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

National Labor Relations Board - Board Decisions

Jan 22, 1987

282 N.L.R.B. 812 (N.L.R.B. 1987)

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