Glaziers, Architectural Metal And Glass Workers Local Union No. 558

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glaziers, Architectural Metal and Glass Workers Local Union No. 558, affiliated with the Inter- national Brotherhood of Painters & Allied Trades, AFL-CIO (Forman-Ford and Co. of Iowa) and Bruce Raney, an Individual. Cases 17-CB-3027, 17-CB-3057, and 17-CB-3069 31 March 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 18 October 1985 Administrative Law Judge Claude R. Wolfe issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. The National Labor Relations Board had dele- gated 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 briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order2 as modified. The judge found that certain statements made by the Respondent's agent Tom Spears did not consti- tute threats violative of Section 8(b)(1)(A) of the Act. We disagree. In mid-January 1985 employee Bruce Raney overheard a conversation between Tom Spears, a member of the Respondent's executive board, and two other employees. Spears stated that "the Union had ran an employee out of town because he had caused an NLRB hearing which gave the Union some difficulty." Spears further stated in vulgar terms suggestive of violent conduct that a fellow i We agree with the judge that par 6(a) of the complaint, which is based solely on the amended charge, is time-barred by Sec 10(b) of the Act The untimely amended charge refers to a different employer from the original charge Further, unlike the amended charge, the original charge does not allege an unlawful pattern of discrimination and the amended charge omits the specific allegation of the original charge Fi- nally, the original charge refers only to Bruce Raney as the alleged dis- criminatee and the amended charge refers to employees in addition to Bruce Raney In these circumstances the amended charge is not suffi- ciently related to the original timely filed charge to bring par 6(a) of the complaint into compliance with Sec 10(b) of the Act Contrary to the judge, Member Dennis finds that the amended charge in Case 17-CB-3027 alleges matters similar to, and arising out of the same course of conduct as, those alleged in the timely, original charge in Case 17-CB-3027 Both charges concern the Respondent's use of the hiring hall to discriminate against travelers and permit employees, and in both instances the party affected is the same employee Accordingly, Member Dennis finds that Sec 10(b) of the Act does not bar par 6(a) of the complaint 2 The General Counsel excepts to the judge's recommended Order to the extent that it does not include a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure under the supervision of the United States Court of Appeals enforcing this Order Under the cir- cumstances of this case, we find it unnecessary to include such a clause Accordingly, we deny the General Counsel's request like that who would cause the Union a lot of trou- ble should have been handled by having some "good old boys" have sexual relations with his girl friend while he was otherwise occupied. Raney was 15 feet away when he overheard the conversa- tion and Spears, aware of his presence, glanced at him a couple of times. The judge noted that the conversation overheard by Raney commenced before Raney arrived in the area. He reasoned that the participants were not anticipating Raney's arrival and therefore there was no reason for them to abandon a conversation they had already begun. The judge concluded that the evidence was insufficient to establish that the remarks were directed at Raney and further that the statements did not constitute threats violative of the Act. Contrary to the judge, we find that Spears' state- ments made to other employees in the obvious presence of Raney constituted unlawful threats of reprisal through violence. The clear implication of these remarks was that the Respondent would resort to reprisals to persuade employees not to file charges with the Board or otherwise seek the Board's assistance. The message conveyed to the employees and Raney was that to create problems for the Union with the Board would result in un- pleasant consequences for employees and their friends. It is immaterial that these statements were not directed to Raney. Even if the threat was unin- tentionally communicated to him, it was coercive.3 Accordingly, we find that the statements made by Respondent's agent in mid-January constituted un- lawful threats of reprisal in violation of Section 8(b)(1)(A). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Glaziers, Architectural Metal and Glass Workers Local Union No. 558, affiliated with the International Brotherhood of Painters of Allied Trades, AFL-CIO, Overland Park, Kansas, its offi- cers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Substitute the following as paragraph 1(c). "(c) Threatening employees with loss of employ- ment and other reprisals for filing unfair labor practice charges with the Board or otherwise par- ticipating in or cooperating in Board proceedings." 2. Substitute the attached notice for that of the administrative law judge. 3 Viele & Sons, 227 NLRB 1940, 1944 (1977), Ford Radio & Mica Corp, 115 NLRB 1046, 1047 (1956) 279 NLRB No. 23 PAINTERS LOCAL 558 (FORMAN-FORD) APPENDIX NOTICE To 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 violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT cause or attempt to cause Forman-Ford and Co. of Iowa or any other em- ployer to deny overtime to its employees because of their lack of membership in Local 558, nor will we attempt to cause Forman-Ford and Co. of Iowa or any other employer to discriminate against any employee by denying them work until they pay high time insurance premiums to Local 558. WE WILL NOT threaten employees with trouble or injury if they do not forgo membership in Local 558. WE WILL NOT threaten employees with loss of employment because they seek membership in Local 558. WE WILL NOT threaten employees with loss of employment because they refuse to sign a dues- checkoff authorization or fail to pay high time in- surance premiums. WE WILL NOT threaten employees with loss of employment or other reprisals for filing unfair labor practice charges with the National Labor Re- lations Board or otherwise participating in or coop- erating in Board proceedings. WE WILL NOT threaten employees because they seek assistance from the National Labor Relations Board. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL make Walter Westfall whole for any loss of earnings or other benefits he may have suf- fered as a result of our refusal to permit him to work overtime for Forman-Ford and Co. Inc. of Iowa on Saturday, 1 June 1985, with appropriate interest. GLAZIERS, ARCHITECTURAL METAL AND GLASS WORKERS LOCAL UNION No. 558, AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF PAINTERS & ALLIED TRADES, AFL- CIO Anne G. Purcell, Esq., for the General Counsel. John P. Hurley, Esq., of Kansas City, Missouri, for the Respondent. DECISION STATEMENT OF THE CASE 151 CLAUDE R. WOLFE, Administrative Law Judge. The above-styled proceeding was litigated before me at Kansas City, Kansas, on 29 and 30 July 1985 pursuant to an amended consolidated complaint issued 28 June 1985 after the filing and service of several charges and amend- ed charges.' The complaint alleges that the labor organi- zation (Respondent Union) named above violated the National Labor Relations Act in various ways including threats of bodily injury, harm to an employee' s girl- friend, problems, and loss of employment, all in violation of Section 8(b)(1)(A) of the Act. It is further alleged that the Union violated Section 8(b)(1)(A) and (2) of the Act by attempting to cause and causing an employer to refuse to assign overtime work to employees who are not union members and by attempting to cause an employer to deprive Bruce Raney of work. Respondent Union denies the commission of the unfair labor practices alleged, and raises the affirmative defense that one allegation is time barred by Section 10(b) of the Act. On the record before2 me and my observations of the demeanor of the witnessess as they testified, and after considering the able posttrial briefs filed by the parties, I make the following FINDINGS AND CONCLUSIONS 1. JURISDICTION Forman-Ford and Co. of Iowa, the employer involved in this case, is engaged in the building and construction industry in the State of Kansas. During the 12-month period ending June 1, 1985, in the course and conduct of its business operations within the State of Kansas, it pur- chased and received products, goods, and materials valued in excess of $50,000, directly from points outside the State of Kansas and, during the same period, in the course and conduct of its business operations within the State of Kansas, sold and shipped products, goods, and materials valued in excess of $50,000 directly to points outside the State of Kansas. Forman-Ford and Co. of Iowa is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent Union is now, and at all times materi- al has been , a labor organization within the meaning of Section 2(5) of the Act. ' The original charge in Case 17-CB-3027 was filed 28 January and served 29 January 1985 An amended charge in Case 17-CB-3027 was filed and served on 4 June 1985 The charge in Case 17-CB-3057 was filed 11 April and served 12 April 1985 The original charge in Case 17- CB-3069 was filed and served on 28 May 1985 An amended charge in Case 17-CB-3069 was filed 26 June and served 27 June 1985 2 The General Counsel's motion to correct transcript is clearly war- ranted and is granted 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE AFFIRMATIVE DEFENSE The Union contends that the allegation in paragraph 6(a) of the complaint is time-barred by Section 10(b) of the Act which provides, in relevant part, "no complaint shall issue based upon any unfair labor practice occur- ring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made." Paragraph 6(a) alleges: In or around October or November 1984, Re- spondent, acting by and through Charles Foland, and/or Eugene Burrell, and/or Larry Philpott, at- tempted to cause Forman Ford to refuse to assign Saturday overtime work to employees who were not members of Respondent. This allegation is based on the amended charge filed and served on 4 June 1985 in Case 17-CB-3027, which alleges that commencing on or about early October 1984, and continuing thereafter, the Union restrained and co- erced Bruce Raney in the exercise of rights guaranteed by the Act, and caused or attempted to cause Forman- Ford to discriminate against Raney and other employees, and thus violated Section 8(b)(1)(A) and (2) of the Act. The original charge in Case 17-CB-3027, filed 28 Janu- ary and served 29 January 1985, only alleged that the Union, on or around 20 November 1984, caused Myers Glass Co. to lay off Raney whose membership in the Union had been denied for reasons other than a failure to pay periodic dues uniformly required as a condition of membership . There is no broad general allegation of 8(b)(1)(A) restraint or coercion in the original charge. Respondent Union argues that the original and amend- ed charges allege distinct and separate violations; both the amended charge and the complaint omit the specifics of the original charge, and the conduct alleged in the complaint occurred more than 6 months prior to the amended charge. For these reasons, Respondent Union contends that Industrial Workers Local 594 ( Warren Molded Plastics), 227 NLRB 1541 (1977), and Asko, Inc., 202 NLRB 330 (1973), require the dismissal of paragraph 6(a). The General Counsel asserts that the conduct alleged in the original charge is of the same nature as that in the amended charge. She further contends that the conduct alleged in the amended charge is not only related to that in the original charge, but is the exact same conduct which continued as employers changed , relying on Al- greco Sportswear Co., 271 NLRB 499 (1984), and Gocat Inc., 257 NLRB 270 (1981). In Algreco Sportswear, the Board adopted the judge's conclusion that the allegation of unlawful discipline of employee Chapman in an amended charge filed 7 months after the event was closely related to the allegations of an original charge filed 3 months after the event which detailed a 4-month long course of conduct including un- lawful discipline of another employee, and which also generally alleged interference, restraint , and coercion by those and other acts. In Gocat, the charge alleged the termination of 17 named employees because of their union membership and activities. It also generally alleged other acts of interference , restraint, and coercion of em- ployees in the exercise of their Section 7 rights, which is sufficient to support later specific allegations. Moreover, the complaint subsequently issued alleged that "Respond- ent discharged all of its employees, including, but not limited to .. .." On these facts, the Board found the re- spondent was on notice of possible additions to the list of discharges, and the subsequent addition of one Jerry Duke as an 18th dischargee by amendment to the com- plaint some 10 months after the charge was filed was not barred by Section 10(b) of the Act because Duke's dis- charge was closely related to the violations named in the charge and occurred within 6 months before the filing of the charge. As the Board succinctly relates in Carpenters Local 720 (Stone & Webster), 274 NLRB 1507 (1985), the original timely charge in Industrial Workers Local 594 "alleged that the respondent violated Section 8(b)(1)(A) by levy- ing an excessive fine against the charging party because of her activities on another union 's behalf. An amended charge alleged that the respondent violated Section 8(b)(1)(A) by attempting to prevent the charging party from participating in a union meeting more than 6 months prior to the amended charge . The Board granted the respondent's motion for summary judgment and dis- missed the complaint allegation predicated on the amend- ed charge. The Board ruled that, although each charge alleged unlawful restraint and coercion of the charging party, the two charges alleged separate and distinct vio- lations that arose out of two entirely independent events." Relying on Industrial Workers Local 594, the Board, Member Dennis dissenting , found in Millwright & Machinery Erectors Local 720 that a complaint allegation concerning the union's failure to refer Ida Martinez was barred by Section 10(b). The facts before the Board in this instance were as follows : On 23 January 1984, Marion Wallace filed a charge alleging that the Respond- ent violated Section 8(b)(1)(A) and (2) of the Act on or about 30 September 1983 when it bypassed her on its out-of-work list and thereafter harassed, intimidated, and coerced her because she questioned the operation of the referral procedure. Wallace filed an amended charge on 14 February 1984 repeating her original allegations and adding that she was bypassed on the list on or about 29 September 1983 for arbitrary, invidious, and discrimina- tory reasons. It was further alleged in the amended charge that the Respondent Union also violated Section 8(b)(1)(A) and (2) on or about 27 July 1983 by bypassing Ida Martinez on its out-of-work list. The Board conclud- ed that the allegation regarding Martinez was time- barred, pointing out that there was no allegation or evi- dence of an unlawful, generalized referral policy; the failure to refer Martinez was 2 months before the failure to refer Wallace; and the complaint theories and evi- dence with regard to the two alleged failures to refer dif- fered. For these reasons, the Martinez and Wallace inci- dents were found to be "separate and distinct acts, car- ried out at different times, for different reasons" and therefore not closely related or arising from the same course of conduct. In Hunter Saw,3 cited by the Board in ' Asko, Inc, 202 NLRB 330 (1973) PAINTERS LOCAL 558 (FORMAN-FORD) Industrial Workers Local 594, the employer laid off three employees in November 1971, but recalled only two in January 1972. The original charge was filed in March 1972 alleging a failure to recall the third employee in January 1972, but making no reference to any other un- lawful conduct. In July 1972, an amended charge was filed alleging the November 1971 layoff was illegal. The Board held, "In these circumstances, and since more than 6 months had elapsed prior to the filing of the amended charge, further proceedings with respect to the November layoff are precluded by the provisions of 10(b) of the Act." It is well settled that amended charges filed outside the 6-month 10(b) period which are similar to and arise out of the same course of conduct described in the original timely charge are deemed to be timely because they are closely related to the original charge.4 Deciding whether or not the amended charges are closely related to the original charges has frequently been a difficult task in Board cases.5 The omission of the specifics of the first charge from the amended charge and the complaint in this case prevents any fording that the allegations first brought had merrit or were the commencement of a con- tinuing course of illegal conduct by the Union. The Re- spondent's contention that the original and amended charges allege distinct and separate violations is correct. I am persuaded that Industrial Workers Local 594, Hunter Saw, and Millwright & Machinery Erectors Local 720 are the controlling precedent and require a finding that fur- ther proceedings on paragraph 6(a) of the complaint are precluded by Section 10(b) of the Act. Accordingly, I shall make no findings on the merit of that allegation. The facts on which it is based will be related in this deci- sion for background and continuity purposes only. IV. RESPONDENT'S AGENTS The complaint alleges, Respondent admits, and I find that at all times material the following named individuals occupied the positions set forth next to their names, and have been, and are now, agents acting on behalf of Re- spondent within the meaning of Section 2(13) of the Act: Charles Foland, business manager; Eugene Burrell, finan- cial secretary; and Larry Philpot, assistant business agent. Respondent further admits that the following named individuals occupied the positions set forth next to their names, and were agents of Respondent "while acting on behalf of the [R]espondent at all times revelant to the complaint." Tom Spearse, executive board member; Jack Wiles, union steward; and Jim Davis, union steward. V. THE ALLEGED UNFAIR LABOR PRACTICES A. History of the Case Bruce Raney was a journeyman glazier holding mem- bership in Respondent's sister Local 688 in Miami, Flori- da. Raney decided to go to Kansas City to work in No- vember 1983. At that time Local 688 Business Manager * See, e g, Pankratz Forest Industries, 269 NLRB 33, 36-37 (1984) 5 See Judge Ries' illuminating discussion of the problem in Red Food Store, 252 NLRB 116 (1980) 6 The spelling of Spears' name was corrected at hearing 153 Schultz told Raney that he had been told by Local 558 Business Manager Foland that there was plenty of work for Raney in the Kansas City area, but that no clearance (transfer of membership) into Local 558 would be al- lowed because Local 558 was striking a company in the Kansas City area. About 10 December 1983, Raney met with Foland in Respondent's Kansas City, Missouri Office. Raney in- quired about transferring his membership. Foland told Raney no clearance would be allowed because there was a strike at Harding Glass,' and then sent him to work at Taylo Glass the next day, 11 December. During the first week of February 1984, Raney was laid off by Foreman Morgan Bull who, according to Raney,8 said he was laid off because Taylo was going into overtime and Foland had said the Company would have to lay Raney off be- cause Foland had his own men to supply. Bull further purportedly advised Raney he had requested clearance for Raney, but Foland refused. Raney says Bull also of- fered his opinion that Raney would have no problem with the Union forcing him off the job if he could get clearance. Raney's testimony, which Respondent object- ed to, was not so believable that I am convinced Bull said all this, but this testimony by Raney is uncontradict- ed and, even if embroidered a bit, helpful in explaining Raney's continuing quest for clearance, and was received for that purpose. Bull did not testify, and his reports to Raney of Foland's comments are hearsay and not offered as proof of Foland's statements. Moreover, Bull's prof- fered opinion has no probative weight. Raney was referred to work at Carroll Day Glass in the latter part of June 1984 by Assistant Business Agent Philpott. Between February and June, Raney made sev- eral phone calls to Respondent's office, speaking various- ly to Respondent's agents Burrell, Foland, and Philpott, wherein he asked if any work was available and whether clearance was yet available. Each time he was told no work was available and there would be no clearance be- cause the strike continued. After working for Carroll Day Glass for 2 days, Raney was sent to work for Meyers Glass where he was steadily employed until November 1984. While employed by Meyers Glass, Raney again asked Philpott for clear- ance in September 1984. Philpott repeated there would be no clearances due to the labor dispute with Harding Glass. Shortly before or after this conversation with Philpott, Raney asked Tom Spears, a member of Re- spondent's executive board working on the job as a jour- neyman glazier, about obtaining clearance. Raney's ac- count of the conversation is convincing and credited. Spears opined that the best thing Raney could do was 7 Harding Glass is not directly involved in this case 8 In assessing credibility, I have taken account of Raney's growing hostility toward Respondent occasioned by its repeated refusals to grant him membership in Local 558 This hostility is apparent from his state- ment to apprentice glazier, Ray Ard , a thoroughly believable witness, in early 1985 to the effect he did not have to be treated like other people and no matter what the cost because his father was a big shot lawyer in Miami , he would bust the Union if nothing else Whether or not Raney's father is a lawyer, which Raney denies, this is what he told Ard He also told Ard on other occasions that he would file charges against the Union and break the Union 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD keep grinning and working, and that if Raney tried to create a problem about the clearance he might find that coworker members of Local 558 might give him some problems and Raney might find himself in trouble having to work with them. Spears' comments were not, in my opinion, of a coercive nature, and did not convey that the Union or he as a union agent would cause Raney any problems with his coworkers. All Spears' remarks amount to is speculation regarding the reactions of Local 558 members if Raney pursued clearance too vigorously. Raney was laid off in November 1984 by Meyers' Foreman John Tuttle. Tuttle did not testify, but Raney testified that Tuttle told him he would be protected from layoff if he had clearance and would be working if he persuaded the Union to let him return to work . This is hearsay evidence so far as the Respondent is concerned, but it helps explain Raney's continued pursuit of clear- ance. Union Agent Philpott, on 25 November 1984, told Raney there was work for him at Forman-Ford. Raney started work for Forman-Ford on 26 November 1984 and is still employed there. The collective bargaining in 1984 to which Forman- Ford and Respondent were and still are parties contains, in relevant part, the following provisions: Article IX Section 2. Overtime No work shall be done on Saturday . . . except in cases of extreme emergencies. The Business Rep- resentatives or a member of Glaziers Local Union #558 Executive Board shall be notified and issue a permit for work to be performed before glaziers roport to the job. . . . When a Company, working overtime, requires journeymen other than their reg- ular employees, they must obtain such men through the Business Representative. It is not entirely clear from the evidence what a "regu- lar" employee is, but it appears from the testimony that an employer's "regular" complement is a base group of employees who are kept working, even at reduced hours, during layoffs. "Permit" employees are neither journey- men nor members of any Glaziers local and work by permission of the Union when journeymen members of the Respondent or "travelers" are unavailable. A "travel- er" is a journeyman member of a sister Glaziers local who is working within the geographical jurisdiction of the Respondent. A "permit" employee, according to Re- spondent's business manager Foland, is never considered a part of an employer's regular crew. David Momchilo- vich, foreman at Forman-Ford, agrees that all "travel- ers" are journeymen and that permit employees are laid off first, and states that "permit" employees are tempo- rary hires and not members of the regular crew. The contractual provision quoted above and the various un- derstandings of the parties, vague though they may be, with respect to member, traveler, and permit employee status provides some background for an understanding of Momchilovich's dealings with Respondent in November 1984 with respect to overtime work, and the conduct of Jim Davis and Eugene Burrell with respect to overtime on or about 31 May 1985, which will be discussed below in the appropriate chronological order. In November 1984, Momchilovich was told by Forman-Ford's glazing superintendent, Robert Coffman, that only certain employees could work the following Saturday, rather than the entire crew as Momchilovich wanted, because the Respondent had told Coffman that travelers could not work . Coffman told Momchilovich he could call Respondent if he thought he could do better.9 Momchilovich called Foland and said he needed the whole crew, most of whom were travelers. Accord- ing to Momchilovich, t ° Foland first said travelers were not to be worked, but then relented and said everyone could work after Momchilovich explained his need. Foland testifies that Momchilovich wanted him to say who could work and who could not, but he refused to do so. Foland further explains that it is not normal for Respondent to tell employers who to work; that employ- ers usually call the Union and tell them who will be working; and that he did not normally deal with Mom- chilovich on such matters because he was only a lead- man at the time . Momchilovich's version was the more detailed and believable and is credited. He also credibly testified that on other occasions in November and De- cember 1984 he called Foland and Philpott about work- ing travelers, and always received permission to so do after an original negative response or a promise to let him know later. Travelers are journeymen, but I am per- suaded they most likely are not "regular" employees of an employer. This conclusion on traveler status as "regu- lars" is not entirely free from doubt, but seems most likely in the circumstances. This being the case, Momchi- lovich was following the contract provision set forth above when he contacted Respondent. Moreover, Fo- land's testimony to the effect that employers do not ask but tell him who will be working overtime is contrary to the contract's plain provision that contracting employers "must" obtain journeymen other than regular employees through the business representatives. Permit employees are not journeymen. Accordingly, the term "journey- men" in the contract necessarily refers to Respondent's journeymen members or travelers. These contacts of Momchilovich with the Respondent are the subject matter of the allegation set forth in para- graph 6(a) of the complaint. I have found that further proceedings on that paragraph are barred by Section 10(b) and therefore make no findings on the legality or illegality of the conduct of Foland or Philpott during their contacts with Momchilovich in November and/or December 1984. That conduct may, however, be consid- ered as background evidence. In early December 1984, Raney asked Local 688 Busi- ness Agent Schultz to help him get clearance. Schultz re- ported that Foland had told him (Schultz) no clearance was being given to anyone. Not satisfied, Raney contact- ed the office of the general president of the International 9 Momchilov,ch does not recall if he talked to Foland or Philpott, but I conclude he talked to Foland because Foland recalls such a conversa- tion, although in different detail 10 Coffman, called by the General Counsel to testify on other matters, did not testify on this event PAINTERS LOCAL 558 (FORMAN-FORD) Brotherhood of Painters and Allied Trades on 14 Janu- ary 1985. He was told to present a clearance card issued by Local 688 to the office of Local 588. About the same time, Robert Welsh, the executive secretary to the gener- al president, called Foland and told him that a one-shop strike was not a reason to refuse to accept clearance cards. Thereafter, according to Foland, Local 588 ac- cepted such cards. Nevertheless, when Raney presented his clearance card to Philpott on 21 January, Philpott re- peated that Respondent was not allowing clearance to anyone. Raney then told Philpott that he was delivering the card pursuant to the International's instructions, and was to telegram the International if it was refused. Phil- pott merely commented that Raney had to do whatever he had to do. Raney left the office and advised the Inter- national by telegram that his card had been rejected. On 24 January, the general president of the International sent a mailgram to Foland directing him to accept Raney's card, with a copy to Raney instructing him to advise if it was refused. Raney returned to Respondent's office on 28 January, and submitted his card to Foland. Prior to going to the office, Raney called Foland and asked if he would clear Raney in. When Foland said he would not, Raney re- sponded that he would turn the matter over to the Inter- national. After some further conversation, in which Foland expressed his doubts of Raney's qualifications, Foland told Raney to bring his certificate of completion of the apprenticeship program and any other papers showing he was a qualified glazier to the office immedi- ately. Raney did so. After Raney arrived, 111 Foland made a copy of his card and, after examining it, told Raney the card was about to expire; there was not enough time to get the examining board together; and Raney should get a new card from Local 688. I do not credit Raney's testi- mony that Foland told him during the conversation that no clearance could be granted because the executive board had so ruled. By this time Foland had received his instructions from the International , and it is extremely improbable that Foland would openly defy such direc- tions from his superiors. It is not unlikely, given the con- tinued persistence of Raney in pursuing clearance in the face of the numerous statements of Respondent's agents that it would not be granted and the fact Respondent had referred him to work in spite of the lack of clear- ance, that Foland was irritated and did tell Raney he had created a problem for himself and would not long be working in the Kansas City area. I am persuaded that Foland did so tell him. On the other hand, I credit Foland that when he mentioned the examining board Raney grabbed up his papers, said he did not have to go before an examining board, cursed Foland, threatened to get him, and then left the office. Raney admits he was angry when he left, and this conduct of Raney is consist- ent with his admitted statements to coworkers that he would never go before the examining board; his testimo- ny that he would not have gone before it even if his card was current; and his subsequent refusals to attend meet- i i The recitation of the content of the 28 January meeting is a compos- ite of the credited portions of the testimony of Raney and Foland 155 ings scheduled for him with that board.12 The next day, 29 January, Raney called the International and told them Local 558 was going to shut him out of work. In mid-January, after Philpott refused to accept his clearance card, Raney asked Tom Spears,13 why the Union was giving him a problem with clearance. After noting there was a problem with Harding Glass, Spears said that if they let a lot of people like Raney clear in they would have to let others clear in and people like Spears would not have a job when the work slowed down. Spears advised Raney that he should forget it be- cause he would just cause himself a lot of trouble and find himself hurt if he did not forget it. About 3 days later, Raney overheard part of a conversation between Spears and the "Smith brothers" wherein Spears said the Union had ran an employee out of town because he had caused an NLRB hearing which gave the Union some difficulty. Spears further opined that a fellow like that who would cause the Union a lot of trouble should have been handled by some "good old boys" having sexual re- lations with his girlfriend. Raney says he was some 15 feet from this conversation and the three had been talk- ing before he entered the break area. The claim by Raney that Spears looked at him a couple of times is of no probative weight. There is no evidence the conversa- tion included any express mention of Raney. At the end of January 1985, Forman-Ford laid off a number of glaziers, including Raney, due to a material shortage. On 4 February, Raney called Respondent's office and spoke with Eugene Burrell, Respondent's fi- nancial secretary.14 Raney asked if Burrell was familiar with the situation regarding Raney's clearance. Burrell replied that he was aware of it and that Raney had filed charges with the National Labor Relations Board. He further advised Raney that the International was misin- formed, that there was a strike at Harding Glass, and there was no clearance. Raney expressed his doubts about the legitimacy of a strike against Harding Glass, and asked what the work situation was. Burrell said that it looked like Raney would not be working until the Na- tional Labor Relations Board thing was over with. He then asked Raney how long he thought that would be. When Raney ventured there would be a hearing in 30 days, Burrell disagreed and gave an estimate of 6 months. The conversation ended with Raney stating he would call back for work. Raney thereafter continued to call Respondent's office for work. 12 Raney's claim that he did not believe he had to go before such a board to become a member is not credited This claim is inconsistent with the constitution of the International union which provides for the estab- lishment of such boards by district councils and local unions for the pur- pose of examining membership applicants, including members of other locals seeking clearance Raney had a copy of the constitution in early January 1985, and was advised by the International that Respondent could require his appearance before this board Moreover, the evidence indicates that Respondent's policy in this regard was uniformly applied to other applicants is Raney was a more impressive witness than Spears, whose testimony is somewhat disjointed, vague, and unconvincing Accordingly, I have credited Raney where he and Spears disagree 14 Raney's detailed testimony about this phone call had the ring of truth, is not expressly denied by Burrell, and is credited 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On 12 February, Raney wrote the International stating he was bringing charges before the general executive board against Foland, Philpott, and Burrell. International General President Duval replied, by letter of 26 Febru- ary, that the charges could not be filed with the general executive board, and referred him to the appropriate sec- tions of the general constitution of the International. In late February or early March 1985, Raney, Burrell, and Robert Welsh had a three-way telephone conversa- tion where Welsh told Burrell the International was not misinformed, Local 588 was to accept Raney's clearance card, and Raney would bring it to Respondent. Raney took a second card to Burrell in early March. Burrell ex- amined the card, returned it to Raney, and had Raney sign an insurance beneficiary card . Burrell said the Re- spondent would set up a meeting with the examining board, and would advise Raney. The card was later re- jected by the Union as improperly completed. On 11 March, the International directed Local 688 to properly fill out a duplicate card and forward it to Raney. Robert Coffman, general superintendent for Forman- Ford, called Foland in late February and requested him to furnish five or six men. Coffman specifically requested Raney. What was then said between Coffman and Foland is somewhat doubtful. Coffman first testified he was told Raney was not available, but does not recall if a reason was given. He did recall that Foland said there were people on the bench.15 Coffman agrees that his pretrial affidavit, which was not moved into evidence, was his best recollection at the time and contains a state- ment that he was told he could not have Raney because there were people on the bench. I note that members of Local 558 had been laid off along with Raney. Momchi- lovich testified that Coffman told him Raney could not come back yet because "We have too many people sit- ting on the bench." Foland agrees that Coffman said Raney was one of the men he would take back. ' Foland denies refusing to refer Raney, and avers that he told Coffman that Raney was available and tried to call Raney at several phone numbers with no success, but fi- nally located him in less than a week and asked him to come to the office to do some paperwork because he was going back to work. Raney returned to work at Forman- Ford the week after Coffman's request. Coffman, called by the General Counsel as her witness and not claimed or shown to be an adverese witness, was either confused, evasive, or had extremely poor recollection. He was a most unimpressive witness. Considering the nature of his testimony and its inconsistency with his pretrial state- ment, together with his statement to Momchilovich, which does not say Respondent told him it had too many on the bench, but really says that Coffman said, "We have too many people sitting on the bench," I am per- suaded that Coffman's testimony does not outweigh that of Foland whose version is corroborated by the fact that he did get in touch with Raney within a few days and tell him there was work for him. On the basis of compar- ative demeanor and certitude on the events in question, Foland was superior and is credited. I6 "On the bench" conveyed that Respondent had unemployed mem- bers. It is alleged that when Foland met Raney to send him back to work at Forman-Ford, he conditioned the return to work on Raney first signing a dues-checkoff authori- zation. Raney credibly testified that Foland told him he had to sign such an authorization to return to work. Foland concedes that when Raney asked him what the form was for, he replied that "it was so I could make a copy of it and he could carry one next to his heart, and the next time the labor department asked him if he had signed one, he would remember that he had." Foland says he wanted to be sure Raney signed the form be- cause Raney had previously told the Department of Labor that he had not, when he, in fact, had. Foland's admission that he insisted on the signed form supports Raney's credited testimony. There was also some discus- sion of "high time" insurance. Here I credit Foland who testifies that he asked Raney to pay a $6 fee for this in- surance and told Raney, when Raney asked what it was for, that it would cover him if he fell. Raney wrote a check for the $6 and was told he had to pay that amount each week until the total $36 premium was paid. Raney's testimony that he did not know what "high time" and did not ask what the insurance was for is unbelievable. Apart from the fact that the term "high time" itself should have given him some idea what the insurance was for, and the further fact high time insurance contribu- tions by the employer are expressly provided for in the applicable collective-bargaining agreement, I find it in- credible that Raney, who is clearly not a docile fellow, would meekly sign a $6 check without knowing or ques- tioning what it was for. Raney paid no more "high time" premiums for several weeks. On discovering this, Foland directed Jack Wiles, Respondent's job steward at Forman-Ford, to tell Raney he owed the premiums. On 11 April, Wiles16 told Raney that he had been instructed to inform Raney he could not work unless he paid $30 in premium arrearages. Coffman was present during the conversation and testi- fied Wiles or Raney told him Raney had to go pay high time insurance premiums at the union hall. He granted Raney time off. Raney called Eugene Burrell and asked if he owed the premiums. Burrell confirmed that he did. Raney then asked if his wife could mail Respondent a check. According to Raney, Burrell said the payment had to be in the office that day. According to Burrell, he told Raney that the sooner the money was paid, the sooner Raney could return to work. Raney left work and went to Respondent's office. Upon arrival, he asked Bur- rell if he could go back to work when he paid the insur- ance. Burrell confirmed that was correct. Raney paid the $30 and was given a receipt. Raney then gave Burrell the new clearance card he had obtained from Local 688, pursuant to the International's instruction of 11 March. Burrell took it and said he would notify Raney of the date of the examining board. On 13 April, Schultz of Miami told Raney the Interna- tional had advised he was to pay his dues to Local 558. On 14 April, Raney called Foland, inquired the amount of the dues, and said he would send $30 for a quarter. 16 Wiles did not testify PAINTERS LOCAL 558 (FORMAN-FORD) Foland said there would be other charges if he was cleared in. Raney promised to pay when billed. On 18 April, Raney sent $30 to Respondent for dues. The check was returned by Burrell by letter of 10 May which correctly noted Raney had refused to come before the examining board as scheduled and Local 558 could not accept dues from nonmembers. Raney became a foreman at Forman-Ford in April. On 31 May, his superior told him there would be overtime the following Saturday. Raney compiled a list of six em- ployees, including one permit man, Walter Westfall, and gave it to the Union's steward, Jim Davis. Davis called Respondent's office and reported back to Raney that Burrell said everyone but Westfall could work. Raney told Davis he had no replacement for Westfall. Davis told Raney that Local 558 members were to be assigned overtime before permit men like Westfall even if a man had to be called from another Forman-Ford jobsite. No one else on the site wanted to work overtime. Raney, ac- companied by Davis, told Westfall he could not work the overtime. Davis told Westfall he was sorry "we" could not let him work that weekend. Westfall, who had been working on permit at journeyman' s wages, did not work that Saturday. B. Conclusions The legality of Respondent's failure to grant Raney's requests for membership in Local 558 is not at issue. The complaint allegations concern conduct of Respondent's agents during, and allegedly because of, Raney's quest for clearance. The incidents complained of will be treat- ed seriatim. Spears' advice to Raney in mid-January 1985 that he would cause himself a lot of trouble and find himself hurt if he did not forget clearance cannot be shrugged off as mere friendly advice. Whatever Spears' intent was, his position as a member of Respondent's executive board lent credence to his remarks and those remarks reasonably conveyed that Respondent would retaliate against Raney if he persisted. That Spears did not specifi- cally spell out what trouble Raney would have or how he would be hurt does not diminish the effect of the statements. Accordingly, I find Respondent, by its agent Spears, threatened Raney with trouble and other unspec- ified injury if he did not forgo his attempts to secure union membership and, by this conduct, violated Section 8(b)(1)(A) of the Act. With respect to the conversation overheard by Raney from a distance of 15 feet, it is clear that it had com- menced before Raney came on the scene. There is no evidence the participants were anticipating Raney's ar- rival in the area, or designed or deviated from their con- versation already commenced in order to communicate a threat to Raney. His arrival in the area was no reason for them to abondon a conversation already begun, nor were they required to carefully look elsewhere while Raney was around. That Spears may have glanced at Raney does not persuade me that, by so doing, he was drawing Raney's attention to the conversation for coercive pur- poses. In sum, I do not believe the General Counsel has proved that by a preponderance of the credible evidence the overheard comments of Spears were directed at 157 Raney, nor do I find that they, as distasteful as they were, constituted threats violative of Section 8(b)(1)(A) of the Act. When Foland told Raney on 28 January 1985 that Raney had created a problem for himself and would not be working very long in the Kansas City area, he was plainly threatening Raney with loss of employment be- cause he continued in his efforts to secure Local 558 membership. Respondent, by this threat of its agent Foland, violated Section 8(b)(1)(A) of the Act. Respondent, by its agent Eugene Burrell, violated Sec- tion 8(b)(1)(A) of the Act on 4 February 1985 when Bur- rell told Raney he was aware Raney had filed charges with the Board and then later said he would not be working until the National Labor Relations Board thing was over. The later statement is a patent threat to de- prive Raney of work because he had instituted Board proceedings. When a union takes or threatens to take action against an employee because he files charges with the Board, it violates Section 8(b)(1)(A) of the Act. 17. Foland's credible account of his late February 1985 conversation with Coffman when Coffman requested men is sufficient to establish that Respondent did not, as is alleged, refuse to refer Raney for employment at Forman-Ford and thereby violate Section 8(b)(1)(A) and (2) of the Act. Moreover, even if Foland's testimony be deemed no better than Coffman's, it cannot, by any stretch of the imagination, be said that Coffman's was more persuasive than Foland's. At best, their testimony would be evenly balanced, which means that even in that event the General Counsel has not proved the viola- tion by a preponderance of the evidence.' . Foland violated Section 8(b)(1)(A) of the Act when he told Raney, in late February or early March, that he had to sign a dues-checkoff authorization as a condition of returning to work at Forman-Ford.' 9 Jack Wiles notified Raney on 11 April 1985, in the presence of Coffman, that Raney could not work unless he paid the high time insurance premium. Burrell admits that he, on the same day, told Raney the sooner the pre- mium was paid the sooner he could return to work. Foland credibly testified that Raney had the right to waive the insurance. Furthermore, retention of the insur- ance is not a contractual condition of employment. The conclusion to be drawn from this evidence is that Re- spondent was attempting to enforce a rule devised on the spur of the moment for Raney when Wiles and Burrell conditioned Raney's continued employment on payment of the premium. Moreover, it is reasonable to infer, con- sidering the previous threats of loss of employment by Foland and Burrell, that the underlying motive for this special rule concocted by Respondent's agents for Raney was his continuing efforts to secure membership in the face of Respondent's adamant opposition. For these rea- sons, I conclude Respondent, by the threats of loss of employment issued by Wiles and Burrell for arbitrary reasons violated Section 8(b)(1)(A) of the Act. Wiles' 17 See, e g , Plumbers Local 403 (Pullman Power), 261 NLRB 257, 268 (1982) 18 Blue Flash Express, 109 NLRB 591 (1954) 19 Bellkey Maintenance Co, 270 NLRB 1049, 1056 (1984) 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threat to Raney was uttered in the presence of Coffman, the employer's superintendent and Raney's boss. It is not necessary that a union make an outright demand on the employer to discriminate against an employee if the com- munication can reasonably be construed as an induce- ment to such action.20 Coffman's immediate grant of time off to pay the premium constituted an acknowledg- ment of and agreement with Respondent's position, and this, together with the fact Wiles made his statement in Coffman's presence, implies that Wiles intended and Coffman understood Wiles' statement as a request for the employer's cooperation with Respondent in the matter. Accordingly, Wiles' statement violated Section 8(b)(2) of the Act as an attempt to cause the employer to terminate Raney if he did not pay the premium, an unlawful reason. When Davis told the employer and Westfall that Westfall could not work the overtime because he was not a member of Local 558, even though no members working on the job were available to do the work, Re- spondent attempted to cause and did cause Forman-Ford to refuse to assign the work to Westfall because of his lack of membership in Local 558 and thereby encour- aged membership in that union, restrained and coerced Westfall in the exercise of Section 7 rights, and violated Section 8(b)(1)(A) and (2) of the Act. CONCLUSIONS OF LAW 1. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Forman-Ford and Co. of Iowa is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. By threatening an employee with loss of employ- ment because he sought membership in Local 558, Re- spondent Union violated Section 8(b)(1)(A) of the Act. 4. By threatening an employee with unspecified trou- ble and harm if he did not forgo attempts to secure mem- bership in Respondent Union, Respondent Union violat- ed Section 8(b)(1)(A) of the Act. 5. By threatening an employee with loss of employ- ment because he filed an unfair labor practice charge with the Board, Respondent Union violated Section 8(b)(1)(A) of the Act. 6. By threatening an employee with loss of employ- ment if he refused to sign a dues-checkoff authorization, Respondent Union violated Section 8(b)(1)(A) of the Act. 7. By threatening an employee with loss of employ- ment if he did not pay insurance premiums, Respondent Union violated Section 8(b)(1)(A) of the Act. 8. By attempting to cause Forman-Ford and Co. of Iowa to terminate Bruce Raney if he did not pay an in- surance premium, Respondent Union violated Section 8(b)(2) of the Act. 9. By attempting to cause and causing Forman-Ford and Co. of Iowa to deny Saturday overtime work to Walter Westfall because he was not a member of Re- spondent Union, and by advising employees that was the 20 Fischback/Lord Electric Co, 270 NLRB 856, 875 (1984) reason, Respondent Union violated Section 8(b)(1)(A) and (2) of the Act. 10. The unfair labor practices detailed in paragraphs 3 through 9 above affect commerce within the meaning of Section 2(6) and (7) of the Act. 11. Respondent has not committed any other unfair labor practice alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed21 ORDER The Respondent Union, Glaziers, Architectural Metal and Glass Workers Local Union No. 558, affiliated with the International Brotherhood of Painters of Allied Trades, AFL-CIO, Overland Park, Kansas, its officers, representatives, and agents, shall 1. Cease and desist from (a) Threatening employees with loss of employment because they seek membership in Local 558. (b) Threatening employees with unspecified trouble and injury if they do not forgo attempts to secure union membership. (c) Threatening employees with loss of employment because they file unfair labor practice charges with the Board. (d) Threatening employees with loss of employment if they refuse to sign a dues-checkoff authorization. (e) Threatening employees with loss of employment if they do not pay high time insurance premiums. (f) Attempting to cause an employer to deny work to employees until they pay high time insurance premiums to Local 558. (g) Attempting to cause or causing an employer to refuse overtime work to employees because they are not members of Respondent Union. (h) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make Walter Westfall whole for any loss of earn- ings or other benefits he may have suffered by reason of Respondent Union unlawfully causing him to lose over- time work on Saturday, 1 June 1985, with interest com- puted thereon as provided in Florida Steel Corp., 231 NLRB 651 (1977).22 (b) Post at its business offices and meeting halls copies of the attached notice marked "Appendix."23 Copies of 21 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses 22 See, generally, Isis Plumbing Co, 138 NLRB 716 (1962) 23 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 Nation- al 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 " PAINTERS LOCAL 558 (FORMAN-FORD) 159 the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent's authorized representative, shall be posted by the Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered , defaced, or covered by any other material. (c) Furnish to the Regional Director for Region 17 sufficient signed copies of the atteched notice for post- ing, the employers signatory to its collective -bargaining agreement noted herein willing, in conspicuous places, including all places where notices to employees are cus- tomarily posted . Copies of said notice, to be furnised by the Regional Director for Region 17, shall, after being duly signed by the Respondent as indicated, be forthwith returned to the Regional Director for disposition by him. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.