Furriers Joint Council Of New York

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furriers Joint Council of New York, affiliated with United Food & Commercial Workers Interna- tional Union, AFL-CIO and Associated Fur Manufacturers, Inc. and United Fur Manufac- turers, Inc. Cases 2-CC-9469 and 2-CB-9650 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 7 February 1984 Administrative Law Judge Harold B. Lawrence issued the attached decision. The General Counsel and the Charging Parties filed exceptions and supporting briefs. The Re- spondent filed cross-exceptions, a supporting brief, and a memorandum in opposition to the General Counsel's and the Charging Parties' exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions, cross-exceptions,' and briefs and has decided to affirm the judge's rul- ings, findings,2 and conclusions only to the extent consistent with this Decision and Order. We agree with the judge that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by making its members' receipt of their vacation pay- checks conditional on their payment of a special as- sessment. The General Counsel and the Charging Parties except to the judge's failure to find that the Respondent also violated the Act by requiring its members to pay their back dues before receiving their vacation paychecks. We find merit in these exceptions. It appears to be commonplace in the fur industry for a worker to fall behind in paying union dues during the busy season from August to December and during the slow season from February to May. Many fur workers choose to pay their back dues i On 14 August 1984 the Respondent filed a motion to dismiss the complaint contending that the parties had executed a settlement agree- ment providing, in pertinent part, that the parties would discontinue or cause the discontinuance of all litigation and administrative proceedings pending between them. On 18 January 1985 the Board issued a Notice to Show Cause why the Respondent's motion should not be granted The General Counsel and the Charging Parties filed responses to the Notice to Show Cause We agree with the General Counsel that the Respondent has not established that a final settlement agreement had been reached, because the Respondent never submitted a final copy of the alleged agreement to the Board, but merely attached several selected pages of a draft of the alleged agreement to its motion to dismiss the complaint Ac- cordingly, we deny the Respondent's motion to dismiss the complaint 2 The Respondent has excepted to some of the judge 's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect 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 when they receive their vacation paychecks from the Respondent in January and July. The Respond- ent distributes the paychecks to employees after their preparation elsewhere. When a union member requests his vacation check from a cashier at the Respondent's office, the cashier checks the member's union book to de- termine if dues have been paid. If the member owes dues, he proceeds to a second cashier who deducts back dues from the vacation check and gives the balance of the paycheck to the employee. Should a member prefer not to have dues deducted from his vacation check, he would consult with his business agent who would determine if the back dues had to be paid from the employee's vacation check. Charles Sanders, a shop chairman, testified it has been the Respondent's practice that a fur worker "not in good standing," i.e., in arrears in dues pay- ments, cannot receive his vacation check; the em- ployee receives his check only when he is paid up in dues and assessments . Although the judge found there was a "custom and practice" of conditioning delivery of its members' vacation checks upon their payment of back dues, the judge also found the Re- spondent did not violate the Act by engaging in this "custom and practice." We disagree. We rely on Musicians Local 47 (American Broad- casting Co.), 255 NLRB 386 (1981), in which the respondent union, like the Respondent herein, as- sumed the responsibility of transmitting paychecks to its members. The union refused to transmit an employee's paycheck to him until he had paid all his back dues. We found such conduct violated Section 8(b)(1)(A) and (2) of the Act. We found that receiving payment for one's labor is a term and condition of employment-an employment right-and that an underlying purpose of Section 8(b)(1)(A) and (2) is to keep employment rights sep- arate from membership obligations owed to an em- ployee's labor organization, such as the payment of dues. In order to enforce its members' financial ob- ligations, a union may only seek the discharge of employees who do not pay their periodic dues; a union may not resort to other methods, such as withholding part or all of a paycheck, to force compliance with membership obligations. In Musicians Union Local 47, we concluded that the union had accepted responsibility for transmit- ting paychecks to employees who were its mem- bers and, having agreed to become involved in that facet of the employment relationship, was obliged "to maintain the statutorily mandated separation between employment rights and membership obli- gations." 255 NLRB at 390. 280 NLRB No. 107 FOOD & COMMERCIAL WORKERS FURRIERS COUNCIL (ASSOCIATED FUR) We find the same rationale applies to the instant case and conclude that the Respondent has violated Section 8(b)(1)(A) and (2) by withholding pay- checks from its members until they have paid their back dues.3 THE REMEDY The judge failed to order that the Respondent reimburse the special assessment to its employees. Since the assessment was unlawfully deducted from employees' vacation paychecks, we shall order the Respondent to reimburse, with interest, any em- ployee who had the special assessment deducted from his vacation paycheck. See Welsbach Electric Corp., 236 NLRB 503, 521 (1978). Interest shall be computed in the manner set forth in Florida Steel Corp., 231 NLRB 651 (1977). We shall not, however, require the Respondent to reimburse employees for dues unlawfully de- ducted from their vacation paychecks. At all times material herein, the employees were covered by valid and lawful union-security and dues-checkoff provisions requiring them to maintain their mem- bership in the Respondent in good standing by paying dues. Since the employees were obligated to pay dues to the Respondent, a dues reimburse- ment order is inappropriate. See American Geriatric Enterprises, 235 NLRB 1532 (1978). ORDER The National Labor Relations Board orders that the Respondent, Furriers Joint Council of New York, affiliated with United Food & Commercial Workers International Union, AFL-CIO, New York, New York, its officers, agents, and represent- atives, shall 1. Cease and desist from (a) Withholding and refusing to transmit to its members their vacation paychecks which it has re- ceived from the trustees of the Fur Workers Vaca- tion Fund Account for transmittal to them until those members pay the amount of a special assess- ment voted by the general membership at a meet- ing 28 January 1981. (b) Withholding and refusing to transmit to its members their vacation paychecks until those members paid their back dues. (c) Conditioning or threatening to condition the transmittal of vacation paychecks to members unless they paid the special assessment and/or back dues. 8 It is immaterial that the Respondent remitted to members the balance of their paychecks after dues were deducted, for the Respondent's obliga- tion was to transmit the paycheck in full 923 (d) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Reimburse, with interest thereon, any em- ployee from whose vacation paycheck the Re- spondent deducted the special assessment. (b) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all records necessary to determine the amount of money due under the terms of this Order. (c) Post at its offices and meeting places copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Re- gional Director for Region 2, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to its members are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 4 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 " 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 withhold and refuse to transmit vacation paychecks which we received from the Trustees of the Fur Workers Vacation Fund Ac- count or deduct therefrom the amount of the spe- cial assessment voted by you on 28 January 1981. WE WILL NOT withhold and refuse to transmit vacation paychecks or deduct therefrom the amount of back dues which you may owe. WE WILL NOT condition or threaten to condition the transmittal of your vacation paychecks unless you pay the special assessment or back dues. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL reimburse you, with interest, for the amount of the special assessment which we may have deducted from your vacation paycheck. FURRIERS JOINT COUNCIL OF NEW YORK, AFFILIATED WITH UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO Louis Melendez Esq., for the General Counsel. Ralph Shapiro, Esq. (Cammer & Shapiro, P.C.), of New York, New York, for the Respondent. Ronald L. Castle, Esq. (Lipman & Hart), of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative Law Judge. This case was heard before me in New York City on May 6 and June 28, 1983. The charge was filed on Sep- tember 15, 1982, by Associated Fur Manufacturers, Inc. and United Fur Manufacturers, Inc. (the Associations). The complaint, issued on November 3, 1982, alleges that in July 1982 the Respondent, Furriers Joint Council of New York, affiliated with United Food & Commercial Workers International Union, AFL-CIO (Joint Council), violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act by conditioning the delivery to its mem- bers of their vacation paychecks on their payment of a special assessment and any back dues owed by them to the Joint Council. The Respondent's answer, as modified at the hearing, denies all allegations of wrongdoing and statutory viola- tion and denies that members' receipt of vacation checks had been made conditional on their tendering the amount of an outstanding assessment and back dues. The Re- spondent's answer alleges affirmatively that the amounts allegedly withheld by the Respondent were lawfully due and owing to the Respondent and that the acts alleged in the complaint do not constitute an unfair labor practice. That may constitute an unwitting admission, inasmuch as the complaint does not allege that amounts were with- hold from any source. The parties were afforded full opportunity to be heard, to call, to examine and cross-examine witnesses, and to introduce any relevant evidence. Posthearing briefs have been filed by the General Counsel and the Respondent. On the entire record and based on my observation of the witnesses and in consideration of the briefs submit- ted, I make the following FINDINGS OF FACT 1. JURISDICTION By reason of admissions contained in the Respondent's answer and made at the hearing, there is no issue about the Board's jurisdiction. Accordingly I find that the Re- spondent is a labor organization within the meaning of Section 2(5) of the Act and that the Associations are as- sociations of employers engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The members of the Associations are employers en- gaged in the manufacture of fur apparel. The Associa- tions represent them in negotiating and administering collective-bargaining agreements with the Respondent. The Respondent represents employees of the employer- members of the Associations in units which include those employees who do the following work: matching (for cutting of garments or trimmings), cutting, squaring, operating, mailing, clipping, glaz- ing, ironing, handsewing, striping, finishing, examin- ing, taping, staying, stapling, stretching, steaming, and inside sales personnel whose primary function is showroom selling, salesmen, designers, pattern- makers, shipping clerks, porters, pick-up and deli- verymen, and floor workers. The most recent collective-bargaining agreement entered into between the Respondent and the Associations is for a term which began on February 15, 1981, and is due to expire on February 15, 1984. Under its terms the em- ployer-members of the Associations contribute 4 percent of gross payroll to a "Joint Collection Account" from which funds are allocated to a vacation account and to the accounts of two other institutions established by the agreement. One of these is the health fund of the Fur Manufacturing Industry which is managed by trustees designated by the Respondent and the Associations. They maintain the vacation account from which vacation pay is paid to eligible employees in July and January of each year. The mechanics of payment are as follows: The appropriate sums are transferred from the vacation account to a checking account maintained by the Re- spondent and known as the "Fur Workers Vacation Fund Account." The Respondent's president is the au- thorized signatory of checks drawn on that account. Va- cation checks bearing the facsimile signature of the Re- spondent's president are prepared by the health fund computer for each eligible employee and delivered to the Respondent for distribution to the employee. In January 1982 the Respondent held a general mem- bership meeting at which a resolution was adopted by secret ballot assessing each member 1 day's pay for the purpose of financing a membership drive. Various com- munications were issued to the membership respecting the assessment which linked it with the issuance to them of their vacation checks. The General Counsel contends that what was communicated was the threat that unless the dues and the special assessments were paid, vacation checks would not be delivered to the members otherwise entitled to them, and that the imposing of such condi- tions on the delivery of the vacation checks constituted a FOOD & COMMERCIAL WORKERS FURRIERS COUNCIL (ASSOCIATED FUR) violation of Section 7 and of Section 8(b)(l)(A) and (2) of the Act. The Respondent contends that the position taken by the General Counsel is a complete misinterpretation of what actually took place. According to the Respondent, the members were simply reminded to, pay the assess- ments, the lawfulness of which is not in issue, and they were asked and reminded to make such payments at the time they received their vacation checks because at that time the funds to make such payments would be readily available to them; that in so doing, the Respondent acted in conformity with the longstanding practice of the membership in paying back dues and any assessments that were owing at the time they received their checks for their share of the funds that were accumulated in the vacation account. The factual aspects of this difference in viewpoint will be examined below. At this, point, however, it should be noted that the first and second affirmative defenses al- leged in the Respondent's answer must be dismissed. The first affirmative defense, to the effect that the amounts al- legedly withheld were lawfully owing to the Respond- ent, is altogether irrelevant. What is at issue in this pro- ceeding is the manner in which the Respondent collected or attempted to collect them. The second affirmative de- fense, that the acts alleged in the complaint do not con- stitute an unfair labor practice, is patently contrary to numerous rulings by the Board in cases involving assess- ments and is valid only insofar as an attempt to collect dues is concerned. If the Respondent conditioned the de- livery of vacation checks to its members on their pay- ment of the assessment then it violated the Act, notwith- standing that making payment of back dues a condition would not have been a violation. B. Practice Respecting Collection of Dues , It is uncontroverted that because of the nature of the industry, which is busiest between August and December and slowest during the period from February to May, most members permit their dues to fall into arrears tem- porarily and bring them current when they collect their vacation pay. The practice is so standardized that there are several cashier windows in the office of the Joint Council where the established routine, when members come in for their vacation checks, is for the cashier, who has envelopes designated by manufacturers' names con- taining the vacation checks, to check their union books to ascertain whether their dues or any outstanding assess- ments have been paid. The cashier draws the employee's vacation check from the appropriate envelope and, if dues are owing, he refers the member to another cashier. The second cashier deducts the dues from the amount of the check and gives the member the balance in cash. If the member states that he does not wish to have the dues deducted at that time, he is referred to the business agent for a conference. The business agent, of course, is famil- iar with special circumstances, such as whether the member is working or not, and he makes the decision whether or not the member will be given more time to pay. Imposition of assessments on the members is not a fre- quent occurrence in the Joint Council and there is there- 925 fore no real "practice" respecting deduction of assess- ments from vacation checks. However, a shop chairman testified that assessments and dues are considered in the same light. C. Evidence that the Joint Council Imposed a Condition on Delivery of the Checks 1. The factual issue, The case against the Joint Council rests on the propo- sition that it made payment of the assessments an express condition of delivery to the members of their vacation checks. It makes no difference, therefore, whether mem- bers paid voluntarily or not. There is no need to delve into the operation of their minds, for the issue is what the Joint Council did, not how the members reacted to the actions of the Joint Council. Undoubtedly some members endorsed the Joint Council's collection methods and undoubtedly many more did not object to paying the assessments. They voted for it at the membership meet- ing. The issue is whether the Union interfered with con- ditions of employment in violation of the Act by imposi- tion of the conditions. Consequently, it is unnecessary to establish that any checks were actually withheld by the Joint Council from any member who failed to pay an as- sessment. However, that appears to have happened in one instance, which will be discussed below. 2. Actions and statements of union officers Arthur Kotoros, the president of the Joint Council, testified that he instructed union representatives and shop chairmen to remind the members about the assessment. He wanted to obtain the money from the vacation checks if that was possible but he was emphatic in his testimony that granting of authorization by members to the Union to make the deductions from the vacation checks was a voluntary matter. He insisted that members who did not want to pay the assessment were not re- quired to do so to receive their vacation checks and that the deduction of dues and assessments from a number of the vacation checks which are in evidence, and which bear indorsements over to the Union, was made with the consent of the members involved- He testified that col- lection procedures are lenient and a matter of conven- ience, it being generally understood that dues and the as- sessment would be cleared up at vacation time. The third week's vacation is paid in January and Kotoros testified that many members elected to pay assessment when they received their vacation pay in January 1982. Neverthe- less he also testified, "We have shop meetings constantly, every week; when the assessment was passed, we told the workers that they have to pay it." The General Counsel argues that an inference should be drawn from the Union's failure to collect the assess- ment between January and July, but Kotoros' testimony adequately explains that failure. Kotoros pointed out that the busy season is from July to December and that the period from March to July is the slowest period in the industry. Irene Ferarra, the Joint Council's office administrator, had extensive prior experience as a cashier's clerk, head 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cashier, and assistant office administrator. She has been employed by the Union for 11 years. She furnished a lengthy description of the procedure for delivery of the vacation paychecks and the methods used to collect the assessment which was substantially supportive of Ko- toros' testimony. Ferarra testified that if a worker owed dues and did not want them deducted from his vacation check, he was referred to the business agent, who then made the decision whether the vacation check would be given to the employee. The business agent made that de- cision because he had intimate familiarity with conditions in the market. According to Ferarra, only about 50 per- cent of the members actually had dues deducted from their vacation checks. Ferarra insisted that the procedure with respect to the unpaid assessment was entirely different: deduction of the assessment from the vacation check was entirely dis- cretionary with a member and members who refused to pay were given their vacation checks without any de- duction. I do not credit this testimony and other state- ments which she made in a similar vein. Her testimony in this regard is entirely discredited by her assertion that though she worked in fairly close physical proximity to the cashiers, she had never heard a member refuse to pay the assessment on demand. If that is so, then she had no basis for testifying concerning practice on a member's re- fusal to make payment. Her testimony that at the time of the hearing some members still had not paid the assess- ment but had been given their checks anyway is beside the point. The issue is what would have happened had they refused. Was there a condition? In any event, her testimony in that regard clashes with other testimony she gave. According to Ferarra, 518 members had not paid the assessment as of the time of the hearing, of whom many, though not all, had received their checks though they had been asked and had refused to pay the assessment at the time they received their checks. This, of course, is either hearsay or contradicts her testimony that she had never heard a member refuse to pay the assessment on demand. Ferarra even insisted that vacation checks had never been withheld or held up by a business agent even for failure to pay dues. This is belied by the existence of a well-established procedure under which cashiers checked the dues books and referred delinquents to the business agent for decision whether their vacation checks should be turned over to them. Moreover, her assertion that members whose dues were fully paid up but who refused to pay the assessment were given their checks carries the implication that nonpayment of dues did result in with- holding of vacation checks.' i The Respondent's counsel, in his postheanng brief, incorrectly quotes Ferarra as having testified without contradiction that neither she nor any of the other union staff employees ever withheld a check when a member refused to pay the assessment . Her testimony was that neither of the cashiers, Walter Schleifer and Georgia Iliopolos, had ever told her that they had not given a vacation check to a member who refused to pay an assessment or that they had ever been instructed not to turn over checks to members who refused to pay . However, the occasion for them to have made such statements would appear to have been nonexistent Similarly, her testimony, in response to a question from the Respondent 's counsel, that she had never overheard them having a discussion with a member in Nevertheless, I am inclined to credit Kotoros' testimo- ny to the extent of his description of statements actually issued from the office of the Joint Council and their lack of threatening content. Linda Jane Barry, a designer at Christian Dior, testified that she heard no culpable state- ments made by anyone at the union headquarters in the course of two visits which she made for the specific pur- pose of finding out what would happen if she did not pay the assessment. On the first occasion, in July 1982, John Theoharis, the treasurer, addressed a meeting of the membership and reminded them that an assessment had been voted of a day's salary. Barry testified that that was all he said about it. She went back to the union hall the following day to see Theoharis in order to ask him "what was going to happen to me personally if I didn't pay the day's salary." Theoharis was not there, so she put the question to an unidentified man who had asked her what she wanted. He did not respond directly to her question but lectured her about how lucky she was to be in the Union and about the benefits to which she was en- titled. It is not controverted that a large number of members received their vacation checks when they were supposed to receive them without paying the assessment and that circumstance is some evidence which may be considered in weighing the Respondent's contention that it was not the union policy to make delivery of the checks condi- tional on payment of the assessment. However, although it is a circumstance which tends to rebut the contention that payment of the assessment was uniformly made a condition of delivery of the vacation checks, it would not preclude a finding of violation if the evidence estab- lished that the Respondent had made payment of the as- sessment a condition precedent to delivery of a member's vacation check in a specific instance. One violation is all that is needed to make the case. The failure on the part of the General Counsel to prove that the Act was violat- ed in hundreds of instances does not mean that no viola- tion was committed in any instance. The number of vio- lations is germane principally with respect to the deter- mination of an appropriate remedy. There is evidence of one solitary instance in which a vacation check was actually withheld from an employee by reason of his refusal to pay the assessment. Mary V. Torman, a head finisher at Sabay Furs, testified that when she visited the Joint Council's office to pick up her vacation check, she overheard part of an irate exchange between someone whom she identified merely as a fur worker (which she inferred from having seen him around the neighborhood) and a group of union officials consist- ing of Kotoros, Philip Simadiris, and John Theoharis. She could not hear what the union officials said, appar- ently because they were behind the glass partition sepa- rating the cashiers' cages from the rest of the office and the group was moving away from the cashiers' section. However, she testified that she overheard the employee make the following statements: "I will come back with which they demanded payment of the assessment and the member re- fused, is not probative on the question of whether such discussions ever took place or whether checks were ever withheld FOOD & COMMERCIAL WORKERS FURRIERS COUNCIL (ASSOCIATED FUR) my lawyer" and "I don't have to pay my day's tax to pick up my check." No one gave any testimony disputing Torman's de- scription of this event in any respect. Neither of the two cashiers who were working in the office at that time were brought in to testify. Ferarra, who testified that her workplace was near the cashiers' cages, was silent about this incident . Kotoros said nothing about it. Simadiras and Theoharis did not appear at the hearing. Though the evidence respecting this incident is lacking in important details, it establishes without contradiction that in at least one instance a vacation check was actual- ly withheld from a member of the Union by reason of his refusal to pay the assessment . The Respondent has the burden of explaining why the situation requires a differ- ent interpretation than that placed on it by Torman and by the General Counsel. The failure of the Respondent to introduce any clarifying evidence compels me to infer that any evidence which the Respondent might have in- troduced with respect to this incident would have been unfavorable to its contentions in this proceeding . Actions speak louder than words, and the actions of Kotoros and the other officers on this occasion have a twofold signifi- cance. On the one hand, they establish that the condition was attached to delivery of the paychecks pursuant to official union policy. Secondly, they support the view that the statements made by union stewards reflected of- ficial union policy. Note should also be taken of what was going on in the union office on that afternoon. Torman testified that she was told by the cashier who handled her check that she had to pay the day's tax with the dues. Apparently in recognition of Torman's ill-concealed displeasure, the cashier volunteered a comment that she was only doing her job and that she had been deducting assessments all day pursuant to orders. No evidence was put in by the Respondent to clarify the nature of the orders given to the cashiers (who were not brought in to testify). 3. Actions and statements of shop chairmen Whatever Kotoros' instructions may have been, and notwithstanding the lack of evidence that any officer of the Joint Council uttered any statements that delivery of vacation paychecks would be conditioned on payment of the assessment, the evidence establishes overwhelmingly that persons who had actual or ostensible authority to speak for the Joint Council made statements to members to the effect that vacation checks would not be delivered to members who failed to pay the assessment; that a shop steward who normally took members' dues and union books down to the Joint Council's office and picked up their vacation checks for them refused to pick up a vaca- tion check for Barry for the express reason that she had not paid the assessment ; that employees in two different shops were told by their shop stewards that they would not receive their vacation checks unless they paid the as- sessment; and, according to the testimony of a shop steward, that the assessment was regarded as being on the same footing as union dues. Mary V. Torman testified that literature respecting the day's tax was received at Sabay Furs in May and she and others expressed opposition to the manner in which it 927 was being collected from the vacation checks to Shop Chairman Julius Dordick . An assessment levied 7 to 10 years before under a different administration had been collected by deductions from the employees ' pay made by the employers and sent directly by them to the Joint Council. Torman also wanted a separate receipt for the payment, whereas the Joint Council was simply receipt- ing payment in the members ' dues books, a practice which underscores testimony given by Charles Sanders, the shop chairman at Christian Dior, that dues and as- sessments were viewed in the same light. According to Torman, Dordick called Julius Gold, the business agent, about the members ' opposition and re- ported to the employees that Gold had told him that the assessment had to be paid. This is the full extent of any statement which Torman says Dordick attributed to Gold, but she quotes Dordick as making a remark fol- lowing his telephone conversation with Gold to the effect that if the tax was not paid, the members could not pick up their vacation checks. Because Dordick did not attribute that statement to Gold, it may well have been an expression of his own opinion , but the making of the statement right after the telephone conversation obvious- ly lent it an air of great authority. Torman's testimony in this regard also establishes that opposition to the deduc- tion from the vacation paychecks was made known to union headquarters, which expressed no surprise and therefore presumably knew about the collection methods being employed. Torman testified Dordick "told every one of us" that they would not get their vacation checks if the assess- ment was not paid and he said it "quite often, every day. The Respondent did not bring Dordick in to testify and made no explanation of its failure to do so. Linda Jane Barry testified that in July she asked Charles Sanders, the shop chairman at Christian Dior, what would happen if she did not pay the assessment and that his response was that if she did not pay the assess- ment, she would not receive her vacation check. Sanders did not contradict Barry's testimony, but confirmed it. He testified that he had intended to pick up Barry's va- cation check, but when he saw that her book was not stamped to reflect payment of the assessment he refused to do so. According to Sanders, "I said to her that I cannot pick up the vacation check because she is not up to date, she did not pay the day's tax." Sanders testified that he told Barry that the practice was that no worker not in good standing should receive his vacation check. He considered assessments exactly the same as dues and testified that employees are commonly in arrears in the payment of dues because of the seasonal nature of the business and they wait for it to be taken out of their va- cation checks. Sanders explicitly testified that vacation checks were withheld for both dues and assessments. The testimony of Torman, Barry, and Sanders estab- lishes that there existed a custom and practice of condi- tioning delivery to members of their vacation checks on tender by the members of their dues and establishes that the same procedure was followed with respect to the 1981 assessment. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By reason of their positions as shop chairmen, the statements made by Dordick and Sanders are binding on the Joint Council. Kotoros testified that shop chairmen are elected by the employees in each shop. The collec- tive-bargaining agreement provides otherwise, but even if Kotoros were right that fact would not be determina- tive of their agency status or authority to bind the Union. The evidence establishes that the Union commu- nicates with its members not only by mail and at meet- ings, but through the shop chairmen. The shop chairmen collect dues, bring them to the union hall, and have re- ceipts stamped in the union books for the employees. They are thus important intermediaries for the dissemina- tion of information and in the performance of mechanical functions relating to dues. As Kotoros said, "It's a stand- ard thing, when you communicate to your workers you have to go through the shop chairmen." The notice re- garding the purpose of the assessment which the union administration intended to put to a vote at the general membership meeting of January 28, 1981, was sent to the shop chairmen. It contains the statement that they will be notified as to the means of collection. Article 9 of the collective-bargaining agreement, enti- tled "Shop Chairmen," provides as follows: 1. The Union may designate a shop chairman from the employees in each shop. 2. The shop chairman shall have the right to (a) collect the union dues, providing it is not done during working hours, (b) to request employees not in good standing with the Union to report to the Union office, and (c) to call to the attention of the employer, a worker, and the Union, upon its occur- rence, a possible violation of this agreement. Thus the shop chairman, who is designated by the Union, collects dues and requests employees not in good standing to report to the union office. These are func- tions which cloak the shop chairman with apparent au- thority to speak to members on behalf of the Union in connection with matters relating to the payment of their financial obligations to the Union. It is apparent that the shop chairmen are the chief means of communication be- tween the Union and the employees with respect to mat- ters relating to payment of dues and assessments and are thus placed in a position in which the employees are jus- tified in believing that they speak for the Union in regard to such matters.2 The issue of the vacation paychecks arose in precisely the area in which the shop chairmen had express author- ity to act--collection of the assessment. Even if the Re- spondent gave no specific authority to them to tell the members that vacation paychecks would not be deliv- ered unless the assessment were paid, this nevertheless was the "general area within which the stewards may ii Teamsters Local 745 (Transcon Lines), 240 NLRB 537 (1979), Team- sters Local 667, 228 NLRB 398 (1977), Teamsters Local 886 (Lee Way Motor Freight), 229 NLRB 832 (1977), enfd mem 103 LRRM 2603 (D C Cu 1978). "Rather, responsibility attaches if, applying the 'ordinary law of agency,' it is made to appear the union agent was acting in his capac- ity as such." 229 NLRB at 832 Emphasis was placed on authority given to the stewards in the bylaws to transmit information and messages ongi- nating from and authorized by Respondent authoritatively act on behalf of Respondent by virtue of the authority conferred on them by Respondent and by the collective-bargaining agreement."9 Knowledge on the part of the union officers regarding what-the shop stewards were saying is clearly established by the evidence respecting Dordick's telephone conver- sation with Julius Gold, the incident in the union office in which a member threatened to return with a lawyer, and the evidence respecting the instructions given to the cashiers. It may also be inferred from the freedom with which the stewards were making the threats and the evi- dence of the anxiety of Kotoros for the collection of the assessment.4 That the overall union objective was collec- tion of the assessment is, of course, undisputed. The evidence amply supports an inference that the top leadership of the Respondent was made directly aware of the protests and knew what the stewards were saying, yet it did nothing to remedy the situation. Having had that knowledge and having failed to act, the Union must be held responsible for the statements made by the shop chairmen. s ' At the very least, by not disavowing the stewards' threats, they gave the threats their tacit approval: [I]t is well established that union involvement in a proscribed activity may take various tacit and subtle forms and be as effective as forthright intervention, in achieving unlawful or improper objectives; see e.g., United States v. International Union, United Mine Workers of America, 77 F.Supp. 563, 566 (D.C.D.C.). Similarly well established is the princi- ple that a union may be found responsible for the actions and conduct of its stewards if the union ac- quiesces in a pattern of conduct undertaken by its stewards in furtherance of overall union' objectives, and if the conduct of its designated officials is such as to have the effect of ratifying said actions. [Cita- tions omitted.]6 4. Conclusion I have noted in several instances the failure of the Re- spondent to produce witnesses under its control who are knowledgeable respecting critical issues in this case, and that failure compels me to draw inferences adverse to the Respondent.' The evidence in the record establishes that 8 Teamsters Local 667, 228 NLRB 398, 399 (1977). 4 The Respondent's posthearing brief argues that Torman's testimony about the complaint of the unknown member who protested the assess- ment and was denied his vacation check is not probative or persuasive and should be disregarded because his comment is not connected with or shown to have been heard by any of the officers or agents of the Union. However, Torman explicitly identified him as a fur worker whom she had seen around the fur district and in the building in which she was em- ployed and testified that he spoke directly to Kotoros, Simadiris, and Theohans and that they were responding to his statements Because Ko- toros patently knew the man's identity, the failure to attempt any rebuttal of Torman's testimony in this respect is significant 5 See Auto Workers Local 600 (Dearborn Stamping), 225 NLRB 1299 (1976) 6 Meat Cutters Local 540 (Kroger Meat), 219 NLRB 331, 335 (1975) 7 Failure to call knowledgeable persons as witnesses gives rise to an inference that had they been called, their accounts would not have been favorable Colorflo Decorator Products, 228 NLRB 408, 410 (1977), enfd Continued FOOD & COMMERCIAL WORKERS FURRIERS COUNCIL (ASSOCIATED FUR) the Respondent Joint Council deliberately withheld members' vacation paychecks in order to enforce collec- tion of an assessment. In so doing, it interfered with the terms and conditions of their employment. Such conduct by a union has been held violative of Section 8(b)(1)(A) and (2) of the Act on the rationale that a union, perform- ing a function normally performed by an employer, may not utilize its position to enforce internal union discipline by interfering with payment of wages, which is one of the most important of the terms and conditions of em- ployment. In short, it may not abuse its position by doing the very thing it is forbidden from inducing the employ- er to do. Union membership obligations of members must be kept separate from their rights as employees.8 CONCLUSIONS OF LAW 1. The employer-members of the Associated Fur Man- ufacturers, Inc. and United Fur Manufacturers, Inc. are mem 582 F 2d 1289 (9th Cir 1978) See also Bechtel Corp, 141 NLRB 844, 845, 852 (1962); Davis Walker Steel Corp., 252 NLRB 311 (1980); Teamsters Local 9.59 (Northland Maintenance), 248 NLRB 693, 698 (1980). 8 Musicians Local 47 (American Broadcasting), 255 NLRB 386 (1981), Longshoremen Local 13 (Pacific Maritime), 228 NLRB 1383 (1977), enfd. 581 F 2d 1321 (9th Cir. 1978), Mine Workers Local 167 v NLRB, 422 F 2d 538 (7th Cir. 1970), cert denied 399 U.S 905 (1970) It is thus of no avail for the Respondent's counsel to argue, as he does in the posthearing brief, that testimony is absent from the record respect- ing discriminatory actions by any employer against any employee The actions under scrutiny are those of the Respondent 929 employers within the meaning of Section 2(2), engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Furriers Joint Council of New York, affiliated with United Food & Commercial Workers International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By making delivery of paychecks to its members in July 1982 conditional on payment by the members of the amount of an assessment voted at a general membership meeting on January 28, 1981, Furriers Joint Council of New York, affiliated with United Food & Commercial Workers International Union, AFL-CIO has violated Section 8(b)(1)(A) and (2) of the Act. 4. The unfair labor practice is one which affects com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Furriers Joint Council of New York has engaged in unfair labor practices in violation of the Act, I shall recommend that it cease and desist there- from and that it take certain affirmative action designed to effectuate the policies of the Act. [Recommended Order omitted from publication.]