Painters Local 1627 (Johnson's Plastering Co.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Painters Local Union No. 1627 (William R. Johnson d/b/a Johnson's Plastering Co.) and Fred E. Freeman. Case 21-CB-5776 November 30, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On April 4, 1977, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,1 and conclusions of the Administrative Law Judge only to the extent consistent herewith. The facts, more fully discussed in the Administra- tive Law Judge's Decision, establish that Johnson's Plastering Co., owned by William Johnson (W. Johnson), and Johnson Wall Products, owned by Joseph Johnson (J. Johnson),2 are signatories to a collective-bargaining agreement with Respondent containing a valid union-security clause. In January 1976, 3 Freeman was suspended from the Union for nonpayment of dues, which the Union had refused to accept until he paid an outstanding fine. Respon- dent, at that time, threatened Johnson Wall Products with citations and fines for every day that Freeman worked for it and threatened to withdraw all Johnson's Plastering Co. employees from any job on which Freeman worked. Respondent further told Freeman's employer, W. Johnson, that Freeman could not work for any signatory contractor until he paid his fine. Sometime later in January, Freeman I Respondent excepts, in part, to certain findings of fact made by the Administrative Law Judge based on testimony credited by him. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing the Administrative Law Judge's credibility findings nor his factual findings based thereon. 2 J. Johnson is the son of W. Johnson. Johnson's Plastering Co. and Johnson Wall Products are separate business entities. 3 Unless otherwise indicated, all events herein occurred in 1976. 4 Respondent contends that the Administrative Law Judge inappropri- ately relied on events which occurred more than 6 months prior to the filing of the charge on July 28 to establish critical elements of proof of the alleged 8(bX2) violation. We find no ment to this contention inasmuch as we conclude that the Administrative Law Judge, consistent with well-settled policy, relied on such evidence solely for the purpose of background to explain otherwise ambiguous conduct within the statutory limitation penod. 233 NLRB No. 118 paid his fine; 4 but on February 23 he was again fined by the Union, this time for painting on a Saturday without a permit.5 Soon thereafter, W. Johnson told Freeman that Johnson's Plastering Co. had experi- enced "continual problems with the Union" while it employed Freeman; that he "couldn't afford all the harassment and threats of . . . [his] jobs being stopped"; and that Freeman was, therefore, termi- nated. From early March through April, Respondent Business Agent Virgil Stevens and Local 1627 President and Business Agent Robert Cookman inquired of Johnson Wall Products' employees, on several occasions, whether they had seen Freeman. Stevens and Cookman indicated that W. Johnson's problems were over because Freeman had left the area, that Freeman was a disgrace to the Union, and that he would never "work down here in the Valley again." During this period, Stevens and Cookman also talked to W. Johnson as well as J. Johnson. Cookman, sometime in March, told W. Johnson that he "would have a lot less Union problems now that he [Freeman] was gone." In mid-April, Cookman similarly told J. Johnson that his father's problems with the Union, all of which related to Freeman, were over because Johnson Plastering Co. had terminated Freeman. Likewise, on or about July 1, Stevens told J. Johnson that he felt all of W. Johnson's problems with the Union related in one way or another to Freeman. Only a few days later, Freeman approached J. Johnson about employment and was offered a job, provided he got "squared away" with the Union. Thereafter, on July 28, Freeman filed the instant charge 6 and, on July 29, accompanied by employee and union member Joseph Mudry, went to the union hall and tendered payment of his dues in an attempt to reconcile his dispute with the Union. However, Joe Swartzbaugh, Respondent's financial secretary- treasurer, in the presence of Mudry, again rejected Freeman's tender of dues and told him "you can't go See, e.g., Local Lodge No. 1424, International Association of Machinists, AFL-CIO, et al. [Bryan Manufacturing Co.] v. N.LR.B., 362 U.S. 411 (1960): Peninsula Asphalt & Construction Company, 127 NLRB 136, 147 (1960). Gerald F. Hinkle d/b/a Akron Novelty Manufacturing Company, 224 NLRB 998 (1976). , Each time that Freeman was fined, Johnson's Plastenng Co. was also cited and fined. 6 The charge alleges that "within the past 6 months" Respondent caused Johnson's Plastering Co. to discnminate against Freeman in violation of Sec. 8(b)(1)(A) and (2) of the Act. The complaint, however, does not allege that Respondent's conduct prior to July 28 was unlawful, but only that Respondent's conduct of July 29 violated Sec. 8(b(1X)A) and (2) of the Act. Inasmuch as the allegations of the complaint are closely related to those of the charge and the record establishes that Respondent clearly had notice that the events of July 29 were in issue, we find that the Administrative Law Judge appropriately considered the merits of the complaint allegations. See N. LRB. v. Fant Milling Co., Inc., d/b/a Gladiola Biscuit Co., 360 U.S. 301 (1959)., as cited in Firch Baking Company of Jamestown, Inc., 199 NLRB 414, fn. 4 (1972). 820 PAINTERS LOCAL UNION NO. 1627 to work till you get your fine squared away." Freeman then proceeded directly to J. Johnson's office where he reported to J. Johnson that he was unable to resolve his problems with the Union. That afternoon Freeman once more attempted, without success, to pay his dues. Freeman also signed Respondent's out-of-work list, an action which Swartzbaugh assured him was a futile gesture. There is no evidence that at any time after July 29 Freeman was employed by Johnson Wall products. The Administrative Law Judge found that Respon- dent, on July 29, by refusing to accept Freeman's dues and by refusing to refer Freeman because of an outstanding fine, caused or attempted to cause Johnson Wall Products to discriminate against Freeman, thereby violating Section 8(b)(1)(A) and (2) of the Act. Respondent contends that, because the fine imposed upon Freeman was legitimate, it could condition acceptance of his dues on payment of the fine; that referral was not a prerequisite of employment with signatory contractors and that J. Johnson was not, therefore, precluded from hiring Freeman on July 29; and, finally, that it never actually demanded that Johnson Wall Products deny Freeman employment and could not, therefore, have caused that company to discriminate against him. No exception was taken to the Administrative Law Judge's conclusions that by declining Freeman's tender of dues because of an outstanding union fine Respondent violated Section 8(b)(l)(A) of the Act and that by taking such action in the presence of another employee Respondent additionally violated that section of the Act. We find that Respondent caused or attempted to cause Johnson Wall Products to discriminate against Freeman and therefore violated Section 8(b)(1)(A) and (2) of the Act. It is well settled that a union cannot lawfully cause or attempt to cause an employee to be denied employment or to be terminated because of the employee's failure to pay a union assessment other than periodic dues or the initiation fees uniformly required as a condition of acquiring or retaining membership.7 While Johnson Wall Products, despite Respondent's action of July 29, could have hired Freeman without union mem- bership for a limited period pursuant to the union- security clause in its contract with Respondent, such a gesture would have been futile in light of Respondent's determination to prevent Freeman from working for any signatory contractor until he T The Radio Officers' Union of the Commercial Telegraphers Union, AFL [A. H. Bull Steamship Companyl v. N. L R. B., 347 U.S. 17(1954). s Cf. Brewery Drivers, Chauffeurs & Helpers Local Union No. 133, affiliated with International Brotherhood of Teamsters, Chauffeurs. Warehouse- men and Helpers of America (St. Louis Stag Sales, Inc.), 190 NLRB 766, 768 (1971). 9 R-M Framers, Inc., 207 NLRB 36, 43-4 (1973); Journeymen Plasterers' paid his fine.8 For several months after Freeman was fired by W. Johnson, Respondent kept a careful watch to see that he was not working in the area and openly communicated to Johnson Plastering Co. employees its intention to prevent such an occur- rence. While during this period Respondent never directly demanded that Johnson Wall Products deny Freeman employment, it clearly communicated to J. Johnson the message that if he hired Freeman he would have problems similar to those experienced by his father while Freeman worked for Johnson Plastering Co.9 J. Johnson understood this message and therefore offered Freeman a job, but only conditioned upon resolution of his problems with the Union. When Respondent again on July 29 denied Freeman the right to pay his dues pending payment of his outstanding fine, it thereby gave J. Johnson one more indication that, if hired, Johnson Wall Products' amicable relationship with Respondent would be short lived. Based on the totality of the evidence herein, we find that Respondent effectively warned J. Johnson against hiring Freeman, thereby causing or attempting to cause Johnson Wall Products to discriminate against him. Accordingly, we find that Respondent, by the foregoing conduct, violated Section 8(b)(1)(A) and (2) of the Act. 10 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Painters Local Union No. 1627, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Telling union members or any other employees that they will be precluded from paying union dues because of outstanding fines levied by the Union. (b) Causing or attempting to cause Johnson Wall Products, or any other employer, to refuse to hire or in any manner discriminate unlawfully against Fred E. Freeman in regard to his hire or tenure of employment, or any terms or conditions of employ- ment because of his failure to pay a union fine or any assessment other than the tender of periodic dues or the initiation fees uniformly required as a condition of acquiring or retaining membership. Protective and Benevolent Society of Chicago, Local No. 5 (John P. Phillip Plastering Co., Inc.). 45 NLRB 1608, 1619 (1964). enfd. 341 F.2d 539 (C.A. 7, 1965). 10 In light of the foregoing, we find it unnecessary to determine the nature of Respondent's referral system or to pass upon the Administrative Law Judge's finding that Respondent, by refusing to refer Freeman. violated Sec. 8(bX2) of the Act. 821 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) In any other manner restraining or coercing our members in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Make whole Fred E. Freeman for any and all loss of earnings suffered by him as a result of the discrimination against him in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest computed as set forth in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (b) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all referral and other pertinent records necessary for the determination of the amounts of backpay due. (c) Notify Johnson Wall Products, and all other employers who use Respondent's referral system, and mail copies of such notice to Fred E. Freeman, that Respondent has no objections to Freeman's employ- ment, and that Freeman has full use of said referral system, without unlawful discrimination. (d) Post at its business office and meeting places copies of the attached notice marked "Appendix." 1 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representative, 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 members are customarily posted. Reasonable steps shall be taken by Respon- dent to ensure that said notices are not altered, defaced, or covered by any other material. (e) Sign and mail sufficient copies of said notice to the Regional Director for Region 21, for posting by Johnson Wall Products, at all locations where notices to employees customarily are posted, if said employ- er is willing to do so. (f) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. "u 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT tell our members or any employees that they will be precluded from paying union dues because of outstanding fines levied by us. WE WILL NOT cause or attempt to cause Johnson Wall Products, or any other employer, to refuse to hire or in any manner discriminate unlawfully against Fred E. Freeman, in regard to his hire or tenure of employment, or any term or condition of employment because of his failure to pay a union fine or assessment other than periodic dues or the initiation fees uniformly required as a condition of acquiring or retaining membership. WE WILL NOT in any other manner restrain or coerce our members in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL make whole Fred E. Freeman for any and all loss of earnings suffered by him as result of the discrimination against him, plus interest. WE WILL notify Johnson Wall Products, and all other employers who use our referral system, and mail copies of such notice to Fred E. Freeman, that we have no objections to Freeman's employ- ment, and that Freeman has full use of said referral system, without unlawful discrimination. PAINTERS LOCAL UNION No. 1627 DECISION STATEMENT OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard in Palm Springs, California, on February 15 and 16, 1977.1 The complaint, issued October 6, is based upon a charge filed July 28 by Fred Freeman (Freeman), an individual. The complaint alleges that Painters Local Union No. 1627 (herein called Respondent, or Union) violated Section 8b)(1bXA) and (2) of the National Labor Relations Act, as amended (hereinafter called the Act). All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally and to file briefs. Briefs, which have been carefully considered, were filed on behalf of General Counsel and Respondent. Charging Party did not file a brief. I All dates hereinafter are within 1976, unless stated to be otherwise. 822 PAINTERS LOCAL UNION NO. 1627 Upon the entire record, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. IURISDICTION At all times material herein William R. Johnson d/b/a Johnson's Plastering Co., herein called Johnson's Plaster- ing, has been a sole proprietorship engaged in plastering, painting, drywall, and insulation work in the Palm Springs, California, area. In the normal course and conduct of its business operations, Johnson's Plastering annually pur- chases and receives goods and products valued in excess of $50,000, either directly from suppliers located outside the State of California, or from suppliers within the State of California who purchase and receive the same goods directly from suppliers located outside the State of California. At all times material herein Joseph R. Johnson d/b/a Johnson Wall Products, herein called Johnson Wall Products, has been a sole proprietorship engaged in plastering, painting, drywall, and insulation work in the Palm Springs, California, area. In the normal course and conduct of its business operations Johnson Wall Products annually purchases and receives goods and products valued in excess of $50,000 directly from suppliers located outside the State of California. At all times material herein Desert Painting and Decorating Contractors of Palm Springs, Inc., herein called the Association, with its principal office and place of business in Rancho Mirage, California, has been the collective-bargaining representative, on a multiemployer basis, for various employers, herein called employer-mem- bers, engaged in painting and decorating work in the Palm Springs area. The employer-members of the Association, in the aggregate, annually purchase and receive supplies valued in excess of $50,000 directly from suppliers located outside the State of California. I find that Johnson Wall Products and Johnson's Plastering are, and each of them is, and at all times material herein have been, employers engaged in com- merce and in businesses affecting commerce within the meaning of Section 2(6) and (7) of the Act. I find that the Association and its employer-members are, and each of them is, and at all times material herein have been, employers engaged in commerce and in businesses affecting commerce within the meaning of Section 2(6) and (7) of the Act.2 2 Respondent affirmatively pleaded a Coilver defense, but Respondent did not offer any evidence on this issue, and did not argue this defense in its brief. This defense is without merit. Respondent also denied in its pleading General Counsel's jurisdictional allegations. Again, Respondent did not argue this defense in its brief. There is no question but what Johnson Wall Products and the Association clearly meet jurisdictional standards. So far as Johnson's Plastering is concerned, as argued by General Counsel in his brief, the fact that the company II. THE LABOR ORGANIZATION INVOLVED Painters Local Union No. 1627 is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Johnson's Plastering is owned by William R. Johnson (Bill Johnson), who signed a counterpart agreement with Respondent's District Council on July 15, 1974. That agreement, effective at all times material herein, establishes an exclusive referral system for the hiring of employees. Employers are given "entire freedom of selectivity" in choosing employees, although employers must request from the Union employees for any work covered by the contract. Dispatch procedure under the contract is vague and uncertain, as discussed below. Johnson Wall Products is owned by Joseph R. Johnson (Joe Johnson), who is Bill Johnson's son. Johnson Wall Products also was signatory to a union counterpart agreement at all times relevant herein. Johnson's Plastering and Johnson Wall Products are separate business entities. Freeman has worked for both companies. Freeman became a member of Respondent Union in 1972, and remained a member of Respondent until during 1976. In 1972 Freeman was referred to Johnson's Plaster- ing for work, and thereafter was fined by Respondent on four occasions, while working for Johnson's Plastering. The fines were levied in 1973, 1974, 1975, and February 1976, for working with a nonunion employer; for not wearing a proper uniform; and (in February 1976) for spraying on a Saturday without a permit. 3 Freeman paid the April 1975 fine in January 1976 and at the same time paid his dues for the last quarter of 1975 and the first quarter of 1976. He did not pay the February 1976 fine, as discussed infra. Soon after the fine of February 1976 was levied, Freeman discontinued working for Johnson's Plastering and shortly thereafter commenced working for Johnson Wall Products. After working a short time for Johnson Wall Products, Freeman left the Palm Springs area and remained away from the area until June. When he returned to Palm Springs Freeman talked with Joe Johnson about work possibilities, and the latter told Freeman some jobs would be available a little later; that Freeman would be employed if he got "squared away with the Union." Freeman went to the union hall on July 29, talked with Joe Swartzbaugh (Swartzbaugh), financial secretary-treasurer of the Union, and signed the out-of-work list. In July Freeman's union membership was suspended because he had not paid the fine of February, and in September he was dropped from temporarily is not actively engaged in the construction business does not preclude jurisdiction based upon amounts of business done in the recent past. Tormod Langemyr d/b/a Tom Carpentry Construnctrrion Co. and Tom Carpentry Construction Company, Inc., 176 NLRB 124 (1969); Frank P. Slater d/b/a Acme Equipment Company, 102 NLRB 153 (1953). 3 When Freeman was fined on each occasion, his employer (Johnson's Plastering) also was fined. 823 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership in the Union because he had not paid his dues for 6 months. 4 Freeman did not go to work for Johnson Wall Products in July, because he did not get "squared away" with the Union. B. Issues The principal issue is whether Respondent unlawfully prevented Freeman's employment because Freeman failed to pay a union fine. A secondary issue is whether Respondent told employees it would not dispatch Freeman because of his failure to pay a union fine. C. Discussion I. Events of January 1976 Freeman testified that he went to the union hall on January 8, accompanied by five other employees,5 and that Swartzbaugh and Union Business Agent Virgil Stevens (Stevens)6 were in the hall. Freeman said he told Swartz- baugh he wanted to pay his dues, but Swartzbaugh stated "you can't pay your dues until you pay this fine,"7 referring to the April 1975 fine of $300. Freeman said he asked Swartzbaugh "are you going to deny me the right to work?" and Swartzbaugh said "yes." Freeman said he then approached Stevens, and the same exchange took place. Freeman further testified relative to Stevens: And, then, he said, also in front of the witnesses, he picked up the phone and dialed Johnson Wall Pro- ducts, and he identified himself as a business agent, and he told Joe that he had Fred Freeman in his office and that if he caught Fred Freeman on any of his jobs, he would write him up and cite him; and then he hung up the phone. Freeman said he went to the union hall again about a week later, paid the fine and his dues, and thereafter continued to work until March. Swartzbaugh first testified that he was "quite sure" Freeman was in the office with five other employees "at one time," but changed that testimony after referral to his pretrial affidavit. Swartzbaugh stated that he told Freeman at one time that he could not accept Freeman's dues without first receiving the latter's payment of his fine, or making arrangements for payment.8 Joe Johnson testified that he received a telephone call from Stevens in January 1976: A. He had - He told me I had a problemn. I asked him what that was. And he said that it was Freeman and that I was to remove him from my jobs immediately. And I asked him if he would give me written note - notice, as it's provided in the contract. 4 Freeman's membership had been suspended on occasions prior to 1976, for failure to pay dues. 5 Freeman said the five other employees went to the hall to see if work was available; they had been laid off the previous day. 6 Stevens ceased to be a business agent June 30, 1976. but he has been recording secretary at all times relevant herein. I The events of January are beyond the 10(b) period, and are not alleged He said they didn't do that anymore, and that if he found Freeman on any of my jobs he'd cite me that day and every day succeeding until I got him off. Bill Johnson testified that he received a telephone call from Stevens on January 14 or 15: A. The conversation was that I was to get Freeman off the job immediately, that he had been suspended. I told him, well, according to the contract we had 48 hours; we should have a letter and have 48 hours in which to - to remove. He said, well, I could remove him immediately or he would pull all the men that I had on my job off; all his men. I told him, well, I would go out to the job and - and talk to Freeman and see if I couldn't get him squared away with his Union. Bill Johnson further testified that he talked with Freeman just after the call from Stevens, and asked Freeman to "get himself squared around with the Union." Bill Johnson said he went to the union hall on January 16 to talk with Stevens and Swartzbaugh about Freeman, and that part of the conversation was: Stevens asked me why - why I kept on working Freeman. And I told him, well, I thought he was one of the best spraymen I had. And, well, Stevens said, well, he had a lot better spraymen and a lot better painters and that - that Freeman was just no good; I should - I should think about using somebody else. I said, "Well, I just came down to try to get him squared away and see what was happening, because we had the same problem, it seems like every - every time, and this has gone on for months almost the same way." After the conversation Swartzbaugh handed to Bill John- son a letter, reading as follows: Johnson Plastering Co. Jan. 16, 1976 Fred Freeman was suspended Dec. 31, 197 [sic] and can not work for a signed contractor until Reinstated JOE SWARTZBAUGH FINANCIAL SECRETARY PAINTERS UNION # 1627 Bill Johnson said he was told that Freeman was under a $300 fine, and was being suspended for nonpayment of in the complaint as violations of the Act. They were admitted for background information only, since they are relevant in assessing motive and intent. s Robert Cookman (Cookman), president and business agent of Local 1627, testified that it is union policy not to accept dues until fines are paid. or arrangement has been made for payment. 824 PAINTERS LOCAL UNION NO. 1627 dues. He said Freeman later paid his fine and dues, and returned to work. Stevens did not testify. Freeman, Bill Johnson, and Joe Johnson were impressive witnesses, and their testimony relative to events of January, summarized above, is credited. It is clear from the foregoing, and found, that Freeman was fined in April 1975; was not allowed to pay his dues in January because he had not paid the fine; was suspended from the Union in January for nonpayment of dues; and returned to work for Johnson's Plastering in January, after payment of his fine and dues. 2. Events of February 1976 On February 23 the Union's District Council fined Freeman $400, on the basis of Cookman's citation, for plastering on a Saturday without a union permit. Freeman testified that, shortly after he was fined, he talked with Bill Johnson: A. Because I was working for Johnson Plastering as a plasterer; right? And after they put the last $400 fine on me, Mr. Johnson came to me, and we discussed it; and he said, "Fred, I'm going to have to let you go because of the pressure that the Union is putting on me for you." He just couldn't take the hassle anymore. And I figured if I'd leave for a couple three months, it would die down and I could come back and go to work.9 Bill Johnson testified relative to this incident: A. Freeman had just received another $400 fine, and I had been cited again and fined; and I asked him to come in, and we sat down and talked and discussed it; that there was just a continual problem with the Union while he was working for us, and he couldn't keep on working and having these tremendous fines, and I couldn't afford all the harassment and threats of my jobs being stopped; that I felt that it was probably the best thing for him to do to seek other employment, and that I didn't fdel that I could keep on employing him. Shortly after Bill Johnson talked with Freeman, he terminated the latter's employment. The testimony of Freeman and Bill Johnson, summa- rized above, is credited and it is found that Freeman's employment by Bill Johnson was terminated approximate- ly February 23, 1976, because of Freeman's frequent and repeated problems with the Union. This matter is discussed below in more detail. 3. Events of March 1976 Bill Johnson testified that he talked with Cookman in early March, and that Cookman stated "he'd heard that I 9 Respondent contended at the heanng that the "hassle" Freeman referred to. and that is referred to several places in the transcnpt, was occasioned by the Union's claim against Bill and Joe Johnson for employee union contributions allegedly not made, including contributions for Freeman. The record does not support that contention. and it is found that the argument between the Union and the Johnsons concerning such had let Freeman go; felt that I would probably have a lot less Union problems now that he was gone." Joseph Mudry (Mudry), a union member and an employee of Johnson Wall Products at times relevant herein, testified that he talked with Cookman in March, while working. Mudry said Cookman remarked to him "Well, it looks like you people over at Johnson Wall Products won't be having any problems with us since Fred (Freeman) left." Charles Aguirre (Aguirre), a union member employed in 1976 by Johnson Wall Products, testified that he talked with Stevens in March 1976 while working. Aguirre stated that Stevens asked if he had seen Freeman and what Freeman was doing. Aguirre said he replied that he had not seen Freeman for quite some time, and did not know what Freeman was doing. Aguirre further testified: And he says, "Well, that's good. I guess Johnson's problems are over now since Fred is gone." He said, "He was a troublemaker, and he was the one that created and caused a lot of these problems." Cookman testified that he may have talked with Bill Johnson in March, but that he does not remember telling Bill Johnson that the latter would have fewer union problems with Freeman gone, and he did not think he made such a statement. Relative to the conversation alleged by Mudry, Cookman said he did not recall making the statement attributed to him. Stevens did not testify. Bill Johnson, Aguirre, and Mudry are credited. 4. Events of April 1976 Joe Johnson testified that he talked with Cookman approximately April 15, and that Cookman remarked "he felt that a lot of my father's problems with the Union would be over, since Freeman had left." Joe Johnson further testified that, about a week later, he talked with Stevens and Cookman, and Stevens stated "you know, most of your father's problems have been all related to ... to Freeman." Aguirre testified that he talked with Cookman in April, while working, and that Cookman asked if he had seen Freeman, and asked if Freeman "was around anywhere." Aguirre said he had not seen Freeman, and Cookman stated "It's too bad that all this stuff had to happen, you know, that Fred had to cause all this trouble." Aguirre further testified that he talked with Swartzbaugh in April or May 1976, and that Swartzbaugh asked if Aguirre had seen Freeman. Aguirre said no, and Swartzbaugh stated: And, then, he says, "Well, that's - that's good. He's no good, and - and he's a disgrace to the Painters, and, you know, he's, uh, you know," and just went on and on. contributions is unrelated to any controversy herein; the "problem" or "hassle" here involved relates solely to Freeman's relationship. as an individual, with the Union. This conclusion is fully supported by Cookman, who testified that failure to remit employee contributions did not constitute a "problem" between Respondent and Bill Johnson. 825 DECISIONS OF NATIONAL LABOR RELATIONS BOARD You know, he was calling him a rotten son-of-a-bitch and he was no good and he was a disgrace to the Union and that he would - would never work down here in the Valley again, which, you know, is the desert. Stevens did not testify. Cookman testified that he does not remember the alleged conversation with Joe Johnson on April 15, but that he does remember the conversation about a week thereafter. Cookman stated that he probably said "Well, since Fred left, the problems . . . your problems seem to be over with." Relative to Aguirre's testimony, Cookman testified that he may have talked with Aguirre on the job in April, and that he may have asked Aguirre if he had seen Freeman. Swartzbaugh testified that he did not recall the conversa- tion alleged by Aguirre; that he did not discuss Freeman with Aguirre; and that he did not use the profanity alleged by Aguirre. Joe Johnson and Aguirre are credited. 5. Events of July 1976 Joe Johnson credibly testified that he talked with Stevens approximately July 1, and that Stevens stated he felt all of Bill Johnson's problems with the Union related in some way or another to Freeman. Freeman testified that he talked with Joe Johnson the early part of July about work possibilities, and the latter said he had work coming up that Freeman could have, if Freeman got "squared away" with the Union. 0 Freeman testified that he filed the charges herein on July 28, and: on July 29 at or about 7 or 7:15 a.m. he went to the union hall, accompanied by Mudry. Swartzbaugh and Cookman were at the hall, and Freeman told Swartzbaugh he wanted to pay his dues and go to work. Swartzbaugh refused to accept the dues, and told Freeman "you can't go to work till you get your fine squared away." Freeman said he had enough money for dues, but not for the fine. Freeman left the hall, and stopped by Joe Johnson's office to tell him he could not get squared away with the Union. That afternoon Freeman returned to the union hall, accompanied by Aguirre, to sign the out-of-work list."' Swartzbaugh testified that he talked with Freeman July 29 when the latter came to the union hall accompanied by another young man.' 2 Swartzbaugh said Freeman signed the out-of-work sheet, and that there was no conversation about payment of dues. Swartzbaugh said he only remem- bered seeing Freeman on one occasion on July 29. '0 Counsel stipulated that Joe Johnson had work available for Freeman in July 1976. 11 This list is a memorandum list only; it is not a referral list. The Union maintains no hiring hall in Palm Springs. Freeman credibly testified that he signed the list primarily to support his claim for unemployment insurance payments, and Cookman testified that state unemployment officials frequently check the list when investigating unemployment claims. Further, there is no formal referral policy at Palm Springs related to an out-of-work list: multiple referrals are not required in order to work intermittently for the same employer. Respondent dispatches employees based solely upon their representation that an employer desires to hire them, even in absence Cookman testified that he was in the office on July 29, when Freeman came in and signed the out-of-work sheet, but that he did not recall any conversation at that time between Freeman and Swartzbaugh. He said Freeman came into the office on only one occasion July 29, that Freeman did not give the name of any employer who wanted his referral, and that he did not remember Aguirre accompanying Freeman on July 29. Aguirre testified that he went to the union hall with Freeman in the afternoon of July 29. He said they talked with Swartzbaugh and Cookman, and Freeman signed the out-of-work list. Aguirre testified: And Swartzbaugh said that, you know, wasn't going to do him any good. And then - And then Fred asked Bob Cookman if - if he could pay his - tender his dues. And Bob said that he couldn't; he could not tender his dues because he was not in good standing with the Union and they wouldn't accept the money. So him and I both left. That was the end of the conversation. Mudry testified that he went to the union hall with Freeman on July 29, about 7:15 a.m., and that Cookman, Swartzbaugh, and Stevens were present. Mudry testified: A. Mr. Freeman asked Swartzbaugh if he could pay his dues so he could go to work, that he had a job that he could go to work at. And Swartzbaugh refused. Q. Well, can you give us what was said. A. Well, Mr. Swartzbaugh told him that until he paid his past penalties that he couldn't pay his dues. Q. Do you recall anything else in this conversation? A. No, I don't. After Mudry testified, it was established that Stevens was out of the State July 29. Mudry then testified on rebuttal that he was in error when he testified earlier that Stevens was in the union hall on July 29. Cookman's testimony largely is 'negative in nature, in that he said he did not recall most of the details of Freeman's visit to the union hall on July 29. His testimony thus is not entirely in conflict with that of Freeman. The essential question, therefore, is whether Freeman's version of the two July 29 conversations is to be credited, or whether Swartzbaugh's version is to be credited. Freeman said he was accompanied on the morning visit by Mudry, and on the afternoon visit by Aguirre. Freeman's version of the two visits generally was corrobo- rated by Mudry and Aguirre,'3 both of whom are credited of any request from the employer. It is found that the existence of this list, and the manner in which Freeman signed it, is irrelevant to the issues herein. This finding is supported by, inter alia, the stipulation of counsel that work was available for Freeman in July 1976, and the finding, made infra, that Swartzbaugh and Cookman knew of such availability of work. 12 Swartzbaugh said the young man was not Aguirre. 13 Aguirre's testimony differs somewhat from that of Freeman, in that he attributes a remark relative to fines and dues to Cookman during the afternoon meeting. This apparent discrepancy was not explored at the hearing. In view of Aguirre's credible appearance and demeanor, it is not 826 PAINTERS LOCAL UNION NO. 1627 supra. Swartzbaugh was uncertain, vague, and unconvinc- ing as a witness. His memory admittedly was not good. Further, Swartzbaugh freely acknowledged that it is the Union's policy not to accept a member's dues unless all fines are paid, or arrangement for payment has been made. Based upon these facts, Freeman's version of the events of July 29 is credited. Further, Freeman's testimony that he informed Joe Johnson in late July that he could not get "squared away" with the Union and therefore could not work for Johnson Wall Products is credited. That testimony was credibly corroborated by Joe Johnson. 6. Events of October 1976 Freeman testified: that he went to the union hall on October 28 and told Cookman he would "like to pay my dues and get a work order to go to work." Cookman said he would have to call Swartzbaugh, which he did. Swartzbaugh came to the office and Freeman repeated his request. Swartzbaugh said "Well, I can't accept your dues because you're no longer in the Union." Freeman's testimony was corroborated by David Bruce, who went to the union hall with Freeman, and Freeman is credited. Analysis 1. The core of Respondent's defense is the contention that there is no evidence of the Union's causing Johnson Wall Products and Johnson's Plastering to discharge Freeman, or not to hire him, because of his failure to pay a union fine. However, the cases relied upon by Respon- dent' 4 rest upon the fact that there was no evidence, or incomplete evidence, in those particular cases of union pressure on the employers not to hire, or to fire, an employee. There is much evidence in this case of such pressure: (a) Respondent's witnesses Swartzbaugh and Cookman unequivocally established that Freeman could not work for any signatory employer unless he paid his fine and dues. (b) Stevens told Joe and Bill Johnson in January that Freeman could not work for them so long as Freeman was suspended for failure to pay his fine. (c) Cookman made it clear to Bill Johnson in March, and to Joe Johnson in April and July, that they would not be pressured by the Union, so long as Freeman was not working for them.'3 (d) Bill and Joe Johnson made it clear to Freeman that they would hire him only if he got "squared away" with the Union. Freeman was unable to do so, and was not hired. (e) Although Freeman on occasion had worked for other employers, his employers from 1972 until mid-1976 almost exclusively were Johnson's Plastering and Johnson Wall considered a basis for impeachment of either Freeman or Aguirre. It is noted that Swartzbaugh testified that he did not talk with Freeman on July 29: that "when he come in he may have spoke to Mr. Cookman." 14 United Brotherhood of Carpenters & Joiners of America, Local Union No. 515 (G. E Johnson Construction Co., Inc.), 188 NLRB 832 (1971) and Iron Workers Local 433, International Association of Bridge, Structural and Ornamental Iron Workers, AFL CIO (Riverside Steel Construction), 169 NLRB 667 (1968). is This attitude of Swartzbaugh and Cookman further is shown by the testimony of Aguirre and Mudry. who related conversations while on jobs with Cookman. Clearly Cookman was "keeping track" of Freeman, and had no intention of releasing the pressure on him. 16 Fishermen d Allied Workers' Union, Local 33, International Longshore- Products. That fact was well known to Respondent, as shown by the testimony of Cookman and others. (f) Respondent's referral system is loosely administered, but it was shown, through Cookman and others, that Respondent knows the area's employers and employees, and works closely with all of them to match jobs and workmen. There is no hiring hall in the area, but Cookman "polices" all the jobs and is well aware of all job vacancies within Respondent's jurisdiction. (g) Counsel stipulated that Joe Johnson had work available for Freeman during the month of July 1976. Respondent seeks to avoid the burden of that fact by the testimony of Cookman and Swartzbaugh. Cookman testified that he never told Joe or Bill Johnson not to hire Freeman because of Freeman's delinquency in payment of dues or fines. Cookman denied that Freeman told him or Swartzbaugh on July 29 that Freeman wanted to work for a particular employer, and Swartzbaugh did not testify on this point. However, Freeman credibly testified that he informed Swartzbaugh and Cookman that he had a job if he could pay his dues, and Mudry credibly corroborated Freeman. (h) Obviously Freeman would not seek to pay his dues, and thus be free to work, unless he planned to work for a signatory contractor, and historically his employers had been Bill and Joe Johnson. It is clear from the foregoing that Swartzbaugh and Cookman precluded Freeman on July 29 from accepting an available job with Johnson Wall Products, because Freeman had not paid a union fine. That is a violation of the Act.16 Further, as argued by General Counsel, the finding is warranted and hereby is made, that Swartz- baugh's refusal to consider dispatching Freeman to any employer without payment of his fine constitutes discrimi- nation against Freeman with respect to all employer- members of the Association.' 7 2. Mudry credibly testified that he was present when Swartzbaugh told Freeman, on July 29, that Freeman could not pay his dues and go to work until he "paid his past penalties." Such a statement precludes referral for work in violation of the existing collective-bargaining agreement between Respondent and Johnson Wall Pro- ducts, and violates Section 8(b)(1)(A) of the Act.'8 3. Respondent argues that no violation should be found based upon the events of July 29, since the charge was filed July 28. That argument is without merit. The complaint, dated October 6, is based upon a charge that is closely related in nature to the complaint, and the complaint primarily is addressed to events of July 29. As the Board stated in Texas Industries, Inc., el al., 139 NLRB 365, 366 367 (1962): '9 men's and Warehousemen's Union (S. G. Giuseppe Fishing, Inc., d/b/a M/VS. G Giuseppe), 180 NLRB 851, 854(1970). 1? Bricklayers, Masons i& Plasterers' International Union ofAmerica, Local 11, AFL-CIO (Wilmorite Construction Inc., et at), 162 NLRB 668, 673 (1967): Local No. 440, South Atlantic and Gulf Coast District, International Longshoremen's Association, AFL-CIO (Port Arthur Stevedores, Inc.), 214 NLRB 1068(1974). I' United Assn. of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local Union No. 137 (Hames Construction and Equipment Co., Inc.), 207 NLRB 359 (1973). 19 See also Firch Baking Company of Janestown, Inc., 199 NLRB 414, fn. 4 (1972): NL. RB. v. Font Milling Company, 360 U.S. 301 (1959). 827 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is well established that a charge is not a pleading, but merely serves to initiate a Board investigation to determine whether a complaint shall be issued. Subject only to the requirement that there must be some relationship between the allegations in the complaint and the language of the charge, it is the function of the complaint, and not the charge, to serve notice upon a respondent of the particular conduct alleged to be violative of the Act. Where, as here, the charge alleges, in general language, that Section 8(a)(1), as well as 8(a)(3), have been violated, without particularizing the conduct alleged to be violative of Section 8(a)(I), the charge is sufficient to support the specific allegations in the complaint of Section 8(a)(1) conduct during the 6- month period preceding the service of the original charge, and subsequent thereto. We therefore find that the charge was adequate to support the entire com- plaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section III, above, occurring in connection with the operations of Respondent described in section 1, 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 Respondent has engaged in certain unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act, I shall recommend that Respondent be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the purposes of the Act. It has been found that Respondent discriminatori- ly denied Freeman a job referral to Johnson Wall Products on July 29, 1976, in violation of Section 8(b)(2) of the Act. It shall, therefore, be recommended that Respondent notify Johnson Wall Products and Johnson Plastering that it has no objection to the employment of Freeman, and that Freeman will have full use of the Union's facilities without discrimination, for the purpose of referrals for employ- ment. It shall also be recommended that Respondent make Freeman whole for any loss of earnings suffered by him as a result of the discrimination practiced against him by Respondent. Such payments shall be equal to the amount of wages he would have earned but for the discrimination, plus interest of 6 percent, in accordance with the standards set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). On the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW i. Johnson's Plastering and Johnson Wall Products are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Painters Local Union No. 1627 is a labor organization within the meaning of Section 2(5) of the Act. 3. By telling union members and employees they would not be permitted to pay union dues, thereby precluding referral for work, unless and until they paid fines levied by the Union, Respondent has engaged in unfair labor practices in violation of Section 8(b)( )(A) of the Act. 4. By causing or attempting to cause Johnson Wall Products to discriminate against Freeman in violation of Section 8(a)(3) of the Act, through refusal to accept dues, and refusal to refer Freeman for work, because he had not paid a fine levied by the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(2) and l(A) of the Act. 5. The unfair labor practices described in Conclusions of Law 3 and 4, above, are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 828