Iron Workers Local 433

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.