Tryco Steel Corp.

TRYCO STEEL CORP. Reinforcing Iron Workers, Local Union No. 426, International Association of Bridge , Structural and Ornamental -Iron Workers, AFL-CIO (Tryco Steel Corporation) and Charles P. - Schmelter. Case 7-CB-2172 July 15, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On January 4, 1971, Trial Examiner -Samuel Ross issued his Decision in theabove-entitled' proceeding, finding that the Respondent had engaged in and was engaging- in certain unfair labor practices, 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 General Counsel filed exceptions to the Trial Examin- er's Decision and a supporting brief, and the Respon- dent filed cross-exceptions and a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as -amended, the National 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 recommendations of the Trial-Examiner, as modified below. We agree with the Trial Examiner that the=Respon- dent, by attempting to cause, and by causing, Tryco Steel Corporation to refuse to- employ Charles P. Schmelter because he was not a member of the Respondent and did not have a work permit issued by it, thereby violated Section 8(a)(2) of the Act. However, we find, contrary to the Trial Examiner, that the letters of June 9, 1970, by Respondent's counsel to Schmelter and Tryco, which the Trial Examiner himself characterized as "equivocal," did not terminate the Respondent's backpay obligation to Schmelter. Where a union undertakes to remedy its prior unlawful conduct, the Board has recognized the inequity in continuing to charge it with backpay 1 These findings are based, in part, upon credibility determinations of the Trial Examiner to which the Respondent has constructively excepted. After careful review of "the record, we ' conclude that these credibility findings are not- contrary to the clear preponderance of all the relevant evidence. Accordingly, we find no basis for distrubing these findings. Standard Dry Wall Products Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). ' ' , 97 liability simply because the employer, ,whose actions the union cannot control, declines to hire the victim of the past, union-caused discrimination,-2 Nonetheless, the Board has in this type of case required clear, unequivocal action by the union; so as not to permit it to escape liability by virtue of a token 'act not calculated or likely to achieve a correction-of the wrong committed a - Respondent in this 'case has previously been recalcitrant in living up to its statutory obligations with respect to work permits. Thus,` as chronicled by the Trial Examiner, Respondent in 1965 was' ad- judged guilty of criminal contempt of a court.decree in continuing to require work permits of nonmembers. Again, in 1970 Respondent was €otmd $' to ' have required work permits of nonmember's in violation of Section 8(b)(1)(A).4 In that case, ashere, Respondent attempted to limit its back pay liability by a communi- catiorf-to the employer'' that it would not object to the employment of the discriminatee-. However, the Board found that Respondent's"action was'suf€icient- ly unclear as to render the communication ineffective for tolling purposes. - - We believe the same situation obtains in°theepresent case. Respondent's discriminatory policy`was' carried out by Business Manager' Wheeler - and Steward Grant. The June 9 letters were not from Wheeler or Grant but from counsel who not only disclaimed that Respondent had done anything wrong, by virtue of a false representation that Tryco had had no openings for the discriinatee, but also failed-to indicate in any manner that Business Agent Wheeler, Ste"ward Grant, and others responsible for -carrying 'out' the Union's policies had been -instructed-to cease their'-discrimina- tion. The letter sent by counsel to Tryco was such that, in,view of Respondent's previous, repeated -conduct of this -unlawful- 'character, We Would anticipate that Tryco's representatives would view it-With, consider- able ' skepticism, Indeed, our reading of, the letters from Respondent's counsel-leaves-us with the convic- tion that Respondent was not in fact-seeking-to cure its previous misdeeds but rather to limit its liability with as guarded- a statement to Tryco and, Schmidt as it could, it thought, getaway With. Weneed not decide whether a letter of -this character would-satisfy in other ' situations for with this :Respondent a more affirmative communication was necessary to erase the effect of its unlawful conduct. In view-of the -findings of the Trial Examiner, with which-we "agree, -that the Union's failure to inform its "stewards and member- 2 Pinkerton's National Detective Agency, Inc., 90 NLRB 205, 213. 3 See, e.g., Local 595, International Association of Bridge, Structural and Ornamental `Iron Workers (Clinton Construction` Co.),^ 109 NLRB 13, 1&-79; Bricklayers, Masons and Plasterers' International Union, Bricklayers Local No. 2 (Glenshaw Glass Co., Inc.), 176,NLRB No. 54. 4 Reinforcing Iron Workers, Local `Union' No. 426' (Great' Lakes Contracting of Detroit, Inc.), 180 NLRB No. 124. ` - - 192 NLRB No. I 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ship that work -,permits were not required was a substantial -factor in- the Union's continued mainte- nance and -enforcement of its,, illegal work permit policy, we, do not believe that the Union can be said to have, unequivocally expressed its willingness ,to cease its unlawful conduct, until it has informed its stewards and membership, as well as Tryco, that work permits are not required as a condition of employment. We shall therefore direct that the Respondent make Schmelter- whole for any Joss of , pay suffered as a result._of the Aiscriminationvagainst him from May-26, 1970, to 5 -days after unequivocal notification in writing by ,the Respondent's business manager .to its stewards and membership, _as well as to Tryco and Schmelter,- that it has no policy'-of requiring, work permits for Tryco and Schmelter and that it has no objection , to, Schmelter's hire by Tryco. Further, in vied, of the , 1,rial Examiner's own `finding as -to -the Union's, failure_'properly, to instruct its members and stewards,coiicermng such permits, we shall require the Respondent = io,,-notifya;its job , stewards that work permits -" as a condition of employment are not required of nonmembers. We shall also amend the notice.,attached as Appendix, to the Trial Examiner's Decision by,;inserting therein a_ statement that the espondent will _ not require such permits as a condition of employment. ORDER , Pursuant to Section 10(c) of the National Labor Relations Act, as , .mended, , the National Labor Relations Board adopts asits Order the recommend- ed Order- of the Trial Examiner, as herein modified, and, hereby orders that the Respondent, Reinforcing Iron Workers, ,Local Union , No. 426, International Association of Bridge, ,Structural and, Ornamental Iron, Workers, AFL-CIO, its - officers,; agents, and representatives, shall take, the, action set-forth in the Trial Examiner's recommended Order as so modified: - I.- , Delete- -paragraph 2(b) of the recommended Order and-.substitute the following: (b) ,Make Charles P. Schmelter: whole, for any loss of pay-he-may have suffered as a result of the discr-inunation ^caused,against' him in,the manner set forth, in, the-section of the Trial Examiner's Decision, entitled "TheRemedy," as modified by the <Board's Decision. ,,2. Insert the, following _as: subparagraphs 2(c) and (d) , : of , then ^ ;recommended Order and reletter the remaining subparagraphs accordingly: C)Notify` its job stewards that it does not require job applicants who are nonmembers of the -Respondent to obtain work permits as a prerequi- site to obtaining employment. (d) Notify Tryco Steel Corporation, in writing, that -it does not -require a work permit as a condition - of employment ° F and that it-has' no objection to Tr-yco's' employment of Charles P. Schmelter and furnish a copy of said notice to Schmelter. 3. Substitute the attached notice for the Trial Examiner's notice. APPENDIX 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 Tryco Steel , Corporation, or, any other- employer, to discharge, or to refuse -to, employ, Charles P. Schmelter, or any other person who is not a ,,,member of our, Union, because of the lack-of,a work permit-issued by us., WE WILL NOT in any like _ or related manner restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL notify Tryco Steel Corporation, in writing, that we do not require a work permit as a condition of employment and that we have --no objection to the reinstatement of Charles P. Schlnelter;and we shallfurnish, the said employee with a copy of such,notification. WE WILL make-whole, Charles P. Schmelter for any Joss of pay, he may have sufferedby reason of the discrimination against him. WE WILL NoT require any job applicants who- are not members of our Union to, secure work or job permits in,-order to obtain , employment, and'WE WILL specifically notify our job stewards ,that such permits are not required as; a .,condition, of employment. REINFORCING IRON WORKERS, LOCAL UNION No. 426, INTERNATIONAL ASSOCIATION OF, BRIDGE, -STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO (Labor Organization) Dated By (Representative) (Title) We will notify immediately the above-named individ- ual, if presently serving in the Armed Forces" of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in TRYCO STEEL CORP. 99 accordance with the Selective Service Act and the Universal Military Training and Service Act. 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, 500, Book Building, 1249 Washington Boule- vard, Detroit, Michigan 48226, Telephone 313-226- 3200. TRIAL EXAMINER'S DECISION 'STATEMENT OF THE CASE SAMUEL Ross, Trial Examiner: Upon a charge filed on May 27, 1970, by Charles P. Schmelter, an individual, the General Counsel of the National Labor Relations Board issued a complaint on August 21, 1970, which- alleges that Reinforcing Iron Workers, Local Union No. 426, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (here called the Union or Respondent) had engaged in and is engaging in unfair labor practices within the meaning of Section-8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act. More specifically, the complaint alleges that on or about May •26, 1970, the Union caused Tryco Steel Corporation (herein called Tryco} to refuse to employ Schmelter because he was not a member of, and did not have a work permit issued by, the Union. The Respondent filed an answer to the complaint which denies the substantive allegations of the complaint and the commis- sion of unfair labor practices. Pursuant to due notice, a hearing on the complaint was conducted before me at Detroit, Michigan, on October 29 and 30, 1970: Upon 'the entire record, and my observation of^ the -,witness'es and their demeanor, and after due consideration of the brief filed by the Respondent, I make the following: FINDINGS OF FACT 1. COMMERCE Tryco, a Michigan corporation whose principal office and place of business is located in Detroit, Michigan, is engaged in the business of selling, fabrication, erecting, and installing, steel fabrications, including reinforcing steel, in the State of Michigan. During the fiscal year ending on Mardi 31, 1970, a representative period, Tryco received gross revenues in excess of $500,000 in-the operation of said business, of which, revenues in excess of $50,000 were received for services rendered to corporations and other establishments which are engaged in interstate commerce. On the foregoing admitted facts, the. Respondent Union admits and I find that Tryco is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1 Cases 7-CB--1157, 1161, 1166, 1199, and 1202. 2 Reinforcing Iron Workers, Local Union No. 426, etc. (Great Lakes Contracting of Detroit, Inc.), 180 NLRB No. 124. That decision is presently II. THE LABOR ORGANIZATION INVOLVED At all times material herein, the Respondent Union has been and is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Facts The Respondent Union is a labor organization which represents reinforcing iron workers in the Detroit, Michi- gan, area. For many years, the Respondent has been a party to collective bargaining agreements with various associa- tions of employers of reinforcing ironworkers, including, The Associated General Contractors of America, Detroit Chapter, - Inc.,- Michigan Chapter, Inc., and ReSteel Contractors Association. Tryco, the employer involved in this case, is a member of ReSteel Contractors Association, and at all times material herein, it has -been a party to the Association's collective-bargaining agreement with the Respondent Union. The Union has been involved asRespondent in a number of prior unfair labor practice proceedings in which it- has been charged with violations of- section 8(b)(IXA) and `(2) of the Act. Based on one such group of charges,' a Board complaint issued against the Union-which alleged that it violated the Act, inter alia, by maintaining in effect and enforcing a practice of requiring, as a condition of employment with contracting`employers, that nonmembers of the' Union obtain work permits `for which they must pay $4 per week, and by causing 'contracting employers to refuse employment to nonmembers of the Union to 'whom it refused to issue such work permits. That complaint culminated in a formal settlement pursuant to which a Board order was` entered on August 20, 1964, and a ,consent decree of the Court of Appeals for the Sixth Circuit issued on October 27, 1964; The' Court's decree enjoined Respondent Union from, inter alias (1) maintaining any agreement or practice pursuant to which nonmembers are required to obtain work permits as a 'condition of employment; (2) causing, or attempting to cause any employer to discriminate against -employees in violation of Section 8(a)(3) and (4) of the' Act; and (3) causing or attempting to cause interruptions of employment because an employee does not have a work,permit. Thereafter, on September 8, 4965, on the admission of Respondent Union that it had violated the terms 'of the Court's decree; inter alia, by causing and . attempting to cause employers to discharge . employees- because they did not l have' a work permit issued by the Union, the- Court adjudged-'the Respondent Union to be in civil contempt of its decree, and on a plea of guilty, the Court on November 9, 1966, adjudged the Respondent- to be -in criminal contempt for violation of its decree. Still later, on January 21, 1970, the Board again found that the Respondent Union violated Section 8.(bXl)(A) and (2) of the Act,, and issued it further order that it cease and desist from causing employers - to require employees to obtain work permits from it as a condition of employmen0 pending enforcement on the single issue of'the duration of the Union's backpay liability to the discriminatees. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Current Incidents on which Violation of the Act is Based3 The charging party, Charles P. Schmelter, is a reinforcing ironworker. He was a member of Respondent Union from 1965 for about 3 years until he left the Detroit area and went to California for about a year. On January 31, 1968, during his absence from Detroit, r Schmelter's union membership was suspended for nonpayment of dues. Upon his,,return to Detroit in October 1968, Schmelter, went to the Union hall to seek employment, and he was referred by the Union to work f or, Wayne ReSteel Company, a job at-which he worked, for about a month pursuant to work permits issued by the Respondent U4^n.4 Thereafter, Schmelter obtained and worked on other ironworker jobs pursuant to work permits issued to him by the Union on request .5 The cost of these, work, permits to Schmelter- was $3.50 per week.6 On, the morning of May 25, 1970.7 Schmelter and his brother-in-law Dennis Mallon, a member of. Respondent Union, visited the union hall-in search of work„ but found nothing available for them- On the suggestion of, another union member, Mallon and Schmelter drove` to the office of Tryco, a company for which Mallon, but not Schmelter, had worked previously, to seek employment. Upon arrival there, Mallon applied1t6Otis Frost, Tryco's president, for work for himself and Schmelter. According to Mallon _and -Schmelter whom I credit, Mallon told Frost that he, and his brother-in-law ,Charles Schmelter needed a job:' Frost inquired about Schmelter's experience as an ironworker, I and he also " asked whether Schmelter had a s [union ] book." Mallon replied that Sclmelter was a "damn good worker,".and that,although Schmelter was an ex-book member," he could getawork permit from the Union. Frost then said that he had no work available "right then," but that he might have something "tomorrow," in which event `he would -call and notify Mallon `that, evening. Mallon and` Schmelter thanked Frost and left. That evening," Fr'ost' telephoned Mallon and notified him that he, and 'Schmelter were to report for work the following mornmg at Tryco's primary, tank" job at West Jefferson and ' Brennan in Detroit8 Frost also told Mallon _to -,tell Schmelter to "go-down to the union hall and get a [work] "s Unless, otherwise' indicated, the findings in this section of my decision are-baied;lon the testimony-of, the charging party, Charles P. Schmelter, and his-brother-in-law, Dennis Mallon, whom I regard as reliable witnesses and credit ' in these respects. To the extent that the testimony of Otis Frost, ., Tryti's "president, and Richard Wheeler, the Union's business manager, does not conform with that of Schmelter and=Mallon heremafter 'credited, I regard _-it'as unworthy ,of credence cork bdhef for reasons which will"be explicated. infra, . s + See G.C. Eich. 8E, 8B, 8C, and 3. 5 See for example,'G.C.'Exh. 8A` and 8D The record does not disclose whether Schmeltei obtained these jobs by"himsel€ or through referrals, by the Union., I, I , 6On,,a date not ,disclosed,-by the record, Schmelter was told,. by Respondent , Union's Business ' Manager Richard wheeler that he could rejoin the Union at a'cost of $600,'but he declined the offer because of" lack of funds. T All dates hereafter refer to, 1970 unlessaotherwise noted. 8 This was a job which' Tryco was engaged in for the city, of Detroit in connection with its water purification project. Don Frost is a nephew of, Tryco's president Otis Frost. permit the next morning." " After, receiving Frost's call, Mallon went, over to Schmelter's nearby house and notified him to be ready to, go to work the next morning. Accordingly, Schmelter got his work boots and work clothes out of his basement in preparation for work the next day. The following morning, 'May 26, Mallon and Schmelter drove together to the job site and arrived there at about 7:45,a.m. At the parking lot, they met Don Frost, Tryco's foreman,9 Joe Grant, the Union's job steward, Gilbert Calderon, a member of the Union' s executive board, and some of the other ironworkers who, worked at that job. On their arrival, Union Steward Grant asked Mallon for his union book, and Mallon gave it to him. Grant then "wrote down something." Then Grant asked Schmelter whether he had a work permit, and Schmelter replied, "No, I will have to go to the [union ] hall and get it." Mallon then inquired whether Grant would go for the permit, or whether he wanted "Chicko to go." 10'Grantin,turn asked Foreman Don! Frost which of these- two courses he preferred to, be followed; and Frost, said that Schmelter."had better go." Thereupon, Schmelter borrowed, Mallon's car and drove to the union, hall, and Mallon remained- at the- job, site and went to work.' Schmelter arrived at the union hall at about 8:30 a.m. on May 26, and asked Shirley Pistolesi,, the Union's bookkeep- er and, secretary, for a, "permit to go to, work for Tryco ReSteel." She replied that "he would have' to 'see ,Mr. Wheeler" who was not then present at the-hall. Schmelter then asked Union 'President Joe "Lowery"for-the work permit, and he also said that Schmelter "would have to see Mr. Wheeler.'711 ^ ;', Accordingly, ' Schmelter went downstairs, and waited there-for Wheeler 'to arrive. From time to.time Schmelter telephoned the Union's office-but was told each-time that Wheeler had not yet come. Finally, at about-r2:30 p.m., Schmelter succeeded in contacting Wheeler on the telephone,, and according to Schnielter'scredited testimony, the following ,conversation ensued. Schmelter said, "Dick, I have got a job, can I have a permit?" Wheeler-replied; "No, Chicko, I am not giving you a permit." Wheeler than-asked, "why?" Wheeler responded, "I have got book, men out of work and I am not issuing no (sic) permits." 12 After being turned down by Wheeler, Schmelter returned io "Chicko" is Schmelter's nickname. , ii The quotes above are from the credited testimony of Respondent's bookkeeper Shirley Pistolesi' who corroborated Schmelter's testimony in these respects. 11, Wheeler admitted that 'he,had- a conversation with, Schmelter, that Schmelter told him he had a job 'and asked hum fora work' permit, and that he had refused. Schmelter's request. However, Wheelerdemed that he told Schnle ter that the reason for the refusal was that he had members out of work. According to Wheeler, his response to Schmelter was, "You-don't have to have 'a permit." But when Wheeler was asked why, regardless of Schmelter's 'need for a permit, he refused to give him one, he admitted, "I had, a lot of men out of work." Wheeler then attempted to blunt that admission by testifying that he refused to give Schmelter a permit, inter a/4 because he did not believe Sehmelter's statement that he had °a job. I regard that testimony as patently incredible, for Schmelter obviously would not,have sought to buy a-work permit from 'the Union at'a cost of ,$3.50 unless he had a job for which he needed one, and Wheeler obviously could not have believed otherwise."Moreover, it is significant in this regard that Wheeler made no effort to verify whether Schmelter had a job before he TRYCO STEEL CORP. 101 to Tryco's primary tank job site sometime between 3 and 4 p.m. just as all of the iron workers were coming up "out,of the tanks." In the presence of Foreman Don Frost and Union Steward Toe `Grant, Schmelter then reported to Mallon that Wheeler had refused to give him a work permit because, as Wheeler said, he had too many men out of work. Foreman Frost nand Union Steward Grant both then told Schmelter that there, was'nothing they could do about it. Moreover, neither Frost nor-Grant told Schmelter that he could work at the-job without a work permit. Mallon then said that he was going to call Wheeler and find out why Schmelter was refused a permit when he had a job. He promptly did so from the batch plant at the job site. According to Mallon's credited testimony, he asked Wheeler, why "Chick, couldn't get a permit?" Wheeler replied that he had too- many men out of work. Mallon persisted and said, "Look, the guy has got a job and.needs the work." Wheeler answered, "I am not issuing no (sic) permits." Mallon-then said, "How come you give (sic) Bommarito a permit a, couple of days ago?" Wheeler responded, "I am not "discussing that with you." Mallon then accused Wheeler of violating Schmelter's "constitu- tional rights" and said that he,would report the matter to the National Labor Relations Board. Wheeler answered, "Let me worry about that," and that concluded the conversation: The following day, May 27, Schmelter visited the Board's Regional Office and filed the charges upon which the complaint in this case issued later. Since then, Schmelter has- not made any attempt at securing reemployment by Tryco. On June 9,' Respondent's counsel wrote, the following letters to Schmelter and to Tryco:13 June 9, 1970 Dear Mr. Schmelter: We represent Reinforcing Iron Workers Local 426. You have filed a charge against -the Local Union alleging a discriminatory refusal-to issue you a work permit. Please be advised that a, work permit is not required, of employees working in the reinforcing iron industry within' the geographic jurisdiction of Local 426; that the Local Union was advised by the employer with whom allegedly a--position was offered that it in fact had no work for you on or about May-26,1970. Finally; please be advised that Local 426 has no objection to your employment by Tico `Steel Corporation, nor will it interfere in-any way with the employment relationship should it be established. - Very truly yours, SHARPLES, KLEIN,- MEIZLISH & SUGERMAN By: David Y. Klein June 9,1970 denied his request for a permit. All of the foregoing, as well as demeanor, persuade me that Wheeler was an evasive witness whose testimony is generally unworthy of credence,'and I credit it only when it accords with other credited testimony, and/or when it constitutes an admission contrary to the Respondent's interest. - 13 Resp. Exh. 1 and 2. Tryco Steel Corporation - 24935 W. Warren - - Dearborn Heights, Michigan Gentlemen: We represent Reinforcing Iron Workers Local ocal 426. An unfair labor practice charge „has been filed against, Reinforcing Iron Workers Local 426 by- one Charles _ Schmelter, who contends the Local Union discrimi- natorily refused to .grant- him a work permit. He, alleges he was offered employment by your, concern. We have been advised subsequently that you did not offer employment to Mr. Schmelter, nor infact did you have any openings, on the date ,in question which ,was alleged to have been May-26,1970. in any event,,please be advised that Local 426 has no objection to your employment to Charles Schmelter. Very truly yours, SRARPLES, KLEIN, MEIZLISH & SUGERMANT ' 'By:" David-- Y. 'Klein Since receiving the letters, Schmelter has not -applied to Tryco for employment, and- -Tryco has not offered employment to Schmelter although it admittedly has hired new reinforcing iron workers since-then. C. Contentions and Concluding Findings - The complaint in this case alleges., that on May 26, the Respondent Union, through its-agents, ,`,`made the posses- sion of a work permit,a condition of employment for non- member Charles, P. Schmelter"; that, , it, caused Tryco to refuse to employ Schmelter at its-primary, tank job, "because he was not a member of -Respondent-and did, not have a permit from _ Respondent"; and that it,, thereby violated Section 8(b)(2) and (1)(A) of the Act.14 The , Respondent first contends that it could not have caused, or attempted to cause, i ryco to,, discriminate against Schmelter by its refusal to give him a work permit because Tryco neither hired, nor agreed to hire,, Schmelter. The Respondent relies-for support of this contention on the testimony of Otis Frost, Tryco's president. According to Frost, Mallon and Schmelter concededly visited his, office and applied for work on or-about May 25. Frost testified, however, that he, agreed to hire only Mallon, whom he knew, for the primary tank job, and not, Schmelter. Moreover, according to Frost, he agreed to hire Mallon while the latter wasat,Tryco's office that day, and not by telephone that -night, as Mallon testified. Jndeed,,according to Frost, he neither called Mallon -that- night, nor, did he ever agree to hire Schmelter. - . 11 - It is, of course, obvious that the Respondent, by refusing to issue a work permit to Schmelter, could not have caused Tryco'to discriminate against Schmelter in regard to hire or :tenure of employment" if in fact Tyco had not first 14 Under- Section 8(b)(2), a labor organization is, proscribed from causing or ' attempting to cause an employer to discriminate against an employee in respect to , hire or tenure,-, of employment to encourage or discourage union membership. Section, 8(bXl)(A) of the Act, prohibits unions from restraining or coercing employees in-the exercise of rights guaranteed by Section :7 of the-Act. , - 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreed to hire Schmelter. I nevertheless reject ' the Respondent's contention because I regard Frost's,testimo- ny on which it is based as unworthy of credence or belief. My reasons for this conclusion are as follows: 'The' record discloses without contradiction that Schmel- ter went to the job site onMay26 ready to go to work, that hem then was instructed to go down to the union hall to get a work permit, and' 'that he did so, and ° told the `Union's agents'-that,he `ne'eded the permit for a job with Tryco. If, as Frost testified,- Schmelterwas never hired or told to go to work at the primary tank job, that fact undoubtedly would have been known by Tryco's foreman Don Frost, and Schmelter `would not then have been sent to the union hall to get a work permit. Moreover, Frost's testimony, if true, suggests - `that Mallon - and Schmelter not only concocted their testimony out of whole cloth, but also knowingly went through useless motions on May 26 for no purpose other than to establish a basis for charges against the Union. I do not believe that. to -be the case, and I was favorably impressed by their demeanor and the credibility of their testimony. Frost,,on the other hand, testified in a number of respects contrary to the affidavit he signed for an agent of the Board, his testimony, in some,,, instances was self- contradictory, and in others implausible. He often was evasive sand.-displayed a, lack of candor. for all the foregoing 'reasons, including _ 'the implausiblity of his testimony, I regard Frost as generally unworthy of credence, and I specifically do not credit his testimony that he did not on May 25 offer employment to Schmelter as Mallon `testified Y5 For all these reasons, I reject the Respondent's' contention,- based on-Frost's testimony,'that it could not 'have caused Tryco to discriminate against Schmelter because the latter had not been hired by Tryco. The Respondent further"contends that the possession of a work perm-tiit was not made a condition of employment by it. In support of this' contention; the, Respondent argues that "the very idea" that Schmelter needed a union permit to work for Tryco "originated" with' Mallon and Schmelter, and not with Respondent, and that Business Manager Wheeler told both Schmelter and Mallon- that, the former did not, need a permit ` togo°to work for Tryco.-I regard this contention' as equally without merit for the following reasons: It` is, `true that the - record-'clearly discloses that both Mallon and Schnielterbelieved that as :a nonmember of the Union, 'Schmelter' needed a work permit from it to work for Tryco.'- However, everyone else involved in Schmelter's unsuccessful attempt Ito go to work for'Tryco shared in the belief of Mallon and Schmelter that a nonmember needed a work per"mitfrom^ the Union 'to work for Tryco. Thus,- as found above, when 'Mallon applied to Try- co for work on May 25 for himself and Schniel'ter,-'Otis Frost, Tryco's 15 The Respondent's brief suggests that Frost's testimony in this regard is more reliable than Mallon's because a few days later, the Respondent reduced the `number of employees, at, its' primary tank job. I am not persuaded by this argument ' since .italso would be' a reason for not -hiring Mallon who admittedly was hired on May 25 and later retained on the job after others' were -transferred to other Tryco jobs and/or laid off. ,The Respondent's brief also suggests that Mallon should not be credited because he testified'that'Frost, who had not met Schmelter before May 25, referred; to him ,by his nickname,Chicko when he telephoned Mallon, that evening. I amynot impressed by.this argument either,.for Mallon likely could have mentioned Schmelter's nickname to Frost when they-were in his president, asked Mallon, inter alma, whether Schmelter was,a union member, and was told byMallon,that he was-not, but that, he could get a union work- permit. In addition, when Frost .called Mallon,.that evening and; told Mallon that,he and Schmelter should report to work the next morning, at the primary tank job site, he also told, Mallon to tell Schmelter to go to the union hall,and get a work permit. Frost clearly, had, no reason either to inquire about Schmelter's union membership status, or to instruct Schmelter to get a work permit from the Union, unless he, like Mallon . and Schmelter, : regarded such a permit a necessary condition, of employment.16 Accordingly,, I find he shared their belief in this respect. It is also quite-obvious that bothTryco's Foreman, Don Frost and Union Steward Joe Grant also believed that, a union work permit was needed by nonmembers to work for Tryco. Thus, as found above, when Mallon and Schmelter reported to the job-site ready to go to work-on-the morning of May 26, insofar as Schmelter- was concerned, the first thing that happened was-,that, he was,,asked by.-Union Steward Grant, an admitted agent of the Union, whether he had' a work permit. And, ,,when Schmelter said he did not have one, and that- he would have to go to the union hall to get one, Grant did not tell him that -a work permit was not needed, but instead, he asked Foreman Don Frost whether he (Grant) or Schmelter should go to the union hall for the permit.' Moreover, when Frost answered Grant's=inquiry, he also did not say that Schmelter could work at,the job site without a permit, but instead, he said that he preferred Schmelter to go to the Union to get one. It is quite apparent from the foregoing, and I find, that both Union Steward Grant and Foreman Don Frost, were-of the belief that Schmelter, a nonmember of the Union, needed a work permit to work for Tryco. My conclusion in this regard is consistent , with and supported by' what transpired at the, job site when Schmelter returned from the union hall and ;reported that Union Business Manager,-Wheeler had refused to give him a permit. _At that time, as found above, neither Frost nor Grant told Schmelterhe could go to work without a -permit, but instead they said only that they could do nothing about 1t.17,, . 1 -11 .The reason for the widespread belief, that work permits were required by nonmembers to work for employment under contract with the Union is quite-apparent„from the record., As previously noted,' the- Respondent Union had maintained and enforced just such a requirement in the past, and it had resulted not only in numerous charges against it of unfair labor practices within the meaning of Section S(bxiXA) and (2) of the Act, and Board orders to cease and desist therefrom, but also in an enforcement order of the Court of Appeals for the Sixth Circuit, and office earlier that day. I note in this regard that Wheeler, -the Union's business manager, also referred to Schmelter as Chicko during the hearing. 16 Trycos contract with the Union contains no provision requiring it to apply first to the Union for referrals before hiring employees. The contract also does not require employees to join the Union until after ,7 days of employment. w ^ It is true, that Business Manager Wheeler testified that he told both Sclunelter and Mallon' that Schmelter did not need a union permit to work, but Schmelter and Mallon both credibly denied that,tbey were so told by Wheeler, and I do not believe his testimony to the ,contrary (see fn. 12. supra ). TRYCO STEEL CORP. 103 adjudications by that court of the Respondent Union and its agents in both civil `and criminal contempt for not complying with the court's order. The Respondent's brief urges that the Respondent has, in effect, reformed since Wheeler became business manager of the Union in 1966, because since then, "only one complaint" and Board order, has issued against it for violating the Act 18 However, that decision, and the prevalence of the , belief disclosed in this case that nonmembers need a union permit to work for a contracting employer, persuade me not- that the Respondent has reformed, but that through. failure to, properly instruct its members and stewards, the Respondent through Wheeler has continued to maintain and enforce the same-illegal policy, which was enjoined by the court of appeals. I can perceive no other plausible explanation for the unanimity of belief by Mallon, Schmelter, Otis Frost, Don Frost, and Union Steward Grant, that Schmelter needed a work permit from the Union in order to work for Tryco. I note in this regard that according to Wheeler's own testimony, the Respondent's union stewards, all appointed by Wheeler, ar-e°required, inter alia, to check new employees when they report at job sites for their union books or work permits, and to report immediately to Wheeler if an employee is not a member and has no work permit. ;I note further that when Wheeler was asked why he did not tell the Union stewards that permits were not required of nonmembers, he -first answered, "Why should I?," a response which I regard as in effect an admission that he did not so instruct the stewards.19 Finally, I note that both the union steward's report for Tryco's primary tank job and Tryco's payroll records for that job disclose that no person was employed on that project who was not either a union member or had a work permit issued by the Union. All of the foregoing persuade me that the Respondent, at least -at Tryco's primary tank job, has maintained and enforced `an illegal policy of requiring nonmembers of the Union to secure a work permit as a condition of employment. I therefore conclude that by the conduct of Union Steward Grant in asking for and requiring a work permit from Schmelter as a condition of employment by Tryco, and the conduct of Wheeler in refusing to issue a permit to Schmelter, the Respondent Union has attempted to cause and caused Tryco to discriminate against Schmelter within the meaning of Section 8(aX3) of the Act, and that it thereby has engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 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 operations of Tryco described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes 18 See In. 2, supra. 19 Later, Wheeler testified that he "probably" did so instruct the stewards, but in the light of the widespread contrary belief disclosed herein, and his earlier answer, I do not credit his later testimony that he "probably" did. 20 This latter date is 5 days after Respondent's counsel sent equivocal burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies,of the Act. Having found that Respondent caused' Tryco to refuse employment to Schmelter because he was not a member' of Respondent and had no work permit issued by it, I shall also recommend that it be ordered to notify Tryco, in writing and signed by its Business Manager Wheeler, with copies to Schmelter, that it has no objection'to the hiring by Tryco of Schmelter, or any other employee, without regard to membership in Respondent or possession o( a work permit issued by it. I shall further recommend that the Respondent be ordered to make Schmelter whole for any loss of 'pay he may have suffered, as a result of the. discrimination which was -caused against him by the payment to him of the amount'he would-have earned as wages from May 26, 1970,` until June 14, 1970,20 less his net earnings during said period, with interest, at the rate of -6" percent per _ annum in accordance with the formulas established by the Board.21 In view of the Respondent's repeated similar violations of Section 8(b)(1)(A) and (2), of the' Act, I shall also recommend that the Respondent be ordered to refrain from engaging in like or related conduct against the employees of any employer. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW - 1. Tryco Steel Corporation is an employer ` engaged in commerce and in operations affecting commerce within the meaning of Section2(6) and (7) of the Act. 2. Respondent, Reinforcing Iron Workers, Local Union No. 426, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By attempting to cause, and causing, Tryco Steel Corporation to refuse to employ Charles P. Schmelter, because he was not a member of Respondent and did not have a work permit issued by it, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (bX2) of the Act. 4. By the foregoing conduct, the Respondent also has restrained and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(IXA) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. letters to Schmelter and Tryco, which denied the charges against Respondent, but stated that the Union had no objection "in any event" to Schmelter's employment by Tryco. 21 F. W. Woohvorth Company, 90 NLRB 289, Isis Plumbing & Heating Co., 138 NLRB 716. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 22 ORDER Respondent, Reinforcing Iron Workers, Local Union No. 426, International' Association of 'Bridge , Structural and"Ornamental" Iron' Workers, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and-desist from, (a) Causing or attempting-to cause Tryco Steel Corpora- tion, or any other employer, to discharge, or to, refuse to employ Charles P. SchmeIter, or any other person who is not a member of`Respondent,because of the lack of a work permit issued by the Respondent. (b) In any, like or related manner restraining or coercing employees iii the exercise of their ' rights to,self-or'ganiza- tion, 'to_ form labor organizations, to join or assist any other labor,organization;'to bargain collectively through `repre- sentatives of their own choosing, .and to engage in other concerted'aativities for-the purpose of collective bargaining or, other mutual aid ^ or protection, or' to' refrain from engaging in` such activities, except to ` the extent that such rights may „ be affected by an agreement ' requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2.' Take the following affirmative",action to ' effectuate the policies of the Act, (a), Notify Tryco Steel Corporation, in writing and signed 22 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, recommendations, and recommended order herein shall, as provided in Section 102.48 of the Rules and Regulations, automatically become the findings, .conclusions, decision and order of the Board, and all' objections thereto shall be deemed waived for all purposes. - zs In the event that the Board's Order is enforced by" Judgment-of a United States Court of Appeals, the words in the notice reading "-POSTED BY ORDER ^ OF THE NATIONAL LABOR RELATIONS BOARD" by its business manager,, that it has no objection to the employment of Charles P. Schmelter. (b) Make Charles P. Schmelter whole,for any loss of pay he may have suffered, as a result of the discrimination caused against him in the manner set forth in the section of this Decision entitled "The Remedy." (c) In, the event that Charles P. -Schmelter is presently serving in the Armed Forces of the United States, notify him, in writing, that it has no objection to his employment in compliance -with the, Selective, Service Act and the Universal Military Training and Service Act as amended, after discharge from the Armed Forces. (d) Post at its offices and at all other 'places where it customarily posts notices to its members, copies of the notice marked ' "Appendix."23 Copies, of said notice, on forms provided by the; Regional,Director for Region 7, after being duly signed,by Respondent's-business manager, shall be posted by- it for a period of 60',consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any, other material. (e) Deliver to the Regional Director for Region 7 signed copies of the said notice in sufficient number-to be posted by Tryco Steel Corporation and other employers, if willing, in places where notices, to, employees are customarily posted. (f) Notify the Regional Director for Region 7, in writing, within 20 days from the date of the receipt of this `Decision, what steps have been taken to comply herewith.24 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." 24 In the event that this recommended Order is' adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify said Regional Director for Region 7, in writing within 20 days from the - date of this Order, what steps, the Respondent has taken to comply herewith.