other than for failure of the employee to tender the
periodic dues and initiation fees uniformly required by
the Union as a condition of acquiring or maintaining
membership.
Section 2.3 Written Notice: The Contractor shall not
discharge or cause an employee to lose any work under
this article except upon written notice from the
Business Representative as set forth herein.
Article XIII of the agreement which covers the referral
procedure provides in pertinent part as follows:
Section 13.1 requires the Contractor to hire all of its
operating engineers through the Union and if the
Union is unable to fill the request within a twenty-four
(24) hour period the Contractor may fill the vacancy in
any manner available.
Section 13.2 requires the Union to maintain a register
of persons available for employment, from which
referrals are to be made on a non discriminatory basis.
Section 13.4 which provides for the order of referrals
includes under subsection (d) the following provisions:
The Contractor may request, by name, the referral
of any operating engineer who is registered for
employment and the Union shall make such referral,
regardless of date of registration, provided said
applicant was last employed as an operating engi-
neer, or is presently drawing unemployment benefits,
or is employed regularly on a season-to-season basis
by the requesting Contractor.
Section 13.5 provides that any employee hired in
violation of this article shall be discharged by the
Contractor when it is brought to his attention by the
Business Representative.
Edward G. Preuss who throughout his membership in
Respondent was under its branch subdivision Local 139
"B" was suspended from membership in Respondent for
'nonpayment of dues on December 31, 1968, and notified
of his suspension by letter dated January 28, 1969. During
the period December 1968 to June 8, he was not employed
by any employer which had a collective-bargaining
agreement with Respondent containing union-security
provisions.
Preuss applied for work with Butters Construction on
June 8 and was hired on June 9.
Following his conversation on June 8 with Thomas
Butters, who is the sole proprietor of Butters Construction,
in which Butters told him he needed help and for him to
report the next day to the Merchants Bank jobsite Preuss
testified he called Respondent's union hall at Madison and
talked to Respondent's Business Representative Napstad
about getting his membership reinstated. Napstad ex-
plained he would have to pay all of his back dues6 and if it
was more than $298 he could pay that amount which
included 3 months' dues. When Preuss asked him how long
he had to pay, Napstad replied he had 30 days . Preuss
stated Napstad asked him if he wanted his name placed on
the referral list and he replied he did.7 Napstad told him
his name was sixth or seventh on the list 8 When Preuss
inquired if a contractor asked for an employee by name if
he could be hired ahead of the other persons on the list,
Napstad replied he could if there were some special
qualifications.9
Business Representative Napstad claimed Preuss, whose
name he recognized, called him at his home on June 6, a
Sunday, and asked about getting his name placed on the
out-of-work book. Napstad stated he told Preuss he would
6 Preuss' back dues as of August 24 were $405 which meant that his back names ahead of Preuss' name on the referral list on June 9, however, no
dues on June 8 were approximately $383 records were produced to corroborate this statement
7 Preuss testified he had heard there was a referral procedure but was not 9 Preuss felt he had special qualifications on the back hoe to work on the
familiar with its terms General Motors Jobsite because he had previously worked there and knew
8 Business Representative Napstad testified there were between 75-100 the locations of the underground lines
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have to call the Madison office where the out-of-work
book was kept. Napstad denied there was any discussion
about an agreement for Preuss to work out his delinquency
or suspended status or that he or anyone else as far as he
knew had authorized Preuss to be hired regardless of his
position on the referral list. However, Napstad acknowl-
edged on June 8 an entry was made on Respondent's out-
of-work book listing Preuss' name, address, and the
equipment he could operate including back how, hydraulic
crane , and crane10 and also the fact he had been
suspended. Although Napstad denied the entry was made
in his handwriting and identified it as that of the office girl,
when questioned about whether he had a conversation with
Preuss on June 8, or if he had instructed the office girl to
make the entry on the out-of-work list, his replies were he
didn't recollect such a phone call and he couldn't
remember telling the office girl to make the entry. The
office girl did not testify at the hearing.
I credit Preuss' version of his conversation with Napstad.
Whereas Preuss testified in a positive manner Napstad
expressed uncertainty. Further the June 8 entry on
Respondent's out-of-work list, which was not explained by
Respondent, tends to corroborate Preuss' testimony about
his telephone call on that day. Moreover inasmuch as
Napstad testified employees are given 30 days to pay their
reinstatement fee there would be no reason at the time
Preuss inquired to conceal this fact.
Preuss testified on the morning of June 9 he reported to
the Merchants Bank jobsite and was hired by Thomas
Butters. During his conversation Butters told him he had
been getting pressure to get the jobs done including that
job and another job at General Motors. Butters stated he
had called Respondent' s Business Representative Fitzsi-
mons 3 or 4 days before and requested an operator who
never came." Preuss stated he told Butters he had called
the union hall in Madison the previous day and talked to
Business Representative Napstad who had told him he had
to pay his $298 reinstatement fee within 30 days. Preuss
also told Butters his name was sixth or seventh on the
referral list and he asked if Butters would contact the union
hall and get it cleared. Butters replied he would. On several
occasions thereafter when Preuss inquired whether Butters
had contacted the union hall Butters renewed his promise
to do so.
Butters corroborated Preuss' testimony about his telling
him he had contacted Madison and his name was sixth on
the referral list. While Butters also stated Preuss told him it
was alright for him to -go to work he did not check with
Respondent himself, although he planned to check with
Business Representative Fitzsimons to see if he could use
Preuss.
Preuss began work for Butters Construction on June 9
and worked without incident that day operating an end
loader "cat" at the Merchants Bank jobsite and on June 10
and 1 l operating a back hoe and concrete breaker at the
General Motorsjobsite.
C. The Discriminatory Discharge of Preuss
Preuss testified on June 14 Respondent' s Business
Representative Fitzsimons 12 accompanied by Business
Manager Norm Heinz of Laborers Local 1440, visited the
General Motors jobsite where he was operating a concrete
breaker; After Fitzsimons talked to Thomas Butters he
gave Preuss the thumbs down sign which in the trade
means to shut off the equipment being operated. Preuss
responded by shutting off the concrete breaker. Fitzsimons
acknowledged requring Preuss, who" he knew was a
suspended member, to cease operating the machine
claiming he knew Preuss had not been referred to the fob
from the Madison office since he would have been notified.
Fitzsimons testified after signaling Preuss to shut the
machine off he told Butters he was in violation of his work
agreement. The reason he gave Butters was he had the
wrong guy on the seat of the equipment and said that the
guy who sits on the equipment has to be a member of the
bargaining unit referred through the referral system of the
operating engineers. Butters replied he realized that and
said he would take Preuss off and replace him with one of
his other operators. Under cross-examination when ques-
tioned concerning this conversation Fitzsimons omitted the
reference to the referral system . Butters' version of this
conversation was Fitzsimons told him Preuss was far
behind in his dues and he had men available. Fitzsimons
brought up that Preuss shouldn't be working there until he
got his dues straightened out. Butters stated he told
Fitzsimons he would lay Preuss off but by mutual
agreement between Fitzsimons and himself, Preuss was
allowed to work the remainder of the day. Butters also
stated under cross-examination Fitzsimons had in sub-
stance or effect asked him if he knew what the contractual
referral system was and he replied he did.
I credit Butters' version of this conversation over that of
Fitzsimons 13 and find that Fitzsimons demanded that
Butters discharge Preuss because he was in arrears in his
dues.14 Fitzsimons did not impress me as a credible
witness.
Moreover Fitzsimons' contention that Preuss' discharge
resulted from his being hired in violation of the referral
procedure is not consistent with his demands made on
Preuss for the immediate payment of his reinstatement fee
discussed infra and Respondent's failure in a similar
situation involving Butters Construction to enforce its
referral procedures.i5
Preuss testified after he had shut the machine off at
Fitzsimons' direction he told Fitzsimons he had called the
10 Preuss had never operated a crane before and did not know where the
information was obtained for that entry
11 Respondent's Business Representative Fitzsimons denied Butters had
asked him for any operator he could not furnish
12 Respondent admits, and I find, that at all times material herein, Leroy
Fitzsimons was an agent of and acting on behalf of Respondent
13 To the extent Butters claimed he discharged Preuss because he was
hired in violation of the agreement I do not credit his conclusion since it is
in conflict with and not supported by his overall testimony and the reasons
he gave Preuss for his discharge discussed infra Rather his conclusion
appears attributable to his obvious reluctance at the hearing to testify
against Respondent with which his Company is still bound by a collective-
bargaining agreement Neither do I credit his statement under cross-
examination that Fitzsimons asked him if he knew what the referral
procedure was since Fitzsimons did not testify he had asked him
14 The fact written notice was not given as required by the agreement
does not preclude finding a violation
i'i Butters testified in August when he hired another employee without
resorting to the referral procedure , Business Representative Fitzsimons
instead of having the employee discharged permitted him to continue
OPERATING ENGINEERS, LOCAL NO. 139
union hall and asked him what was the trouble. Fitzsimons
replied Preuss knew and told him he had to pay his
reinstatement fee all at once right then. Preuss again told
him he had called Madison, whereupon Fitzsimons
interrupted and said "I don't care who you called."
Fitzsimons then said "I understand you guys might take
your charges against Norm Heinz to the NLRB." 16 When
Preuss told him that had nothing to do with the operating
engineers Fitzsimons replied it did. Fitzsimons then told
Preuss he may have an awful time getting back into the
operating engineers if he went to the NLRB.
Fitzsimons' version was when Preuss asked him what the
problem was he replied "you know better than that Eddie"
whereupon Preuss said,"yeah, I know." He denied making
any of the remarks attributed to him by Preuss. I credit
Preuss' version of this conversation and find he was told by
Fitzsimons he had to pay his entire reinstatement fee
immediately. Apart from my observation of the witnesses
and considering his conversation with Butters, Fitzsimons'
version, void of any reasons or protests, is implausible
under the circumstances.
Preuss testified following his conversation with Fitzsi-
mons he asked Butters what Fitzsimons had told him.
Butters replied Fitzsimons had said Preuss didn't have his
reinstatement fees paid and he would be back. Around
quitting time Butters told Preuss he couldn't use him
anymore and said Fitzsimons was going to send a man
down the next day. When Preuss inquired if he could work
as a laborer, Butters replied he couldn't use him.
Butters testified as a result of his conversation with
Business Representative Fitzsimons he terminated Preuss
the same day. The reason he gave Preuss for terminating
him was because Fitzsimons had men available who were
in good standing with the Union. He also told Preuss that
Fitzsimons had indicated he was 3 years behind in his dues
or had been suspended. When discussing back dues Preuss
told him he had checked with a business agent in Madison
and had some agreement with him. Butters said he didn't
want to get in trouble and he had signed an agreement with
the operators and other trades which he had to live up to.
No mention was made by him of the referral procedure.
Therefore I find Butters discharged Preuss because of the
demands made upon him by Fitzsimons which I have
previously found.
Preuss testified he called Fitzsimons at his home that
evening and asked him if he could work the next day.
Fitzsimons refused stating he would send a man down
there. Preuss told Fitzsimons he had called the Madison
office and was on the referral list and had 30 days to pay
his reinstatement fee. Fitzsimons replied he would call up
and straighten the matter out right then. Fitzsimons denied
Preuss called him. I credit Preuss' testimony over Fitzsi-
mons' denial.
The next day Preuss'was replaced on the job by Miles
instead of having the employee discharged permitted him to continue
working I credit Butters undemed testimony
16 Preuss previously had filed charges with the Laborers International
Union against Business Manager Heinz but had not filed charges with the
National Labor Relations Board
11 There was some evidence indicating Respondent had referred Preuss
to a job with Gabe Construction Company on October 25 whereupon
Preuss agreed to pay a $300 reinstatement fee to Respondent through a
1201
Manthey, who was a member of Respondent , referred by
Fitzsimons at Butters ' request . Up until the time of the
hearing in February 1972, Preuss had not performed any
work for Butters Construction since he was terminated on
June 14.17
D. Analysis and Conclusions
Counsel for General Counsel contends Respondent and
its Agent Leroy Fitzsimons violated Section 8(b)(1)(A) and
(2) of the Act 18 by threatening Preuss and by causing and
attempting to cause Butters Construction to discriminatori-
ly discharge him because he refused to pay a reinstatement
fee on two grounds, namely, the reinstatement fee was for
back dues for a period Preuss was not obligated to
maintain his membership and therefore unlawful; and,
assuming the reinstatement fee was lawful, Preuss was
denied the 8-day period provided for in the collective-
bargaining agreement in which to pay his reinstatement
fee. Respondent contends Preuss was discharged because
he was hired in violation of the referral provisions
contained in the collective-bargaining agreement but
assuming he was discharged because of his failure to pay
the reinstatement fee such fee was lawful. With respect to
the issue whether Respondent violated the Act by not
allowing Preuss the 8-day period in which to pay the
reinstatement fee, Respondent takes the position this issue
is outside the scope of the complaint.
The latter issue is readily disposed of by examining the
complaint which in effect alleges that at the time Preuss
was discharged Respondent was not entitled to insist upon
his payment of a reinstatement fee as a condition of
continued employment. Therefore the allegations of the
complaint are broad enough to encompass the issue of
denying Preuss the period provided for in the collective-
bargaining agreement for paying his reinstatement fee, a
theory Respondent was fully apprised of at the opening of
the hearing.
Under the Act a union's demand for payment of back
dues for a period there is no obligation to maintain union
membership can not be imposed as a condition of
employment even under a valid union-security agreement.
International Union of Operating Engineers Local No. 139
(Camosy Construction Co., Inc.), 172 NLRB No. 12, enfd.
425 F.2d 17 (C.A. 7); Spector Freight System, Inc., 123
NLRB 43, enfd. 273 F.2d 272 (C.A. 8), cert. denied 362
U.S. 962. In the instant case Preuss prior to going to work
for Butters Construction was not obligated to maintain his
membership in Respondent. Therefore if Respondent and
its Agent Leroy Fitzsimons caused Butters to discharge
him for his refusal to pay back dues for the period prior to
his employment with Butters Construction his discharge
was discriminatory under the Act. Having already found
Butters Construction discharged Preuss pursuant to Res-
checkoff procedure However this incident in outside the scope of the
complaint and was not litigated at the hearing Accordingly, no finding will
be made on this matter
is Section 8(b)(1)(A) of the Act prohibits a union from restraining or
coercing employees in the exercise of their rights guaranteed in Section 7 of
the Act Section 8(b)(2) of the Act prohibits a union from causing or
attempting to cause an employer to discriminate against an employee in
violation of Section 8(a)(3) of the Act
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pondent's demands the issue is whether those demands
were based upon his failure to pay back dues.
According to my previous findings Respondent demand-
ed that Preuss immediately pay the reinstatement fee.
Under Respondent's bylaws and practice pertaining to the
reinstatement fee this would require Preuss whose back
dues were approximately $383 to pay all of his back dues
owing in addition to a $20 reinstatement fee and 3 months'
dues in advance or in the alternative pay the equivalent of
the Mother Local's initiation fee which is $265 plus 3
months' dues in advance for a total of $298, although the
initiation fee for branch subdivision Local 139 "B" of
which he would be a member was only $97.
Respondent's reinstatement fee here is substantially the
same 19 as that which the Board found to be unlawful in a
similar case Camosy, supra, involving the Respondent
wherein the Board in finding that the reinstatement fee was
actually a camouflaged attempt to collect back dues stated
. . we view the Union's policy as creating an upper limit
on the amount of mdebtness for back dues which it will
seek to collect from a suspended member. It is only when
the sum of the suspended member's dues indebtedness and
the $20 International fee exceeds $286 that that amount is
imposed." 20
In view of the Board's prior finding that the reinstate-
ment fee, which is substantially the same as in the instant
case, is unlawful, I find that reinstatement fee here is
unlawful.
Moreover apart from my finding that the reinstatement
fee is unlawful, my previous findings based upon Business
Representative Fitzsimons' statements to Butters demand-
ing Preuss' discharge establishes Preuss was discharged
because he was in arrears in his dues. Under these
circumstances I find that Respondent and its Agent Leroy
Fitzsimons violated Section 8(b)(1)(A) and (2) of the Act
by causing and attempting to cause Butters Construction
to discharge Preuss for his refusal to pay back dues for the
period prior to his unemployment with Butters Construc-
tion when he was under no obligation to maintain
membership in Respondent. Since Preuss was hired on
June 9, and his discharge occurred on June 14, a period of
only 6 days, I further find irrespective of the lawfulness of
the reinstatement fee that Respondent and its Agent Leroy
Fitzsimons also violated Section 8(b)(1)(A) and (2) of the
Act, by causing Butters Construction to discharge Preuss
for nonpayment of his reinstatement fee without allowing
him the period provided for in the union-security provi-
sions of the collective-bargaining agreement, which period
he is entitled to under Section 8(f) of the Act.21
Since I have found Preuss' discharge was predicated
solely upon discriminatory reasons22 it is no defense that
19 The only difference is that in the prior case the option for paying the
reinstatement fee was authorized by a resolution whereas in the instant case
the option is based upon a bylaw Further in the prior case the Respondent
mistakenly added the $20 International fee to the lesser amount however
there the Board did not base its findings of a violation on the demand for
the $20 fee In both cases the demand for payment of advance dues is not a
determinative issue
20 The court while enforcing the Board's decision in Camosy disagreed
with the Board's finding that the reinstatement fee was actually a
camouflage used to collect back dues I do not find as Respondent contends
that the court's decision is resjudicata on the issue of the validity of the
reinstatement fee in the instant case
Respondent might have been entitled to require Preuss'
discharge pursuant to the referral provisions of the
collective-bargaining agreement, an issue which I am not
deciding since contrary to Respondent's assertions this was
not a reason for his discharge on June 14.23
The remaining allegation in the complaint that Business
Representative Fitzsimons restrained and coerced Preuss
by threatening to cause Butters Construction to discharge
him was not proven by a proponderence of the evidence.
Preuss' only conversation with Fitzsimons prior to his
discharge occurred on June 14 and on that occasion when
he demanded Preuss pay the reinstatement fee immediately
there were no accompaning threats made to him to cause
Butters Construction to discharge him or to invoke the
union-security provisions of the collective-bargaining
agreement. Therefore I do not find an independent
violation of Section 8(b)(1)(A) of the Act as alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent and its Agent Leroy
Fitzsimons set forth in section III, above, found to
constitute an unfair labor practice, occurring in connection
with the operations of Butters Construction 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 thereof.
CONCLUSIONS OF LAW
1. T. J. Butters Construction, is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers, Local
No. 139, is a labor organization within the meaning of
Section 2(5) of the Act and Leroy Fitzsimons is its agent.
3. By causing and attempting to cause T. J. Butters
Construction to discharge and discriminate against Ed-
ward G. Preuss, in violation of Section 8(a)(3) of the Act,
'the Respondent and its Agent Leroy Fitzsimons have
engaged in and are engaging in unfair labor practices
within the meaning of Section 8(b)(1)(A) and 2 of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Those violations alleged in the complaint not
specifically found herein are dismissed.
THE REMEDY
Counsel for General Counsel as part of the remedy
requests to have stricken from Respondent's bylaws any
21 Butters Construction is an employer primarily engaged in the building
and construction industry
22 Although the evidence indicated an additional grounds for finding a
violation was Respondent's refusal to make membership available to Preuss
on the same terms and conditions generally applicable to other members as
required by the Act by giving Preuss 30 days in which to pay his
reinstatement fee through a checkoff authorization as was permitted other
suspended members. I will make no finding since the issue was not raised or
fully litigated at the hearing
23 See District Council of Painters No 52 (Maynard C Belvoir), 150
NLRB 1094, enfd 363 F 2d 204 (C A 9)
OPERATING ENGINEERS, LOCAL NO. 139
reference to the payment of back dues as a condition of
reinstatement and to cease enforcing any rule providing for
the payment of such dues as a condition of continued
employment and to require Respondent to refund the $300
fee paid by Preuss. The remedy sought insofar as it would
require striking Respondent's bylaws is too broad in that it
would infringe upon Respondent's right under the proviso
of Section 8(b)(1)(A) to prescribe its own rules with respect
to acquiring or retaining membership. However to the
extent of requiring Respondent to cease enforcing as a
condition of employment its bylaw requiring suspended
members to pay the reinstatement fee herein found to be
unlawful, such request it appropriate.24 Further with
respect to requiring reimbursement of the $300 fee paid by
Preuss this request is hereby denied as inappropriate since
this was not a matter alleged in the complaint or fully
litigated at the hearing.
Having found that Respondent and its Agent Leroy
Fitzsimons violated Section 8(b)(1)(A) and (2) of the Act
and in order to effectuate the policies of the Act, I shall
order them to cease and desist from engaging in the unfair
labor practices found and of a like or similar nature and to
remedy them, and in particular, require them to cease
24 Respondent was apprised at the beginning of the hearing by Counsel
for General Counsel that a broad remedy would be requested and therefore
1203
enforcing as a condition of employment that provision of
Respondent's current bylaws whereby suspended members
are required as a condition of employment to pay the
reinstatement fee found unlawful herein.
To remedy Respondent and its Agent Leroy Fitzsimons'
unlawful acts and conduct by causing and attempting to
cause Butters Construction to discharge Edward G. Preuss,
I shall order that Respondent and its Agent Leroy
Fitzsimons notify T. J. Butters Construction, in writing,
with copies to Edward G. Preuss that they have no
objection to the employment of Edward G. Preuss with all
his former rights and privileges and that Respondent make
Edward G. Preuss whole for any loss of pay he may have
suffered by reason of the discrimination against him with
backpay to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Co.,
90 NLRB 289, with interest at 6 percent as provided by Isis
Plumbing and Heating Co., 138 NLRB 716.
Upon the foregoing finding of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following.
[Recommended Order omitted from publication.]
it will not be prejudiced