Bridge Workers, Local 378

National Labor Relations Board - Board Decisions

Aug 27, 1971

192 N.L.R.B. 1069 (N.L.R.B. 1971)

BRIDGE WORKERS , LOCAL 378 1069
International Association of Bridge, Structural and
Reinforced Iron Workers Union, Local 378,
AFL-CIO (Judson Steel Corporation) and Robert
L. Castor. Case 20-CB-2245
August 27, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On April 23, 1971, Trial Examiner Maurice M.
Miller issued his Decision in the above-entitled
proceeding finding that 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, Respondent filed exceptions to
the Decision and a supporting brief. The General
Counsel filed an answering brief. a
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.
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 Trial Examiner and hereby orders
that the Respondent, International Association of
Bridge, Structural and Reinforced Iron Workers
Union, Local 378, AFL-CIO, its officers, agents, and
representatives, shall take the action set forth in the
Trial Examiner's recommended Order.,
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
MAURICE M. MILLER, Trial Examiner: Upon a charge
and first amended charge, filed and duly served on May 14
and October 29, 1970, respectively, the General Counsel of
the National Labor Relations Board caused a Complaint
and Notice of Hearing, dated November -9, 1970, to be
issued and served -upon International Association of
Bridge, Structural and Reinforced Iron Workers Union,
Local 378, AFL-CIO, designated Respondent Union in
this Decision. Therein, Respondent Union was charged
with the commission of unfair labor practices affecting
commerce within the meaning of Section 8(b)(2) and (1) of
the National Labor Relations Act, as amended . 61 Stat.
136, 73 Stat. 519. Within Respondent Union's duly filed
answer, certain factual statements in General Counsel's
complaint are conceded. Respondent Union, however,
denies the , commission of unfair labor practices.
Pursuant to notice ,, .a hearing with respect to the issues
was held in San Francisco, California, on March 2, 1971,
before me. The General Counsel and Respondent Union,
were represented by counsel. Each party was afforded a
full opportunity to be heard, to examine and cross-examine
witnesses , and to introduce evidence pertinent to the issues.
Since the hearing's close, briefs have been received from
General Counsel's representative and Respondent Union's
counsel ; these have been duly considered..
FINDINGS OF FACT
Upon the entire testimonial record, documentary evi-
dence received, and my observation of the `'witnesses, 'I
make the following findings of fact:
1. JURISDICTION
The Respondent Union raises no question herein with
respect to General Counsel's jurisdictional claim. Upon the
complaint 's relevant factual declarations-specifically,
those set forth in detail within the second paragraph
thereof-which are conceded to be correct, and upon
which I rely, I find that Judson Steel Corporation, the firm
which employed Complainant herein during a material
period of time, was, throughout the period with which this
case is concerned , an employer within the meaning of
Section 2(2) of the Act, engaged in commerce andbusiness
activities which affect commerce within the meaning of
Section 2(6) and (7) of the statute. Further, with due regard
for presently applicable jurisdictional standards, I find
assertion of the Board's jurisdiction herein warranted and,
necessary to effectuate statutory objectives.
U. THE RESPONDENT UNION
International Association of Bridge , Structural and
Reinforced Iron Workers Union, Local 378, AFL-CIO,
designated Respondent Union within this decision , is, and
at all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act , as amended.
Throughout the period with which this case is concerned
Richard' Zampa , Respondent Union's financial secretary,
and R. F. Fenton, business representative of Local
377, Respondent Union's sister local, were -so -1
find-Respondent Union's agents , functioning on its
behalf, within the meaning of Section 2 (13) of the statute.
III. THE UNFAIR LABOR PRACTICES
A. Issue
-Section 8(b)(2) of the statute provides that it shall be an
192 NLRB No. 148
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practice for a labor organization , or its agents,
to cause or attempt to cause an employer to discriminate
against an employee in violation of subsection 8(a)(3), or to
discriminate against an employee with respect to whom
membership in such organization has been denied or
terminated on some ground other than his failure to tender
the periodic dues and initiation fees normally required as a
condition of procuring or retaining membership.
Herein , General Counsel contends , substantially, that
Respondent Union violated Section 8(b)(2) when it caused
Judson Steel to terminate Complainant's period of
service-purportedly because of his failure to procure or
maintain Union membership-despite its prior failure to
notify him regarding the nature and scope of his contractu-
al "obligation" with respect to procuring or retaining such
membership . In rebuttal, Respondent Union would have
me find its conduct privileged , on the ground that
Complainant had never sought membership therein, and
had never voluntarily proffered the initiation fee and dues
payments which Respondent Union was statutorily and
contractually permitted to require ; this , despite his patent
personal knowledge-purportedly derived from prior
contacts with Union representatives-regarding his con-
tractual "obligation" with respect to procuring and
maintaining Union membership . A determination regard-
ing the validity of Respondent Union's defense, therefore,
will be dispositive herein.
B. Facts
1. Background
a. The Employer concerned
Judson Steel Corporation, the company with which this
case is concerned , constitutes a sizeable steel fabricating
concern which has performed, and continues to perform
steel erection work on many construction projects within
the San Francisco Bay area . It maintains an office and
place of business in Emeryville , California; throughout the
period with which this case is concerned, the Company was
maintaining several steel erection crews which at various
times performed work on construction projects within
Alameda, Santa Clara, and San Francisco Counties,
particularly.
b. Respondent Union's contract
For a number of years , Respondent Union has represent-
ed Judson Steel's iron workers . Throughout the period with
which this case is concerned, their wages , hours, and
conditions of work were governed by a collective bargain-
ing contract , signed August 16, 1965, with a nominal
August 15, 1970, termination date . That contract , inter alit,
contained a conventional construction industry union
security clause, whereby newly hired workers were re-
quired, as a condition of employment , to become and
remain Union members in good standing "on or after the
expiration of eight (8) continuous or accumulative days of
employment" with any covered firm . Respondent Union
was concurrently bound to make membership available to
such persons on the same terms and conditions generally
applicable to other applicants for membership. The
contract provided-within section 4B particularly-that
individual employers covered thereby:
... shall not be required to discharge any employee
pursuant to this Section until a written request from the
Local Union for such action , stating all pertinent facts
showing the non-compliance , shall have been served
upon such individual employer or his agent or
representative , and two (2) working days have been
allowed for compliance therewith ... .
The contract, further , contained various provisions govern-
ing the referral of workers for hire . It provided for an
exclusive hiring hall, with registered iron workers eligible
for referral in conformity with certain designated priori-
ties; some exceptions with respect to priority of referral
were , however , permitted . The contract provided, for
example, that, within California , apprentices were to be
hired and transferred solely pursuant to relevant appren-
ticeship standards agreements ; the contractual hiring hall
provisions were specifically declared not applicable with
regard to apprentice hires . Likewise, the contract, specifi-
cally section 5 L thereof, permitted employers bound
thereby to hire workers from any source whatsoever,
without regard to hiring hall referral procedures, under
certain circumstances . These were defined as follows:
In the event that the referral facilities maintained by
the appropriate Local Union are unable to fill the
requisition of an individual employer for employees
within a forty-eight (48) hour period after such
requisition is made by the individual employer . . . the
individual employer may employ applicants from any
source.
With respect to workers so hired , employers contractually
bound were , however , committed to notify the appropriate
local union regarding their names and dates of hire.
Prompt notification was required, within a period not to
exceed 24 hours.
c. The Complainant's history
Following a short 1968 period of service in Judson Steel's
hire , for which he had been directly engaged without union
referral, Robert L . Castor , Complainant herein , worked for
Pacific States Steel Company where he was designated a
labor foreman ; his service in that capacity , so the record
shows , ran from June 1968 to September 1969 continuous-
ly. During this period, specifically during 1968's latter
portion , Complainant visited Respondent Union 's office
"looking for work" several times . There, he spoke with
Respondent Union's financial secretary , Richard Zampa;
Castor sought information , so the record shows, with
regard to the next scheduled qualifying test for persons
who desired admission to Respondent Union's apprentice-
ship program . Sometime during 1968, never specified for
the record, he was told that the qualifying test, conducted
by the California State Iron Workers Joint Apprenticeship
Committee , was being given ; he took time off from his
Pacific States Steel job to present himself for testing.
During the months which followed , however, Complain-
ant was never informed regarding his test results ; he took
this to mean that he had, presumably , failed. During a
BRIDGE WORKERS , LOCAL 378 1071
subsequent visit to Respondent Union's hall, Castor was
told by , , Zampa, however, that he would, ultimately,
become eligible to retake the test sometime in 1969,
following a year's lapse.
Complainant's. several conversations with Zampa during
the period now under consideration were, so the record
.shows, confined to discussions regarding Respondent
Union's apprenticeship test schedule. The financial secre-
tary, so I find, did not mention any method or procedure
by which Castor might qualify for union membership. Nor
did he describe, for Complainant's benefit, precisely how
he could become eligible for hire on some iron workers'
project. Castor was merely advised that should he
subsequently pass the requisite test. Respondent Union
would list him, as an apprentice; he was told, further, that
whenever apprentices might thereafter be needed on
projects men would be called "in order" from Respondent
Union's list.
With matters in this posture, so I find, Complainant
continued his work at Pacific States Steel Company until
September 1969, when he resigned his labor foreman's post
to take a job with Judson Steel, under circumstances to be
noted hereinafter.
2. Judson Steel hires Complainant
Since at least June 6, 1969, Respondent Union has been
on telegraphic notice regarding Judson Steel's continuing
need for workers designated as reinforcing steel rodmen;
the telegram in question was sent following "repeated
verbal requests" for worker referrals, which Respondent
Union had not been able to- satisfy. Then and thereafter, so
far as the record shows, qualified iron workers were not,
and have not been, available for referral through Respon-
dent Union's contractual-validated hiring hall. On Septem-
ber 22, following several requests for men, directed to
Respondent Union, which had not produced referrals,
Complainant herein, together with six other men, was hired
directly by James Harris, Judson Steel's general superin-
tendent _ in charge of production; he was hired as a
journeyman iron worker, pursuant to section 5, subsection
L of the collective-bargaining contract, previously noted.
During the hearing, Respondent Union's counsel for-
swore any present contention that Judson Steel had,
thereby, violated their contract's hiring hall provision;
Respondent Union conceded that Castor had been hired
consistently with the relevant provisions.
Within a letter, dispatched on the designated date,
Respondent Union was promptly notified of Castor's hire.
And the Complainant, was personally given a letter,
likewise bearing a September 22 date, which read as
follows:
In accordance with our agreement with the Interna-
tional Association of-Bridge, Structual and Ornamental
Iron Workers you are required, as a condition of
employment, to apply for and become a member of the
Union on or after the expiration of eight (8) continuous
or accumulative days of employment.
General Superintendent Harris testified, credibly, that
Castor was told what the letter meant. He was specifically
told, so I find, to visit Respondent Union's hall, and to
request a membership application, from Financial Secretary,
Zampa or Mr. McDonald, another union representative.
Complainant, while a witness, could not recall any
suggestion by Harris that he should "apply" for union
membership; in this connection, however, I have credited
Judson Steel's general superintendent. Harris further told
Castor, however, that he was "pretty sure" the Respondent
Union would not "honor" his (Castor's) membership appli-
cation; the ' Complainant was advised to keep Judson
Steel's letter on his person, since it would constitute his
"clearance" for work, substituting for Respondent Union's
referral.
Shortly after receiving Judson Steel's letter, probably
8-10 days thereafter, Zampa telephoned, Harris. Respon-
dent Union's financial secretary conceded that Castor,
together with other workers listed on Judson Steel's notice,
had been "properly" hired, since Respondent Union could
not supply Judson Steel's personnel needs through referral;
the general superintendent was asked, however, how many
more men Judson Steel planned to hire in this fashion.
Further, so Harris testified, Zampa declared that Castor,
together with Judson Steel's other workers similarly hired,
would have to be paid the contractually specified journey-
man's rate. General ' Superintendent Harris acquiesced.
On Monday, September'22, Complainant started work
for Judson Steel on that firm's Kaiser Building crew; this
was an ` Oakland, California, construction project within
Respondent Union's East Bay territorial jurisdiction. He
was paid a journeyman 's rate, and was considered a
permanent employee.
The present record, which contains no contrary testimo-
ny, warrants a determination that Respondent ' Union's
geographical, jurisdiction covers Alameda County; Re-
spondent Union's sister local, Local 377, exercises territorial
jurisdiction within the City and County of San Francisco,
San Mateo County, and the City` of Palo Alto.
On Wednesday, September 24, Complainant visited
Respondent Union's hall during dispatching hours. He
presented Judson Steel's letter to Financial Secretary
Zampa, and pursuant to his understanding -with, regard to
his visit's purpose requested a clearance or work permit.
Zampa briefly examined the letter, then told Castor to have
a seat. Following a 3-hour wait, Complainant once more
sogght Zampa's attention;, he submitted, his letter and
renewed his "request for a permit. Respondent Union's
financial secretary, however, declared that he could not
give Castor a permit, based upon Judson Steel's letter.
The collective-bargaining contract then in force con-
tained no reference to so-called "permit" procedures. Nor
did it require "clearance" or "referral' for workers hired
directly, pursuant to section 5 L procedures, by contractu-
ally bound firms. And nothing with ,the present record
would warrant a determination that Respondent, Union
had, unilaterally, promulgated any work permit procedure,
either for workers registered and referred through its hiring
hall, or for workers directly hired.
Zampa asked, so Castor's testimony shows, whether he
had ever taken Respondent Union's apprenticeship test;
Complainant reported that he had,, but presumed that he
had failed. Respondent Union's financial secretary then
reiterated his prior statement that Castor would not be
eligible-to retake the test within the year, he suggested that
1072 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
Castor , should return the following year . Castor's further
testimony, which stands in the record without , contradic-
tion, warrants a determination that Zampa did not, during
this conversation , suggest . or request that he fill out a
membership application ,form. Nor_ did he proffer, any
information , whatsoever, regarding Respondent Union's
membership requirements; initiation fee, or monthly dues.
The Complainant did not declare his desire to join the
Union; nor did he request a membership application or
proffer money for Respondent Union's initiation fee or
dues.
On Friday, September 26, Complainant drove a fellow
worker, with a,similar letter of introduction, to Respondent
Union's hall . When they arrived, Castor's fellow worker
presented Zampa with his letter . Respondent , Union's
financial secretary read it , returned it with a statement that
he could not issue "permits" based on such letters, and
declared that he didn't know what Judson Steel was
"trying to pull" thereby.
The letter, previously noted herein, merely advised newly
hired workers of their contractual obligation to seek union
membership after 8 days' work, as a condition of continued
employment . Judson Steel had been - giving similar letters,
to workers hired directly , for some 10 years.
Neither worker was offered a, membership application
form ; nor was any statement made regarding Respondent
Union's initiation fee or monthly dues requirement.
Castor's testimony herein , ^ which has not been contradic-
ted, Warrants a conclusion that Zampa proffered no
information whatever regarding the method by which
concerned workers might procure union membership.
Promptly 'following this conversation , Castor, together
with his fellow worker, reported to General Superintendent
Harris that they could not get "permits" based upon
Judson Steel's introductory letters. Harris directed them to
keep the letters , while on the job , and said that the letters
would constitute their "clearances" or "'permits" with
,respect to continuing work . None of Respondent Union's
shop stewards on the Kaiser project , so-die record shows,
thereafter questioned his continued presence on Judson's
project crew. He' was not requested to sign any steward's
book, to become a union member, or to satisfy Respondent
Union's 'initiation fee and monthly dues ' requirement.iNor
was he _ requested to produce or display his letter.
3. Complainant's subsequent work history
Complainant continued work for Judson Steel as an iron
worker for the next seven months. For some 4 -5 months he
worked , on a construction, project in Palo Alto, California,
within the geographical jurisdiction of Local-377, Respon-
dent Union's, sister local. There, he was several times
requested to sign the shop steward 's report . Within the
report space which required him to describe his current
dues status , Castor merely noted "letter" together with the
current date . He was twice requested, thereafter ,' to display
his letter, and no further comments were made.
Thereafter; for several months, Complainant worked for
Judson on the,Bay Area Rapid ' Transit District subway
project, performing services at a San Francisco construc-
tion site. During the latter part of April 1970, he was
approached by Ray Fenton , Local 377's representative.
Fenton requested Castor to sign the steward 's= book.
Within ', the space therein, provided for reporting the-last
month with respect to which his union dues had been paid,
Castor again wrote "letter" with the current , date . Fenton
asked whether he could see the letter . When, Castor
produced it, however , Fenton declared:
he would have to send a letter to [Respondent
Union] 378, to send to Judson Steel, to have me pulled
off the job. . . . `
,And shortly thereafter on May 1, General Superintend-
ent Harris did receive a telephone call, from Financial
Secretary Zampa; the letter declared thatrhe would have to
"get rid" of Castor, because of his (Castor 's) failure to
procure union membership.
This conversation was followed with a letter dated May
6, on Respondent Union's letterhead, wherein Judson Steel
was'requested to discharge Castor because of his failure to
apply for and become a member in good standing of
Respondent Union on or after the expiration of eight
continuous or accumulative days of work in Judson ` Steel's
hire.
4. Complainant's discharge
On Friday, May 8 , when Respondent Union's letter was
received, Field Superintendent Bogunovich of Judson Steel
promptly telephoned Castor, who was then home ill.
Complainant was told that Judson Steel had received a
letter from, Respondent Union requesting his termination;
he was requested to call at Judson Steers, office the
following Monday, May 11, when he , could pick up his
final paycheck and talk to Respondent's general superin-
tendent . On May 8 , further, Judson Steel dispatched a
letter to Respondent Union ; Financial Secretary Zampa
was advised that Castor would be discharged pursuant to
his May 6 request.
On Monday, May 11 , when Complainant reported at
Judson Steel's office, he was given a termination letter,
dated the previous - Friday , together, with a copy of
Respondent Union's May 6 letter requesting his , discharge.
Castor was told , however, that he would be rehired when
Respondent Union had prepared a proper clearance.
General Superintendent Harris told him, further, that
Judson Steel was required to terminate him because of
Respondent Union's letter ; he was advised to, "consult an
attorney" to see what could be done., Castor has not
worked for Judson Steel since that date.
C. Conclusions
With matters in their present posture, determination
seems clearly warranted that when Castor was hired by
Judson Steel, directly, for journeyman iron worker service
he was engaged pursuant to a procedure which the
collective-bargaining contract, then in force between
Respondent Union and that firm , permitted. '
Beginning with Judson Steel's June 6, 1969, telegraphic
order for "reinforcing steel rodmen" responsible represent-
atives of the firm had several times requested that
Respondent Union dispatch qualified iron 'workers for
various construction projects . No referrals had been made.
Judson Steel was, therefore, clearly privileged to hire
"applicants from any source" for available '' work. And,
BRIDGE WORKERS, LOCAL 378 1073
thereafter, when Field Superintendent Bogunovich of
Judson Steel promptly- notified Respondent Union of
Complainant's name and date of hire, the Company's
contractual obligation, pursuant to section 5 L of their
contract, was fully satisfied. Respondent Union does not,
now, contend that Judson Steel violated the contract with
regard to Castor's hire.
Though engaged without a referral from Respondent
Union's hall, Complainant was thereafter clearly required,
as a condition of employment, to "apply for and become a
member of [Respondent Union] and to maintain member-
ship in good standing"- therein "on or after the expiration
of eight (8) continuous or, accumulative days of employ-
ment" with any firm privy to Respondent Union's
contract . This, Complainant herein, so his credible,
uncontradicted, testimony shows, tried to accomplish,
promptly, following his hire. -
My factual conclusion ' with respect to this facet of
General Counsel's case, together with my conclusions
regarding the balance of his presentation , derives from
uncontradicted testimony. Respondent Union, though
given the opportunity, -proffered no testimonial rebuttal.
Following the -conclusion of General Counsel 's case-in-
chief, `Respondent Union's counsel merely moved for
dismissal, contending that General Counsel had failed to
carry his-burden of proof.
Twice, within the first week of his employment, Castor
visited Respondent; Union's hall and presented his "letter
of introduction''"to Respondent Union's financial secretary.
That- letter; clearly, reflected Judson Steel's notification
to, Complainant herein, designated by name, regarding
Respondent --Union's- right to require his membership
application "on or after" the 8th day following his hire.
And since Respondent Union had previously been notified
regarding Castor's hire his prompt presentation of Judson
Steel 's letter fully merits characterization as more than
sufficient notice to Financial Secretary Zampa regarding
the real purpose of his visit to Respondent Union's hall.
Respondent Union's counsel suggests that since Com-
plainant then proffered his letter, conjoined with a
generalized request for some "clearance" or "work permit"
which he presumed Respondent Union would provide,
without, specifically mentioning his ' desire to apply for
union membership , that organization's financial secretary
should not, now, be charged with knowledge regarding
Castor's underlying purpose in visiting Respondent Un-
ion's hall. The suggestion, however, fails to persuade.
Though Castor did not, forthrightly, declare his purpose to
seek union membership - nor volunteer any monetary
payment calculated to cover Respondent Union's initiation
fee and periodic dues requirement there can be no doubt
that Financial Secretary Tampa fully understood why he
was presenting Judson Steel's introductory letter.
Within his- brief, General Counsel has noted cogently
that Judson Steel had, for some 10 or 12 years, been
providing similar letters to workers hired, directly, without
recourse to Respondent Union's referral procedure. Fur-
ther, Respondent Union's representatives had been ap-
prised, through Judson Steel's promptly dispatched Sep-
tember 22 letter of notification, that Complainant, together
with a group of fellow workers, had been hired directly.
With matters in this posture, Zampa could reasonably have
deduced ,'that when such a worker presented himself with a
copy of Judson Steel's conventional introductory letter the
worker's presence derived from his desire to take whatever
steps might be required to satisfy Respondent Union's
contractually sanctioned membership requirement.
If Castor's comments regarding a clearance or work
permit - had really generated doubts regarding his purpose
in visiting Respondent Union's hall, Zampa could have
resolved such doubts, readily with comparatively few
statements or questions . Certainly, he could have detailed
Respondent Union's membership requirements, while
pointing out that his organization 's clearance or referral
procedures had no relevance, with respect to Castor's
situation.
The fact that General Superintendent Harris might,
conceivably, have led Castor to believe, (a) that Respon-
dent Union would probably refuse to take or process his
membership application, or (b) that Judson Steel 's stand-
ard "introductory" letter would thereafter constitute his
permit or clearance for work , cannot provide Financial
Secretary Zampa's exculpation herein . Zampa's duty to
deal fairly with Castor, to define Respondent Union's
membership requirements , and to point - out that Respon-
dent's contractually specified "clearance" or "referra'
procedures had no relevance with respect to workers
directly hired, derived from the statute, buttressed by
considerations of common sense and fair dealing, whether
or not Complainant had been previously "misled" by
Judson Steel's superintendent.
Nevertheless, so the record shows , he merely queried
Castor regarding his prior apprenticeship test . And, though
he knew "full well" that Judson Steel had already hired
Complainant as a journeyman ironworker , his purportedly
relevant comments were- limited to a declaration that
Castor would not be eligible to qualify for, admission to
apprenticeship until 1 year had passed following his prior
failure to qualify. Thereafter , when Castor visited Respon-
dent Union's hall for the second time, Zampa , merely
repeated his refusal to issue a so-called "work permit"
while implying that Judson Steel's procedure , with respect
to direct hires, somehow reflected sharp practice. Upon
such a record, this Trial Examiner is completely satisfied
that Respondent Union's financial secretary really "knew"
why Complainant was visiting the hall.
Further, I am satisfied that Tampa , for reasons which he
never troubled to specify , was manifesting, through the
course of conduct herein found , his disinclination to
entertain Castor's application for union membership.
Thereafter, certainly, Respondent Union's continued lack
of concern with regard to Castor 's failure to procure or
maintain membership was clearly displayed; he was
permitted to continue work on Judson Steel projects within
Respondent Union's territorial jurisdiction for several,
months, during, which no question whatever was raised
regarding his failure to comply with contractual union
security requirements.
Despite Respondent Union's significant failure to ques-
tion, Castor's continued right to work , for several months,
determination is clearly warranted that such a question was
ultimately 'raised when Ray Fenton , Local 377's business
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative , told- Complainant that his continued pres-
-ence on Judson Steel's payroll would be called to
Respondent Union's notice . As a consequence , within a
short time thereafter, Respondent Union's financial secre-
tary did verbally protest Castor's continued employment,
capping his protest with a formal written request that
Judson Steel discharge Complainant because of his failure
to apply for union membership and become a member in
good 'standing "on or after" the 8th day following his date
of hire.,
Complying with Zampa 's demand , Judson Steel did
discharge Castor on Monday, May 11 , 1970, with a letter
of termination dated -the previous Friday, specifically
1jecause of his failure to procure or retain union member-
ship.
With matters in this posture , determination seems clearly
warranted that Respondent Union herein , through its
financial secretary , attempted to cause, and did cause,
Judson Steel to discharge Complainant herein. Respondent
Union, indeed; proffers no contrary contention . Should a
further determination be found warranted , therefore, that
Respondent Union caused Complainant's discharge under
circumstances proscribed by Section 8 (a)(3 ) of the statute,
or , that Complainant was a worker with respect to whom
membership in Respondent Union was being denied , on
same ground other than his failure to tender periodic dues
and initiation fees uniformly required , General Counsel
will have -made his case with respect to Respondent
Union's claimed statutory violation.
Within his brief, Respondent Union 's counsel suggests
that Castor was never really "denied" membership; since
the record contains "not even a scintilla of evidence"
calculated to support a conclusion that he tried to join.
This contention has previously been found lacking in
merit. When Castor twice visited Respondent Union's hall,
carrying Judson Steel's regular introductory letter, under
the circumstances herein found , he was seeking union
membership, whether or not he verbally stated his purpose
specifically. And Respondent Union's financial secretary,
when be examined Castor's proffered letter; necessarily
leagued the latter's real motivation for visiting Respondent
Uniou's hall. Nevertheless, Zampa disingenuously prof-
fered nothing more than a limited response to Castor's
generalized -request for a clearance or work permit, and
thereafter voluntarily raised a question regarding the
latter's prior apprenticeship test; thereby, within my view,
Respondent Union's financial secretary was realistically
refusing to consider Complainant's' candidacy for union
membership.
Respondent -, Union's counsel further suggests' that
pa would -have violated the law had he taken or
sed a membership application, before the completion
f Castor's contractually specified 8-day grace period. This
contention, however, reflects an egregious misreading of
the statute, unworthy of knowledgeable counsel, f The
relevant statutory provision does not forbad explanations or
discussion, with regard to a labor organization's member-
ship requirement, before a statutory grace period's termi-
n:ation. Nor does it preclude a union representative's
acceptance of some concerned worker's membership
application, fees or dues, voluntarily tendered within such a
specified period. The statute merely proscribes the required
presentation of membership applications, or the required
tender of uniformly applicable fees and dues, before a
grace period's expiration, upon pain of discharge for a
failure of compliance,
Though Castor may have known that some ,or many
Judson Steel workers were members of Respondent Union
herein-may, indeed, have had some knowledge that he
was, theoretically, likewise required, to-join-the present
record, clearly shows that he was never told by anyone
connected with Respondent Union in an authoritative way that
he had- to. procure and maintain union membership
pursuant: to, a contractual union-security clause. Nor was
he ever told by any responsible union representative what was
required of him to perfect such, membership, and how,
when, and where to perfect his membership. Should a
deduction be considered warranted, nevertheless, that
Castor had some knowledge with regard to these, matters,
such knowledge had clearly been conveyed to him not
through Respondent Union's representatives but rather
through other media, such as family or job contacts, or
statements by Judson Steel spokesmen. Respondent Union
herewith cannot claim -that its statutorily grounded
"fiduciary duty' to "deal fairly" with concerned workers
has been fulfilled merely because Complainant may have
fortuitously learned about his membership obligation from
other sources.
Respondent Union's counsel seemingly contends, how-
ever, that since Castor must be charged with presumptive
knowledge regarding Respondent Union's membership
requirements gained through some -source or sources other
than union representative, he was duty,bound to declare
voluntarily his desire for union membership, to proffer the
requisite fees and dues, and to persist in his pursuit of such
membership, despite Zampa's repeated demonstration that
his presence at Respondent, Union's-hall in search thereof
would be "rejected and ignored" with patently evasive
tactics.
The contention must be rejected, . This Board has long
held that, "where a union requires a new employee to
perfect membership under a lawful union-security agree-
ment, it has a duty to notify the employee, at some point,
as' to what his `membership' obligations are, To permit a
union to lawfully request the discharge of an employee for
failure to meet his dues-paying obligations, where the
provisions relating to such obligations, are not disclosed to
the employee, would be grossly inequitable and contrary to
the spirit of the Act." Philiadelphia Sheraton Corporation,
136 NLRB 888, 896, enfd. 320 F. 2d 254 (C.A. 3). See also
N.LPoroR.B. v. Local 182, International Brotherhood of Team-
sters, 401 F,2d 509, 510 (C.A. 2) cert. denied 394,U.& 213,
enforcing 156 NLRB 335, amended 169 NLRB;No. 164;
N.L.R.B v. Hotel, Motel and Club Employees' Union, Local
568, 320 F.2d 254, 258 (C.A. 3); International Union of
Electrical, Radio and Machine Workers, Frigidaire Local
801 v. N.LR,B., 307 p.24 679, 683 (C.A.D.C.,per Burger,
J.) certa denied 371 U.S. 936, enforcing 129 NLRB 1379
and 130 NLRB 1286; Teamsters Local Union No. 122,
International Brotherhood of Teamsters (August A. Busch
and Co. of Mass. Inc,), 173, NLRB No. 194; Building
Construction, Highway Pavers, Sewer and Tunnel Workers
BRIDGE WORKERS , LOCAL 378 1075
Union Local No. 113, 167 NLRB 39, 41; Local 98D,
International . Union of Operating Engineers (Construction
Field Survey), 156 NLRB 545. Compare General Truck
Drivers, Chauffeurs, Warehousemen and Helpers Local 270,
International Brotherhood of Teamsters, 186 NLRB No. 47
(TXD);International Association of Heat and Frost Insulators
and Asbestos Workers, Local No. 40, AFL-CIO, 184 NLRB
No. 78 ; Teamsters Local 117, International Brotherhood of
Teamsters (Pacific Iron and ,Metal Company), 175 NLRB
No. 114, Further, "where the protection of an individual
employee's right to continued employment is to be
balanced , against the statutorily restricted right of the
union to enforce a union-security agreement requiring
membership ' as a condition of employment , a union must
show that it has dealt fairly with the employee and given
him clear notice of what , is required of him. Absent such a
demonstration the individual's rights must be held para-
mount and protected." Local 545, International Union of
Operating Engineers, AFL-CIO, 161 NLRB 1114,112 1. No
such showing has been made herein.
The present ' record, rather, clearly warrants a determina-
tion that neither Zampa nor Fenton , Local 377 s represent-
ative functioning in Respondent Union's behalf, gave
Castor any clear notice of "what would be required of him
to perfect his union membership . Further, neither Respon-
dent Union's job stewards, not those on construction
projects within Local 377's territorial jurisdiction , seem to
have commented about Complainant 's failure to display
some proof of currently-maintained union membership;
nor did they ever tell him what was required of him under
their current contract's union-security provision . The mere
fact that Castor may have possessed some general
knowledge regarding Respondent Union 's existence and
functions, coupled with knowledge that it participated in
maintaining a developed apprenticeship training program,
cannot be said .' to have relieved Respondent Union's
spokesmen of their affirmative duty to inform him that he
}Would have to perfect his union membership by a specified
date, or suffer discharge.
Further, under well-established decisional doctrine
Respondent Union's fiduciary duty to advise Complainant
regarding his contractually-specified obligation required
positive action, without regard for Judson Steel's concur-
rent obligation, if any, to provide such notice . Thus, the
record proof-proffered herein-that General Superinten-
dent Harris told Castor he would have to seek union
membership cannot be considered a fulfillment of Respon-
dent Union's, duty to advise him fully regarding his
membership obligation . General Truck Drivers, Chauffeurs,
Warehousemen and Helpers Local 270, International Broth-
erhood of Teamsters, supra, Building Construction, Highway
Pavers, Sewer and Tunnel ` Workers Union Local No. 113,
supra; International Chemical Workers Union, Local 50,
AFL-CIO (Granite City Steel), 169 NLRB 1009 , 1011. And,
further, should a determination be found - warranted,
arguendq that Castor did possess some independent
knowledge with regard to Respondent Union's member-
ship requirement , which a prudent individual might
reasonably have considered sufficient , under the circum-
stances to suggest the desirability or possible necessity of
some further effort to procure union membership , he was,
nevertheless, under no continuing obligation to seek out
Respondent Union for the purpose of making such a
proffer. Finding himself permitted to work for several
months following his last contact with Respondent , Union's
financial secretary, Castor "could well have assumed" that
Respondent was not really interested ' in securing his
membership , and that he could work' freely for, Judson
Steel , thereafter, while remaining a nonmember. Rocket
and Guided Missile Lodge 946, IAM-AFL-CIO (Aerojet-
General Corporation),, 186 NLRB No. 77. To summarize;
union-security clauses are contained in collective-bargain-
ing contracts for the signatory union's sole benefit;
Respondent Union alone was therefore , dutybound to
inform Castor regarding the nature and extent of his
obligation to procure and maintain membership . Having
failed to notify him with respect to the nature and extent of
his, contractually-defined membership obligation„ Respon-
dent could not lawfully seek Complainant 's discharge for a
failure to satisfy its membership requirement. Compare,
International Association of Bridge, Structural and Ornamen-
tal Reinforced Iron Workers, Riggers and Machinery Movers,
Local Union 377, AFL-CIO, 1$9 NLRBNoa 14; Sully-
Miller Contracting Company, 152 NLRB 1632, ,1633. .
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent Union's course of conduct described in
section 111, above, since it occurred in connection with.
Judson Steel Corporation's business operations, described
in General Counsel's Complaint and concededly described
correctly therein, had, and continues to have, a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States; absent correction,
such conduct would tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE "MEDY
Since I have found that Respondent Union did engage, in
certain unfair labor practices which affectcomnerce, I
shall recommend that it be directed to cease and desist
therefrom, and to take certain affirmative action, including
the posting of appropriate notices, designed to effectuate
the policies of the Act, as amended.
This case reflects a course of conduct, chargeable to
Respondent Union herein, which substantially parallels
and repeats certain conduct chargeable to Local 377,
Respondent Union' s sister local, previously found violative
of law. International Association of Bridge, Structural and
Ornamental Reinforced Iron Workers, Riggers & Machinery
Movers, Local 377, AFL-CIO, 189 NLRB No. 14, Respon=
dent Union's course of conduct, further, reflects its pursuit
of union policies of presumptively general application,
under a current collective-bargaining contract, which could
affect employees of employers other than Judson. Steel
Corporation, the concerned employer with respect to both
cases. It will be recommended, therefore, that Respondent
Union be ordered 'to cease and desist from such statutorily
proscribed conduct with respect to employees of any
employer. Compare Rocket and Guided Missile Lodge 946,
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Machinists and Aerospace
Workers, AFL-CIO [Aerojet-General Corporation], 186
NLRB No . 77, in this connection.)
Specifically , I shall recommend that Respondent Union
be directed to notify Judson Steel Corporation , in writing,
with a• copy to Robert L. Castor, that it withdraw its
objection to Judson Steel's employment of Castor, and
request that firm to offer him immediate and full
reinstatement to his former position on some current
construction job or project , or, if that position no longer
exists , to a substantially equivalent position on some
current or future job or project , without prejudice to his
seniority or other rights and privileges previously enjoyed,
as they existed on May 11, 1970, the date of his discharge.
It will be recommended , further, that Respondent Union
be required to make Castor whole for any pay losses which
he may have suffered because of the discrimination
practices against him , by paying him a sum of money equal
to the amount which he would normally have earned as
wages from the date of his discharge to the date set forth
hereinafter, less his net earnings during this period.
Castor's backpay should be computed by calendar quar-
ters, pursuant to the formula which the Board now uses.
F. W. Woolworth Company, 90 NLRB 289. Interest thereon
should likewise be paid, computed at 6 percent per year.
See Isis Plumbing & Heating Co., 138 NLRB 716, in this
connection. Respondent Union 's backpay liability shall
terminate 5 days after it notified Judson Steel Corporation
that it has no objection to Castor 's reinstatement, as
provided above.
CONCLUSIONS OF LAW
In the light of these findings of fact and upon the entire
record in this case , I make the following conclusions of
law:
1. Judson Steel Corporation is and has been throughout
the period with which this case is concerned an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce and business operations which affect commerce
within the meaning of Section 2(6) and (7) of the Act, as
amended.
2. International Association of Bridge, Structural and
Reinforced Iron Workers Union, Local 378, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of
the Act, as amended.
3. By attempting to cause and causing Judson Steel
Corporation to discharge Robert L. Castor, for reasons
other than his failure to tender periodic dues and initiation
fees, Respondent Union has engaged in, and continues to
engage in , unfair labor practices within the meaning of
Section 8(b)(2) and (1)(A) of the Act, as amended.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act, as amended.
Upon the foregoing findings of fact and conclusions of
t In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall , as provided in
Section 102 .48 of the 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.
law, and upon the entire record in the case , and pursuant
to Section 10(c) of the National Labor Relations Act, I
hereby issue the following recommended:
ORDERt
. Respondent Union , International Association of Bridge,
Structural and Reinforced Iron Workers Union , Local 378,
AFL-CIO, its officers , agents, and representatives , shall:,
1. Cease and desist from:
.(a) Causing or attempting to cause Judson Steel
Corporation, or any other employer , to discriminate
against Robert L. Castor, or any other employee, in
violation of Section 8(aX3) of the Act.
(b) In any like or related manner, restraining or coercing
employees of Judson Steel Corporation, or any other
employer, in the exercise of rights which Section 7 of the
Act guarantees , except to the extent that such rights may
be lawfully affected by an agreement requiring member-
ship in a labor organization as a condition of employment,
as authorized by Section 8(aX3) of the Act, as amended.
2. Take the following affirmative action , which is
necessary to effectuate the policies of the Act:
(a) Make whole Robert L. Castor for any loss of pay
which he may have suffered as a result of the discrimina-
tion practiced against him , by paying him a sum of money
computed in the manner set forth in the remedy section of
this Decision.
(b) Notify Judson Steel Corporation , in writing, with a
copy to Robert L. Castor, that it withdraws its objection to
Judson Steel 's reinstatement or continued employment of
Castor, and requests that firm to offer Castor immediate
and full reinstatement to his former position, on some
current construction job or project, or, if such position no
longer exists , to a substantially equivalent position, on
some current or future job or project, without prejudice to
his seniority or other rights and privileges previously
enjoyed, as they existed on May 11, 1970, the date of his
discharge.
(c) Notify Robert L. Castor, 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 Training
and Service Act, as amended, after discharge from the
Armed Forces.
(d) Post in conspicuous places, at its business office and
meeting hall, including all places where notices to members
are customarily posted, copies of the notice attached to this
Decision as an appendix .2 Copies of this notice , on forms
provided by the Regional Director for Region 20 as the
Board 's agent, shall be posted immediately upon their
receipt, after being duly signed on behalf of respondent
labor organization by its duly designated representative.
Once posted , these notices shall remain posted for 60
consecutive days thereafter. Reasonable steps shall be
2 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 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."
BRIDGE WORKERS , LOCAL 378
taken by Respondent Union to insure that these notices are
not altered, defaced, or covered by any other material.
(e) Forward sufficient signed copies of the notice to the
Regional Director for,Region 20- for posting by Judson
Steel Corporation at its Emeryville, California, place of
business, together with those project locations where
notices to employees are customarily posted, should the
designated employer be willing to do so.
(f) Notify ,.the Regional Director for Region 20, in
writing; within 20 days from the' date of receipt` of this
Decision and recommended Order, what steps Respondent
Union has taken to .comply herewith.3
3 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 the Regional Director for Region 26, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith." -
APPENDIX
NOTICE TO
EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To all employees of: Judson Steel Corporation
To all members of: International Association of Bridge,
Structural and Reinforced Iron Workers Union, Local 378,
AFL-CIO
11,
After a hearing, during which all parties were given an
opportunity to present evidence and argument, it has been
determined that Local, 378 violated the law by'committing
certain unfair labor practices. In order to remedy such
conduct, the Local is required to post this notice. Local 378
intends to.comply with this requirement, and to abide by
the following:
WE WILL NOT cause or attempt to cause Judson Steel
Corporation, or any other employer, to discriminate
against Robert L. Castor, or any other employee, in
violation of Section 8(a)(3) of the Act.
WE WILL NOT, in any like or related manner, restrain
or, coerce employees of Judson Steel Corporation, or
any other employer, in their exercise of rights which
1077
Section 7 of the Act guarantees , except to the extent
that such rights may be lawfully affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized by
Section 8(a)(3) of the Act.
WE WILL notify Judson , Steel Corporation, in
writing, that we have no objection to the reinstatement
or continued employment of Robert L. ° Castor on any
current or future construction job or project and we
will furnish Robert L. Castor with a copy of such
notification.
WE WILL make whole Robert L. Castor for any loss
of pay he may have suffered by reason of the
discrimination practiced against him, which our Union
caused.
Dated By
INTERNATIONAL -
ASSOCIATION OF BRIDGE,
STRUCTURAL AND
REINFORCED IRON
WORKERS UNION, LOCAL
378, AFL-CIO
(Labor Organization)
(Representative), (Title)
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 application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
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,
13050 Federal Building, Box 36047, 450 Golden Gate
Avenue, San Francisco, California 94102, Telephone 556-
3197.