Iron Workers Local 433

National Labor Relations Board - Board Decisions

Feb 5, 1968

169 N.L.R.B. 667 (N.L.R.B. 1968)

IRON WORKERS LOCAL 433 667
Iron Workers Local 433, International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO (Riverside Steel Construction) and
Dwight E. Flack , An Individual. Case
21-CB-2875
February 5, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On August 23, 1967, Trial Examiner Howard
Myers issued his Decision in the above-entitled
case, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a sup-
porting brief, and the General Counsel filed a brief
in answer to the Respondent's exceptions.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the ' entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent with our Decision herein.1
The Trial Examiner found that the Respondent
Union violated Section 8(b)(2) and 8(a)(1)(A) of the
Act by unlawfully causing Riverside Steel Con-
struction to terminate the employment of one
Dwight E. Flack. We are unable to concur in this
finding.
As set forth in the Trial Examiner's Decision,
Riverside Steel Construction and the Respondent
Union are parties to a collective-bargaining agree-
ment, providing, in pertinent part, that all new em-
ployees must become members of the Union upon
passage of 8 days of employment with the Com-
pany; that all new employees hired by the Company
must be obtained through the union hiring hall; and
that, with respect to employees' union-security
obligations, the Company shall not be required to
I we hereby correct the following inadvertences in the Trial Examiner's
Decision: "Flack continued to work on the aforesaid Hawthorne job
without incident until Thursday, February 9, 1967," rather than "Friday,
February 9, 1967," and, "the business agent authorized the issuance of
permits so Flack might be permitted to work until February 25," rather
than "February 24."
discharge any employee until it is in receipt of a
written request therefor from the Union.
In July 1966 Dwight E. Flack, the Charging Par-
ty, arrived in Los Angeles from Florida, and visited
the Respondent Union's hiring hall in order to
secure work. He was granted awork permit and,
during the period July-October 1966, the Respond-
ent Union dispatched Flack to several jobs. On
October 27, 1966, the Respondent Union
dispatched Flack to the Company. Flack continued
to work for the Company without incident until
February 9, 1967, when the union business agent
telephoned Lowell Fisher, the Company's field su-
perintendent, and advised that Flack, who was
working without a current work permit, and was in
arrears on his permit fees,2 "was working with no
permits and no affiliation with" the Respondent
Union. Fisher replied that he would lay off Flack,
which he did later in the day. On February 13,
1967, Flack paid his permit fees up to date, and the
Respondent Union's business agent subsequently
informed Company Official Fisher that he was
providing Flack with new permits. Thereafter,
Flack was issued work permits valid until February
25, 1967.
During one of his conversations with the Respond-
ent Union's business agent, Flack was advised
that in order to take his test for the "A" (apprentice)
book, he should report to the union hiring hall on
February 23, 1967, and bring two "vouchers"3 and
a $100 down payment on the $ 300 initiation fee. On
the night of February 23, Flack reported to the
Respondent Union's hall at 7:30 p.m. He had made
arrangements for Don Dote and Lester Marceau to
serve as his "vouchers," and brought with him the
$100 down payment on the initiation fee. As Flack
was standing in the hall with a group of men, Arnett,
the Respondent Union's president, appeared, noted
Flack's presence, and went into the union meeting.
Dote, a "voucher," then arrived, and told Flack
that Marceau, the other "voucher," would be at the
Respondent's hall later. Between 9:30 and 10 p.m.,
a business agent of the Respondent Union told
Flack, in response to Flack's inquiry, that Dote had
gone home. At 11:30 p.m., the union meeting
ended. Marceau had not shown up, nor had Dote
reappeared. However, Flack saw Arnett, the union
president, in a back office talking to assistant agent
Jake West, and, as Flack approached, Flack heard
West say "He is from another state, and he is just
on a permit. We don't have to issue him anymore,
and we don't want him." Flack then asked Arnett
if he could have a work permit, and Arnett replied
in the negative, adding that they wouldn't issue
Flack any more permits.
2 The permit fees of the Respondent Union are $2 50 weekly, while the
Union dues are $13.50 monthly.
S A "voucher" is a coworker who can attest to the applicant's ability to
perform satisfactory work.
169 NLRB No. 87
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Flack worked on February 24 but, at the end of
the day, Flack told company official Fisher what
had transpired at Respondent Union's hall the
previous evening, and added that he could not ob-
tain another work permit from the Respondent
Union (his last permit would expire February 25)
and, therefore, that he could no longer work for the
Company. Fisher replied that if and when Flack
received a work permit or union book, he could
return to work. Flack then proceeded to file charges
with the Board.
The Trial Examiner found, initially, that an un-
derstanding existed between the Company and
Respondent Union to the effect that a work permit
was a necessary condition of continued employ-
ment on the Company's project. Having so found;
the Trial Examiner, relying primarily on Local 742,
Carpenters (J. L. Simmons),' concluded that by
refusing to renew Flack's work permit, the Respond-
ent Union caused the Company to discontinue
Flack's employment, thus providing the basis for
the violation. However, we believe that Local 742
may be distinguished, for there, unlike the instant
case, the record reflected that the Company ac-
tually informed the employee involved that it was
necessary to terminate him for lack of a work per-
mit. The Board had only to infer that the Union, by
denying the employee a permit, "caused" the em-
ployee's discharge. In a somewhat related case,
Teamsters et al. (S. A. Scullen, Jr.),5 we found that,
the union specifically requested the company to
discharge the employee involved. In the instant
case, unlike the cases cited, in order to find the
8(b)(2) violation, it is necessary that we infer a
union request for Flack's discharge, as to which
there is no evidence. We note that even as to the
termination of Flack's employment, there is no
evidence that the Company took any action.
Rather, the evidence shows merely that Flack quit.
In sum , We are faced here with a situation where
the Respondent Union did not request the Com-
pany to discharge Flack, and the Company did not
actually terminate him. In our view, there is insuffi-
cient evidence in the record to support inferences
of the foregoing or of an understanding explicit
enough to obviate the need for these missing ele-
ments . The only comment by the Union that could
be construed as a request for Flack's discharge
came several weeks earlier, at which time Flack
was admittedly in arrears in complying in any
respect with his union-security obligation. There is
no contention that the Union's call to the Company
at that time was unlawful, and there is no evidence
to support an inference that the Union would
similarly have requested Flack's discharge when it
later refused to issue him a work permit. Flack took
it upon himself to anticipate such a happening, and
volunteered that he could no longer work for the
Company. Though the Company did not disagree,
the Union cannot be found to have initiated action
to remove Flack from the job. In these circum-
stances, we do not feel justified in concluding that
the Union, by denying Flack a work permit,
"caused or attempted to cause" the Company to
discharge him. To put the matter another way,
though Flack's fears might eventually have proved
justified, in the circumstances of this case he
"jumped the gun," and one can only speculate as to
what would have happened next. The burden of
presenting affirmative evidence to establish the
violation rests upon the General Counsel, and we
believe that he has fallen short of establishing the
violation in this case. Accordingly, we shall dismiss
the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
4 Local Union No. 742, United Brotherhood of Carpenters and Joiners
of America Q. L. Simmons Company, Inc.), 157 NLRB 451, enfd. 377
F.2d 929 (C.A.D.C.).
' Teamsters , Chauffeurs, Warehousemen , Stablemen and Helpers
Local 182 (S. A. Scullen, Jr., F. B . Scullen, Sr., and C. S. Hans d(b(a S. A.
Scullen Co.) 164 NLRB 234.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HOWARD MYERS, Trial Examiner: This proceeding,
with the General Counsel of the National Labor Rela-
tions Board, herein respectively called the General
Counsel' and the Board, and Respondent represented by
counsel, was heard before Howard Myers, the duly
designated Trial Examiner, at Los Angeles, California, on
July 11, 1967,2 upon a complaint, dated April 27, issued
by the General Counsel, through the Director for Region
21 (Los Angeles, California), and Respondent's answer
duly filed on May 5.
The complaint, based upon a charge duly filed by
Dwight E. Flack, alleged, in substance, that Respondent
violated Section 8(b)(1)(A) and (2) of the National Labor
Relations Act, as amended from time to time, herein
called the Act.3
Upon the entire record in the case4 and from his obser-
vation of the witnesses, I make the following:
' This term specifically includes counsel for the General Counsel ap-
pearing at the hearing.
2 Unless otherwise noted , all dates mentioned herein refer to 1967.
2 Specifically , as to the unfair labor practices , the complaint alleged that
Respondent violated Section 8(b)(1)(A) and (2) by refusing , on or about
February 24, to grant work permits, as provided for in the collective-bar-
gaining agreement then in full force and effect between Respondent and
Riverside Steel Construction, the employer here involved and herein
called the Employer, and Flack, the Charging Party herein, for reasons
other than his failure to tender dues uniformly required by Respondent,
thereby causing the Employer to deny employment to Flack since on or
about February 24.
4 The briefs filed by the General Counsel and by Respondent's counsel
on August 1, have been carefully read and considered . Respondent's mo-
tion, made at the conclusion of the taking of the evidence, to dismiss the
complaint for lack of proof, is disposed of in accordance with the findings,
conclusions , and recommendations hereinafter set forth.
FINDINGS OF FACT
IRON WORKERS LOCAL 433 669
upon the Employer and the Employer shall have 2 work-
ing days to comply with such request.
I. THE BUSINESS OPERATIONS OF THE EMPLOYER
Riverside Steel Construction, located at South Gate,
California, is, and at all times material was, engaged in the
business of fabrication and erection of structural steel.
During the 12-month period immediately preceding the
issuance of the complaint herein, the Employer in the
course and conduct of its business, purchased and caused
to be shipped directly to its plant materials and supplies
Upon the basis of the foregoing facts, I find, in line with
established Board authority, that the Employer is, and at
all times material was, engaged in a business affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
H. THE LABOR ORGANIZATION
Respondent is a labor organization admitting to mem-
bership employees of the Employer.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory Statement
The Employer and Respondent are, and during all
times material were, parties to a collective-bargaining
agreement.5 Section 4(a) thereof provides:
Every person performing work covered by this
Agreement who is a member of the Union and in the
employment of an individual employer on work
covered by this Agreement on the effective date of
this Sub-section A shall, as a condition of employ-
ment, or continued employment, remain a member in
good standing of the Union in the appropriate Local
Union of the Union. Every other person covered by
this Agreement and employed to perform work
covered by this Agreement shall be required, as a
condition of employment, to apply for and become a
member of and to maintain membership in good
standing in the Union in the appropriate Local Union
of the Union which has territorial jurisdiction of the
area in which such person is performing work on or
after the expiration of eight (8) continuous or accu-
mulative days of employment on such work with any
individual employer following the beginning of such
employment, or the effective date of this Sub-section
A, whichever is later. Membership in any Local
Union shall be available to any such person on the
same terms and conditions generally applicable to
other applicants or membership. This Sub-section
shall be effective upon the 16th day of August, 1965.
The agreement also provides (1) all employees, except a
minimum number of key employees and employees who
had been in the Employer's employ for at least 50 percent
of their working time during the preceding 12 months,
must be hired through Respondent's hiring hall,6 and (2)
the Employer shall not be required to discharge any em-
ployee pursuant to section 4(a) until a written request
from Respondent for such action shall have been served
5 The validity of this agreement is not here under attack.
6 The Employer has been obtaining all its newly hired employees
through Respondent 's hiring hall
7 Respondent rested its case without calling any witnesses at the con-
clusion of the General Counsel's case-in-chief
B. The Undisputed Pertinent Facts?
In the forepart of July 1966, Flack, a young man of 22
years of age, arrived in Los Angeles, California, from
Florida where he had worked, off and on, on nonunion
jobs for about 6 or 7 years as a structural ironworker.
A day or so following his arrival in Los Angeles, Flack
went to Respondent's headquarters where he met
Freddie Vixnic and another boy, whose name Flack
could not recall. Flack told Vixnic and the other boy that
he had just arrived in town, needed a job, and was at the
union hall seeking a work permit.
Vixnic and his companion, after ascertaining from
Flack that he did not possess a union book, volunteered
to speak to Respondent's business agent in Flack's be-
half. Thereupon, Vixnic and his companion went into a
private office. A few minutes later Vixnic and his com-
panion emerged from the private office and told Flack
that the business agent would be out presently to talk to
him.
A few minutes later, Bill Arnett, Respondent's pre-
sident, called Flack into his office. Arnett, after introduc-
ing himself, opened the conversation by asking "what
[he] worked on." Flack replied "on permits." In
response to Arnett's request for proof of Flack's state-
ment, the latter produced some Florida work permits
which had been issued to him by a Florida Iron Workers
local. Apparently Arnett was satisfied with the validity of
Flack's documents for he told Flack he would have to fill
out an application to transfer from the Florida local,
which had issued the work permits , to Respondent.
Thereupon Flack filled out the necessary form. Arnett
then directed Flack to Respondent's secretary's office
where a work permit, valid for 1 week, was issued.
During the conversation referred to immediately
above, Arnett told Flack that in order to become a
Respondent member, Flack would have to report on a
Thursday before a Respondent membership meeting,
bring two vouchers," and pay at least $100 toward the
$300 initiation fee charged all new members. Flack
replied that he would comply with Arnett's instructions
and left Respondent's headquarters.
On or about July 8, Flack was dispatched by Respond-
ent to his first Los Angeles area job. From that time
until October 27, 1966, Respondent dispatched Flack to
about seven different jobs.
Pursuant to a request made by Lowell Fisher, the Em-
ployer's field superintendent, for a worker to be sent to
the Employer's Hawthorne, California,jobsite, Respond-
ent dispatched Flack.
Flack continued to work on the aforesaid Hawthorne
job without incident until Friday, February 9, 1967. That
day, while at work, Flack was approached by a coworker,
whose first name is George, who inquired of Flack if he
had a work permit or a union book. Flack, who had been
in arrears on his payments for some months, replied that
he had neither with him, for he had sent them to Respond-
ent with a money order in payment of his work permit
6 A "voucher" is a coworker who can attest, among other things, to the
applicant 's ability to perform satisfactory work.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arrears and he expected them to be returned by the fol-
lowing Monday , at which time he would show him the
new work permit. George left Flack, after remarking,
"fine." Needing a wrench, Flack went to the shop
steward for one. The steward asked Flack what trans-
pired between him and George. When Flack replied,
"nothing" as far as he knew, the steward said that George
had just telephoned Respondent 's business agent and ad-
vised the agent that Flack did not have a work permit or
a union book with him. Flack told the steward that he had
sent the work permit to Respondent to have it renewed
and expected it to be returned the following Monday.
Later that day, February 9, a Respondent business
agent arrived at the job, approached Flack, and asked him
whether he was George. When Flack answered in the
negative, the business agent said, "You must be Flack."
After Flack had admitted his identity, the business agent
told Flack to "stand around a few minutes and wait for
George." When George arrived, the following ensued, to
quote from Flack's credited testimony.
... George told him that he asked me once before for
permits or books and that I didn't show it to him. The
business agent asked me if that was true, and I told
him, no , that it wasn't. Then he asked me if I had a
permit or a book, and I told him, no, that I had sent
them into the Hall, that it would be on a Tuesday,
and that I would have it on a Monday.
He said, "Well, we can't do anything about it tonight.
It is too late."
We were starting to roll up tools and everything to go
home , so that is the last time I seen him of that day.9
On Thursday , February 9, a Respondent business
agent telephoned Fisher , the Employer's field super-
intendent , and stated that Flack "was working with no
permits and no affiliation with " Respondent , Fisher
replied that he would lay off Flack, which Fisher did
that day.
On Monday , February 13, the same business agent,
who had called Fisher the previous Thursday, again
telephoned Fisher. With reference to this second
telephone conversation, Fisher testified , and I credit his
testimony , as follows:
Q. (By Mr. Pannier) 10 What was said during that
conversation?
A. This was the same business agent , and he was
calling me from the Iron Workers Local. He said that
he had been mistaken when he had told me that
Flack had no permits or no affiliation with the Union.
He said that his permits had just expired and that he
was going to fix him up with new permits.
Q. Do you recall anything else being said during
the conversation?
A. At the same time he told me-asked me if I
had work for Flack , and I told him I did. He said that
he would fix him up with the permits, but he would
appreciate if I would send Flack to a different job site
other than the one in Hawthorne which I said I
would.
At or about 11:30 in the morning of Monday, February
13, Flack appeared at the office of the business agent who
had visited the Hawthorne job the previous Thursday.
There, according to Flack's credited testimony, the fol-
lowing transpired:
... We figured out just how far back I was in per-
mits, and we brought them up to date. Then he asked
me if I was trying to get a book or in to apprentice
school, and I told him I was trying to get in to take
my test for my "A" Book. He said that my only hope
for that would be Bill Arnett, and if it wasn't for Bill
Arnett that anybody else in this Local wouldn't even
give me a permit or even give me a chance at the
book. So we went back out to the secretary, and she
straightened all the permits up and brought them up
to date. That was all that I see him that afternoon.
Q. Do you recall anything else that was said dur-
ing the conversation there?
A. He told me that I had to check with Fisher at
the yard, Riverside Steel yard, before I could go back
to work.
TRIAL EXAMINER: You mean the witness that was
on the stand before you?
THE WITNESS: Right, yes, sir. I believe that was
all that was said then.
Q. (By Mr. Pannier) You said you brought-I
take it you paid your dues or your permit fee there at
the Hall?
A. Yes, sir.
Q. Did you get any receipts for those?
A. Yes, sir.
TRIAL EXAMINER: Do you want some time to ex-
amine those?
MR. VAN BOURG:11 No. I DON'T THINK SO, MR.
TRIAL EXAMINER.
Upon leaving said business agent's office, Flack went
directly to Fisher and showed him the permits and the
payment receipts therefor which Flack had received that
day from Respondent. Upon examining the permits and
receipts, Fisher noticed that the permits were valid only
through February 4. Fisher told Flack that he could not
be put to work until his permits were brought up to date,
and then suggested that Flack return to Respondent's
headquarters and "get it straightened out."
Accepting Fisher' s suggestion , Flack immediately
returned to Respondent's headquarters and explained to
the aforementioned business agent that the permits which
had been authorized by him that day were not up to date.
After Flack had paid the required fees the business agent
authorized the issuance of permits so Flack might be per-
mitted to work until February 24.
Upon obtaining the aforementioned additional work
permits, Flack went to Fisher and showed him the per-
mits valid through February 24, and informed Fisher that
he had to appear at Respondent's hall on February 23,
"to take his journeyman's test to get into the Iron Work-
ers Local." Fisher, after examining the newly acquired
work permits issued to Flack, told Flack to report for
work the following morning.
9 Prior to leaving Flack and George , the business agent had told Flack
to come to his office on Monday morning, February 13.
Counsel for the General Counsel.
" Respondent's counsel.
IRON WORKERS LOCAL 433 671
On February 14 Flack reported for work as instructed.
However, instead of being assigned to his former
Hawthorne job, Flack was dispatched to a job in the Simi
Valley, located some 100 miles from the Hawthorne job.
On the night of February 23, 1967, Flack reported to
Respondent's office at 7:30 to take his test for the "A"
book.
As instructed by the business agent, Flack arranged for
Don Dote and Lester Marceau12 to serve as his vouchers
and to be at Respondent's hall on the night of February
23. Flack arrived at the hall at or about 7:30 on the night
of February 23, with the $100 down payment on the in-
itiation fee. As Flack was standing in the hall with a group
of men, Arnett went by and jokingly inquired if all of
those men were Flack's vouchers, to which Flack
responded that he wished they were. Arnett then
proceeded into the meeting after telling Flack that he
would see him later. Dote then arrived and went into the
meeting, after advising Flack that Marceau would be at
the Respondent's hall once the Employer's safety meet-
ing, which Marceau was attending, ended.
Between 9:30 and 10 p.m., the same business agent
who had come to the Hawthorne jobsite and who had
authorized the aforementioned Flack work permits, told
Flack, in response to the latter's question, that Dote had
gone home.
At approximately 11:30 p.m. everyone was leaving the
meeting hall and the doors of Respondent's headquarters
were being closed and Marceau had not appeared nor had
Flack seen Dote after Dote had entered the meeting.
However, Flack saw Arnett in a back office talking to
Jake West, a Respondent assistant business agent. As
Flack approached said office to speak to Arnett, he heard
West say to Arnett, "He is from another state, and he is
just on a permit. We don't have to issue anymore, and we
don't want him." As Arnett walked out of the office,
Flack approached him and asked if he could have a work
permit. Arnett replied in the negative, adding that
Respondent would not issue him any more. Flack then
left the hall.
The next morning, February 24, when Flack reported
for work, the steward on the Simi Valley job asked Flack
if he had a work permit or a union book. When Flack ex-
hibited his permits, the steward said, "Fine go back to
work."
At the end of the workday of February 24, Flack, as
was his and his coworkers' custom, irrespective of the lo-
cation of the Employer's various jobs, returned to the
Employer's South Gate, California, headquarters.13
There Flack told Fisher what transpired at the Respond-
ent's hall the previous evening, and that he could not ob-
tain another work permit from Respondent and therefore
he could no longer work for the Employer. Flack then
asked Fisher's help to get into Respondent's apprentice-
ship program. Fisher replied that he would help Flack and
if and when Flack received a work permit or a union book
he could return to work for the Employer.
The same day that Flack's work permits expired, or a
day or so thereafter, Fisher telephoned West. However,
West was not in Respondent's hall.
The following Monday, February 27, West returned
Fisher's telephone call. In response to Fisher's inquiry as
12 The Employer's assistant field superintendent.
13 Some 85 miles from the Simi Valley job and some 10 miles from the
Hawthorne job At that time Flack was living in Cudahy, California,
which is about 12 miles from Hawthorne.
to what "Flack would have to do to get into the ap-
prenticeship program," West replied that Flack "would
have to appear the first Tuesday of the next month with
a copy of his high school diploma and that he should not
have any trouble getting into the apprenticeship pro-
gram." 14
C. Concluding Findings
In Local Union No. 742, United Brotherhood of Car-
penters and Joiners of America (J. L. Simmons Com-
pany, Inc.), 157 NLRB 451, enfd. 377 F.2d 929
(C.A.D.C.), the Board held that the union violated Sec-
tion 8(b)(1)(A) and (2) when it refused to renew an em-
ployee's work permit in circumstances disclosing that
there existed an understanding between the union and the
employer that a permit was a necessary condition of con-
tinued employment.
That such an understanding existed between Respond-
ent and the Employer in the instant case is demonstrated
by the events of early February, when Respondent
discovered that Flack was working at the Hawthorne
jobsite without a work permit or a union book, Respond-
ent's business agent so notified the Employer, and
Fisher laid off Flack. Only after making two trips to
Respondent's office and obtaining a current work permit
was Flack able to return to work for the Employer.
Moreover, although there was a valid union-security
clause in the collective-bargaining agreement and while
Flack had worked for the Employer for a period well in
excess of the 8-day limit provided in said collective-bar-
gaining agreement, Respondent made no objection to
,Flack's failure to comply, as long as he had a work per-
mit. Indeed, the equation of "book" and "permit" made
by employee George and by the stewards at both the
Hawthorne and Simi Valley projects, as well as the busi-
ness agent's comment to Fisher that Flack was working
with "no permit and no affiliation" with Respondent,
demonstrate affirmatively that the work permit was an al-
ternative means of compliance with the union-security
clause. Further evidence of an understanding that a work
permit was a necessary condition of employment is pro-
vided by examining the events of early July 1966 when,
at Respondent's headquarters two men told Flack that
they would intervene and attempt to encourage Respond-
ent to issue permits to Flack so that he could work. On
that same occasion, Arnett said that he would give Flack
work permits "to go to work." Moreover, the Hawthorne
site steward allowed Flack to continue working after
Flack assured the steward that he would have his work
permit by the following Monday.
On February 24-the day following Respondent's
refusal to grant more work permits to Flack -the Simi
Valley site steward consented to permit Flack to continue
working only upon ascertaining that Flack's work permits
were still, extant. While the collective-bargaining agree-
ment makes no provision for work permits, "An un-
derstanding, even though not articulated, is sufficient to
make the union responsible with the employer for the un-
lawful practice." Local 568, Hotel, Motel & Club Em-
ployees Union, AFL-CIO (Warwick Hotel, Inc.), 141
NLRB 310, 312. Consequently, the record demonstrates
14 Flack's ability as a worker is not here in issue In fact, the record is
clear, and I find, that the Employer was anxious to retain Flack in its em-
ploy because Flack was a satisfactory worker.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there was an understanding between Respondent and
the Employer that a work permit was a necessary condi-
tion of continued employment, Local 742, Carpenters,
supra, at 453-454; see also Local Union No. 592, United
Brotherhood of Carpenters and Joiners of America
(Brunswick Corporation), 135 NLRB 999, 1000-01.
That the Employer accepted the termination of Flack
because Respondent had refused to grant additional per-
mits is shown by Fisher's parting invitation to Flack to
return if he could obtain a union book or a work permit.
The Employer considered Flack to be a satisfactory em-
ployee and in view of Respondent's conduct of 3 weeks
earlier, when it secured Flack's termination because he
did not possess a current permit, it can hardly be said that
the Employer was acting unilaterally and in a manner not
consistent with its understanding with Respondent.
That Respondent was fully prepared to invoke the
terms of that understanding should the Employer fail to
do so is confirmed by the Simi Valley steward's conduct
in permitting Flack to continue working only after Flack
displayed a current work permit. Accordingly, against
this background, by refusing to renew Flack's work per-
mit, Respondent "... set in motion the chain of events
which resulted in [Flack's] job termination...." Local
742, Carpenters, supra at 453. Since Respondent never
communicated its reasons for refusing to renew Flack's
permits to the Employer, the latter was left to act:
. on the proposition that, as [Respondent] had
refused [Flack] a work permit, whatever the reason,
they had no alternative except to bring about his ter-
mination, . .. (Id. at 454.)
Accordingly, I find that Respondent caused the Em-
ployer to discharge Flack in violation of Section
8(b) (1)(A) and (2) of the Act.
While the Employer never told Flack specifically that
he was discharged, Fisher's knowledge of Respondent's
reaction of early February to the Employer employing a
nonmember without a work permit caused the Employer'
to acquiesce in Respondent's conduct of February 23
and, accordingly, constituted a constructive discharge of
Flack. See Teamsters, Chauffeurs, Warehousemen,
Stablemen and Helpers, Local 182 (S. A. Scullen, Jr., F.
B. Scullen, Sr., and C. S. Hans d/b/a S. A. Scullen Co.),
164 NLRB 234.
Furthermore, while the business agent informed Flack
of the amount of the initiation fee downpayment required
and directed Flack to report with the money on the night
of February 23, at no time did any official of Respondent
inform Flack of the amount of dues or of when they were
to be paid. Moreover, Flack did report to Respondent's
office with the requisite $100 on the night of February
23, but no official of Respondent ever requested this
money, nor did anyone inform Flack to whom the money
should be paid or at what point in the evening it should be
tendered.' Thus, Respondent failed to fulfill its fiduciary
duty which it owed to Flack, Philadelphia Sheraton Cor-
poration, 136 NLRB 888, 896, enfd. 320 F.2d 254, 258
(C.A. 3); International Union of Operating Engineers,
Local Union No.12 (Ledford Bros.), 165 NLRB 358.
The record, moreover, shows that Respondent's mo-
tive in not renewing Flack's work permit had no relation
to initiation fees and dues. This finding is buttressed by:
(1) on February 13 Flack was told by the business agent
that, "if it wasn't fclr Arnett," Respondent would not have
issued Flack any v ork permits, and (2) immediately prior
to asking Arnett for more permits on the night of Februa-
ry 23, Flack heard West tell Arnett, "He is from another
state, and he is just on a permit . We don't have to issue
him, anymore, and we don 't want him."
Upon the .#ecord as a whole , I find that Respondent
caused the Employer to discontinue Flack's services for
reasons proscribed by the Act, thereby violating Section
8(b)(1)(A) and (2) thereof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the Employer's
operations described in section I, above, have a close, in-
timate, 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 thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, it will therefore be recommended that it
cease and desist therefrom, and take certain affirmative
action designed to effectuate the policies of the Act. It
will be recommended that Respondent notify Riverside
Steel Construction that it has no objection to the rein-
statement of Dwight E. Flack, and that it make him whole
for any loss of pay he may have suffered by payment to
him of a sum of money equal to what he would have nor-
mally earned from the date of his termination until the
date of Respondent's notice to Riverside Steel Construc-
tion. Such loss of earnings shall be computed and paid in
accordance with the formula established in F. W. Wool-
worth Company, 90 NLRB 289, together with interest in
accordance with the formula in Isis Plumbing & Heating
Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Riverside Steel Construction is an employer en-
gaged in commerce within the meaning of the Act.
2. Respondent is a labor organization within the mean-
ing of the Act.
3. By causing Riverside Steel Construction to ter-
minate the employment of Dwight E. Flack in violation
of Section 8(a)(3) of the Act, Respondent has violated
Section 8 (b)(1)(A) and (2) of the Act.
4. The aforesaid unfair labor practices affect com-
merce within the meaning of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, it is recommended that Respondent,
its officers, agents, and representatives, shall:
1. Cease and desist from:
,(a) Causing or attempting to cause Riverside Steel
Construction to discriminate against Dwight E. Flack or
any other of its employees in violation of Section 8(a)(3)
of the Act.
(b) In any like or related manner restraining or coerc-
ing employees of Riverside Steel Construction in the ex-
ercise of the rights guaranteed in Section 7 of the Act, ex-
cept to the extent that such rights may be affected by an
agreement requiring membership in a labor organization
as a condition of employment in accordance with Section
8(a)(3) of the Act.
IRON WORKERS LOCAL 433 673
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Notify Riverside Steel Construction, in writing,
that it has no objection to the reinstatement of Dwight E.
Flack and furnish Dwight E. Flack a copy of such notifi-
cation.
(b) Notify Dwight E. Flack, if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the
Armed Forces.
(c) Make whole Dwight E. 'Flack for any loss of pay
which he may have suffered as a result of the discrimina-
tion against him in the manner set forth in the section of
this Decision entitled "The Remedy."
(d) Post at its offices in Los Angeles, California, and
any other place where it customarily posts notices to its
members, copies of the attached notice marked "Append-
ix." 15 Copies of said notice, on forms provided by the
Regional Director for Region 21, after being duly signed
by a representative of Respondent, shall be posted by it
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its members
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Deliver to the Director for Region 21 signed copies
of said notice in sufficient number to be posted by River-
side Steel Construction, if willing.
(f) Notify the Regional Director for Region 21, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.",
11 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
16 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read- "Notify said Regional Director,
in writing , within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF IRON WORKERS LOCAL
433, INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL AND ORNAMENTAL IRON WORKERS,
AFL-CIO
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause Riverside
Steel Construction to discriminate against Dwight E.
Flack or any other of its employees in violation of
Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner
restrain or coerce employees of Riverside Steel Con-
struction in the exercise of their 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
employment in accordance with Section 8(a)(3) of
the Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959.
WE WILL notify Riverside Steel Construction, in
writing, that we have no objection to the reinstate-
ment of Dwight E. Flack, and we shall furnish the
said employee with a copy of such notification.
WE WILL make whole Dwight E. Flack for any
loss of pay he may have suffered by reason of the dis-
crimination against him.
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act
and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces.
IRON WORKERS LOCAL 433,
INTERNATIONAL
ASSOCIATION OF BRIDGE,
STRUCTURAL AND
ORNAMENTAL IRON
WORKERS, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
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.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, Eastern
Columbia Building, 849 South Broadway, Los Angeles,
California 90014, Telephone 688-5229.