Plumbers Local 460

788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Local Union 460 of the United Association of Jour- neymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and Bruce E. Graham. Case 31-CB- 6416 16 December 1987 DECISION AND,ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 30 April 1986 Administrative Law Judge Burton Litvack issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed limited 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 briefs and has decided to affirm the judge's rulings, findings, I and conclusions, to modify the remedy,2 and to adopt the recommended Order3 as modified.4 I In adopting the judge's findings of a violation, we rely solely on his conclusions that the Respondent denied Graham the opportunity to pay his dues delinquency until he paid in full another indebtedness (a $200 loan) and then struck his name from the out-of-work list because of his entire indebtedness, not just his dues delinquency We place no reliance on his secondary rationale concerning whether Graham was properly subject to any financial obligation during the period of his unemploy- ment This matter was neither alleged nor litigated in this proceeding and we disavow the judge's comments on the issue 2 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 3 The recommended Order is modified to require the expunction from the Respondent's governing documents of provisions which require that loans and assessments are payable before membership dues This a reason- able remedy when, as here, the Respondent Union has maintained a col- lective-bargaining agreement containing a union-security provision that, in conjunction with the bylaw, would reasonably tend to coerce employ- ees who seek referrals or actually work under such agreements into be- lieving that they could be discharged for not paying loans or assessments in advance of dues That such a bylaw could be lawfully enforced against employees who do not work under such agreements in no way removes its coercive impact on the others See Auto Workers Local 73 (McDonnell Douglas), 282 NLRB 466 (1986) (expunction remedy), Electrical Construc- tors Local 8 (San Francisco Elevator Co), 243 NLRB 53 (1979), 248 NLRB 951 (1980), enfd 665 F 2d 376 (9th Cir 1981) (theory of viola- tion) 4 The General Counsel excepts to the judge's failure to include a visi- tatorial clause in the recommended Order A visitatorial clause authorizes the Board, for compliance purposes, to obtain discovery from the Re- spondent under the Federal Rules of Civil Procedure under the supervi- sion of the United States court of appeals enforcing this Order Under the circumstances of this case, we find it unnecessary to include such a clause Accordingly, we deny the General Counsel's request 287 NLRB No. 80 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Local Union 460 of the United Associa- tion of Journeymen and Apprentices of the Plumb- ing and Pipefitting Industry of the United States and Canada, Bakersfield, California, its officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(c) and re- letter the subsequent paragraphs. "(c) Maintaining in its governing documents sec- tion 166(c) of the U.A. constitution to the extent it provides: `National and Local assessments, discipli- nary assessments and loans are payable before dues."' 2. Insert the following as paragraph 2(d) and re- letter the subsequent paragraphs. "(d) Expunge from its governing documents the portion of section 166(c) of the U.A. constitution which requires that `National and Local assess- ments, disciplinary assessments and loans are pay- able before dues."' 3. Substitute the attached notice for that of the administrative law judge. MEMBER JOHANSEN, concurring in part and dis- senting in part. I agree with my colleagues that the Respondent violated Section 8(b)(1)(A) and (2) by denying Bruce E. Graham the opportunity to pay his dues delinquency until he had paid in full another in- debtedness to the Union and by striking his name from the out-of-work list. I disagree, however, with my colleagues' modification of the recom- mended Order to require expunction of section 166(c) of the U.A. constitution from the Respond- ent's governing documents. Section 166(c) provides that "National and Local assessments, disciplinary assessments and loans are payable before,dues." Under Elevator Constructors Local 8 (San Francis- co Elevator Co.),' union violates Section 8(b)(1)(A) by a requirement that fines be paid before dues are accepted when, as here, such rule is coupled with a union-security clause. In San Francisco Elevator and subsequent cases, 2 the Board has consistently linked the prohibition to "the combination of the fines payable bylaw with the union security clause."3 Indeed, it is the continued threat of job loss inherent in a union-security clause that renders ' 243 NLRB 53 (1979), enfd 665 F 2d 376 (D C Cir 1981) z See Laborers Local 1445 (Badger Plants), 266 NLRB 386 (1983), cf Teamsters Local 980 (Neilson Freight), 249 NLRB 46 (1980) 3 Laborers Local 1445, supra at 386 PLUMBERS LOCAL 460 the fines-payable clause coercive because employ- ees reasonably assume that the union acting to en- force the latter will seek their discharge under the former. Thus, in San Francisco Elevator, the U.S. Court of Appeals for the District of Columbia Cir- cuit concluded in enforcing the Board 's Order' We find it similarly reasonable for the Board to determine that a union security clause con- joined with a fines payable bylaw may induce unsophisticated employees to fear they will lose their jobs if they do not pay their fines.4 [Emphasis added.] Expunction from governing documents is only an appropriate remedy for this violation if all Local 460 members subject to the fines-payable clause were either covered by a contract containing a union-security provision or potentially covered under such an agreement by their dispatch from the Union's hiring halls-inferences that cannot be drawn from this record . Thus, expunction is un- warranted as section 166(c) can be construed not to run afoul of Section 8(b)(1)(A).6 In San Francisco Elevator, 248 NLRB 951 (1980), the Board , on motion for reconsideration, reaf- firmed its original decision ? finding mere mainte- nance of a fines-payable rule violated Section 8(b)(1)(A) and ordering expunction . The decision's circular reasoning that prohibition of mere mainte- nance of the rule was supported by the "implicit threat imposed by the coordinated operation of Re- spondent's rule and a union-security clause" merely begged the question why the rule was facially in- valid rather than answered it. Thus, I would over- rule San Francisco Elevator to the extent that it looks to a local's unlawful application of provisions in governing documents to justify their expunction. 4 665 F 2d at 386 s See General Truck Drivers Local 980, supra at 46 6 See Scofield v NLRB, 394 U S 423 ( 1969) My colleagues' reliance on Auto Workers Local 73 (McDonnell Douglas), 282 NLRB 466 ( 1986), is misplaced as there the restriction on resignations the Board ordered ex- punged was facially invalid and unenforceable Thus, mere maintenance of such a constitutional provision in the local's governing documents re- strained and coerced any employee who may have been unaware of the provision 's unenforceability Nor may the Respondent 's maintenance of this rule be analogized to an overly broad employer no-solicitation ban, see Engineers & Scientists Guild (Lockheed- California), 268 NLRB 311 (1983), as, unlike here , a threat to employment is always implicit in any employer regulation of employee conduct 7 243 NLRB 53 (1979) APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 789 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 refuse to accept the dues pay- ments of our members or any other employees unless they discharge their entire indebtedness to us, including the repayment of loans and other as- sessments. WE WILL NOT remove the names of members or any other employees from our hiring hall out-of- work lists for reasons other than their failure to tender periodic dues and initiation fees, uniformly required as a condition of acquiring or retaining membership including the repayment of loans and other assessments. WE WILL NOT in any like or related manner re- strain or coerce employees, members, job appli- cants, or registrants in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL remove from our governing docu- ments the portion of section 166(c) of the U.A. constitution to the extent it provides "National and Local assessments, disciplinary assessments and loans are payable before dues." WE WILL make Bruce E. Graham whole, with interest, for any wages and benefits he may have lost as a result of our unlawful removal of his name from the hiring hall pipefitters ' out-of-work list. LOCAL UNION 460 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA Benard T Hopkins, Esq., for the General Counsel. Eugene Miller, Esq. (Miller & Sincoff), of Seaside , Califor- nia, for the Respondent. DECISION STATEMENT OF THE CASE BURTON LITVACK, Administrative Law Judge Bruce E Graham, an individual, filed the underlying unfair labor practice charge in the above-captioned matter on October 31 , 1985.1 Based on the charge, the Regional Director of Region 31 of the National Labor Relations i Unless otherwise stated , all events here occurred during calendar year 1985 790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Board (the Board), issued a complaint on December 12, 1985, alleging that Local Union 460 of the United Asso- ciation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (Respondent), engaged in acts and conduct violative of Section 8(b)(1)(A) and (2) of the National Labor Rela- tions Act (the Act). Respondent timely filed an answer, denying the commission of any unfair labor practices. The hearing in this matter was tried before me in Bakers- field, California, on February 6, 1986. At the hearing, all parties were afforded the opportunity to examine and cross-examine witnesses, to offer into the record all rele- vant evidence, to argue their legal positions orally, and to file posthearing briefs. The documents were filed by both counsel for the General Counsel and counsel for Respondent and have been carefully considered. Accord- ingly, based on the entire record here, including the posthearing briefs and my observation of the demeanor of the witnesses,2 I make the following FINDINGS OF FACT I JURISDICTION The complaint alleges that the Plumbing and Mechani- cal Contractors Association of Kern, Inyo, and Mono Counties, Inc. (the Association), is a multiemployer asso- ciation, comprised of various employers engaged in the building and construction industry whose principal of- fices and places of business are in Kern, Inyo, and Mono Counties, California, which exists, in part, for the pur- pose of negotiating, executing, and administering collec- tive-bargaining agreements on behalf of its employer- members with the collective-bargaining representatives of their employees, including Respondent. The parties stipulated that one such employer-member of the associa- tion is McCullough Mechanical, Inc., which has an office and principal place of business in Palmdale, California, and that McCullough Mechanical, Inc annually pur- chases and receives goods and services valued in excess of $50,000 either directly from suppliers located outside the State of California or directly from suppliers located within the State of California and receive goods and services in the same form from outside California It. LABOR ORGANIZATION Respondent admits that , at all times material, it has been a labor organization within the meaning of Section 2(5) of the Act. 111. THE ISSUES The issues3 here concern Respondent's refusal to accept dues payments from Graham and its removal of 2 The only witness at the hearing was Charging Party Graham, and I must state that I was singularly unimpressed with not only his ability to recall the particulars of pertinent conversations and events but also his demeanor while testifying Nevertheless, obviously cognizant that Graham was the sole witness, I have taken his account of the conversa- tions and events, pointing out significant contradictions and inconsisten- cies where warranted, as the correct version Respondent's motion to correct the transcript here is granted 3 The complaint alleges that the union-security clause, sec 3, of the existing collective-bargaining agreement, effective from July 1, 1984, to the latter's name from the appropriate hiring hall out-of- work list about October 29 and whether the acts were undertaken for reasons other than the Charging Party's failure to tender periodic dues and initiation fees uni- formly required as a condition of acquiring and retaining membership in Respondent-in violation of Section 8(b)(1)(A) and (2) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The record established that Charging Party Graham lived in Bakersfield, California, from 1972 until Decem- ber 1985; that he became a member of Respondent in November 1978 and worked as a journeyman piperfitter; and that, between 1978 and November 1985, he utilized Respondent's hiring hallo "exclusively" as a source of employment. Graham was laid off from a job on April 10, and, later that month, he went to Respondent's office, registering on the pipefitters' out-of-work list and paying a monthly dues delinquency for the period January through March. The record further establishes that Graham was umemployed from April 10 through Octo- ber 29 and that, during that entire time period, he was delinquent in his monthly dues, making no such pay- ments to Respondent for any of those months. In addi- tion, on April 22, Graham applied for and received a $200 loan from Respondent's general fund. The loan became due and payable "within ninety (90) days from the date" on which the Charging Party executed the promissory note and received the money, and, among the loan conditions, was the following: "As per the U.A. Constitution, Section 166(c), `National and Local assess- ments, disciplinary assessments and loans are payable before dues."' There is no dispute that Graham failed to repay to Respondent any of the borrowed money On October 1, Graham was expelled from its membership by June 30, 1987, between the Association and Respondent, requires work- men, as a condition of employment, to become members of Respondent not later than 7 days following the beginning of employment and that the language fails to provide the 7 full days allowed by the Act in violation of Sec 8(b)(I)(A) and (2) of the Act Respondent admitted the past exist- ence of such a contract provision but denied the alleged legal conse- quences At the hearing, counsel for Respondent represented that the above provision had been amended by the contracting parties to require membership in Respondent not later than 8 days following the com- mencement of employment Counsel for the General Counsel accepted this representation and stated that the complaint allegation was a "non issue" and that he would not request a remedy for the allegation Based on the foregoing, as it would not effectuate the policies and purposes of the Act to find that previous contractual language unlawful, I shall rec- ommend that the complaint be dismissed insofar as it alleges that Re- spondent violated Sec 8(b)(1)(A) and (2) of the Act by maintaining and enforcing an unlawful contractual union-security provision and treat the union-security clause as being lawful at all times material 4 Respondent admitted that, pursuant to its existing collective-bargain- ing agreement with the Association, it maintains and operates an exclu- sive hiring procedure whereby it exercises the exclusive authority to refer employees for employment to the various employer-members, including those who adopt the agreement between the Association and Respondent on a single employer basis Under the exclusive job referral procedure, Respondent is required to maintain separate out-of-work lists for each job classification, with dispatches from the lists done "in numerical sequence of seniority " Finally, an employer may request "SO percent of his man- power" by name and, thereby, bypass the formal procedure PLUMBERS LOCAL 460 Respondent ostensibly "for (6) months nonpayment of union dues " In early July, the Charging Party received a letter dated July 2 from Jeff Bryson , Respondent's business manager and financial secretary . It read as follows: According to our records, your membership dues through Local #460 are currently paid through the month of 3/85, being 4 months delinquent Please note that six (6) months delinquency con- stitutes expulsion from the Union . Please contact our office immediately upon receipt of this notice, if you wish to keep your membership in Local #460.5 In early August, Graham received a similar letter from Bryson , informing him that he was now 5 months delin- quent in his monthly dues. Shortly thereafter, he re- ceived a "statement of account," dated August 12, from Respondent , informing the Charging Party that, as of that date, he owed $419 to Respondent. The total was composed of the following charges : $ 151 in delinquent dues, $18 in death benefits; the $200 outstanding loan; and a $50 reinstatement fees, With regard to the $200 loam payment , the "statement of account" read, "Loan due in full before dues." A few days after receipt of the latter document, Graham placed a telephone call to Respondent 's office in order to speak to Don Park , a business agent' The im- portance of what was said during their ensuing conversa- tion is manifest, however, it must be noted that the Charging Party's testimony regarding it was inconsistent and contradictory . He initially testified that , after being connected with Park, "I asked Don if I could maybe pay some . . how much I could pay of this to get me off the hook , he said he would get back to me." A few min- utes later, "he returned my call .. . he said that it would have to be paid in full . . . . We can't got with a partial either on the dues or the [loan] and the $50.00 is going to the point where it's the full $419.00." Graham told Park that he had a job opportunity in San Jose and asked if there was some way he could get a travel card so that "I can get my head above water, maybe in that area." Park failed to respond , and the conversation ended . 8 During 5 The parties stipulated that after a 6-month dues delinquency , an indi- vidual is expelled from membership in Respondent ti Graham stated that he understood the death benefits assessment as one regularly required when members die Likewise, he was aware that Respondent assesses a $50 reinstatement fee to members who are delin- quent in dues payments The parties stipulated that such is regularly as- sessed 90 days after a delinquency 7 Respondent admitted Park 's status as its agent within the meaning of Sec 2(13) of the Act 8 Graham understood that "the loan had to be paid before the dues could be accepted ", he referred to the $419 figure as the "total package" and understood that, when Park refused to accept a partial payment, "he was referring to the dues , to the $50 00 reinstatement fee and the $200 dollar loan " Graham averred that he was , at all times, "financially unable to come up with $200 for the loan I could have made $30 00 dues payments I was asking for help to alleviate or to hold in check the expulsion " He added that " I wanted to make a payment either the loan or the dues whatever would take [so] I might have been able to leave the area on a travel card " I asked the Charging Party if he specified what his partial payment was, and he replied, "No, I just asked for help " 791 cross-examination, the Charging Party initially claimed that he specifically offered to pay 1 month 's dues-he told Park, "I can probably . come up with a month or so, I cannot come up with $419, it's impossible."9 Later, asked again what he offered to pay, Graham an- swered ". . . I told him I could not come up with the full, I said if I looked and asked friends I might come up with some of it, I didn't give him a specific amount," He added that he offered to pay "part of the total not the dues but the whole package" and denied offering to pay $30 in dues. However, after being shown his pretrial affidavit, Graham admitted stating that he offered to pay $30 as such was all "I could probably muster up," with the payment constituting 1 month 's dues. Graham testified that , subsequent to the above tele- phone conversation, and through October 1 , he visited Respondent's office "once or twice weekly" as "I was trying to save my membership." On one such occasion in early September, he spoke to Park in the latter 's office, and "I asked if it was possible that I could get some help where I would be allowed to travel to the San Jose area. . . And I was told my dues had to be paid current before a card could be issued ." The Charging Party added that all his conversations with Park prior to Octo- ber 1 were identical regarding his dues delinquency-"it had to be paid in full .. There could be no partial payment upon it " Later during direct examination, Graham contradicted himself as to what payment Re- spondent was requiring-"The body of my conversations with Mr . Park is always . . . the same each time I came to his office asking for help . . . and the answer was the same . . The answer was the payment in full . . it was the $419 00 . . . in full, the payment had to be made in full." Asked to be more specific , Graham stated that Park demanded the "total package" and not just payment of the existing dues delinquency . During cross-examina- tion, Graham averred that these several conversations concerned both traveling out of Respondent 's territorial jurisdiction and forestalling expulsion-"our conversa- tion went in both areas, to travel to try to . . . sustain myself and to forestall [explusion] " One conversation, in particular, concerned the latter subject and occurred "near the end." Graham told Park that his wife was to enter a hospital and that his health insurance was about to lapse. "She has to be in the hospital , I've got to have insurance, I've to work to keep it into effect . How long would keeping my dues from . . . going into expulsion And there's nothing that his office could do for me . . . because the [sic] not work being let in the area." Finally, as in the August telephone conversation , he assertedly 9 Graham testified that it was a practice of Respondent 's members, in order to avoid payment of the $50 reinstatement fee, to make a month's dues payment after being delinquent for the 3 previous months inasmuch as the reinstatement fee normally was assessed after the fourth month of delinquency He claimed that this practice did not have Respondent's sanction, but "this is an individual effort on each member that pays dues, they are constantly sent letters , you'll be in arrears, your reinstatement fee will be charged to you So you come in and you pay up, you bring it up to where they cannot levy the fine, is what I'm saying " Fur- ther, Graham asserted that had Park accepted his tender of a $30 dues payment, (Graham) "would have put off" explusion "till another month " 792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD continually offered to pay "part of the total . not the dues but the whole package." During September and October, Graham continued to receive notices of his indebtedness and the consequences of such from Respondent. In September, he received a letter, dated September 4, from Respondent's finance committee, informing him that his $200 loan had been given for a period of 90 days and that his "regular union dues will not be accepted until your loan is paid in full." Graham next received a letter, dated 2 days later, from Business Manager and Financial Secretary Bryson, in- forming him that he was 6 months delinquent and warn- ing in large capital letters "IF PAYMENT IS NOT RE- CEIVED BY 9/30/85, YOU WILL GO EXPELLED FOR NONPAYMENT OF DUES." In October, the Charging Party received another letter regarding the unpaid loan, i 0 and, as a followup to the above-stated warning, he received a letter, dated October 1, from Bryson, the letter stating that Graham had been expelled from membership in Respondent "for (6) months nonpay- ment of union dues." Subsequent to his explusion from membership, on Oc- tober 29, Graham went to Respondent's office "to see if I still was on the out of work list or if I had been ex- pelled from it." He discovered that his name was number 42 or 43 on the pipefitters' list but,that "my name had been penciled through and to the right hand side were the letters in ink, expelled " Angered, Graham tore the sheet of paper from the referral list and went into Park's' office. He asked the business agent why his name had been removed from the out-of-work list; Park pointed to the October 1 letter, saying Graham had been expelled for nonpayment of dues. Although it is clear Graham's name had been removed from Respondent's dispatch lists, there is no record evidence that he would ever have been dispatched subsequent to October 29 B. Analysis Crediting, as I do, Bruce E Graham's uncontroverted version of the events here, the conclusions are mandated that what Respondent, at all times, sought from the Charging Party was the payment of his entire indebted- ness to Respondent, that the latter's eventual actions against Graham were motivated by his failure to dis- charge the debt, and that Graham's 6-month dues delin- quency and his unrepaid $200 loan from Respondent were- inextricably intertwined by the conduct of the latter. Thus, while seemingly separate debts, the delin- quent dues payments and the unrepaid loan were linked by Respondent's constitutional provision, set forth on Graham's promissory note, requiring payment of the loan before dues payments are credited, by documents sent to the Charging Party by Respondent, and by the com- ments of its admitted agent Park. Regarding the corre- spondence sent to Graham, he received, in August, a "statement of account," setting forth his entire indebted- ness (a sum totaling $419 and including the delinquent dues, the unrepaid loan, and a death benefits assessment), from Respondent. Further, in that document and subse- 10 The letter again advised Graham that the loan had to be repaid in full" before regular dues would be accepted by Respondent quent letters, received by Graham in September and Oc- tober and never disavowed by Respondent, the latter in- formed Graham that any dues payments by him would not be accepted until the $200 loan amount was repaid "in full " Regarding the statements of Park, during the August telephone conversation and subsequent fact-to- face meetings with Graham, the former confirmed Re- spondent's position that what it required from Graham "to get [him] off of the hook" was payment of the entire $419 and that no partial payment-be it a month's dues or some other amount-in lieu thereof would be accept- ed i i In these circumstances, while the eventual striking of Graham's name from the hiring hall pipefitters' out-of- work list seemingly resulted from his expulsion from membership in Respondent, which act was linked to his 6-month dues delinquency, the conclusion is warranted that the underlying motivation-and what Respondent actually was 'seeking from Graham-was his entire in- debtedness, including the unrepaid loan. 12 In discussing the relevant Board law pertaining to mat- ters of this type, it is important to note that the existing collective-bargaining agreement between the Association and Respondent, pursuant to which the latter operates an exclusive employee fob referral system for the Associa- tion's employer-members and for other employers who adopt the terms of the above contract, contains standard building and construction industry union-security clause, under which Respondent may utilize the "continuing threat of job loss to exert pressure on an employee to maintain . . membership status." Elevator Constructors Local 8 (San Francisco Elevator Co.), 248 NLRB 951 (1980), enfd. 665 F.2d 376 (D.C. Cir 1981) This power is not without limitations. Thus, "both Section 8(a)(3) and 8(b)(2) of the Act make clear . that the job-relat- ed threat inherent in union-security agreements must ad- dress only `the failure of the employee to tender periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership."' Id. Laborers Local 1445 (Badger Plants), 266 NLRB 386 (1983); Brick- layers Local 11-(Rochester Floors), 221 NLRB 133 (1975). Clearly, then, Respondent would have been privileged to have sought the removal of Graham from any job, to which he had been dispatched, based solely on his failure to pay his delinquent membership dues. Rather than pur- 11 Respondent's counsel's motion, at the hearing, to strike Graham's testimony, regarding his August telephone conversation with Park, as being outside the parameters of par 10(b) of the complaint is granted to the extent it is contended that, in the conversation, Graham requested that Respondent accept a partial payment of his membership dues Al- though the Charging Party tendered a partial payment of some amount and Park rejected it and insisted on receiving a payment encompassing Graham's entire debt, it is utterly impossible, given the latter's contradic- tory testimony, to conclude that he offered to pay a portion of his delin- quent dues in any event, the allegations of par 10(b) of the complaint appear to be established by Respondent's letters and other documents that were sent to, and received by, Graham 'Z Set forth next to his stricken name on the out-of-work list was the word "expelled" and such leads to the inevitable conclusion that Gra- ham's expulsion from membership resulted in his name being removed Therefore, while it would normally follow that whatever caused his ex- plusion from membership in Respondent also was the rationale for strik- ing his name from the out-of-work list, I believe Park was, in reality, ob- fuscating Respondent's actual motivation, Graham's failure to discharge his entire indebtedness PLUMBERS LOCAL 460 793 suing this procedure, Respondent chose to remove the Charging Party's name from its pipefitters' out-of-work list, and it is well settled that Respodonent could proper- ly "implement [its] union-security agreement by a hiring practice which requires the payment of [delinquent dues] before referral of an applicant who already had his grace period"' 3 Ladies Garment Workers Local 55 (Mayfair Coat & Suit Co), 140 NLRB 1333, 1335 (1963) Further, such lawful hiring practices could include a refusal to register a delinquent member for dispatch. Cf. Seafarers Atlantic District (Isthmian Lines), 202 NLRB 657, 658 (1973). However, the converse must also be true. That is, if Respondent was not privileged to implement the con- tractual union-security clause to seek Graham's removal from a job, it could not then, implement the said provi- sion by removing his name from the appropriate hiring hall out-of-work list, thereby refusing to dispatch him to work in the first instance. Seafarers, supra. As to this, it is well established that a threat of employment loss or, as here, a refusal to register for dispatch, pursuant to a union-security clause, cannot be based on the nonpay- ment of union fines or assessments or be utilized to compel the payment of unliquidated debts, such sums being beyond periodic membership dues and initiation fees. Laborers Local 1445, supra; Elevator Constructors Local 8, supra, Bricklayers Local 11, supra at 137-138 I have previously concluded that Respondent's dis- guised motivation in removing Graham's name from the pipefitters' out-of-work list was his failure to repay his total indebtedness, including his unrepaid $200 loan, and not merely the delinquent dues payments and that the October 1 letter and Business Agent Park's comments on October 29, which attributed the actions taken against Graham solely to his dues delinquency, were attempts at obfuscation. In this regard, the instant matter is similar to Bricklayers Local 11, supra, wherein the Board concluded that a labor organization violated Section 8(b)(l)(A) of the Act by requiring an individual to pay a new member- ship initiation fee when his previous loss of good-stand- ing membership was attributable to the labor organiza- tion's refusal to accept dues until he paid an unliquidated debt While, unlike herein, said debt was owed to a third party, the situations are clearly analogous inasmuch as the union therein and Respondent here would not accept the payment of dues until the unliquidated debts were entirely satisfied and as contractual union-security provi- sions were invoked for failure to pay the debts. Based on the foregoing, I find that the General Counsel has estab- lished that Respondent engaged in conduct violative of Section 8(b)(1)(A) and (2) of the Act. II In defense, counsel for Respondent initially asserts that Graham's name was removed from the pipefitters' out-of- work list by Respondent "because of non-payment of 13 Inasmuch as Graham had been a member of Respondent since 1978 and continually utilized its hiring hall until October 1985, the inference is warranted that he already had his statutory grace period 14 The removal of Graham's name from the pipefitters' out-of-work list by itself constitutes a violation of Sec 8(b)(l)(A) and (2) of the Act It is irrelevant that there may have been no jobs available at the time Gra- ham's name was removed fiom the list Operating Engineers Local 370 (Associated General Contractors), 224 NLRB 641, 645 (1976), Utility & In- dustrial Construction Co, 214 NLRB 1053 (1974) dues, not non-payment of the loan " Indeed, if one only considerd the October 1 letter, such a conclusion might have some factual basis; however, the record as a whole mandates the conclusion, which I have reached above, that Respondent engaged in the foregoing act based on the Charging Party's total debt, including the unrepaid $200 loan Respondent's own correspondence to Graham and the uncontroverted comments attributed to Business Agent Park by the former were conclusive on this point Counsel next argues that, if Respondent's application of the contractual union-security clause against Graham was proscribed by Section 8(b)(1)(A) and (2) of the Act, "at the very least, a tender of uniformly required dues and initiation fees [was] required" on his part In this regard, noting that Graham failed to tender even a month's dues payment prior to the levy of the $50 rein- statement and that he admitted not being able to afford tendering the entire delinquency amount, counsel asserts in his posthearing brief that the futility of a tender by Graham is a nonissue in these circumstances as he "was not deterred from making a tender because of any appar- ent futility to do so caused by the Union, but be- cause of his own inability to make proper dues tender " Contrary to counsel, in the instant factual context, as I believe that Graham had no monetary obligation to Re- spondent for the time period April through October, the matter of whether a tender by him was required is irrele- vant. Thus, the Board has consistently held that a labor organization violates the Act when it causes the dis- charge of an employee for nonpayment of dues during a period of time, such as when he is unemployed, when the union could not lawfully compel membership as a condition of employment Painters Local 277 (Webb New Jersey), 278 NLRB 169, 171 (1986), Teamsters Local 600 (Spector Freight System), 123 NLRB 43 (1959). Here, there is no dispute that Graham was unemployed during the entire period of his dues delinquency In Carolina Drywall Co, 204 NLRB 1091 (1973), an individual who was a member of a labor organization was laid off from work for a period of 3 months during which time he paid no membership dues, nor did he tender any, to the labor organization. On the individual's recall to work, the former, based on the union-security provision of its collective-bargaining agreement with the employer, sought his termination for the nonpayment of dues that had accrued while the individual was in layoff status. Notwithstanding that the individual had never made a tender of his delinquency, the Board concluded that seeking the payment of dues, under the threat of job loss, for a period during which he was unemployed contra- vened the Act. this was so as he was under no statutory obligation to maintain his union membership for that time period Id at 1094-1095 The same considerations, I believe, apply here, and Graham was under no compul- sion to pay membership dues to Respondent from April until his name was removed from the pipefitters' out-of- work list at the end of October-during which time he was on layoff status.15 Accordingly, the matter of a 15 That Graham was, at all times, registered on Respondent's hiring hall out-of-work list is irrelevant 794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tender of part of his entire dues delinquency is not a rele- vant consideration in these circumstances.'i 6 Based on the foregoing, I find that Respondent en- gaged in conduct violative of Section 8(b)(1)(A) of the Act when it precluded the payment of any membership dues payments until Graham discharged his entire in- debtedness, including the unrepaid $200 loan, and that Respondent engaged in conduct violative' of Section 8(b)(1)(A) and (2) of the Act when it removed Graham's name from the appropriate out-of-work list on October 29 for the same reason. CONCLUSIONS OF LAW 1. The Association and its employer-members are em- ployers engaged in commerce and' in business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The existing collective-bargaining- agreement be- tween the Association and Respondent contains a union- security provision and establishes a hiring and job refer- ral system whereby Respondent administers, and exer- cises, the exclusive authority to refer employees to the various employer-members of the Association and to other nonmembers, who adopt the above, agreement on a single-employer basis. 4. In the circumstances of paragraph 3 above, by pre- cluding Bruce E. Graham's payment of a dues delinquen- cy until he paid an entire indebtedness, including an un- repaid loan, Respondent engaged in conduct violative of Section 8(b)(1)(A) of the Act. 5. In the circumstances of paragraph 3 above, by re- moving Bruce E. Graham's name from its hiring hall out-of-work list on October 29 based on his entire in- debtedness, including an unrepaid loan, Respondent en- gaged in conduct violative of Section 8(b)(1)(A) and (2) of the Act. 6. The above-described unfair labor practices have a substantial effect on interstate commerce. -7 Unless specifically found, Respondent engaged in no unfair labor practices. THE REMEDY Having determined here that Respondent engaged in certain unfair labor practices within the meaning of Sec- tion 8(b)(1)(A) and (2) of the Act, I shall recommend that Respondent be ordered- to cease and desist there- from and to take affirmative action in order,to effectuate the policies of the Act. In particular, having found that Respondent unlawfully removed Bruce E. Graham's 16 Assuming arguendo the relevancy of a tender by Graham of his dues delinquency to Respondent , I note that he did offer to make some sort of a "partial" payment in August but that Park informed him that Respondent would take nothing less than payment of his entire indebted- ness, including the unrepaid loan amount and unpaid death assessments Thus, while it is true that Graham was unable to tender the entire dues delinquency, it is also true that such would not have been accepted by Respondent in lieu of payment of the entire $419 Therefore, the tender truly would have been futile and, therefore, unnecessary Finally, I note that there is no allegation by Respondent that Graham acted as a "free rider " name from the hiring hall pipefitters' out-of-work , list, 17 I shall recommend that Respondent `be ordered to make him whole for any loss of wages and benefits he may have suffered from,the date Graham would have been next dispatched until the date of completion of the job to which he would have been dispatched. Backpay shall be computed in the manner set forth in F W,' Woolworth Co., 90 NLRB `289 (1950), with interest thereon as pre- scribed in Florida Steel Corp., 231- NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1962) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed1s ORDER The Respondent, Local Union 460 of the United Asso- ciation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Bakersfield, California, its officers, agents, and represent- atives, shall 1. Cease and desist from (a) Refusing to accept dues payments from members or any other -employees unless they discharge their entire indebtedness to Respondent, including the repayment of a loan and other assessments. (b) Removing the names of members and any other employee from its hiring hall out-of-work lists for rea- sons other than their failure to tender periodic dues and initiation fees, uniformly required as a condition of ac- quiring or retaining membership in Respondent, includ- ing the repayment of a loan and other assessments. (c) In any like or related manner restraining or coerc- ing employees, members, job applicants, or registrants in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. t9 (a) Make Bruce E. Graham whole, with interest, for any wages and benefits he may have lost as a result of the removal of his name from the hiring hall pipefitters' out-of-work list about October 29, 1985 (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all hiring records, dispatcher lists, referral cards, and other documents necessary to analyze and compute the amount of backpay due to Graham. 1' 1 have previously concluded that it was not necessary for the Gen- eral Counsel to establish that an actual job, to which Graham was eligible for dispatch, existed See fn 14, above 18 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 19 The General Counsel requests an order that includes a visitatonal provision Without deciding on the merits of such, I note that such is not included in the standard Board orders in unfair labor practice cases of this type and believe that it is solely within the province of the Board to order the inclusion of such a provision Accordingly, I shall not rule on this request, believing such is more properly presented to the Board In any event, par 2(b) of the Order seemingly disposes of the need for the requested provision PLUMBERS LOCAL 460 (c) Remove from its files any reference to the removal of Graham's name from the out-of-work lists and notify him, in writing, that this has been done and that evidence of Respondent's conduct shall not be used as a basis for future action against him (d) Post at its business offices, hiring hall, and meeting places in Bakersfield, California, copies of the attached notice marked "Appendix "20 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent's authorized repre- 20 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 " 795 sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members and employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint be, dis- missed insofar as it alleges that the union-security clause in the collective-bargaining agreement, between the As- sociation and Respondent, is violative of Section 8(b)(1)(A) and (2) of the Act