Irvin H. Whitehouse & Sons Co.

823 309 NLRB No. 134 IRVIN H. WHITEHOUSE & SONS CO. 1 Respondent Employer has excepted to the judge’s credibility findings. The Board’s established policy is not to overrule an admin- istrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incor- rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 No exceptions were filed to the judge’s finding that Respondent Painters Local 118 violated Sec. 8(b)(1)(A) and (2) by threatening to blackball and attempting to cause and causing Respondent Whitehouse to discharge James A. Dennis unless he paid a $500 ini- tiation fee in one lump sum and became a member of that union. 3 Member Oviatt agrees with the judge that Respondent Employer violated Sec. 8(a)(3) and (1) of the Act by discharging employee Dennis. Respondent Employer had reasonable grounds for believing that membership in Respondent Union was not available to em- ployee Dennis on the same terms and conditions generally available to other members. Member Oviatt believes that under the cir- cumstances presented here, Respondent Employer was under an obli- gation to make further inquiries concerning Dennis’ status before discharging him. Respondent Union’s business manager Bolton ad- vised Respondent Employer’s superintendent Johnson that Dennis was not a member of either Respondent Union or Local 768. Dennis, however, thereafter told Johnson that he was ‘‘squared away’’ with Local 768. Before discharging Dennis, Johnson, therefore, should have asked Bolton if Dennis would be eligible to work in Respond- ent Union’s jurisdiction as a Local 768 member. In addition, the fact that Respondent Union’s request for discharge came within 90 days of the start of Dennis’ work in that jurisdiction should have prompt- ed an inquiry about whether the request was premature. Johnson had earlier told Dennis that he had to pay off the balance of his initiation fee and back dues. Under the constitution of the International Broth- erhood of Painters and Allied Trades, Dennis would have had 90 days in which to pay the balance of his initiation fee to Respondent Union. Irvin H. Whitehouse & Sons Co., Inc. and James A. Dennis International Brotherhood of Painters and Allied Trades of the United States and Canada, Local Union 118, AFL–CIO and James A. Dennis. Cases 9–CA–28687 and 9–CB–7949 December 11, 1992 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS OVIATT AND RAUDABAUGH On April 22, 1992, Administrative Law Judge Marvin Roth issued the attached decision. The Re- spondent Employer filed exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and has decided to af- firm the judge’s rulings, findings,1 and conclusions, and to adopt his recommended Order. In affirming the judge’s finding that Respondent Whitehouse violated Section 8(a)(3) and (1) of the Act by terminating James A. Dennis for refusing to join Painters Local 118,2 we rely on the following findings by the judge. Johnny Johnson, Whitehouse’s superintendent, ad- vised Dennis at the time of hire in May 1990 that his only obligation was to meet the membership require- ments imposed by Painters Local 768. On April 29, 1991, Johnson again advised Dennis that he could re- turn to the Dow Corning job (in Painters Local 118’s jurisdiction) if he paid his obligations to Local 768 be- cause Johnson, like Dennis, was under the impression that this would satisfy Local 118 Business Manager Bolton. However, when Johnson learned that Dennis’ payment in full to Local 768 did not satisfy Bolton, Johnson told Dennis that he was being laid off because he could not work in Local 118’s jurisdiction and there was no work for him in Local 768’s jurisdiction. In fact, letters from Whitehouse to the state employment office and from its attorney to the Board’s Regional Office reveal that Johnson did not simply lay Dennis off from the Dow Corning job. Rather, Dennis was ter- minated from any employment with the Company in any location, and this was done for the asserted reason that Dennis refused to join Local 118. In these circumstances, we find, in agreement with the judge, that Respondent Whitehouse violated Sec- tion 8(a)(3) and (1) by terminating Dennis because, al- though he had joined Local 768, he had not satisfied Bolton by joining Local 118. In so holding, we do not rely on the judge’s further finding that Johnson ‘‘knew or had reason to believe’’ that Bolton did not offer membership in Local 118 to Dennis on the same terms and conditions generally available to others.3 ORDER The National Labor Relations Board orders that Re- spondent Irvin H. Whitehouse & Sons Co., Inc., Louis- ville, Kentucky, its officers, agents, successors, and as- signs, and Respondent International Brotherhood of Painters and Allied Trades of the United States and Canada, Local Union 118, AFL–CIO, Louisville, Ken- tucky, its officers, agents, and representatives, shall take the action set forth in the recommended Order. Eric A. Taylor, Esq., for the General Counsel. Charles F. Merz, Esq., of Louisville, Kentucky, for Respond- ent Company. James E. Isenberg, Esq. and Thomas Schulz, Esq., of Louis- ville, Kentucky, for Respondent Union. DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge. These consoli- dated cases were heard at Louisville, Kentucky, on February 6 and 7, 1992. The charges and the amended CB charge were filed respectively on June 24 and August 9, 1991, by James A. Dennis, an individual. The consolidated complaints, 824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD issued on August 13, 1991, and amended at the hearing, al- lege that International Brotherhood of Painters and Allied Trades of the United States and Canada, Local Union 118, AFL–CIO (Union or Local 118) violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, by threatening to blackball Dennis unless he immediately paid a $500 initiation fee, and attempting to cause and causing Irvin H. Whitehouse and Sons Co., Inc. (Company and col- lectively with the Union, the Respondents) to discharge Den- nis because he refused to become a member of the Union, and for reasons other than Dennis’ failure to tender periodic dues and the initiation fees on proper notification uniformly required as a condition of acquiring or retaining membership in the Union. The complaints further allege that the Com- pany violated Section 8(a)(1) and (3) of the Act by terminat- ing Dennis because he failed to join, support, or assist the Union and in order to encourage employees to join, support, and assist the Union. Respondents each deny the commission of the respective alleged unfair labor practices. All parties were afforded full opportunity to participate, to present rel- evant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. On the entire record in this case and from my observation of the demeanor of the witnesses, and having considered the briefs submitted by General Counsel and Respondents, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company, a corporation, is engaged in the application of commercial and industrial coatings, treatments, and related services from its Louisville, Kentucky facility. In the oper- ation of its business, the Company annually purchases and receives at its Louisville facility goods and materials valued in excess of $50,000 directly from points outside of Ken- tucky. I find, as Respondents admit, that the Company is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Five witnesses testified in this proceeding. The principal witnesses were Charging Party Dennis, Union Business Man- ager Ronald Bolton, and Company Vice President for Pro- duction Johnny Johnson, who was company superintendent at the times material. Another person involved in the events, who might have provided enlightening testimony, was not called as a witness. None of the three principal witnesses were wholly credible. Testimony by Dennis and Johnson was refuted by documents whose authenticity is undisputed. Their lack of credibility has not aided resolution of their conflicting assertions concerning the events of this case. Nevertheless, a fairly clear picture emerges from the maze of conflicting tes- timony. The Union, based in Louisville, is signatory to a collec- tive-bargaining contract with the Company, effective from July 23, 1990, to July 22, 1993, covering the Company’s painting work within the Union’s geographical jurisdiction. That jurisdiction includes 28 counties in Kentucky and 7 in nearby Indiana. The Union’s territorial jurisdiction does not extend to the Lexington, Kentucky area. Local 768 is the Painters’ Union local in Lexington. The Union has seen bet- ter days, but it is a powerhouse compared to Local 768. Business Manager Bolton testified that his union has nearly 300 members, compared to between 30 and 35 members for Local 768. The contract between the Company and the Union contains a union-security clause which requires union members to maintain their membership, and nonmembers to join the Union after 8 days of employment, all as a condition of employment. The Company and the Union do not have an exclusive hiring arrangement. The Company may hire em- ployees off the street, but they become subject to the union- security clause. Although the clause uses the words ‘‘join the Union,’’ General Counsel does not allege that the clause is unlawful. The contract also provides that the Company will withhold union initiation fee payments if the employee signs an authorization form to withhold a designated amount. Pay- ment is due on a monthly basis with a maximum of 90 days to pay total initiation fees. The evidence indicates that the Company has a relationship with Local 768 when working in its jurisdiction. However, no evidence was presented con- cerning any collective-bargaining contract between them. In the absence of such evidence I cannot assume the existence of a contract containing a union-security clause. Therefore I am proceeding on the premise that company employees working within the territorial jurisdiction of Local 768 had no obligation to join, be referred by or pay dues or other money to that Local. Until August 5, 1991, the initiation fee for both the Union and Local 768 was $275. Effective as of that date the Union’s initiation fee was increased to $500. The Union also inquired, as of the spring of 1991, that new members pay 3 months’ dues at $27.50 per month, a work assessment fee of $21 and $3 for work cards, for a total of $381.50 in the first 90 days. Local 768 evidently also had charges in addition to the initiation fee. The constitution of the International Broth- erhood of Painters and Allied Trades, which is binding on all its affiliated locals, provides that new members must sign an official application form, initially pay the current month’s dues and at least 10 percent of the initiation fee, continue paying all dues and assessments, and complete payment of the initiation fee within 90 days. ‘‘If complete and full pay- ment of the initiation fee is not made within 90 days, or if it is discovered that the applicant has made false statements or is unable to qualify as a member, the membership shall be revoked and the paid initiation fees forfeited.’’ The con- stitution also provides that no member shall at any time be- long to more than one local. The constitution also provides a procedure whereby members may be cleared to work out- side the jurisdiction of their home local. In sum, in order to qualify for such clearance, the person must have been a union member for at least 1 year (unless an exception is granted by the International), and must be current in his pay- ments. The member goes to the financial secretary of his home local, who if the member is qualified, will give him a clearance card, which costs $2. The member then goes to the local in whose jurisdiction he wishes to work, and ob- tains a transfer card, which also costs $2. If the person has been a union member less than 3 years, he must also pay the 825 IRVIN H. WHITEHOUSE & SONS CO. 1 All dates are for the period May 15, 1990, through May 14, 1991, unless otherwise indicated. accepting local the difference between the initiation fee of that local and his home local, if the accepting union has a higher initiation fee. The contract between the Company and the Union provides pay scales for ‘‘Class A’’ and ‘‘Class B,’’ painters, with Class A painters making $2.50 per hour more than Class B painters. The contract provides that: ‘‘All new Journeymen and all new recruit people are permitted automatic Class B Painters until skill level requirements are recognized by employing employer.’’ James Dennis was an experienced painter, but at least until May 1990 had not been a member of the Painters Union. He obtained his painting experience in the military and through his own construction business. In May 1990 the Company hired Dennis off the street, and assigned him to work at the Toyota plant in Georgetown, Kentucky, which is in Local 768’s geographical jurisdiction. Dennis testified that he filled out two application forms, although only one was presented in evidence. That form is dated May 17, 1990.1 The form, signed by Dennis, indicates in response to an inquiry that he was a member in good standing of Local 768. Dennis testi- fied in sum as follows: Superintendent Johnson, who initially interviewed and hired Dennis, told him to contact Business Manager Doug Young of Local 768, who would get him into that union. Johnson told Dennis he would be working at the Toyota plant, and he should put down on his application that he was a member of Local 768, because he would be work- ing in that Local’s jurisdiction. The next day Dennis met with Young, who told him the initiation fee was $275. Den- nis gave him a down payment of $50 for the fee. Neither Young nor anyone else ever gave him a copy of the Painters Union constitution or its rules, and he never asked for them. When Dennis reported to the jobsite he filled out an applica- tion for Company Project Manager Daryl Ford, indicating that he was a member of Local 768. Superintendent Johnson, who is a member of the Union, testified in sum as follows: He told Dennis that if he wanted to work at Toyota, he should get straight with Local 768 if he was not already. Company policy required that its painters be in good stand- ing with their respective locals and have their work cards. The Company did not care if its employees were union mem- bers if the business agent did not care. Dennis probably filled out the application (in evidence) at the jobsite and gave it to project manager Ford. (Ford verified the employment eli- gibility portion of the application.) If an employee stated on his application that he was a union member, but knew he was not, the application would be false and invalid and the employee would be terminated. Local 768 Business Manager Young was not called as a witness in this proceeding. Gen- eral Counsel represented that he subpoenaed Young, not to call him as a witness, but to have him present in the event a hearsay issue arose as to the conversations involving Young; and that Young failed to show at the hearing. The receipt for Dennis’ $50 downpayment on the Local 768 initiation fee, signed by Young, is dated June 23, more than 5 weeks after Dennis began working for the Company. Nevertheless Dennis insisted that he paid the money when he began working, and professed to be unable to explain the date. Dennis also identified receipts for two other payments toward the initiation fee, both signed by Young. The first, dated July 18, was for $75, and indicated that Dennis had paid a total of $165 and still owed $148.05. The second, dated September 7, was for $50, and indicated that Dennis paid a total of $215 and owed a balance of $98.05. Dennis testified in sum that he did not make any other payments on the initiation fee prior to April 30, 1991, that he did not sign any authorization to deduct initiation fee payments from his wages, and that no such deductions were made. However union dues were deducted from his paychecks whenever and wherever he worked. (During his employment he worked within the geographical jurisdiction of four Painters Union Locals: Local 768, Local 118, and Indiana Locals 47 and 669.) He did not know which Local received the dues, but assumed that they went to the Local in whose area he worked. When he was not working he paid no dues. In sum, Dennis paid a total of $175 toward the Local 768 initiation fee. He was unable to explain why the July 18 receipt indi- cated that he paid $165, when he had paid only $125 at that point. The evidence discussed thus far demonstrates certain courses of conduct by the Company, Dennis, and Local 768. The Company and Superintendent Johnson in particular, seemed to regard itself as the guardian of Painters Union in- terests, and did not concern itself with the niceties of the law in carrying out that function. It is unlawful to question a job applicant concerning his union membership. The Company had the right, and indeed the responsibility to inform a new employee of any union-security obligations. However this does not give the employer any right to question applicants about their union membership. Johnson also unlawfully re- quired Dennis to meet Local 768’s membership conditions before working for the Company. In the absence of any law- ful union-security clause, that requirement was plainly un- lawful. Even if the Company had a contract with Local 768 which was similar to its contract with Local 118 (and this has not been shown) any membership obligation would com- mence on the 8th day of employment. Johnson in effect im- posed an unlawful closed-shop requirement, making union membership a precondition of employment. The evidence also indicates that Dennis had no principles against union membership, but was not inclined to meet the financial obli- gations of such membership. Dennis falsely informed Project Manager Ford that he was a member in good standing of Local 768, but waited over 5 weeks before contacting that union. Thereafter he failed to complete payment of his initi- ation fee. The evidence further indicates that Business Man- ager Young, who was desperate for members at any price, tolerated this situation, in violation of the Painters’ Inter- national constitution, by accepting whatever Dennis was will- ing to give him. Dennis continued to work at the Toyota plant until late July. In July he also worked briefly on a shutdown job (i.e., where a plant is temporarily shut down for general mainte- nance work) at Cummins Diesel, in the geographic jurisdic- tion of Indianapolis Local 47. In late July he worked for 2 days on a shutdown job at the Phillip Morris plant in Louis- ville, for the first time working within Local 118’s jurisdic- tion. Thereafter, and continuing until mid-September, Dennis worked at various jobs within Local 118’s jurisdiction, in- cluding General Electric and a second shutdown at Phillip Morris in late August. In late September and October Dennis again worked at the Toyota plant. In late October Dennis 826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD commenced working at the Lilly plant in Indianapolis (Local 47 jurisdiction). He continued working there until late De- cember, and after briefly working at another Indiana job (ju- risdiction of Local 669) he was laid off on December 28. Dennis testified that he was a foreman on the Lilly job. However his timecards indicate that he received the same rate of pay as other journeymen on his shift. I do not credit his assertion. In March the Company recalled Dennis, and as- signed him to the Dow Corning plant in Carrollton, Ken- tucky, which is in Local 118’s geographic jurisdiction. He worked there until his alleged termination on April 30. So far as indicated by the present record, Dennis had no contact with the Indiana locals when he worked in their terri- tory. He testified that he met Union Business Manager Bolton only once. Dennis testified in sum as follows: He met Bolton in August 1990, on the second Phillip Morris shut- down job. Bolton asked him if he had his book, and what local he was with. Dennis answered he was in an initiation program with Local 768. Bolton said that as soon as Dennis’ book was paid up and his dues caught up, he saw no prob- lem with Dennis transferring his book to Local 118. Dennis said he had no problem with that. (Dennis lived in Louis- ville.) Bolton did not say that had to transfer his book. Thereafter he had no further contact with Bolton or anyone else concerning his union standing until April 30. He did not work on any shutdown job at Phillip Morris in April. He worked only at Dow Corning that month. His last day of work was Thursday, April 25. He did not work on April 26 or 29 because they were rained out. However his timecard indicates that he worked 8 hours on April 26. Therefore I do not credit his assertion that he did not work that day. Dennis further testified in sum as follows: When he reported to work on Tuesday, April 30, Company Project Director Jim David- son told him to see Superintendent Johnson about a union problem. Dennis went to the company facility. Johnson told him that Local 768 Business Manager Young called, that Dennis needed to pay the balance of his initiation fee and back dues, and when he got straightened out he could return to work. Dennis knew that he was behind in dues. He imme- diately called Young, who said Dennis had to pay the bal- ance of his initiation fees and back dues for the period when he was laid off. Young said that when Dennis did this, he would be a member in good standing as far as Young was concerned. Young did not indicate the amount owed. He also told Dennis to contact Business Manager Bolton if he wanted to work at Carrollton, in order to notify him that Dennis was working in his jurisdiction. Dennis made an appointment to pay the money owed the next day. Dennis further testified in sum as follows: On April 30 he tried to reach Business Manager Bolton by phone. He left a message on Bolton’s answering machine, leaving his mother- in-law’s telephone number. Dennis did not have a telephone. His mother-in-law, Alberta Pike, who lived two doors away, did have a telephone. They had an intercom system which enabled them to communicate. The next morning Pike told Dennis that Bolton was on the phone. Dennis came to Pike’s home and picked up the telephone in the living room. There was also an extension in the bedroom. Dennis recognized Bolton’s voice. Bolton cussed out Dennis for about 30 sec- onds. He demanded to know what Dennis was doing working in his jurisdiction without notifying him. Dennis said he was under the impression that if he worked in Local 118’s juris- diction, dues were taken out and sent to Local 118. Dennis said he contacted Young to arrange to pay the balance of his initiation fee and dues. Bolton replied that he didn’t care what Dennis did with Local 768. He said that Dennis had to pay him a $500 initiation fee that day or the next, and come in as a Class B painter, taking a pay cut of $2.50 per hour until he proved himself or the Company stated he should be classified as a Class A painter. Dennis agreed to Bolton’s demands, except immediate payment of $500. Den- nis said he wanted to make installment payments. Bolton said no, he had to have the money up front, and Dennis would forfeit his payments to Local 768. Dennis said he would pay Local 768 the money which he owed. Bolton said that if Dennis did that he would be blackballed from the Louisville area and lose his job with the Company. Bolton said he had men sitting on the bench while Dennis was out working in his jurisdiction. (Dennis subsequently testified that Bolton said he would be blackballed and lose his job if he did not pay the $500.) The conversation lasted about 6 or 7 minutes. The next day Dennis went to Local 768 and paid the balance of his initiation fees and dues. Business Manager Young said that as far as he was concerned, Dennis was a member in good standing, and should not have been pulled off the job in Carrollton. Young said he spoke to Bolton, but did not tell Dennis what was said. That afternoon Dennis returned to the company facility. Superintendent Johnson asked him if his union business was squared away. Dennis answered yes. Johnson asked which local. Dennis an- swered ‘‘Local 768.’’ Johnson said he could not send Dennis back to Carrollton, that he could only work in Local 768’s jurisdiction, and that he would have to lay off Dennis until work resumed at the Toyota plant. Johnson promised he would call Dennis as soon as something came up. But when Dennis applied for unemployment compensation, he learned he was discharged. In October 1991, after the present com- plaints issued, Dennis transferred into Local 118, paid an ini- tiation fee, 3 months’ dues and other charges, and was classi- fied as a Class A painter. The Company then offered him employment. Alberta Pike, who was called as a General Counsel wit- ness, testified in sum as follows: One day in the last week of April, Bolton called between 10 and 11 a.m. and asked to speak to Dennis. After Dennis came and got on the phone in her living room, she picked up the receiver in her bed- room to hang it up. Pike variously testified that Dennis and Bolton had been talking 3 or 4 minutes, 1 or 2 minutes, and that she did not know how long. When she picked up the receiver she heard Bolton cussing out Dennis. She listened in for 1 or 2 minutes. Bolton was talking in a loud and bel- ligerent manner. She heard him tell Dennis to bring $500 to- morrow to join the Union, or Bolton would see that he was blackballed and never work in Louisville again. She then put down the phone. The conversation continued, and Dennis kept saying ‘‘yes sir, yes sir.’’ After the conversation Dennis told her what Bolton said, and that he didn’t know where he would get $500. Pike said she couldn’t help him. Business Manager Bolton testified in sum as follows: He did not meet or communicate with Dennis until Saturday, April 27. That day Bolton went to a weekend shutdown job at Phillip Morris to check the status of employees of union contractors on the job. He went to the plant cafeteria, and greeted employees as they arrived. Bolton was talking with 827 IRVIN H. WHITEHOUSE & SONS CO. Company Project Director Davidson, Foreman Fred McKim, and one Roger Strong. Dennis arrived and signed in. Bolton said, ‘‘I don’t believe I know you.’’ Dennis identified him- self. Bolton said he didn’t have a member by that name, and asked where he was from. Dennis answered he was from Lexington Local 768. Bolton asked for his work card, which is his usual procedure. Dennis said he didn’t have it with him. This was not unusual with union members, but it was unusual for a member of another local to fail to bring his work card with him. After their conversation Dennis left the premises, signing out at the guard shack. Bolton did not see him after that. On Monday, April 29, Bolton called Business Manager Young, and asked if Dennis was a member of Local 768. Young answered that he was not. Bolton then called Superintendent Johnson. He told Johnson that he learned Dennis was not a member of Local 768, and that he also was not a member of Local 118. Johnson said he would ‘‘deal with it.’’ Bolton did not tell Johnson to discharge Den- nis. The employer is responsible for disciplining the em- ployee. Johnson subsequently told him that he told Dennis to see Bolton and ‘‘get his book straightened up.’’ However, in his investigatory affidavit Bolton stated that ‘‘Johnson told me he had told Dennis to see Ron Bolton and see about join- ing 118.’’ Bolton initially testified that he had no further conversation with Johnson about the matter. However, in his affidavit he stated that Johnson told him that ‘‘Dennis had not done what he told him to do, go down to 118 and sign up,’’ and that Dennis was not working for the Company at that time. On being confronted with his affidavit, Bolton ad- mitted Johnson so informed him. Bolton categorically denied having the alleged telephone conversation with Dennis, or demanding $500 from him, or threatening to blackball Den- nis. Bolton later learned that Dennis made partial payments to Local 768. However, these payments did not qualify him to work as a union member, and would be forfeited in ac- cordance with the International constitution. Bolton did not see or talk to Dennis again until October 1991 when he cleared into Local 118. Company Project Director Davidson, who was called as a union witness, testified in sum as follows: He worked with Dennis on the General Electric and Dow Corning jobs. He also saw Dennis at a Phillip Morris shutdown, although Den- nis did not work that day. Davidson was in the plant cafe- teria with Bolton and Foreman Fred McKim. He saw Bolton speak to Dennis, but did not hear their conversation. Follow- ing the conversation Dennis left the cafeteria. Davidson ini- tially testified that he thought this occurred around the time they were working at Dow Corning (i.e., in March or April 1991), but subsequently indicated he was not certain about this. Davidson also testified that he did recall telling Dennis to see Johnson. Superintendent Johnson testified in sum as follows: There was a shutdown job at Phillip Morris in April, and he told Foreman Keenan Holden to notify a number of employees, including Dennis, to report. Johnson was not present at the job. In late April Bolton called and told him that Dennis was not a member of any union, and he needed to see Dennis. Johnson said he would take care of that. Bolton did not de- mand Dennis’ discharge, or say anything about money. John- son then told Foreman Holden (not Davidson) to have Den- nis see him. Johnson told Dennis that he had to get right with Bolton if he wanted to work at the Dow Corning job, because it was in Local 118’s jurisdiction. At the time the Company had no available work in Local 768’s area. He did not tell Dennis he had to join Local 118. Johnson does not recall talking to Business Manager Young about the matter. Some time later (more than a couple of days), Dennis re- turned and said he was caught up with Local 768. Johnson told him he had to get straight with Local 118 in order to work in its area. Dennis said he would return when he got straightened out. Thereafter Dennis simply failed to show up until he eventually cleared into Local 118, whereupon John- son put him to work. Johnson asserted that the Company did not discharge or lay off Dennis, nor did it take the position that an employee must join Local 118 to be employed, or that Dennis refused to join and was let go for that reason. Johnson’s assertions were contradicted by the Company’s statements of position, including Johnson’s own statement. When Dennis filed a claim for unemployment compensation, the Company was re- quested to give its position. The Company by its payroll clerk Linda Walls gave a written statement that ‘‘Dennis was instructed by his supervisor that as a condition of employ- ment he would have to join Painters Local 118,’’ and that ‘‘he did not join this union so he was discharged.’’ Johnson admitted in his testimony that Walls was responsible for dealing with unemployment compensation claims, that she would routinely ask the supervisor ‘‘what the deal is,’’ that he was the supervisor to whom she referred, and that Walls did ask him what happened. Nevertheless Johnson insisted that he only told Walls that as far as he knew Dennis had ‘‘not got straight with the Local yet.’’ The factfinding report of the Kentucky Division of Unemployment Insurance, dated May 31, 1991, indicated that its investigator contacted John- son. The report indicated that Johnson said Dennis was let go because he refused to join Local 118, that he chose to join Local 768, but the Company had no work in the Lexing- ton area now, and Dennis would have to join Local 118 in order to work here now. Johnson was evasive about the re- port. He testified that he guessed he talked to the investiga- tor, but did not recall. The Division of Unemployment Insur- ance held that Dennis was not disqualified from receiving benefits because he was discharged when he refused to join the Union, although his ‘‘contract of hire’’ did not require him to join the Union to remain employed. In its statement of position to the Board’s Regional Office concerning the present charges, company counsel stated as follows: Whitehouse is a union contractor and has a Union Security Agreement with Local Union 118 of the Inter- national Brotherhood of Painters & Allied Trades. The Union Agreement requires membership in Local 118 while working in Local 118 jurisdiction as a condition of employment. Mr. Dennis was informed by the Union of this provision and he failed to join the union where- upon he could no longer be employed under the Collec- tive Bargaining Agreement. At the time this matter arose, Mr. Dennis was not a member of any union and he was working within the jurisdiction of Local 118, therefore, he was required to be a 118 member of which he refused. 828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 I find without merit, General Counsel’s suggestion that Bolton may have confused Dennis with his stepbrother William Skagges. Dennis testified in sum, but Johnson denied, that Johnson may once have confused them. However, Bolton testified that he did not know Skagges. I find that Johnson authorized and made the statements indi- cated to the Kentucky Division of Unemployment Insurance. As indicated, neither Dennis nor Johnson testified that John- son told Dennis that he was discharged. In light of the posi- tion statements made by the Company to the Division of Un- employment Insurance and to the Board’s Regional Office, which may properly be considered as company admissions, I find that the Company discharged Dennis because he failed to join the Union. With regard to the three alleged disputed conversations be- tween Bolton and Dennis, I have as previously indicated found neither to be a wholly credible witness. Upon consid- eration of the evidence, I find that all three conversations oc- curred, specifically, the conversation in August 1990 de- scribed by Dennis, the April 27 conversation described by Bolton, and the telephone conversation (on May 1), testified to by Dennis. As indicated, Superintendent Johnson admitted in his testimony that he told Dennis he had to contact Bolton and get straight with Local 118 in order to work in its area. Dennis was now trapped. He knew he had to comply if he wanted to continue working. He was also under the impres- sion that he could obtain clearance from Bolton if he were paid up in his dues and initiation fees to Local 768. In these circumstances it is probable that as Dennis testified, he con- tacted Bolton. It is also unlikely that Dennis and Alberta Pike made up the telephone conversation out of whole cloth. I do not attach significance to Pike’s testimony that she heard ‘‘cussing and spluttering,’’ although Dennis testified that Bolton cussed him out for about the first 30 seconds of the conversation. Pike’s standard of what constituted cussing may have been different from that of Dennis. Bolton was ob- viously angry. He believed with some justification that Den- nis was a deadbeat who had worked for the Company for nearly a year without joining either Local 118 or Local 768, and lied to him about it. Bolton was in no mood to grant concessions. I further find that at the time he spoke to Den- nis, Bolton was under the mistaken impression that Local 118’s initiation fee was $500. On March 14 the Union’s membership voted to increase the journeymen initiation fee from $275 to $500, effective April 1. However, under the International constitution, a Local’s increase in the initiation fee is not effective until approved by the International’s gen- eral executive board. By letter dated July 18, 1991 (after the present charge was filed), Bolton informed International Sec- retary-Treasurer Monroe that Local 118 President Jones ‘‘brought to my attention’’ that the increase had not been ap- proved by the board. By letter dated August 6, 1991, Monroe informed Bolton that the increase was approved as of August 5, 1991. The language of Bolton’s letter suggests that he overlooked the fact that the increase had not been approved. If the April 27 jobsite encounter did not occur, then the record evidence fails to indicate how Bolton learned that Dennis was not a member of Local 768. It is unlikely that Business Manager Young would have volunteered such in- formation, and it is also unlikely that Superintendent Johnson would have taken the initiative in the matter without hearing from either Bolton or Young. It is also significant that Den- nis testified that he recognized Bolton’s voice on the tele- phone. This is unlikely if Dennis had spoken to him only once nearly a year ago. However, it would be likely if Den- nis had recently spoken to Bolton, particularly under cir- cumstances that he would not easily forget. Dennis testified that he did not work on a Phillip Morris shutdown job in April, and there is no timecard showing that he did such work. However, the testimony of Bolton and Davidson indi- cates that Dennis did not work that day, but immediately left after Bolton questioned him.2 It is not improbable that Bolton, over the course of nearly a year, would go to two Phillip Morris shutdown jobs to check employee status. These are large jobs which must be done in a short time. Contractors will draw on all available employees. The jobs usually involve overtime pay, and consequently employees are eager to obtain such work. The jobs afford a business manager like Bolton an opportunity to find a large number of employees in one place at one time, where he can check on their status and do some politicking. I further find that Johnson initially told Dennis that he could return to work if he paid his obligations to Local 768. Johnson, like Dennis was under the impression that this would satisfy Bolton. When Johnson learned otherwise from Bolton, he told Den- nis that he could not work in Local 118’s jurisdiction. I find that in August 1990 Bolton encountered Dennis on a Phillip Morris shutdown job, and asked about his status. Bolton accepted Dennis’ representation that he was in an ini- tiation program with Local 768. On the basis of that rep- resentation, Bolton did not object to Dennis working in Local 118’s geographic jurisdiction. He also offered Dennis the op- tion of transferring into Local 118 after he was fully paid up to Local 768. Bolton next encountered Dennis on April 27, 1991. He may or may not have remembered Dennis. How- ever, he became suspicious when Dennis failed to produce a work card, and thereafter hastily departed the premises. Dennis knew he was in trouble, because after nearly a year of employment with the Company he had not yet fulfilled what he understood were his financial obligations to Local 768. He promptly disappeared, hoping that Bolton might again overlook his working in Local 118’s jurisdiction. How- ever, Bolton followed through and checked on Dennis’ sta- tus. Business Manager Young told him that Dennis was not a member of Local 768. Bolton then called Superintendent Johnson and told him that Dennis was not a member of any Painters’ Union. Bolton did not expressly request or demand that the Company discharge Dennis. However, Bolton knew that Johnson understood he was invoking the union-security clause of their contract, which required union membership after the eighth day of employment as a condition of employ- ment. Bolton testified that if any employee failed to meet the financial requirements of union membership, the union-secu- rity clause would apply, and that it was up to the employer to discipline the employee. Therefore the Union, at the least, attempted to cause the Company to lay off Dennis and ex- clude him from any employment within Local 118’s geo- graphical jurisdiction, and in fact caused the Company to dis- charge Dennis. When Dennis contacted Bolton, Bolton presented the em- ployee with his demands, which were a precondition for Dennis returning to work. For several reasons, the demands, and Bolton’s action in causing the Company to terminate 829 IRVIN H. WHITEHOUSE & SONS CO. Dennis’ employment, were unlawful. First, Bolton demanded payment of a $500 initiation fee, although the Union’s initi- ation fee was only $275. Bolton mistakenly believed that the fee was $500. However, even when he learned otherwise, he did not bother to notify Dennis. Therefore Bolton caused Dennis’ discharge and threatened to blackball him in the Louisville area ‘‘for reasons other than the failure of the em- ployee to tender the periodic dues and initiation fees uni- formly required as a condition of acquiring or retaining membership’’ (emphasis added). Second, Bolton’s demand that Dennis take a $2.50 per hour pay cut and be reduced to a Class B level painter, was discriminatory and unlawful. Bolton testified that a journeyman member in good standing of another local who came into Local 118’s jurisdiction would get the Class A rate, but a new union member would be employed at the B rate. In sum, the Union interpreted the contract in a manner which favored union members over nonmembers or new members, solely on the basis of union membership and without regard to their qualifications. Den- nis was paid as a Class A painter. He testified without con- tradiction that at the time of his discharge he was a journey- man painter preparing to be a leadman. Therefore it is evi- dent that the Company recognized that Dennis met the skill level requirements of a Class A painter, and was entitled to that rate under the contract. Third, neither the Company nor the Union accurately or adequately informed Dennis of his obligations and rights under their union-security agreement. Superintendent Johnson misled Dennis by sending him to Local 768, although he had no obligation to that Local, and thereby created the false impression that whatever arrange- ment Dennis made with Business Manager Young would en- able him to work for the Company in the geographic juris- diction of any Painters’ Union local. When Bolton first met Dennis, he similarly led Dennis to believe that if he com- plied with Young’s requirements he would have no problem transferring into Local 118 or working within Local 118’s ju- risdiction. Neither said anything to Dennis about the union- security clause or the 90-day time limit on payment of the initiation fee, or of the other charges required for member- ship. The evidence fails to indicate that Young informed Dennis of these requirements. Bolton testified that if he learned the Company hired a nonmember, he would request the Company to get a permission slip for deductions. Other- wise the employee could make payments directly to the Union. Although the Company has such forms, neither the Company nor the Union offered the form to Dennis when he began working in Local 118’s geographic jurisdiction, or at any other time. Therefore Dennis remained entitled to the same installment payment option as other new members. ‘‘A labor organization has an absolute fiduciary duty to inform unit employees of their obligations under a union security agreement, including the consequences of their failure to comply with those obligations, and the correct particulars of any obligations due and owing, and to afford the employees a reasonable opportunity to comply with those obligations before invoking a request for their discharge for noncompli- ance with such obligations. It is immaterial that the employee may already be aware of those obligations, and the con- sequences of failing to meet those obligations. Rather, before taking any action which could affect an employee’s job secu- rity, the labor organization must confirm that the employee personally received full and understandable notice of those obligations.’’ Teamsters Local 170 (Consolidated Beverages), 282 NLRB 812, 817 (1987), and cases cited therein. As Bolton failed to fulfill his fiduciary duty, it follows that Local 118 violated Section 8(b)(1)(A) and (2) of the Act by causing and attempting to cause the Company to cease using Dennis’ services. Bolton’s threat to blackball Dennis in the Louisville area was unlawful for the additional reason that it went beyond the limits of the union-security clause, by threatening to prevent Dennis from working for other em- ployers. However, I do not agree with General Counsel’s ar- gument that the Union unlawfully failed to offer Dennis the option of financial core membership. That has nothing to do with the facts of this case. Dennis was no champion of the open shop. He was perfectly willing to join any Painters’ local. His problem was his reluctance to meet the financial obligations of such membership. And Bolton could not care less whether Dennis became a full-fledged, oath-taking mem- ber, so long as he met the financial obligations of member- ship. Indeed his statements and failure to contact Dennis in- dicate that he would have been satisfied if Dennis walked away from his employment without paying anything. I further find that the Company violated Section 8(a)(1) and (3) of the Act by discharging Dennis because he failed to join Local 118. Even if the Union lawfully and properly invoked the union-security clause of its contract with the Company (which it did not), the Company went beyond the requirement of that contract by discharging Dennis, thereby precluding him from working even on jobs outside Local 118’s geographic jurisdiction. The Company could lawfully at most lay off Dennis and inform him that he could not work in Local 118’s jurisdiction until he met his financial obligations to that Union. Instead, by discharging Dennis, the Company unlawfully encouraged membership in a labor or- ganization. Moreover, the Company terminated Dennis not- withstanding that it had reasonable grounds for believing that membership in Local 118 was not available to Dennis on the same terms and conditions generally available to other mem- bers. Superintendent Johnson initially misled Dennis by lead- ing him to believe that his only obligation was to meet such requirements as might be imposed by Local 768. The Com- pany always knew that Dennis was not a member of Local 118. (He always indicated on his timecards that he was a member of Local 768.) When Dennis began working in Local 118’s geographic area, the Company did not inform him of the union-security agreement or offer him an author- ization form to withhold payments on the initiation fee. Even when Johnson first spoke to Dennis on April 30, he still led Dennis to believe that his only obligation was to pay the bal- ance of his initiation fee and dues to Local 768. When Den- nis reported to Johnson that he had done this, Johnson never- theless said he could not work in Local 118’s jurisdiction, and discharged him because he had not joined 118. It is evi- dent that Johnson knew or had reason to believe that Bolton did not offer Dennis the option to which he was entitled under the contract and International constitution, of paying the initiation fee in installments over a 90-day period. At the least, Johnson was under a legal obligation to investigate the matter. He did not, and the Company violated Section 8(a)(1) and (3) by terminating Dennis. Forsythe Hardwood Co., 243 NLRB 1039, 1045 (1979); Conductron Corp., 183 NLRB 419, 427–428 (1970). 830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 Under New Horizons, interest on and after January 1, 1987, is computed at the ‘‘short-term Federal rate’’ for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. 4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 5 If 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.’’ CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By attempting to cause and causing the Company to cease employing James Dennis for lack of membership, al- though such membership was denied on grounds other than his failure to tender the periodic dues and initiation fees uni- formly required as a condition of acquiring or retaining membership, and without first giving Dennis adequate and correct notice of his financial obligations and a reasonable opportunity to comply with those obligations, the Union en- gaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 4. By threatening Dennis that he would be blackballed, and by threatening him with loss of employment unless he complied with its improper and unlawful demands, the Union violated Section 8(b)(1)(A) of the Act. 5. By discharging Dennis for lack of membership in the Union, and notwithstanding that it had reasonable grounds for believing that the Union did not give him adequate and correct notice of his financial obligations and a reasonable opportunity to comply with those obligations, the Company engaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) and (3) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents violated Section 8(a)(3) and (1) and Section 8(b)(2) and (1)(A) of the Act, I shall recommend that they be required to cease and desist there- from and take certain affirmative action designed to effec- tuate the policies of the Act. I shall recommend that the Company and the Union be ordered jointly and severally to make whole James Dennis for any loss of earnings and bene- fits he may have suffered by reason of the discrimination against him, in accordance with Claremont Resort Hotel & Tennis Club, 260 NLRB 1088 (1982). The Company shall be ordered to expunge from its records any reference to the un- lawful termination of Dennis, to inform him in writing of such expunction, and to inform him that its unlawful conduct will not be used as a basis for further personnel actions against him. The evidence indicates that the Union informed the Company in good faith that it no longer objected to his employment, and that the Company promptly reinstated him to his former position. Therefore no affirmative remedy is necessary in these regards. Backpay shall be computed in ac- cordance with the formula approved in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).3 For the reasons previously discussed, backpay shall be calculated at the Class A Painter rate which Dennis was receiving at the time of his termination, and the Company is not excused from its backpay obligation by reason of the fact that Dennis stated on his employment application that he was a member of Local 768. The Company shall be required to preserve and make available to the Board, or its agents, on request, payroll and other records to facilitate the computation of backpay due. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended4 ORDER A. Respondent Irvin H. Whitehouse & Sons Co., Inc., Louisville, Kentucky, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Encouraging membership in International Brotherhood of Painters and Allied Trades of the United States and Can- ada, Local Union 118, AFL–CIO, or any other labor organi- zation of its employees, by discharging employees or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employ- ment, except to the extent permitted in Section 8(a)(3) of the National Labor Relations Act. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Jointly and severally with Respondent Union, make whole James Dennis for any loss of earnings and benefits he may have suffered by reason of the discrimination against him, as set forth in the remedy section of this decision. (b) Expunge from its files any reference to the termination of James Dennis, and notify him in writing that this has been done and that evidence of this unlawful discharge will not be used as a basis for future personnel actions against him. (c) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to ana- lyze the amount of backpay due. (d) Post at its Louisville, Kentucky facility and at each of its jobsites within the Union’s geographical jurisdiction, cop- ies of the attached notice marked ‘‘Appendix A.’’5 (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent Company has taken to comply. B. Respondent International Brotherhood of Painters and Allied Trades of the United States and Canada, Local Union 118, AFL–CIO, Louisville, Kentucky, its officers, agents, and representatives, shall 1. Cease and desist from 831 IRVIN H. WHITEHOUSE & SONS CO. 6 See fn. 5, above. (a) Causing or attempting to cause Irvin H. Whitehouse & Sons Co., Inc. to terminate or discriminate against employees by invoking the union-security agreement of their collective- bargaining contract, where union membership was denied or terminated on grounds other than failure to tender the peri- odic dues and initiation fees uniformly required as a condi- tion of acquiring or retaining membership, or without first in- forming such employees of their obligations under the union- security agreement, including the consequences of their fail- ure to comply with those obligations, and the correct particu- lars of any obligations due and owing or without affording them a reasonable opportunity to comply with those obliga- tions. (b) Threatening employees that they will be blackballed, or threatening them with loss of employment unless they com- ply with improper or unlawful demands. (c) In any like or related manner restraining or coercing employees of the employer in the exercise of rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Jointly and severally with Respondent Company, make whole James Dennis for any losses he may have suffered by reason of the discrimination against him, in the manner set forth in the remedy section of this decision. (b) Post at its office copies of the attached notice marked ‘‘Appendix B.’’6 Copies of the notice on forms to be pro- vided by the Regional Director for Region 9, after being signed by Respondent Union’s authorized representative, shall be posted by Respondent Union immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Re- spondent Union to ensure that the notices are not altered, de- faced, or covered by any other material. (c) Furnish to the Regional Director for Region 9, signed copies of the notice for posting by Respondent Company in places where notices to employees are customarily posted. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent Union has taken to comply. APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT encourage membership in International Brotherhood of Painters and Allied Trades of the United States and Canada, Local Union 118, AFL–CIO, or any other labor organization of our employees, by discharging employ- ees or in any other manner discriminating against them in re- gard to hire or tenure of employment or any term or condi- tion of employment, except to the extent permitted in Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your right to engage in union or concerted activities, or to refrain therefrom, ex- cept to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. WE WILL jointly and severally with Local 118 make whole James Dennis for any loss of earnings and benefits he may have suffered by reason of the discrimination against him, with interest. WE WILL expunge from our files any reference to the ter- mination of James Dennis, and notify him in writing that this has been done and that evidence of the unlawful discharge will not be used as a basis for future personnel actions against him. IRVIN H. WHITEHOUSE & SONS CO., INC. APPENDIX B NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT cause or attempt to cause Irvin H. Whitehouse & Sons Co., Inc. to terminate of discriminate against employees by invoking the union-security agreement of our collective-bargaining contract, where union member- ship was denied or terminated on grounds other than failure to tender the periodic dues and initiation fees uniformly re- quired as a condition of acquiring or maintaining member- ship, or without first informing such employees of their obli- gations under the union-security agreement, including the consequences of their failure to comply with those obliga- tions, and the correct particulars of any obligations due and owing, or without affording them a reasonable opportunity to comply with those obligations. WE WILL NOT threaten employees that they will be black- balled, or threaten them with loss of employment unless they comply with improper or unlawful demands. WE WILL NOT in any like or related manner restrain or co- erce employees of Whitehouse in the exercise of their right to engage in union or concerted activities, or to refrain there- from. WE WILL jointly and severally with Whitehouse, make whole James Dennis for any loss of earnings and benefits he may have suffered as a result of the discrimination against him, with interest. INTERNATIONAL BROTHERHOOD OF PAINTERS AND ALLIED TRADES OF THE UNITED STATES AND CANADA, LOCAL UNION 118, AFL–CIO