204 N.L.R.B. 1091 (N.L.R.B. 1973)

Carolina Drywall Co.

National Labor Relations Board - Board DecisionsJul 13, 1973

204 N.L.R.B. 1091 (N.L.R.B. 1973)

CAROLINA DRYWALL CO. William Blackwell , d/b/a Carolina Drywall Company and Richard M. Starks International Brotherhood of Painters and Allied Trades, Local Union No. 6, AFL-CIO and Richard M. Starks.' Cases 6-CA-6283 and 6-CB-2395 July 13, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On February 27, 1973, Administrative Law Judge James V. Constantine issued the attached Decision in this proceeding . Thereafter , Respondents filed excep- tions, and the General Counsel filed limited cross- exceptions and a brief in answer to Respondents' ex- ceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three -member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings ,2 findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein? ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Interna- tional Brotherhood of Painters and Allied Trades, Lo- cal Union No. 6, AFL-CIO, Pittsburgh, Penn- sylvania, its officers, agents, and representatives, and Respondent, William Blackwell, d/b/a Carolina Dry- wall Company, Turtle Creek, Pennsylvania, its offi- cers , agents, successors, and assigns , shall take the action set forth in the Administrative Law Judge's Order, with the following modifications: 1. Add the following as paragraph (c) in A 2 and reletter the subsequent paragraphs accordingly: i Herein called Starks. 2 Respondent Employer also excepted to the Administrative Law Judge's denial of its motion to reopen the hearing or to permit taking a deposition from Paul Huhn , an official of the Employer, for the purpose of rebutting certain testimony presented by the General Counsel' s witnesses . We find that the motion was properly denied as the record shows that Huhn was present at the hearing and the Employer declined to avail itself of the opportunity to use him as a witness. 3 We find ment in the General Counsel 's exceptions to the Administrative Law Judge's failure to recommend that the Union refund to Starks the initiation fee of $275 which he was required to pay as a condition of contin- ued employment. We shall therefore amend the Order accordingly. See Inter- national Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge 590 (Wayne Manufacturing Company), 195 NLRB 514 1091 "(c) Refund to Richard M. Starks the initiation fee of $275 paid by him as a condition of continued employment after he was dropped from the Union in 1972." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice marked "Appendix A." APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause William Blackwell, d/b/a Carolina Drywall Company, or any other employer, to discriminate against em- ployees in regard to their hire or tenure of em- ployment, or any term or condition of employ- ment, in violation of Section 8(a)(3) of the Labor Management Relations Act. WE WILL NOT enforce any provision of our constitution or bylaws in such a way as to condi- tion employment upon the payment of dues which may not lawfully be required as a condi- tion of employment. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of the rights guaranteed to them under Section 7 of said Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment , as authorized in Section 8(a)(3) and (f) of the Act. WE WILL refund to Richard M. Starks the initi- ation fee paid by him as a condition of continued employment. WE WILL jointly and severally with William Blackwell , d/b/a Carolina Drywall Company, make Richard M. Starks whole for any loss of pay he may have suffered as a result of the dis- crimination against him. INTERNATIONAL BROTHER- HOOD OF PAINTERS AND ALLIED TRADES, LOCAL No. 6, AFL-CIO (Labor Organization) Dated By (Representative) (Title) 204 NLRB No. 150 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 1536 Federal Building, 1000 Liberty Ave., Pittsburgh, Pennsylvania 15222, Telephone 412 -644-2977. DECISION STATEMENT OF THE CASE JAMES V . CONSTANTINE , Administrative Law Judge: These are two unfair labor practice cases prosecuted under the provisions of Section 10(b) of the National Labor Relations Act, herein called the Act. 29 U .S.C. 160(b). Case 6- CB-2395 was commenced by a complaint issued on Sep- tember 29 , 1972, against International Brotherhood of Painters and Allied Trades , Local Union No. 6, AFL-CIO, by the General Counsel of the National Labor Relations Board, herein called the Board , through the Regional Direc- tor of the Sixth Region (Pittsburgh , Pennsylvania). Case 6-CA-6283 was commenced by a complaint issued on Oc- tober 4, 1972 , by said Regional Director against William Blackwell , doing business as Carolina Drywall Company. On October 4, 1972 , said cases were consolidated for pur- poses of trial. In each case the charges were filed by Richard M. Starks . In Case 6-CB-2395 a charge and an amended charge were filed on May 25 and September 29, 1972, re- spectively . In Case 6-CA-6283 the charge was filed on Au- gust 28, 1972. In substance the complaint in Case 6-CB-2395 alleges that Local No. 6 violated Section 8(b)(1)(A) and (2), and that in Case 6-CA-6283 that Carolina Drywall violated Section 8(a)(1) and (3), of the Act, and that the conduct of each Respondent affects commerce within the meaning of Section 2(6) and (7), of the Act. Each Respondent has an- swered admitting some facts but denying that it committed any unfair labor practices. Pursuant to due notice this consolidated case came on to be heard , and was tried before me , at Pittsburgh , Pennsylva- nia, on December 6, 1972 . All parties were represented at and participated in the trial , and had full opportunity to introduce evidence , examine and cross-examine witnesses, submit briefs , and offer oral argument . Blackwell 's motion to dismiss and the motion of Local No . 6 to dismiss, both made when the General Counsel rested , were denied with- out prejudice to being reconsidered in my Decision. A brief has been received from Local No. 6. The General Counsel's motion to correct the transcript is hereby granted in the absence of opposition thereto. This consolidated case presents the following issues: A. Whether Local Union No. 6: (1) Engaged in conduct restraining or coercing employ- ees contrary to the provisions of Section 8(b)(1)(A) of the Act; and (2) Attempted to and did cause Respondent Employer to discharge Richard M. Starks for reasons not permitted by the Act. B. Whether Respondent Employer unlawfully dis- charged said Starks. Upon the entire record in this case , and from my observa- tion of the demeanor of the witnesses , I make the following: FINDINGS OF FACT I AS TO JURISDICTION Carolina Drywall Company , a sole proprietorship operat- ed by William Blackwell, is engaged at Turtle Creek, Penn- sylvania , as a contractor in constructing commercial gypsum and drywall interiors . During the year preceding the issuance of the complaint Blackwell received in excess of $50 ,000 for services he performed for companies directly engaged in commerce . I find that said Blackwell is an em- ployer within the meaning of Section 2(2), and is engaged in commerce within the meaning of Section 2(6) and (7), of the Act , and that it will effectuate the purposes of the Act to assert jurisdiction over both Respondents in this proceed- ing. II THE LABOR ORGANIZATION INVOLVED Local No. 6, also called the Union herein , is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES It was stipulated that Lattner, Hunter , and Blackwell, the latter the owner of Carolina Drywall, are supervisors within the meaning of the Act , and that Huhn is Blackwell's pur- chasing agent , controller , and office manager. A. General Counsel's Evidence Carolina Drywall , although not a member of Painting and Decorating Contractors of America, signs a contract identical to that signed by such association with Local No. 6. (See General Counsel 's Exhibit 6.) It covers painters on the jobsite described below. Finishers on, said jobsite are covered by a contract between Local No. 6 and Tri-State Gypsum Drywall Contractors Association Incorporated. (See G .C. Exh. 7.) article 1 , section 6 , of General Counsel's Exhibit 6 provides that painting employees on the jobsite must become members of Local No. 6 "on or after the seventh day following the beginning of such employment." Richard Gipperich , a business representative of Local No. 6, testified that Starks was a dues paying member of such union for the first 9 months of 1971. In May 1972, Gipperich told Starks that the latter had been dropped from said Local as of March 31, 1972, for nonpayment of dues for 6 months , and that this had to be "straightened up with the Union." When Starks replied that he could not raise the money for from 2 to 4 weeks, Gipperich suggested that Starks ask the Executive Board "to see what they could do with him." Gipperich also told Starks to "make a new appli- cation . . . and pay a new initiation fee." Sometime later Starks did have a meeting with said Exec- CAROLINA DRYWALL CO. utive Board . Gipperich was also present on that occasion. At this time Starks was informed to pay an initiation fee, but back dues were not mentioned, according to Gipperich. In his affidavit to the Board agent , however , Gippench averred that at the Executive Board meeting Starks was informed that, "in order to be reinstated , he [Starks ] would again have to pay the initiation dues and also pay the $32 in back dues which he still owed ." Further , although the initiation fee was $275, Starks was told he could accompany his new application with $100 and pay the remainder of the initia- tion fee in installments. Gerald S. Lattner, financial secretary of Local No. 6 and an officer of its Executive Board , testified that union dues are payable quarterly and must be paid by the twentieth day of the first month of each quarter . When a member is 3 months behind in his dues he is then suspended ; but when he is delinquent for 6 months he is dropped from member- ship . When suspended , he may apply for reinstatement upon tendering a $5 reinstatement fee together with back dues for the quarter involved. When a member is dropped he may renew membership by paying an initiation fee and the dues only for the quarter immediately preceding his readmission to the Union. Starks had not paid dues for the last quarter in 1971 and the first quarter in 1972. Thus Starks had to pay dues for the last quarter of 1971, amounting to $32, plus an initiation fee of $275 to become a member of the Union after he was dropped in 1972. Starks did become a new member of Local No. 6, as he complied with the foregoing conditions after he was dropped from the Union in 1972. In March 1972, Starks was employed by Carolina Dry- wall. About that time Lattner received a telephone call from Mrs. Starks . Among other thing , Lattner warned Mrs. Starks that "Richard's book was in jeopardy" and that it was "important that he try to get his payments in so that he doesn't lose his book." Mrs. Starks replied that her husband "had a great many personal debts . . . they were on real short money ." Thereupon Lattner suggested to her that ob- taining a loan was preferable to "having to make a new application and payments on an initiation fee again." On or about May 16, 1972, Starks appeared before the Union 's Executive Board . Lattner also attended. Since Starks had already been dropped from the Union, the Board asked him to execute a new application for membership and submit it with a payment of $100 . In fact Lattner at the meeting promised to call Carolina Drywall to attempt to have it loan the money to Starks . So the next day Lattner spoke to Paul Huhn of Carolina Drywall reiterating to Huhn that the Union has expelled Starks and Starks needed $100 to reapply for membership . Huhn promised to refer the matter to Blackwell. Since Starks did not seek to become a member of Local No. 6 after being dropped from its rolls , Lattner on May 27, 1972, wrote to Carolina Drywall mentioning this and add- ing "you are requested to comply with the contract and discharge this employee ." (See G .C. Exh. 5.) He did so after the Union 's Executive Board had again considered the situ- ation and had decided "to enforce the conditions of our bargaining agreement ." The foregoing is a summary of Lattner's testimony. The wife of Richard Starks, Mrs. Joyce Starks, testified 1093 substantially as follows. She overheard a telephone conver- sation in late February or early March 1972, in which Rich- ard requested a loan of Paul Huhn, materials purchaser and dispatcher for materials of Carolina Drywall, in order to pay Richard's back dues to the Union. Huhn also "at times" resolves grievances and participates in labor negotiations. Huhn answered that he had to check with owner Blackwell. Sometime later Mrs. Starks telephoned Huhn to ask wheth- er Starks was going to be granted a loan by Blackwell so Starks could pay the Union. However Huhn again stated that, as Blackwell was out of town, Huhn had to await Blackwell's decision on the matter. Richard M. Starks, the Charging Party, in substance testi- fied as follows. He was originally hired by Carolina Drywall in May 1971, as a finisher. However, he was laid off in August 1971. As a result he went to work for Shealey Dry- wall Company, but was laid off by it in September 1971. During October, November, and December 1971, he re- mained unemployed and also paid no dues to Local No. 6. In February 1972, he obtained employment with Sicihano Brothers for 5 or 7 days. Later in February 1972, Carolina Drywall recalled hint' to work for it. Starks did not pay any dues to Local No. 6 for the first quarter of 1972. However, in late February or early March 1972, Starks telephoned Paul Huhn of Carolina Drywall and sought "an advance on my pay" in order to be able to "pay my back dues that I owed the Union." Although Huhn indicated a favorable attitude on this he insisted that only Blackwell himself could make the decision. However, Blackwell never communicated with Starks about the re- quested loan after that. About May 16, 1972, Starks appeared before the Execu- tive Board of Local No. 6. When he was asked by the Board why he was in arrears on his back dues Starks responded that he was encountering "financial difficulty and . . . fam- ily problems." Then the Board stated it was not able to help him and insisted that he pay "a new reinstatement fee of $275 before [he] could go back to work." Upon Starks' pleading for time to obtain said sum, the Executive Board answered that he could pay it in installments provided he made an immediate initial payment of $100. Nevertheless Starks returned to work although he did not pay the $100. However, on May 31, 1972, Blackwell told Starks that the Union had transmitted the former a letter demanding that Carolina Drywall terminate the employ- ment of Starks or the Union would "close down [Blackwell's] job." Blackwell protested to Starks that the former could not have his job shut down merely because Starks had problems with the Union. Although Starks at- tempted to describe his problems with Local No. 6 Black- well refused to hear them. Blackwell neither showed the Union's letter to Starks nor asked the latter why the Union wanted Starks to be discharged. Indeed Blackwell did not even ask Starks whether in fact the latter had failed to pay the "required dues and initiation fee." Starks was thereupon discharged. However, he was reinstated by Blackwell on about November 15, 1972, and is currently employed there. Starks did not work for Blackwell between May 31 and about November 15, 1972. 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Respondent Local No. 6's Defense Gerald S . Lattner , the financial secretary of Local No. 6 and a member of its Executive Board , testified substantially as follows . In December 1971, Lattner "acquainted [Starks] with the fact" that Starks had fallen behind in the payment of his dues . He also told Starks to obtain a "warrant" from the Union , i.e., "the Local Union pays your dues [to it and the International ], it keeps your book in good standing, and when you become employed again , you would pay the Local Union ." However, such "warrant" can be obtained only by attending a union meeting . In fact Starks had once before applied for a "warrant " early in 1971 or late in 1970. Starks attended an Executive Board meeting of Local No. 6 after he was suspended . He was told at that meeting that he was no longer a member of Local No . 6; that he would not be reinstated thereto ; that he could appeal this decision to the International ; that he should make a new application for membership to stay on the job ; that the initiation fee was $275; that he would be given a work permit if his applica- tion was accompanied by a "$100 down payment" on the initiation fee; and that in addition 14there was a personal dept of $32 back dues" of Starks, which Starks was "re- quired to pay . . . to become a member in good standing." Starks never paid that $32 for his back dues . However, Starks did pay the initiation fee. Following such payment the Union issued him a work permit , so that he was worked ever since then. C. Concluding Findings and Discussion 1. As to Local No. 6 An analysis of the entire record convinces me, and I find, that the Union required that Starks pay back dues of $32 plus an initiation fee of $275 (of which $100 was to be paid immediately) in order to retain hisjob ; that this requirement constituted an indispensable condition of employment; that it requested Blackwell to discharge Starks because he had not made such payment ; and that Blackwell discharged Starks pursuant to such request . Further, I find that by so requesting and obtaining said discharge , the Union, under the circumstances , attempted to cause and did cause Black- well to discriminate against Starks, an employee of Black- well, contrary to the provisions of Section 8(b)(2) of the Act. In this connection I find that Blackwell and the Union had a collective-bargaining agreement in effect at the time (either G.C. Exh. 6 or 7) which contained a union-security clause. I do not decide whether General Counsel 's Exhibit 6 or General Counsel's Exhibit 7 covered Starks ; but this does not destroy the finding that the Union's request to terminate Starks was illegal . This is because absent a con- tract containing such a clause the said request would auto- matically violate said Section 8(b)(2) of the Act. See Section 8(a)(3) of the Act; Pacific Iron and Metal Co., 175 NLRB 604, 605 . "The right to require union membership as a con- dition of employment is dependent upon a contract which meets the standards prescribed in Section 8(a)(3)." Industri- al Union of Marine and Shipbuilding Workers of America, AFL-CIO v. N.L.R.B., 320 F.2d 615, 619 (C.A. 3, 1963). Nor do I pass upon the validity of the union-security clause in either contract , as this has become unnecessary in view of the finding that , nothwithstanding the assumed validity of either contract 's union-security clause , said request to discharge Starks contravened said Section 8(b)(2). In arriving at the foregoing findings I have credited Mr. and Mrs . Starks and that part of the testimony of other witnesses consonant therewith. Additionally, I have ob- served the following well recognized rules of law : (a) the burden of proof rests on the General Counsel to establish the allegations of the complaint , and this burden never shifts to the Respondents ; (b) no burden is imposed upon either Respondent to disprove any of the allegations of the complaint ; (c) the failure to put on evidence by either Re- spondent does not result in drawing adverse inferences by me. Finally, the noncrediting of some of the evidence of Respondents , the failure of either Respondent to establish one or more of its defenses , does not constitute affirmative evidence necessary to sustain the General Counsel's burden of proof . N.L.R.B. v. Harry F. Berggren and Sons, Inc., 406 F.2d 239, 246 (C.A. 8, 1969), cert . denied 396 U.S. 823 (1969). "Negotative evidence alone cannot supply the proof which must underlie the [Board's] order if it is to stand." Portable Electric Tools, Inc. v. N.L.R.B . 309 F .2d 423, 426 (C.A. 7, 1962). As set forth above , I have found that Local No. 6 asked for the discharge of Starks at least in part for the nonpay- ment of dues which accrued while he was not employed by Carolina Drywall. On this issue I credit Starks that when he appeared before the Union's Executive Board on May 16, 1972, he was expressly told that he was in arrears on his dues and that said Board was not able to help him . In addition, I credit Lattner insofar as he testified that he "acquainted" Starks with the fact that the latter had fallen behind in the payment of his dues and instructed Starks to obtain a "war- rant" or loan from the Union to "keep your book in good standing ." Also, I credit Lattner's testimony that Starks had to pay $32 in dues for the last quarter in 1971 and the first quarter of 1972. In addition , I credit Gipperich to the extent that he testified that he informed Starks that Starks had been "dropped" on March 31, 1972, from Local No. 6 for nonpayment of dues for the previous 6 months and that this had to be "straightened up with the Union ." See also the affidavit of Gipperich in evidence as General Counsel's Exhibit 8. On the basis of the foregoing facts , and the entire record, it is patent that Local No. 6 was demanding the payment by Starks of dues for a period when he was not employed by Blackwell . Such demand , even though it may be sanc- tioned by the constitution and bylaws of Local No. 6 and its International (see G.C. Exhs. 4 and 3 ), contravenes the Act. Although I recognize that a union may adopt rules governing the acquisition and retention of membership therein , it may not apply such rules in an illegal manner so as to affect an employee 's job status. Spector Freight System, Inc., 123 NLRB 43, enfd. 273 F.2d 272 (C.A. 8, 1960). See Scofield v. N.L.R.B., 394 U.S. 423, 430-431 ( 1969). If material , I also find that the Union's insisting that Starks pay a new initiation fee after he was dropped for nonpayment of dues or lose his job violates the Act. This is because I find that Starks' "loss of good standing in the Union was based in part upon his failure to pay dues which CAROLINA DRYWALL CO. accrued during the prehire period . . . . The [initiation] fee which the Union sought to extract from [Starks ] therefore resulted from the computation of back dues for a period during which [Starks] was under no statutory obligation to remit to the Union in order to keep his job." Spector case, supra, at 44. Accordingly, I find that the General Counsel has estab- lished a violation of the Act by Local No. 6 in demanding, and causing, the discharge of Starks by Blackwell for non- payment of union dues accruing during a period when the Union could not lawfully compel union membership as a condition of employment. Cf. Teamsters Local No. 70, 197 NLRB 125. 2. As to the Employer, William Blackwell Upon the record developed in this case I find that the Union requested Blackwell to discharge Starks because "Starks has failed to comply with the Union 's Constitution and By-Laws as to the payment of initiation fee and the period dues. . . . Specifically, the employee has not paid the required initiation fee and has failed to tender the monthly dues required." (See G.C. Exh . 5.) I further find that the Union 's request was based at least in part on the fact that said "period dues" included dues payable for a period when Starks was not employed by Blackwell, and, therefore , could not legally be insisted upon as a condition of employment , and that Blackwell had reasonable grounds to believe that part of such dues were for a period when Starks was not employed by him. Finally , I find that Black- well discharged Starks pursuant to said demand , and that such termination contravenes Section 8(a)(1) and (3) of the Act. The foregoing finding that Blackwell had reasonable grounds to believe that said demand of the Union to dis- charge Starks involved nonpayment of dues which could not legally be made a condition of employment is based upon the entire record and the following facts , which I hereby find. (a) I credit Starks that he informed Huhn of Carolina Drywall that Starks desired an advance to "pay my back dues which I owed the Union ." Since Starks at that time had just been reemployed by Blackwell, the "back dues" men- tioned by Starks manifestly had not accrued while Starks was currently employed by Blackwell. Hence I find that Huhn reasonably understood that Starks was behind in pay- ing dues which did not relate to his employment by Black- well. And I credit Mrs. Starks that she overheard this conversation . Additionally , I find that Huhn sometimes re- solves grievances and participates in labor negotiations for Blackwell. As a result I find that Huhn is an agent of Black- well within the meaning of Section 2(13) of the Act, and that Huhn's knowledge as such agent may be attributed to Blackwell . Hence I find that Blackwell had reasonable grounds to believe that the demand of the Union to dis- charge Starks in part was based upon the payment of dues which could not lawfully be made a condition of employ- ment. (b) In its letter to Blackwell (see G.C. Exh. 5) requesting the discharge of Starks the Union expressly asserted that such request in part was motivated by the delinquency of Starks "as to the payment of . . . the period dues within 8 1095 days of the date of his employment [and his failure] to tender the monthly dues required." Obviously "monthly" back "dues" mean dues for a period preceding the reem- ployment of Starks, so that Blackwell reasonably was put on notice that some of the dues covered a period antecedent to the date of Starks' rehire by Blackwell. (c) In any event I find that Blackwell failed to make a reasonable effort to ascertain whether the Union's request to discharge Starks was well founded. I credit Starks that Blackwell refused to ascertain any facts from Starks, includ- ing the question of whether Starks was indeed behind in dues which were a lawful condition of employment, when Blackwell discharged Starks solely because a letter from the Union asked for the discharge of Starks in part for the nonpayment of "period dues." I find that an employer may not just take a union's word as to what the facts are when the union asks that an employee be discharged . Otherwise an employee has no protection against a union's asking for his discharge when the union, for example, has mistakenly or erroneously claimed that the employee has engaged in conduct which actually never occurred. Cf. Norfolk Tallow Co., Inc., 154 NLRB 1052, 1059, and Service Technology Corporation, 196 NLRB 1026, Administrative Law Judge's Decision, to the effect that absence of a fair investigation and the failure to ask an employee for his version of an incident leading to his discharge is evidence of a discrimina- tory motive behind such discharge. Accordingly, I find that Blackwell, by accepting the Union's account of the facts leading to the discharge of Starks, without conducting even the semblance of an inves- tigation to ascertain the accuracy thereof, exposed himself to the risk that, if the facts actually disclosed an illegal condition upon the continued retention of Starks, Blackwell committed a violation of the Act in discharging Starks. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, found to constitute unfair labor practices, occurring in connection with the operations of Respondent Carolina Drywall as set forth in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY As each Respondent has been found to have engaged in certain unfair labor practices I shall recommend that each of them cease and desist from those committed by each, and that each take specific affirmative action, as set forth below, designed to effectuate the relevant policies of the Act. Since Starks has been reemployed by Blackwell the rec- ommended Order will not provide that he be reinstated. But I shall recommend that Blackwell and the Union jointly and severally make Starks whole for any loss of pay he may have suffered from the date of his unlawful discharge to the date of his reinstatement by Blackwell. The backpay obligation of Respondents, if any, shall be computed on a quarterly 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent calculated according to the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent Employer preserve and, upon request, make available to the Board, or its agents, all pertinent records and dates necessary to assist in analyzing and de- termining the amount, if any, of backpay due to Starks. In addition, it will be recommended that the Union be ordered to cease and desist from enforcing provisions of its constitu- tion and bylaws in such a way as to condition employment on the payment of sums equivalent to assessment of dues for periods when an employee is not required to pay the same in order to obtain or retain his job. On the record in this case I find that neither Respondent's conduct reflects a general disregard of or hositility to the Act. Hence I shall not recommend a broad remedial order. Upon the basis of the foregoing findings of fact and the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. Respondent Local No. 6 is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent Blackwell is an employer within the meaning of Section 2 (2) and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By attempting to, and causing , Blackwell to discharge Starks for nonpayment of dues which were not required lawfully to be paid as a condition of employment with Blackwell, Local No. 6 has committed an unfair labor prac- tice comprehended by Section 8(b)(1)(A) and (2) of the Act. 4. By discharging Starks at the request of Local No. 6 for nonpayment of dues not required lawfully to be paid as a condition of employment with Carolina Drywall Company, Blackwell has engaged in conduct prohibited by 8(a)(1) and (3) of the Act. 5. The foregoing conduct of Local No. 6 and Blackwell constitutes unfair labor practices affecting commerce within the purview of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' A. Respondent Local No. 6, its officers, agents and rep- resentatives , shall: 1. Cease and desist from: (a) Attempting to cause, or causing, Respondent Black- well or any other employer to discriminate against its em- ployees in violation of Section 8(a)(3) of the Act. (b) Restraining or coercing the employees of Respondent Blackwell, or any other employer, be enforcing any provi- 1 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall , as provided in Section 102.48 of said Rules and Regulations , be adopted by the Board and become its findings , conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. sion of its constitution or bylaws in such a way as to condi- tion employment upon the payment of dues which may not be lawfully required as a condition of employment. (c) In any like or related manner restraining or coercing employees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement as authorized by Section 8(a)(3) and (f) of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Notify Respondent Blackwell that it withdraws all objections to the employment of Starks. (b) Jointly and severally with Respondent Blackwell make Richard M. Starks whole for any loss of pay he may have suffered by reason of their discrimination against him, in the manner set forth in the section of this Decision enti- tled "The Remedy." (c) Refund to Richard M. Sparks the initiation fee of $275 paid by him as a condition of continued employment after he was dropped from the Union in 1972. (d) Post at its business offices, meeting halls, and all other places where notices to members are customarily post- ed, copies of the attached notice marked "Appendix A." 2 Copies of said notice, to be provided by the Regional Direc- tor for Region 6, after being signed by a duly authorized representative of Local No. 6, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to members are customarily dis- played. Reasonable steps shall be taken by Local No. 6 to insure that said notices are not altered, defaced, or covered by any other material. (e) Furnish the Regional Director for Region 6 signed copies of said notice for posting by said Blackwell, if he is willing, in places where notices to employees of said Black- well are customarily posted. Copies of said signed notice, to be supplied by Regional Director, shall be transmitted by him to said Blackwell. (f) Notify the Regional Director for Region 6, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply herewith. B. Respondent Blackwell, his officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Encouraging membership in the Respondent Union or in any other labor organization by discharging any of his employees or discriminating in any other manner in regard to their hire or tenure of employment, except to the extent authorized by Section 8(a)(3) and (f) of the Act. (b) In any like or related manner interfering with, re- straining, or coercing his employees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized by Section 8(a)(3) and 8(f) of the Act. 2 In the event the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " CAROLINA DRYWALL CO. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Jointly and severally with Respondent Local No. 6 make Richard M. Starks whole, for any loss of pay he may have suffered by reason of their discrimination against him, in the manner set forth in the section of this Decision enti- tled "The Remedy." (b) Preserve and, upon reasonable request, make avail- able to the Board or its agents , for examination and copy- ing, all payroll records and all other records necessary to ascertain the amount, if any, of backpay due under the terms of this recommended Order. (c) Post at its facilities in Turtle Creek, Pennsylvania, copies of the notice attached hereto marked "Appendix B." 9 Copies of said notice to be furnished by the Regional Director for Region 6, shall, after being duly signed by Blackwell, be posted by him immediately upon receipt thereof, and be maintained by him for 60 consecutive days thereafter, in conspicuous places, including all places where notices to his employees are customarily posted . Reason- able steps shall be taken by Blackwell to insure that said notices are not altered, defaced, or covered by any other material. (d) If willing , post at the same places and under the same conditions as set forth in (c) above , as soon as they are forwarded by the Regional Director, copies of the Respon- dent Union's notice herein marked "Appendix A." (e) Notify the Regional Director for Region 6, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply herewith. 7 See footnote 2, supra. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: 1097 WE WILL NOT encourage membership in International Brotherhood of Painters and Allied Trades, Local Union No. 6, AFL-CIO, or in any other labor organi- zation of our employees, by discharging employees or discriminating in any other manner in regard to their hire or tenure of employment, except to the extent au- thorized by Section 8(a)(3) and (f) of the Labor Man- agement Relations Act. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of their rights guaranteed them under Section 7 of said Act, except to the extent that such rights may be affect- ed by an agreement requiring membership in a labor organization as a condition of employment as author- ized in Section 8(a)(3) and (f) of said Act. WE WILL jointly and severally with said Local Union No. 6 make Richard M . Starks whole for any loss of pay he may have suffered as a result of the discrimina- tion against him. All our employees are free to become , remain , or to re- frain from becoming or remaining , members of the above- named Union or any other labor organization , except to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) and (f) of said Act. Dated By WILLIAM BLACKWELL, d/b/a CAROLINA DRYWALL COM- PANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1536 Federal Building, 1000 Liberty Ave., Pittsburg, Pennsylva- nia 15222 Telephone 412-644-2977.