Furniture Movers Local 82, Teamsters

838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen and Packers Local #82, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca (Arlington Storage, Inc., and Henry F. Owens, Inc.) and Roland J. Breton. Case 1-CB-2346 May 23, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS established, either by the facts within a particular case or by prior Board decisions against the Respondent at bar, based on similar unlawful conduct in the past. We find no pattern of continued unlawful conduct which warrants a broad remedial order Accordingly , we shall modify the remedial order The Respondent further excepts to the "Remedy" and states in its bnef that the Charging Party has been validly discharged subsequent to the instant hearing, pursuant to the applicable provisions of the Act and of the collective-bargaining agreement between Arlington Storage and Local 82 for failure to attain membership status after he had been employed for 30 days by Arlington Storage As this information in the Respondent's bnef is not a matter of record before us , we cannot pass upon it However, the information may appropriately be submitted during the compliance stage of the proceedings APPENDIX On January 17, 1974, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order,' as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen and Packers Local #82, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Quincy, Massachusetts, its officers, agents, and representatives, shall take the action set forth in said recommended Order, as so modified. 1. Delete paragraph 1(a) of the recommended Order and substitute the following: "(a) Causing or attempting to cause Arlington Storage, Inc., or Henry F. Owens, Inc., to discrimi- nate against employees except to the extent permit- ted by the proviso to Section 8(a)(3) of the Act, as amended." 2. Substitute the attached notice for that of the Administrative Law Judge. i The Respondent excepted to the recommended broad order requiring Respondent to cease and desist from unlawfully causing any employer to discriminate against any employee We find merit in this exception A broad remedial order is appropriate whenever a proclivity to violate the Act is NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the chance to present their evidence, the National Labor Relations Board has found that we violated the law by causing Henry F. Owens, Inc., and Arlington Storage, Inc., to discharge Roland J. Breton because he was not a member. We have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT cause or attempt to cause Henry F. Owens, Inc., or Arlington Storage, Inc., to discriminate against Roland J. Breton because of his nonmembership, except to the extent that such action is permitted by an agreement in accord- ance with Section 8(a)(3) of the National Labor Relations Act. WE WILL request Henry F. Owens, Inc., to offer reinstatement to Roland J. Breton. WE WILL request Arlington Storage, Inc., to afford Roland J. Breton all benefits he would have had but for the break in his employment owing to the discrimination against him. WE WILL make Roland J. Breton whole for loss of pay suffered by reason of the discrimination against him, with interest at 6 percent per annum. FURNITURE AND PIANO MOVING, FURNITURE STORE DRIVERS, HELPERS, WAREHOUSEMEN AND PACKERS LOCAL #82, A/W INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) 210 NLRB No. 136 FURNITURE MOVERS LOCAL 82, TEAMSTERS 839 Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Seventh Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This proceeding, heard at Boston, Massachusetts, on October 18, 1973, pursuant to a charge filed on June 29, 1973, and a complaint issued on August 10, 1973, presents the question of whether Respondent caused Henry F. Owens, Inc. ("Owens, Inc."), and then Arlington Storage, Inc. ("Arling- ton"), to discharge the Charging Party because of his nonmembership in Respondent, in violation of Section 8(b)(2) and (1)(A) of the National Labor Relations Act, as amended ("the Act"). Upon the entire record, including my observation of the witnesses, and after due consideration of the helpful briefs filed by Respondent and counsel for the General Counsel, I make the following: FINDINGS OF FACT 1. JURISDICTION Owens, Inc., and Arlington are both Massachusetts corporations engaged in the business of furniture moving and storage at their principal offices and places of business in Cambridge and Arlington, Massachusetts, respectively. Each derives annual revenue exceeding $50,000 from the interstate transportation of furniture and other goods. Respondent Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen and Packers Local #82, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("the Union" or "Local 82") is a labor organization within the meaning of Section 2(5) of the Act. I find that, as the Union concedes, Owens, Inc., and Arlington are each engaged in commerce within the meaning of the Act, and that assertion of jurisdiction herein will effectuate the policies of the Act. i My findings as to this conversation are based on the credited testimony of Owens, who impressed me as a wholly honest witness As counsel for the General Counsel points out, Owens' action in terminating Breton shortly after this conversation, together with the testimony by both Owens and Rofe that during this conversation Owens expressed a need for Breton's services, supports Owens' testimony that Rofe asked for Breton's immediate discharge, but is inconsistent with Rofe's testimony that he told Owens that if Breton did not pay a $175 reinstatement fee in due time, a discharge II. THE ALLEGED UNFAIR LABOR PRACTICES A. Breton's Discharge by Owens, Inc., and then by Arlington Roland J. Breton, the Charging Party, joined Local 82 in the mid-1940's. However, at the time of the events which gave rise to this case, he was not a member in good standing of that Union. Breton joined Teamsters Local 68 about 1957, and Teamsters Local 25 at a time not clear in the record. On May 21, 1973, Henry F. Owens, who is president of Owens, Inc., hired Breton for a job covered by a collective- bargaining agreement between Owens, Inc., and the Union, which contract contains provisions (discussed infra) requiring newly hired nonmembers to join the Union after 30 days in order to keep their jobs. On May 21 or 22, Union Steward Walter McCarthy (who is an employee of Owens, Inc.) telephoned the Union's secretary-treasurer and business agent, Henry J. (nicknamed "Barney") Rofe, to report Breton's hire. Rofe asked whether Breton had been in any other Union; McCarthy replied that he had been a member of Teamsters Locals 68 or 25. Rofe asked whether Breton had transferred. McCarthy said that he would check and then call Rafe again. Thereafter, Rofe received information which (he testified) led him to believe that Breton had been suspended from Local 82 in 1945 for nonpayment of dues. Rofe then telephoned President Owens and told him that "under no condition" was he to put Breton to work, that Breton was "bad news," and that "He is giving us a lot of trouble and I don't want you to put him to work, now that's it." President Owens "pleaded" with Rofe, "I got to put him to work. I need the man." Rofe replied, "Don't put him to work. That's it." Rofe did not explain what problems the Union had with Breton, or indicate what would happen if Owens retained Breton.' When Breton came in from the job on the evening of May 22, President Owens told him that "Barney had called [Owens] up and told him under any circumstances not to work" Breton. Owens told him to get straightened out with the Union and then come back to work, "that 's all I can do, I can't put you to work, I want you, I need you." Owens testified that Breton had told him he was transfer- ring over from Local 25 to Local 82 and that Owens knew Breton had 30 days to join the Union. Owens further testified that he discharged Breton because Rofe told Owens not to put him to work. On May 29, 1973, Thomas Robinson, Arlington's operations manager, hired Breton for a job which was covered by a collective-bargaining contract (between Arlington and the Union) identical to the Union's agreement with Owens, Inc. Breton started working for Arlington on Wednesday, May 30, 1973. On Friday, June 1, Arlington employee Donald Catarino, the Union's shop request would be forthcoming in the future Moreover, as counsel for the General Counsel further points out, Rofe's version of the conversation is difficult to square with his testimony that ordinarily, the stewards are supposed to advise newly hired nonmembers that they must join within 30 days, and that it is the steward's notification of such an employee's noncompliance that triggers Rofe's office into getting in touch with the employer. Furthermore, Rofe's testimonial demeanor was unimpressive. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD steward, told Robinson that he could not use Breton, Breton had to join the Union. After a discussion, Catanno said that he would "check the matter out" with Rofe, and would get back to Robinson because he had Breton scheduled for Monday. On the following day, Saturday, Catarino telephoned Robinson at his home and stated that "there was some problem with Mr. Breton being in the Union and until they got it straightened away, [Robinson] could not use him." Catarino made it "fairly clear" that Breton could not work the following Monday. Later that same Saturday, Robinson received an unex- pected telephone call at his home from Rofe. Rofe told Robinson that he "could not use Mr. Breton, that he did have to solve his problems with the Union." 2 Later that weekend, Robinson telephoned Breton and told him that Robinson could not work him any longer because "Barney" had told Robinson not to work him, and that Robinson could not use Breton until he had straightened out his problems with the Union. Robinson added that he was "sorry that he had to do it." Breton had previously told Robinson that he was not a member of Local 82 but was trying to get a transfer thereto from Local 25. Robinson testified that he understood Breton had 30 days to join the Union, but had discharged him anyway because of ".. . expediency, it wasn't worth my arguing about it, if they felt there was a problem then I didn't want myself or the company involved in something that was not a matter of life and death . . . I liked the man . . . Roland Breton was 11 another helper to me ... . Breton filed the charge herein on June 29, 1973. When he contacted the Board's Regional Office, he was asked whether he had tried to get work from any local movers. He replied that he could not "anywhere there is a union," and it was suggested that he try to go back to Arlington, where he was entitled to work for 30 days irrespective of his nonmembership . Breton relayed this message to Robinson and asked him, "To be sure, would you mind checking it with the union so I don't start any commotions over there?" On August 20, 1973, Robinson gave Breton a "casual" job, on which he was still employed at the time of the hearing on October 18, 1973.3 Breton testified that he was aware of his right to a 30-day grace period, but did not mention it to Owens or Robinson. Before being discharged by Arlington, Breton attempted to transfer from Local 25 to Local 82. Rofe told him that Rofe would not accept such a transfer and that Breton would have to pay a $175 "re-initiation" fee.4 Breton failed 2 My findings as to the conversation between Robinson and Ro`- are based on Robinson's credited testimony After considering the witnesses' demeanor, I do not credit Rofe's testimony that no such conversation occurred Robinson's uncertainty as to the number of his contacts with the Board about the instant proceeding, owing to the volume of incoming calls at his office, does not reflect on the accuracy of his recollection about a particular call received at home on a weekend. Further, the uncontradicted testimony that Catanno called on Saturday to clarify whether Breton could work on Monday, and the fact that both calls were received by Robinson at home on a weekend , indicate to me as well as Robinson that Breton's termination was sought immediately rather than after 30 days, whether or not such timing was specified in terms 3 Breton testified that if he had been permitted to work for Arlington continuously from his initial date of employment (May 30, 1973), he believed he would have acquired enough service to become a "steady" employee with holiday and, perhaps, other benefits. Rofe testified, in effect, that this was inaccurate . Breton's right to be a "steady " employee in view of to tender such a payment. By letter dated July 27, 1973, union counsel advised Breton that Local 82 would admit him as a member in good standing upon payment of a $175 "reinstatement fee," which was allegedly "required by the International Constitution because you left Local 82 previously without obtaining a withdrawal card." During the first week in August, when Breton telephoned Rofe, Rofe told him that upon receipt of the "reinstatement fee" he would be accepted into Local 82. Breton never came in with the money. When this letter was sent and this conversation occurred, Breton was not working on any job where the employees were represented by Local 82. Rofe testified that he had "never" instructed Arlington Steward Catarino to tell an employer representative to terminate Breton. Even aside from Robinson's credible testimony regarding Catarino's remarks to him, I discredit Rofe's testimony in this respect, in view of his demeanor and the obvious inaccuracies in his testimony about his conversations with Catarino regarding Rofe.5 Moreover, I accord probative weight to Catarino's statement to Arlington Operations Manager Robinson, in effect, that Rofe had told Catanno to tell Arlington not to use Breton until he got "straightened away" with the Union. Thus, a steward (who is elected by the membership working for his particular employer or "barn") has the duty of finding out and advising the Union's business agent when a man starts to work, telling him he has to join the Union, and notifying the Union's office when an employee has not joined the Union. The steward collects dues, notifies the employer when a newly hired nonmember's grace period is about to expire, is notified by the Union's office when an employee is delinquent in his dues, and distributes union withdrawal slips (permitting discontinuance of dues payments) when employees leave their employments In addition, a steward has the authority to and does investigate and present grievances in accordance with the contract, and the contract states that he has authority to transmit "such messages and information which shall originate with, and are authorized by the Union or its officers, provided such messages and information" are in writing or "are of a routine nature and do not involve work stoppage, slow- downs, refusal to handle goods, or any other interference with the Employer's business." I conclude that Catarino's responsibilities afforded him sufficient actual and apparent authority to render his foregoing statements to Robinson (subsequently confirmed in part by Rofe himself) binding the discrimination against him on and after May 22, 1973, is an issue which can be resolved in compliance proceedings. 4 The record fails to show whether Breton was entitled to such a transfer under the rules of these Locals and their parent International, or the effect any such entitlement would have on his financial membership obligations. 5 More specifically, although Rofe testified that Catarino calls him every time Arlington hires a new employee to report his name and starting date, Rofe placed as occurring on June 15 or 16-2 weeks after Breton's discharge by Arlington-Catarino's alleged report that Breton was working for that firm , and dated as "some time in July" Catarino's alleged report that Breton was "all through " 6 Steward Catarino received a courtesy copy of a letter from Rofe to Arlington requesting an employee 's discharge for failure to maintain good standing membership However, because the only other letter of this nature included in the record contains no indication that the steward was sent a copy, I credit Rofe's testimony that the Union does not usually send the stewards copies of such letters FURNITURE MOVERS LOCAL 82, TEAMSTERS $41 on the union as an admission . McCormick, Evidence, § 267, p. 641 (2d ed. 1972). # B. Analysis and Conclusions The credited evidence shows that Owens, Inc., dis- charged Breton because Union Business Agent Rofe told President Owens not to put Breton to work on the ground that he was "bad news" and was giving the Union a "lot of trouble"; and that Arlington discharged him because Rofe told Operations Manager Robinson that he could not use Breton because of unsolved "problems with the Union." The evidence further shows that by the quoted language, Rofe was referring to Breton's refusal to pay the Union the $175 reinstatement or reinitiation fee which the Union claimed was owing as a condition of obtaining membership in good standing. Whether or not the Union could eventually have lawfully required Breton to pay this sum in order to keep his job, the Union concededly could not lawfully cause Breton's discharge for failure to pay this sum until he had been employed in the contract unit for 30 days, which he had not been.8 Moreover, as the Union does not appear to dispute, a Union "causes" an employee's discharge, within the meaning of the Act, by successfully requesting the employer to effect it .9 Further- more, laying the contractual union-secunty provisions to one side, the action of the Union's secretary-treasurer and business agent (Rofe) in successfully requesting Breton's discharge would bind the Union. Thus, the Union's brief admits that "Rofe is its agent for many purposes and .. . may require employers to discharge certain employees on the Union's behalf who have not become members in good standing of the Union within thirty days of their date of employment." Further, union counsel admitted at the hearing that an "officer" has power to bind Local 82, at least under some circumstances; and the constitution of Local 82's parent International provides, "The officers of the local union shall consist of," inter aha, a "secretary- treasurer 10. . . These officers shall constitute the executive board of the organization." Additionally, by testifying that he had never "delegated" to any steward the authority to "notify an employer or terminate any other employee," Rofe in effect admitted that he himself possessed such authority." Also, Rofe has sent letters to both Owens, Inc., and Arlington requesting the discharge of employees under the union-security clause. Moreover, Rofe (who is elected to his office by the membership) negotiates contracts for the Union, is responsible for administering them, and attempts to resolve grievances thereunder with the employ- er. He also takes care of all the Union's records, correspondence, and paperwork. I conclude that discharge requests for nonmembership lay within the scope of Rofe's general authority.12 The Union contends, however, that it is not answerable for Rofe's conduct herein because of the underlined language in the following union-security clause binding Owens, Inc., and Arlington: All present employees who are members of the Union on the effective date of this subsection or on the date of execution of this Agreement, whichever is the later, shall remain members of the Union in good standing as a condition of employment. All present employees who are not members of the Union and all employees who are hired hereafter shall become and remain members in good standing of the Union as a condition of employment on and after the 31st day following the beginning of their employment or on and after the 31st day following the effective date of this subsection or the execution date of this Agreement, whichever is the later ... . The failure of any person to become a member of the Union at the required time shall obligate the Employer, upon written notice from the Union to such effect and to the further effect that Union membership was available to such person on the same terms and conditions generally available to other members, to forthwith discharge such person. Further, the failure of any person to maintain his Union membership in good standing as required herein shall, upon written notice to the Employer by the Union to such effect, obligate the Employer to discharge such person. However, the underlined contractual reference to a written notice applies, in terms , to a discharge for "failure to become a member of the Union at the required time"-that is (so far as relevant here) on and after the 31st day following initial hire.13 The written notice requirement 7 In view of my finding that Rofe himself requested Robinson to discharge Breton, and Robinson's testimony that he discharged Breton at least partly because of Rofe's request , I need not and do not determine whether the Union would have been answerable if Robinson had discharged Breton solely on the strength of a discharge request purporting to proceed from Catanno alone 8 Although the Union's contention that Breton owed a $175 reinstate- ment fee as a condition of obtaining good standing membership was apparently based on the theory that he had never effectively withdrawn from the Union, and although the contract fails to afford any grace period to employees who are members when hired, union counsel conceded at the hearing that Breton was entitled to 30 days of employment before he could be required to join Local 82 Yellow Cab Co, 148 NLRB 620, 624-625, Teamsters Local Union No 174, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Consolidated Food and Produce Co), 149 NLRB 1570, 1573, Brotherhood of Teamsters & Auto Truck Drivers, Local No 70 (Sea-Land of California, Inc), 197 NLRB 125, enfd 84 LRRM 3022 (C A 9, 1973) Counsel suggested at the hearing that the contract unit was multiemployer and that nonmembers were contractually subject to discharge after 30 days' employment by any employer party to the contract, whether or not the same as the discharging employer. See Building Material and Dump Truck Drivers Local Union No 420 (Zaich Co.) , 132 NLRB 1044 However, Breton had never worked under the contractual union-secunty clause until starting work for Owens, Inc., on May 21, 1973, and his last days of employment with Owens, Inc., and with Arlington were May 22, 1973, and June 1, 1973, respectively Indeed, Breton had not worked in a Local 82 represented unit , or paid dues to Local 82, since the mid- 1940's. 9 San Jose Stereotypers' and Electrotypers' Union No 120 (Dow Jones & Company, Inc), 175 NLRB 1066, fn 3. iu Rofe testified that "you run for" secretary-treasurer and business agent "on the same ballot, it is a combined job." i i However, as previously indicated , I do not credit this disavowal of any delegation to Catanno so far as Breton was concerned i2 International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 249 (Lancaster Transportation Co.), 116 NLRB 399, 402-404, enfd . 249 F 2d 292 (C.A. 3, 1957) i3 This interpretation is confirmed by the Union's brief (p. 6): "The Union admits that Rofe may require employers to discharge certain employees on the Union's behalf who have not become members in good (Continued) 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is, accordingly, inapplicable to Breton's discharge, for neither the witnesses nor union counsel suggest that his discharge was sought or effected because of any failure to join the Union by his 31st day of employment-a period which had not elapsed (on any theory) prior to either discharge. In any event, even if the written notice requirement purported to extend to the situation here, this requirement would not exonerate the Union from liability for causing Breton's discharge. "A principal may be responsible for the act of his agent within the scope of the agent's general authority, or the `scope of his employment' if the agent is a servant, even though the principal has not specifically authorized or indeed may have specifically forbidden the act in question." International Longshoremen's and Ware- housemen 's Union, C.I.O. (Sunset Line and Twine Co.), 79 NLRB 1487, 1509. Where (as here) the agent has acted within the scope of his general authority, the Union cannot escape statutory responsibility for his unfair labor practices against a wholly passive victim by pointing to a contract purporting to limit the means by which the agent was permitted to seek the end attained. Encinal Terminals, 193 NLRB 362, 366, fn. 12; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Overnite Transportation Co.), 133 NLRB 62, 71, enfd. 332 F.2d 693 (C.A. 5), cert. denied 379 U.S. 913; United Brotherhood of Carpenters & Joiners of America, Local Union No. 2067 (Associated General Contractors of America), 166 NLRB 532, 538-541. Such a case is analogous to cases where a Union has sought to disclaim responsibility on the ground that its agent failed to comply with one of its internal laws. Such a defense plainly will not lie; a "contrary conclusion would provide a ready contrivance for evasion of [the Union's] statutory obliga- tions." Local 760, International Brotherhood of Electrical Workers, A.F. of L. (Roane-Anderson Co.), 82 NLRB 696, 712-713.14 The Union relies upon a number of breach-of-contract cases 15 in which the complainant's alleged injury could not have occurred but for a purported contractual relationship into which he entered with someone allegedly acting as agent for the other party to the alleged contract. Under such circumstances, the complainant's right to recover may indeed turn on whether, in executing the alleged contract, he relied on the agent's apparent (but which was not actual) authority. However, the unfair labor practices here at issues are analogous to torts of the kind where the victim's fate could not have been affected by the extent of his own knowledge of the agent's authority. See Lloyd Reisner, 112 NLRB 17, 29; N.L.R.B. v. International Longshoremen's and Warehousemen's Union, Local 10 (Pacific Maritime Association), 283 F.2d 558, 563-565 (C.A. 9, 1960). Under such circumstances, the injured party's rights turn on principles of respondent superior and not on any reliance showing. 3 Am. Jur. 2nd, Agency, § 261, 267, pp. 627, 631-632 (1962); 53 Am. Jur. 2nd, Master and Servant, § 435, pp. 453-454 (1970); Lewis v. Benedict Coal Corp., 259 F.2d 346, 352 (C.A. 6), affd. in this respect by an equally divided court, 361 U.S. 459, 464.16 For the foregoing reasons, I conclude that the Union caused and attempted to cause Owens, Inc., and Arlington to violate Section 8(a)(3) by discharging Breton for nonmembership, at a time when he was not (and could not lawfully be) contractually required to obtain membership as a condition of continued employment, in violation of Section 8(b)(2) and (1)(A) of the Act. CONCLUSIONS OF LAW 1. Arlington Storage, Inc., and Henry F. Owens, Inc., are each engaged in commerce within the meaning of the Act. 2. Respondent Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen and Packers Local #82, a/w International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By causing and attempting to cause Arlington and Owens, Inc., to discharge Roland J. Breton in violation of Section 8(a)(3) of the Act, Respondent has violated Section 8(b)(2) and (1)(A). 4. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that it cease and desist therefrom. Respondent's action in causing two different standing of the Union within thirty days of their date of employment Rote's agency to act in the Union's behalf in this regard is limited however by" the union-security clause set forth in the text (Emphasis supplied ) 14 See also, Bricklayers, Masons and Plasterers' International Union of America, Bricklayers' Local No 2 (Glenshaw Glass Co, Inc), 176 NLRH 434, 436-437, Sheet Metal Workers International Association (Burt Mfg Co.), 127 NLRB 1629, 1666-67, enfd. so far as material here, 293 F 2d 141, 149 (C A D C., 1961), cert denied 368 U S 896 (1961). Cf N LR B v. P R Mallory & Co, 237 F 2d 437, 441-442 (C A 7, 1956) (cited by the Union), finding that no agency relationship existed. Wholly inapposite here are two cases, cited by the Union, where no discharge request was ever presented to the employer United Brotherhood of Carpenters & Joiners of America, Local Union No 515 (G E Johnson Construction Co, Inc), 188 NLRB 832, affd 456 F.2d 1050 (C A 10, 1972); Iron Workers Local 433, International Association of Bridge, Structural and Ornamental Iron Workers (Riverside Steel Construction), 169 NLRB 667 i5 E g., Nelson v New Hampshire Fire Insurance Co, 263 F.2d 586 (C.A 9); Ziv Television Programs, inc v Duchatne, 191 F Supp. 27 (D C Mass), Smith-Perry Electric Co v Transport Clearings of Los Angeles, 243 F 2d 819 (C.A 5) 16 For the reasons stated in the text, whether the oral nature of Rote's discharge requests affected the Union's and the Employers' rights as against each other is immaterial here In any event , on the facts of this case, I conclude that Rote's conduct bound the Union vis-a-vis Owens, Inc., and Arlington Rofe had authority to request employees' discharge for nonmembership on the Union's behalf; and , in acceding to his discharge requests, both employers were unquestionably benefiting the Union to their own detriment In addition , the Union has accepted the fruits of these employers' discharge action The Union makes no claim that it ever advised either employer that the discharge requests should have been disregarded; indeed, when Breton obtained a job with Arlington after Owens, Inc., acceded to Rote's oral discharge request. Rofe orally requested Breton's discharge from Arlington , too. Moreover, after the discharges the Union again advised Breton. through counsel as well as Rofe, that Breton would have to pay a $ 175 reinstatement fee to obtain good standing membership, which Breton was seeking solely to get and keep a job. I conclude that the Union waived any right it may otherwise have had to disclaim Rofe's discharge requests. 28 Am. Jur 2nd, Estoppel and Waiver, Sec 162, pp 848-849 (1966); 17 Am Jur 2nd, Contracts, Sec 393, 394, pp 838-840 (1964). FURNITURE MOVERS LOCAL 82, TEAMSTERS 843 employers to discharge Breton for nonmembership gives reason to anticipate that, if not restrained, it may cause discrimination by other employers as well. Further, the absence of evidence that the Union's action against Breton was due to any consideration (such as personal dislike) other than his alleged 1945 failure to obtain a withdrawal card from Local 82 gives reason to anticipate that, if not restrained, Respondent may exert like pressure against nonmembers in addition to Breton. Accordingly, the cease- and-desist order will also reach union conduct with respect to employers other than Owens, Inc., and Arlington, and to employees other than Breton. Sea-Land, supra, 197 NLRB 125. In addition, I shall recommend that Respondent take certain affirmative action necessary to effectuate the policies of the Act. Respondent will be required to request Owens, Inc., in writing and with a copy to Breton, that Owens, Inc., offer reinstatement to Breton. In addition, Respondent will be required to request Arlington, in writing and with a copy to Breton, to afford Breton all benefits (including but not limited to seniority rights) which he would have had but for the break in his tenure of employment owing to the discrimination against him. I shall also recommend that Respondent make Breton whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment of a sum of money which he normally would have earned from May 22, 1973 (the date of his discharge by Owens, Inc.), until 5 days after all the aforesaid written requests and copies have been delivered, less net interim earnings. Backpay shall be computed on a quarterly basis in the manner described in F W. Woolworth Co, 90 NLRB 289, with interest as described in Isis Plumbing & Heating Co, 138 NLRB 716. However, under this paragraph, during each quarter Breton will be entitled to the net backpay he would have received if he had been discharged by Owens, Inc., alone or by Arlington alone, whichever is the greater. Cf. L. E. Schooley, Inc., 119 NLRB 1212, 1213-14 In addition, Respondent will be required to post appropriate notices. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 17 Respondent Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen and Packers Local # 82, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: 17 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Board's Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes (a) Causing or attempting to cause Arlington Storage, Inc., Henry F. Owens, Inc., or any other employer to discharge or otherwise discriminate against Roland J. Breton, or any other employee, in violation of Section 8(a)(3). (b) In any like or related manner restraining or coercing employees in the exercise of their rights under the National Labor Relations Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Request Henry F. Owens, Inc., in writing and with a copy to Breton, to offer reinstatement to Breton. (b) Request Arlington Storage, Inc., in writing and with a copy to Breton, to afford Breton all benefits (including but not limited to seniority rights) which he would have had but for the break in his tenure of employment owing to the discrimination against him. (c) Make Breton whole for any loss of pay he may have suffered by reason of the discrimination against him, in the manner set forth in the section hereof entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its authorized agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary or useful in determining compli- ance with this Order, or computing the amount of backpay due as herein provided. (e) Post in conspicuous places at its business office, meeting hall, and places where notices to members are customarily posted, copies of the attached notice marked "Appendix." 18 Copies of said notice, on forms to be furnished by the Regional Director for Region 1, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and maintained by it for a period of 60 days thereafter. Reasonable steps shall be taken by the Respon- dent to ensure that said notices are not altered, defaced, or covered by any material. (f) Furnish to the Regional Director sufficient signed copies of the aforesaid notice for posting by Arlington Storage, Inc., and Henry F. Owens, Inc., such employers willing, where notices to employees are customarily posted. Copies of the said notice to be furnished by the Regional Director, after being signed by the Respondent as indicated, shall be returned forthwith to the Regional Director for appropriate disposition by him. (g) Notify the Regional Director, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith. iF In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "