International Brotherhood Of Teamsters, Chauffeurs, Warehousemen And Helpers Of America (Consolidated Beverages, Inc.)

812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters Local Union No. 170, a/w International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Consolidat- ed Beverages, Inc.) and , John Dyson. Cases 1- CB-6320 and 1-CC-2103 22 January 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, STEPHENS, AND CRACRAFT On 16 June 1986 Administrative Law Judge Marvin Roth issued the attached decision. The General Counsel filed exceptions and a supporting brief. 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 and brief and has decided to affirm the` judge's rulings, findings,I and conclusions and to adopt the recommended Order. i The General Counsel has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an admmistra- tive 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 re- versing the findings. The General Counsel has excepted to, among other things, the judge's failure to find that the Respondent's claim that it sought Charging Party John Dyson's removal from the job because of his dues delinquency was pretextual. To support her contention that Dyson's dues delinquency was used to mask the real reasons for having Dyson removed from the job, i.e, the Respondent's dispute with Dyson's father over his We of Coors Beer, the General Counsel has taken issue with the judge's finding in sec. III,B of his decision that Union Business Agent Foley authorized Union Steward Richardson on the morning of 21 June 1985 to request that the Employer cease employing Dyson until his dues arrearages were paid. Contrary to the judge, we do not find it evident from the record that Foley authorized Richardson to take such action. The record contains conflicting testimony from Richardson whether he discussed Dyson's dues delinquency with Foley on the morning of 21 June Foley testified that he and Richardson did not discuss Dyson's dues delinquency during Foley's 21 June morning visit at the Employer's facility. Foley further testified, however, that Richardson informed him of Dyson's dues delin- quency in a telephone conversation later that day. Foley testified he asked Richardson if "he [Richardson] told the company to knock him [Dyson] off, and he [Richardson] said he did," but that Dyson was work- ing. The record also contains unrebutted testimony by Foley that during his 21 June evening conversation with the Employer's operations manag- er Perry, the latter acknowledged having an earlier conversation with Richardson in which Richardson asked Perry that Dyson's services not be used. Thus, although it is unclear whether Richardson was authorized by Foley to request that the Employer not use Dyson until his dues ar- rearages were paid, Richardson did make such a request on the morning of 21 June. Accordingly, we find that Foley's 21 June evening visit to the Employer's facility was for the purpose of enforcing the Union' s earlier request that the Employer cease using Dyson because of his dues delin- quency and not because of Foley's telephone conversation on 21 June with Dyson'a father, Herbert, or the Union's labor dispute with Coors Beer, as contended by the General Counsel In sec III,C of his decision the judge referred to George Valery as "union president." Valery is the secretary-treasurer of the Union. ORDER The National Labor Relations Board adopts the recommended Order, of the administrative law judge and orders that the Respondent, Teamsters Local Union No. 170, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Auburn, Massachusetts, its of- ficers, agents, and representatives, shall take the action set forth in the Order. Don Firenze, Esq., for the General Counsel. Thomas J. Flynn, Esq.', of Arlington, Massachussetts, for the Respondent. Dianne Crocker, Esq., of Worcester, Massachussetts, for the Charging Party. DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge. These consolidated cases were heard at Boston, Massachusetts, on 2 April 1986. The charges and the amended charge in Case 1-CC-2103 were filed respectively on 4 December 1985 and 9 January 1986 by John Dyson, an individual. The complaint, which issued on 15 January 1986, alleges that Teamsters Local Union No. 170, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (the Union or Respondent) violated Section 8(b)(1)(A), (2), and (4)(i) and (ii)(B) of the Na- tional Labor Relations Act. The gravamen of the com- plaint is that the Union, in furtherance of its labor dis- pute with Coors Beer, threatened Consolidated Bever- ages, Inc. (Consolidated) with a work stoppage and or- dered employees of Consolidated to engage in a work stoppage, in order to force Madsen Tavern, Inc. d/b/a Herbie's (Herbie's) to discontinue selling Coors Beer; and threatened John Dyson with loss of work, and attempted to cause and caused Consolidated to suspend and dis- charge Dyson because Herbie's refused to discontinue the sale of Coors Beer. The Union's answer denies the commission of the alleged unfair labor practices. All par- ties were afforded full opportunity to participate, to present relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs, The General Counsel and the Union each filed a brief. On the entire record in this case 1 and from my obser- vation of the demeanor of the witnesses, and having con- sidered the arguments and briefs submitted by the par- ties, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE PERSONS AND EMPLOYER INVOLVED Consolidated, a corporation with an office and place of business in Auburn, Massachusetts, is engaged in the wholesale distribution of alcoholic beverages. In the op- eration of its business, Consolidated annually purchases m The official transcript of proceedings is corrected. 282 NLRB No. 124 TEAMSTERS LOCAL 170 (CONSOLIDATED BEVERAGES) and receives at its Auburn facility ` sroducts, goods) vatic materials valued in excess of $50,000 directly from points outside of Massachusetts . Herbie's, a corporation with a place of business in Worcester, Massachusetts, is engaged in the operation of a bar and restaurant. I find, as the Union admits, that Consolidated is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. IL THE RESPONDENT AND ITS AGENTS The Union is admittedly a labor organization within the meaning of Section 2(5) of the Act. George "Red" Valery is its secretary-treasurer, and Richard Foley and Carl Gentile are business agents . The complaint alleges, the answer admits, and I so find that all three men have been at all times material agents of the Union within the meaning of Section 2(13) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Developments Prior to 21 June 1985 The Union is the collective-bargaining representative of a unit of Consolidated's warehouse employees, help- ers, floormen and stockmen, fork truck operators, truck- ers, and drivers at the Auburn facility. The most recent contract was effective by its terms from 19 May 1983 through 18 May 1986. Consolidated employs both per- manent and casual employees to perform unit work. Both categories were covered by the contract and both were subject to its lawful union security clause. Howev- er, the casual employees, who usually worked on an as- needed basis during Consolidated's busy season (May through October) did not enjoy seniority rights under the contract. Consolidated checked off union dues for regular employees, but casuals were responsible for paying their dues directly' to the Union, either at the Union's ,office or to its shop steward. John Dyson has worked for Consolidated as a casual employee at the Auburn facility since 1981. He joined the Union in February 1983. John Dyson has a long his- tory of dues' delinquency. The Union's records indicate that he was delinquent in dues payments during 13 sepa- rate periods of time' between February 1983 and July 1985. Shop steward Tim Richardson testified that on one occasion in 1984 he requested that Consolidated not use Dyson because of his nonpayment of dues. John Dyson's father, Herbert Dyson, is the owner of Herbie's. a. Consolidated distributes Anheuser-Busch products to Herbie's. Herbie's also sells Coors Beer, which is distributed by a nonunion firm. The Union, which admittedly has a labor dispute with Coors Beer, has been engaged in an ongoing campaign, through oral and written appeals to discourage the purchase of Coors Beer. On 19 June3 Herbert and Union Business Agent Gentile were present at the dedication of a new wing of the Worcester county jail. They were not personally ac- quainted with each other, However, Herbert had been a 2 In order to avoid confusion, I shall sometimes refer to John Dyson as "John" and Herbert Dyson as "Herbert " 8 All dates, are for 1985 unless otherwise indicated. 813 irof#iinent` athlete , in the area, and Gentile recognized him. Gentile asked Herbert if he sold Coors Beer. Her- bert answered that he did, whereupon Gentile asked him to stop., Herbert asked why, and Gentile answered that Coors was nonunion. Herbert replied, "So what?", as- serting that he would continue . to sell Coors. Gentile said, "Fine," and walked away. At this point Gentile was content to let the matter rest. However, Herbert, for whatever reason, was sensitive and upset about the matter. The next day Herbert and Gentile were both present at a political fundraising function at a church in Worcester. Gentile was talking to Consolidated President Ronald Fields when Herbert came by. Herbert, who had apparently been drinking, attempted to provoke Gentile by singing a Coors Beer commercial. Gentile tried to ignore him, but Herbert persisted. He told Gentile that he would not stop selling Coors Beer, and that Gentile should leave him alone. Herbert pointed to a scab on Gentile's ^ head, and told Gentile that if Gentile did not leave him alone, he would give Gentile 'a mark on' the other side of his head with a Coors beer can. Gentile an- swered that he did not want a problem with Herbert, and he walked away.4 B. The Events of 21 June On 21 June, John Dyson was scheduled to work the night shift from 6 p.m. to 2:30 a.m. It is undisputed that as of 21 June, John had not paid his union dues for May and June, and therefore he was delinquent in payment of May dues. Shop steward Richardson testified that he knew by 10 or 11 'June that John was delinquent. As part of his duties as steward, Richardson kept' a daily record of casuals who worked or were scheduled to work. Busi- ness Agent Foley, who serviced Consolidated, usually came to Consolidated every Friday, but would some- times come every other Friday. Richardson would give him the daily records and, when Foley returned to his office, he would give the records to his secretary. The information was fed into the Union's computer, which matched the information on working casuals with the Union's record of'dues payments, and produced a record that reflected the names of these casuals who were delin- quent in dues payments. Foley then' informed Richardson either orally or by written list of the identity of casuals who were behind in their dues payments. The next payday (payday being each Wednesday), Richardson would request- the employee to pay his dues. If the em- ployee did not pay his dues to Richardson by the follow- ing payday, Richardson would check with the Union's office'to determine whether the dues were paid there. If not, and Foley determined that the employee was habit- ually delinquent, he would authorize Richardson to re- 4 The foregoing account of the 20 June incident is based on a compos- ite of the testimony of Gentile, Herbert, Fields, and Union Business Agent Richard Foley, who was nearby and heard part of the conversa- tion. Although their versions differ m tumor respects, the salient facts are undisputed. Specifically, it is undisputed that Gentile said nothing to pro- voke Herbert, but that Herbert attempted to provoke and in fact threat- ened Gentile with violence. Both Fields and Foley, who played key roles in the subsequent events that form the basis of the present complaint, `learned either' directly' or from the participants about the conversations of 19 and 20 June. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quest that Consolidated not use the employee until the employee was paid up in his dues. Richardson and Foley testified in sum that in June they utilized the foregoing procedure with respect to John Dyson. On 21 June Foley arrived at the Auburn facility about 8 a.m., when the day shift was scheduled to begin work. He assembled and briefly addressed the employees. Foley and Richardson (both union witnesses) were the only witnesses who testified concerning what was said. They testified in sum that Foley told the employees that Herbert threatened a union business agent and requested that the Union's members stop patronizing Herbie's until the problem was solved. (About six of the employees were regular patrons of Herbie's.) Foley said nothing about Coors Beer or John Dyson, and he did not ask the employees to refrain from making deliveries to Herbie's. Richardson testified that he gave Foley his list of work- ing temporaries, and that Foley looked at the list before leaving. Richardson initially testified that they did not discuss John, but he subsequently admitted that he told Foley that John "was still behind in his dues." Richard- son testified that between 8 and 8:30 a.m. he told Con- solidated Operations Manager Ron Perry that John was behind in his dues and that Consolidated should not use him until he was caught up. Foley testified that he nor- mally authorized the steward to make such requests. In light of the testimony of Foley and Richardson, it is evi- dent that on the morning of 21 June, Foley authorized Richardson to request that Consolidated not use John until he was paid up in his dues. It is undisputed that Richardson did not, prior to making his request to Perry, specifically tell John how much he owed in dues or what the Union would do if he did not pay his dues. Operations Manager Perry was not presented as a wit- ness in this proceeding. It is evident from the testimony of other witnesses, however, particularly President Fields, that Perry took no action when Richardson made his request. Rather, it is evident that Perry decided to wait and see what happened after John reported to work. In the meantime, Herbert got word of the 8 a.m. meeting and telephoned Foley, angrily demanding to know what right Foley had to tell the employees not ,to patronize Herbie's. Foley saidthe Union could do any- thing it wanted. They argued, and Foley hung up. Noth- ing was said in this conversation about Coors Beer or John. President Fields, who was presented as a General Counsel witness and was at home on the evening of 21 June, testified concerning a series of telephone conversa- tions which he had at that time. Fields testified that about 7 p.m. he received a telephone call from Ron Perry or Supervisor Francis Gillette, who were on duty at the Auburn facility. Perry or Gillette put Foley on the line. Foley told Fields that John could not work. Fields asked why, and Foley, in Fields' words, "said something to me about taking the men off the job." At this point Fields did not give Foley an opportunity to explain why he would want to take the men off the job. Foley prob- ably mistakenly assumed that Fields knew of Richard- son's earlier request to Perry. Fields, who did not know that John was delinquent in his dues payments, but was very much aware of the recent events involving Gentile and Herbert, immediately assumed that the Union wanted John off the job because his father refused to stop selling Coors Beer. Fields, who knew that a termi- nation for that reason would constitute illegal action by both the Union and Consolidated, told Foley: "Well you go ahead, if you want to do that, I will sue you." Next John got on the line, and Fields told him: "You do what you want, but you don't have to leave." Then Foley got on the line again, but this time he had an opportunity to explain. Fields said that Foley could not do this, where- upon Foley answered that he could because John was delinquent in his dues: Foley cited the union-security clause of their contract, and explained that the matter had nothing to do with Coors Beer. John got on the line again, whereupon Fields told him that Foley was within his rights. However, he asked to meet with John and his father the next morning at Herbie's. Fields went to Her- bie's the next morning (Saturday, 22 June) but only Her- bert was present. Fields testified that he explained to Herbert that he thought the problem might have some- thing to do with Coors, but that he could not take back John until he was caught up in his dues. Fields' testimony is particularly significant because that testimony discredits John's uncorroborated version of the events on the evening of 21 June, and'together with Fields' testimony concerning subsequent events, ef- fectively undercuts the General Counsel's entire theory concerning this case. Fields and Herbert are personal friends, in addition to doing business with each other. I find it unlikely that Fields would knowingly testify false- ly against the interests of Herbert' s son. As will be dis- cussed, Fields in his testimony assumed sole responsibil- ity for Consolidated's later decision, about 1 July, to cease using John. I find it unlikely that Fields would knowingly testify falsely in such a manner, when he could just as easily have placed the blame on the Union. I credit Fields' testimony concerning his conversations on 21 and 22 July, and I specifically do not credit Her- bert's testimony that Fields said nothing about dues de- linquency when they met on 22 June. As will be dis- cussed, Fields' testimony is further corroborated by other testimony and circumstances. John Dyson testified that on 21 June about 7:30 p.m., Supervisor Mike Mello told the employees to stop work- ing because Foley wanted to speak to them. About eight employees and the supervisors were present. According to John, Foley told them that they had a problem, that the Union asked Herbie's to stop selling Coors Beer, that the next night Herbert "started busting our balls about it," that "now I come here and his son is working," and "as long as he is here, nobody works." John testified that employee Bill Terrien said he did not want to get fired for stopping work, whereupon Foley said, "You pick up that case, and I will make sure you lose your job." John testified that he argued with Foley, accusing' him of blackmail, and that Foley answered that "We will do whatever we want to get rid of Coors." John testified that he spoke to Fields on the telephone, and Fields told him he could leave or stay as he wished. John testified that he wanted to stay, and Perry argued with Foley that this was illegal, but that Perry told him that he had to get the trucks out, and that John would have to leave. TEAMSTERS LOCAL 170 (CONSOLIDATED BEVERAGES) John testified that before he left work Foley took him aside and explained that he had nothing against John but "your father is giving us a hard time about getting rid of Coors," and "rubbed salt in our eyes, and now I'm rub- bing it back in his," and "as long as your father keeps Coors in there, you are never going to work in Central Massachusetts again." John testified that Foley said noth- ing about union dues. Steward Richardson testified that after John reported to work on 21 June, he telephoned Foley and reported that John was still working. Foley then proceeded to the Auburn facility, and arrived about 7 p.m. By this time Richardson was gone for the day. Foley testified that he assembled the employees and told them to stop work. He testified that he probably gave the same talk that he gave to the day-shift employees. Foley testified that he told the supervisors who were present that they should call someone. They summoned Operations Manager Perry. Foley asked Perry why John was there. Perry answered, "I brought him in," whereupon Foley replied that "it was requested of you not to bring the man in." Perry in- sisted that he brought him in, whereupon Foley respond- ed, "We ain't staying." Foley insisted that Perry get rid of John because of his nonpayment of dues, but Perry re- fused. Foley then said that "you had better call your boss, because someone is going to be in trouble here." Perry then put Foley on the telephone with Fields. Foley testified that Fields was upset, and talked about Herbert and Coors, but that he assured Fields that this had nothing to do with either. Rather, Foley asserted that John "don't want to pay his dues, he don't work." Foley testified that he explained to John that he had to pay his dues, that John answered, "you have got a prob- lem with my father," and that he replied that he had no such problem. Micheal Lavallee, a permanent warehouse employee who worked the night shift, was presented as a union witness. Lavallee was the only witness in this pro- ceeding besides Foley and John Dyson who was present at the Auburn facility on the evening of 21 June. Laval- lee's description of Foley's remarks to the employees dif- fered from that of Foley, but he corroborated Foley in one crucial respect. Lavallee testified that Foley told the employees to take a break and be seated, but he re- mained silent for about 10 minutes. Foley said he had a problem with an employee, and the employee knew who he was. The supervisors present asked what the problem was, and Foley asked them to call someone. They sum- moned Perry, who asked if there was a work stoppage. Foley answered, "Not really." Foley and Perry went to the office, and Lavallee did not hear their conversation. Lavallee testified that when Foley spoke to the employ- ees, he said nothing about Coors Beer. The General Counsel did not cross-examine Lavallee. Lavallee, a rank-and-file employee, may fairly be regarded as a disin- terested witness to this proceeding. Although Richardson is a union steward, he is also a working employee, and he was not involved in the various contacts between Herbert Dyson and the Union's officials. In contrast both John and Herbert Dyson are very much interested par- ties. I am inclined to give greater weight to the testimo- ny of Lavallee, Richardson, and (as discussed) Fields, than to the testimony of John and Herbert. I credit the 815 testimony of Richardson and Lavallee concerning the events on the evening of 21 June, and I credit the testi- mony of Foley concerning his conversations with Perry and John. I find that when Foley asked the employees to stop work, he did not explain the nature of the problem to them. However, I credit the testimony of Richardson that he later explained to employees who asked, that John was behind in his dues. C. Developments after 21 June As indicated, Fields and Herbert discussed John's situ- ation when they met at Herbie's on the morning of 22 June. The next day, Sunday, 23 June, Herbert came to Fields' home. Fields testified that Herbert asked him to put John on the list of permanent employees. Fields knew that he could not do this under the union contract because John did not have the requisite seniority. Fields rejected Herbert's request, without giving an explanation, but Herbert persisted. Fields testified that he told Her- bert that so far as he knew, John had not paid his dues, and that he did not wish to be a mediator between Her- bert and the Union. Herbert testified that Fields did not tell him until the next day, 24 June, that John was behind in his dues. (As discussed, I do not credit this tes- timony.) However, Herbert admitted that he asked Fields to make John a permanent employee. If Herbert had reason to believe that the Union caused John's sus- pension or termination because Herbert refused to dis- continue the sale of Coors Beer, then his request would make no sense because the Union would not accept John as either a permanent or temporary employee until Her- bert met its demands. Herbert testified that he could not even remember whether Coors was mentioned in this conversation. However, if, as found, Herbert knew that John had a dues delinquency problem, then the request would be understandable because as a permanent em- ployee John's dues would be deducted from his pay and he would no longer have a problem with paying dues. On Monday, 24 June, Herbert gave John money to pay his dues, and Herbert paid his May and June dues. (He paid his July dues on 28 June.) The next time John contacted Consolidated (26 June) he was called into work.5 John worked on 26, 27, and 28 June and on 1 July (Monday of the following week). At no time did the Union raise any objection to his return to work. In the meantime, Herbert persisted in his requests that John be made a permanent employee . Herbert asked steward Richardson to see him at Herbie's but Fields advised Richardson not to go because "Herbie was totally wrong" and "the whole situation was brought about by Herbie." John testified that while at work on 1 July, he was summoned to the office and told by two low-level super- visors that "we were told [by Ron Perry] that we can't use you no more." They said they were given no expla- nation. John did not work again for Consolidated until 6 March 1986. President Fields, in his testimony, assumed John testified that he called the day supervisor on 24 June, but was told not to call anymore However, at this time John may not have paid his dues 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the sole responsibility for this decision not to use John. Fields testified that he made an initial decision not to use John on 23 June, when Herbert began badgering him about making John a permanent employee. Fields testi- fied that he decided not to use John because (1) John did not bother to show up at Herbie's on 22 June, although Fields asked him to be there, (2) his father asked Fields to put John on the permanent list, although this would violate the contract, and (3) Fields simply did not want a "headache like this." According to Fields, after he stopped using John he formulated a policy that he would not use relatives of customers or employees as casual em- ployees. In fact, Consolidated never implemented such a policy. Rather, as Fields admitted, he decided not to use John for reasons that were unique to John's situation. Fields testified in sum that he regarded the whole matter as one involving a clash of personalities in which he did not wish to get involved, and that the problem had noth- ing to do with Coors Beer. Fields categorically denied that the Union ever asked him to get rid of John or to stop using John because his father sold Coors Beer. I find that after John paid his dues and returned to work, Fields decided on his own to stop using John, that the Union was not in any way, involved in this decision, and that the Union did not, as alleged in the complaint, cause or attempt to cause Consolidated to discharge John Dyson about 1 July. Notwithstanding that Fields made his own decision in the matter,, Herbert could not resist the temptation to continue to interfere and make a difficult situation even worse for his son. Herbert complained to his insurance agent, his Congressman, to Union President George Valery, and to Fields.6 In December, after John filed the present charges, Fields telephoned Herbert and offered to put John back to work. Herbert said he would have to speak to his attorney, but he never got back to Fields.? , In early March, Fields instructed his shipper to use John when needed. D. Concluding Findings I find that Fields decided on his own initiative to cease using John Dyson's services after 1 July, that the Union was not involved in that decision, and that the Union did not cause or attempt to cause Consolidated to discharge John about 1 July for any reason, lawful or unlawful. Therefore, I am recommending that pertinent allegations of the complaint be dismissed. See Teamsters Local 610 (Wetterau Foods), 202 NLRB 212, 216 (1973). Having 6 Herbert and Valery both testified in sum that Valery assured Herbert that the Umon had no problem with John Fields testified that he told Valery that Consolidated was not using John Valery testified that Fields told hun that Consolidated was working John when needed. Herbert tes- tified without contradiction that Fields told him that the Union said John could no longer work at Consolidated. I credit Fields It is unlikely that the Union was unaware that John was no longer working at Consolidat- ed. However, as John was back at work without objection from the Union and paid up in his dues when Consolidated stopped using him, and John did not file a grievance or otherwise complain to the Union, the Union had no legal obligation to take action in the matter . I also credit Herbert. I find that Fields falsely told his old friend that the Union was responsible for John , not working after 1 July, in order to avoid acknowl- edging responsibility for his own decision ° I credit Fields' version of this conversation. credited the pertinent testimony of Business Agent Foley, I am also recommending dismissal of the allega- tion that Foley threatened John with loss of work as long as Herbie's sold Coors Beer. I am further recom- mending dismissal of the secondary boycott allegations of the complaint, i.e., that Foley threatened Consolidated with a work stoppage and ordered its employees to engage in a work stoppage in order to compel Herbie's to cease doing business with Coors Beer. These allega- tions are without merit because Foley's actions on 21 June had nothing to do with Coors Beer. The Union had a primary dispute with Consolidated, arising from the Union's position that Consolidated violated its contract by refusing the Union's request that Consolidated cease using John because of his dues delinquency. Therefore, apart from the question of whether the Union violated Section 8(b)(1)(A) (which will be discussed), no second- ary boycott was involved. The Union also did not vio- late Section 8(b)(4)(B) by asking Consolidated's employ- ees not to patronize Herbie's. First, the Union had a pri- mary dispute with Herbie's, arising from the fact that Herbert threatened Business Agent Gentile with violence because Gentile engaged in the lawful union activity of requesting Herbert not to sell Coors Beer. Second, even if Foley asked the employees not to patronize Herbie's because Herbie's sold Coors Beer, his request would con- stitute lawful "publicity, other than picketing" within the meaning of the second, or "publicity" proviso to Section 8(b)(4) of the Act. Foley lawfully requested a consumer boycott. He did not ask the employees to cease making deliveries to Herbie's, and there is no evidence that Foley's request had such an effect. This leaves the remaining allegation of the complaint, namely, that on 21 June the Union violated Section 8(b)(1)(A) of the Act by causing or attempting to cause Consolidated to "suspend" John Dyson because Herbie's refused to discontinue the sale of Coors Beer. It is undis- puted that the Union did in fact, on 21 June, cause Con- solidated to cease using John until he was current in dues payments. The General Counsel argues (Br. 4) that the evidence demonstrates the, Union was discriminatori- ly motivated because (1) the Union's demand "followed so soon after its dispute with Herbert Dyson arose," and (2) the demand was handled by a "nocturnal visit" of a business agent rather than through a steward. The Gen- eral Counsel's argument fails on both factual and legal grounds. The Union's demand did come shortly after its dispute with Herbert. However, the Union's demand also coincided with the facts that as of 21 June John had been delinquent in dues payments for 3 weeks, that steward Richardson called this to his attention, and allowed two paydays to pass, that Friday 21 June was a normal and usual day for Business Agent Foley to visit the Auburn facility, and that his visit was a normal and appropriate occasion to exchange information with Richardson, whereupon Richardson confirmed that John was still de- linquent. John had been delinquent in the past on several occasions, without any request by the Union that he be suspended. However, the Union's records indicate that most periods of delinquency occurred during the off- season (November through April) when John normally TEAMSTERS LOCAL 170 (CONSOLIDATED BEVERAGES) would not be working. As for the General Counsel's second point, it is true that the steward normally makes the request for suspension or termination, and in the present case Richardson did make such a request. How- ever, Consolidated failed or refused to comply with the request. Therefore, Richardson was confronted with an apparent contract violation. In these circumstances, it is understandable that Richardson would request help from Foley, and that Foley, would personally 'intervene in the matter because as a shop steward Richardson had no au- thority to take strike or other action to deal with a con- tract violation. More fundamentally the General Coun- sel's argument fails on legal grounds because the credited evidence indicates that the Union requested Consolidated to cease using John because of his dues delinquency, and without giving any other reason. Indeed, Foley specifi- cally assured President Fields that the request had noth- ing to do with Herbie's or Coors Beer. It is settled law that a union does not act discriminatorily by requesting the suspension or discharge of an employee, even if the Union harbors animus toward that employee, if the em- ployee is delinquent in dues payments, and the Union bases its request on, such delinquency, under a lawful union-security agreement, without giving any other, i.e., unlawful reason. Communications Workers Local 4012 (Michigan Bell), 184 NLRB 166, 174-175 (1970). Accord: Teamsters Local 610 (Wetterau Foods), supra, 202 NLRB at 216; Eidal International Corp., 224 NLRB 911, 916-917 (1976). In sum, I find that on 21 June the Union caused and attempted to cause Consolidated to cease using John be- cause of his dues delinquency, and for no other reason. However, this is not the end of the inquiry. A labor or- ganization has an absolute fiduciary duty to inform unit employees of their obligations under a union-security agreement, including the consequences of their failure to comply with those obligations, and the correct particu- lars of any obligations due and owing, and to afford the employees a reasonable opportunity to comply with those obligations before invoking a request for their dis- charge for noncompliance with such obligations. See NLRB v. Hotel & Club Employees, (Philadelphia Sheraton Corp.), 320 F.2d 254, 258 (3d Cir. 1963); Forsythe Hard- wood ' Co., 243 NLRB 1039, 1044 (1979); Machinists Dis- trict 9 (Borg-Warner Corp.), 237 NLRB 1278 (1978). As these cases indicate, it,is immaterial that the 'employee may already be aware of those obligations and the conse- quences of failing to meet those obligations. Rather, before taking any action that could affect an employee's job security, the labor organization must confirm that the employee personally received full and understandable notice of those obligations. In the present case, the Union did not, before requesting Consolidated to cease using the services of John Dyson, specifically inform John how much he owed in dues or what the Union would do if he did not pay his dues. Therefore, the Union failed to fulfill its fiduciary duty, and for this reason violated Section 8(b)(1)(A) and (2) of the Act by causing and attempting to cause Consolidated to cease using the services of John Dyson until he was paid up in his dues. CONCLUSIONS OF LAW 817 1. Consolidated is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By attempting to cause and causing Consolidated to cease employing John Dyson because of Dyson's dues delinquency, without first' giving John Dyson adequate and correct notice of his dues obligations and a reasona- ble opportunity to comply with those obligations, the Union engaged in unfair labor practices within the mean- ing of Section 8(b)(1)(A) and (2) of the Act. 4. The Union did not violate the Act in any other re- spect alleged in the, complaint. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Union has committed violations of Section 8(b)(1)(A) and (2) of the Act, I shall recom- mend that it be required to cease and desist therefrom and from like or related conduct, to post appropriate no- tices, and to furnish and give appropriate notices to Con- solidated. I shall further recommend that the Union be ordered to make whole John Dyson for his loss of earn- ings and benefits as a result of the Union's unlawful con- duct from 21 June 1985 until his return to work on 26 June 1985, with interest thereon to be computed in the manner and amount prescribed in Florida Steel Corp., 231 NLRB 651 (1977).$ I am rejecting the General Counsel's request for a visitatorial clause because the General Counsel has failed to demonstrate that there are circum- stances in this case that warrant such a remedy. See Rebel Coal Co., 279 NLRB 141 fn. 2 (1986). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 ORDER The Respondent, Teamsters Local Union No. 170, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall 1. Cease and desist from (a) Causing or attempting to cause Consolidated Bev- erages, Inc. to terminate or discriminate against employ- ees by invoking the union security agreement of their collective-bargaining contract, without first informing such employees of their obligations under the union secu- rity agreement, including the consequences of their fail- ure to comply with those obligations, and the correct particulars of any obligations due and owing, or without 8 See generally Isis Plumbing Co., 138 NLRB 716, 717-721 (1962). 9 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. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affording them a reasonable opportunity to comply with those obligations. (b) In any like or related manner restraining or coerc- ing employees of the employer in the exercise of 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 whole John Dyson for any loss of earnings and benefits he may have suffered as a result of the Union's unlawful. conduct, in the manner set forth in the remedy, section of this decision. (b) Post at its offices and meeting halls, copies of the attached notice marked "Appendix."1° Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to 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. (c) Furnish to the Regional Director for Region 1, signed copies of the notice for posting, if Consolidated Beverages, Inc. is willing, at its Auburn facility, in the places where notices to employees are customarily posted. Copies of the Notice, to be furnished by the Re- gional Director for Region 1, after being duly signed by Respondent's representative shall be forthwith returned to the Regional Director for such posting. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps have been taken to comply therewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT cause or attempt to cause Consolidated Beverages, Inc. to terminate or discriminate against em- ployees by invoking the union-security agreement of our collective-bargaining contract, without first informing such employees of their obligations under the union-secu- rity agreement, including the consequences of their fail- ure to comply with those obligations, and the correct particulars of any obligations due and owing, or without affording them a reasonable opportunity to comply with those obligations. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees of Consolidated Bev- erages, Inc. in the exercise of their right to engage in union or concerted activities, or to refrain therefrom. WE WILL make whole John Dyson for any loss of earnings and benefits he may have suffered as a result of our unlawful conduct from 21 June 1985 until his return to work on 26 June 1985, with interest. 10 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." TEAMSTERS LOCAL UNION No. 170, A/W INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA