Iron Workers, Local 377

National Labor Relations Board - Board Decisions

Mar 18, 1971

189 N.L.R.B. 68 (N.L.R.B. 1971)

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Bridge, Structural and
Ornamental Reinforced Iron Workers, Riggers &
Machinery Movers, Local Union 377, AFL-CIO
and Richard J. Bettencourt. Case 20-CB-2211
March 18, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS. BROWN
AND JENKINS
On November 23, 1970, Trial Examiner Herman
Coreman issued his Decision in the above-entitled
case, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief, and
the General Counsel filed a brief in support of the
Trial Examiner's Decision and in answer to the
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delegat-
ed 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 crror 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 Ornamental Reinforced Iron Workers,
Riggers & Machinery Movers, Local Union 377,
AFL-CIO, its officers, agents, and representatives,
shall take the action set forth in the Trial Examiner's
recommended Order
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN CORENMAN, Trial Examiner' Upon charges and
The Respondent's brief was considered even though filed 2 days late
amended charges filed on March 20 and July 15, 1970, in
the above-entitled matter by Richard J Bettencourt, an
individual , the General Counsel of the National Labor
Relations Board issued a complaint on July 27, 1970,
against International Association of Bridge , Structural and
Ornamental Reinforced Iron Workers , Riggers & Machin-
ery Movers , Local Union 377, AFL-CIO, herein called the
Respondent or the Union , alleging that, in violation of
Section 8 (b)(1)(A) and (2) of the Act, Respondent
attempted to cause and caused Judson Steel Corporation to
discharge Bettencourt from employment . The Respon-
dent's answer filed in this matter denied committing the
violations.
Upon due notice , the matter was heard before me at San
Francisco , California, on September 22, 1970. All parties
appeared and were afforded full opportunity to participate,
to adduce evidence, to examine and cross-examine
witnesses , to argue orally , and to file briefs. Briefs filed by
the General Counsel and the Respondent have been
carefully considered 1
Upon the entire record in this case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
The pleadings establish, and I find, that at all times
material herein Judson Steel Corporation, herein called
Judson Steel, has been a California corporation with its
principal place of business at Emeryville, California, and
has been engaged in the manufacture and erection of steel
structures. During the past year, Judson Steel, in the course
and conduct of its business operations, purchased and
received goods and services valued in excess of $ 50,000
directly from suppliers located outside the State of
California; and, during the past year, Judson Steel, in the
course and conduct of its business operations, sold and
shipped goods and materials valued in excess of $ 50,000
directly to customers located outside the State of Califor-
nia. Judson Steel is, and at all times material herein has
been, an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
The Respondent is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Background and Chronology of Events
Richard J Bettencourt, the individual who filed the
charges underlying the complaint issued herein by the
General Counsel of the Board, resides in San Jose,
California He is 24 years of age. His formal education went
no further than completion of the eighth grade Prior to
June 1969, he had had no experience as an ironworker.2 In
2 Bettencourt s work experience had been in a gasoline service station
189 NLRB No. 14
IRON WORKERS , LOCAL 377 69
June 1969, through the influence of his brother-in-law,
who was an ironworker foreman at the Northwestern Steel
Company, Bettencourt was hired as a beginner ironworker.
His first job was on a school building at San Jose
Northwestern Steel Company and Judson Steel, among
other employers, and the Respondent, among other labor
organizations, are bound by a collective-bargaining
agreement known as the Structural, Reinforcing and
Ornamental Iron Worker Agreement. This agreement
contains, inter aba, provisions governing union referral for
employment of workmen One of the provisions relating to
the employment of workmen is section 5, subsection L, of
the collective-bargaining agreement, which provides 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
(Saturdays, Sundays and holidays excepted), the
individual employer may employ applicants from any
source. In such events, the individual employer will
notify the appropriate Local Union of the names and
dates of such hirings. Such notification shall be given
promptly but not to exceed twenty four (24) hours after
such hiring (Saturdays, Sundays and holidays except-
ed).
Apparently relying on the above-quoted section 5-L of
the agreement, Bettencourt's brother-in-law told him that
Northwestern Steel needed men but that he would have to
wait 48 hours "because they have to call the hall and I have
to wait 48 hours before I can go to work. So, I waited the 48
hours and he called me and told me to come to work with
him at the school, that I would start work that morning." 3
Bettencourt worked on the school job at San Jose for
Northwestern Steel approximately 141 hours when he was
loaned out by Northwestern Steel to Judson Steel
Corporation where he went on Judson Steel's payroll as a
journeyman ironworker at the journeyman scale on
construction at the Chinese Cultural Center at San
Francisco.4
On June 17, 1969, Mr. R. F. Fenton, Respondent's
business representative, complained to Judson Steel by
letter, among other things, that "While on the Cultural
Center job I also found that your firm had employed
several Iron Workers inconsistent with the provisions of the
hiring agreement Section 5-L. These men are . . . Richard
Bettencourt . . " On receipt of this June 17, 1969, letter
from Fenton, Mr James F. Harris, general superintendent
of Judson Steel, discharged Bettencourt.5
After his discharge from Judson Steel in June 1969,
Bettencourt found work for 2 or 3 months in Santa Clara
County with Davis Steel, a nonunion contractor, installing
iron reinforcing in the construction of swimming pools.
In September 1969, through the influence of his
brother-in-law who was then employed as a foreman by
that firm, Bettencourt was hired by Judson Steel on
September 12, 1969, after a 48-hour wait .6
On Bettencourt's hire on September 12, 1969, Judson
Steel directed a letter to the Respondent as follows:
This letter will serve to notify you that we have
employed Mr. Richard Bettencourt, in accordance with
the current Ironworker Employer's Agreement per
Section 5 Sub-Section L
On that same date, Judson Steel's field superintendent, L.
Bogunovich, handed Bettencourt a written introduction to
be taken to the Union. This document dated September 12,
1969, read as follows:
Mr. Richard Bettencourt
Dear Sir.
In accordance with our agreement with the Interna-
tional Association of Bridge, Structural and Ornamen-
tal Ironworker's 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.
You may use this letter as an introduction to
Mr. Ray Fenton
Local Union 377
2940 - 16th Street
San Francisco , California
On September 19, 1969 (within the 8-day period
mentioned in the foregoing document), Bettencourt went to
the Respondent's office when it opened at 8 a.m. Mr. Welch
was at the window and Bettencourt was told by Welch that
Fenton had not arrived. Bettencourt asked Welch for an
application to join the Union. Welch handed Bettencourt
an "Application for Referral Only" which Bettencourt
filled out. When Fenton arrived, Bettencourt gave him the
completed application form. Bettencourt handed Fenton
the letter of introduction from Judson Steel and told him he
wanted to loin the Union. Fenton asked Bettencourt if he
was one of the men he caught on the Cultural Center Job in
San Francisco, to which Bettencourt replied "Yes." Fenton
told Bettencourt he was not taking applications until after
December 1st. Fenton inquired if Bettencourt had a high
school education. When told "No," Fenton told Betten-
court he would have to takeaGED test.7 Bettencourt asked
Fenton to sign his letter of introduction so that he could
show his foreman and his superintendent that he had gone
to the Union within the specified 8 days. Fenton handed
4-1/2 years in a machine shop, and about 9 months as a roughneck in the
Louisiana oil fields from whence he moved to San Jose where he spent 4
weeks cleaning swimming pools until his brother-in-law procured a job for
him at the Northwestern Steel Company
3 The quote is from Bettencourt's credible and undisputed testimony
4 It has been common practice over many years for employers covered
by the Structural, Reinforcing and Ornamental Iron Worker Agreement to
loan ironworkers from one employer to another without the use of the
Respondent's hiring hall The loaning employer would recall the loaned
workman when needed
5 No claim is made by the General Counsel that this discharge by
Judson Steel pursuant to Fenton's June 17 letter violates the Act
6 Bettencourt testified that his brother-in-law told him " I would have to
wait for 48 hours because they have to call the hall and ask for men "
7 Applicants under the apprenticeship program must have a high school
diploma or have achieved a satisfactory score in the General Education
Development Test (GED)
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the letter of introduction back to Bettencourt telling
Bettencourt "he didn't have to sign any damn letter." 8
Having been told by Fenton in September 1969 that he
was not taking any applications for union membership until
after December 1, Bettencourt returned to the union hall
again about 8 a.m., in December 1969. There he asked
Welch if he could talk to Fenton. Welch replied that
Fenton was busy. Bettencourt waited for him. After a lapse
of 3 hours, Fenton emerged from his office. Bettencourt
told Fenton he wanted to "see about getting in the Union."
Fenton replied "he didn't have time ... he was going for
coffee." Bettencourt, chagrined by this treatment, left.
In January 1970, Bettencourt visited the union hall for
the third time to make application for union membership.
Upon inquiry from Fenton, Bettencourt told him he did not
have a high school diploma nor had he taken the GED test.
Fenton told Bettencourt that he could not fill out an
application until he took a GED test. He also told
Bettencourt he was not taking any applications until after
April 1, 1970.
In March 1970, Bettencourt was working for Judson Steel
with a man named Gary on a job at the San Francisco
Airport. Fenton came to I the job and handed the two men
a steward's report to sign. Fenton then said to Gary "you're
working with a non-union man" and he told Gary he ought
to make an example of him and fine him $150 for working
with a nonunion man. Fenton also told Gary that
Bettencourt had never even tried to get into the Union, at
which point Bettencourt interjected that he had tried to
join, to which Fenton replied "Sure." Bettencourt then left
the job for another Judson Steel job where he told the
foreman what had occurred. The foreman assigned
Bettencourt to another job.9
In the latter part of March 1970, Bettencourt made a
fourth visit to the union hall, this time in the company of his
brother-in-law who was a foreman at Judson Steel. There,
after a wait of 15 minutes, Fenton came out of his office to
the window and asked Bettencourt what he wanted.
Bettencourt told Fenton he wanted to make an application
or get a permit to work. Fenton replied, according to
Bettencourt's uncontradicted and credible evidence, as
follows: "I told you once that you couldn't get a permit or
make an application because you didn't have a high school
education or take a GED test." Fenton further warned
Bettencourt that if he caught him on another job that "he'd
make damn sure Bettencourt never got in the Union, even if
he had a college education." At this point, Bettencourt's
brother-in-law broke into the conversation questioning
what difference it made whether or not Bettencourt had a
high school education as he was a good worker and his
employer liked his work. Fenton then, on learning the
brother-in-law's identity, threatened to "pull his book"
and take him up in front of the union board, at which point
Bettencourt and his brother-in-law left.
On or about April 16, 1970, Bettencourt was working for
" The quotation is from Bettencourt 's credible and uncontradicted
testimony. At first, Bettencourt testified that the application form was
given to him by Welch on his third visit to the Union's office in January
1970, but when shown his written application by Respondent's counsel,
bearing the date of September 19, 1969, he conceded his earlier testimony
that the application blank was given to him in January 1970 was in error,
and that it was, in fact, given to him by Welch on his first visit to the
Judson Steel on the Emporium job at Mountain View.
Welch and Fenton came to the job and Bettencourt signed
a steward's report at the request of Welch. After the other
workmen also signed the steward's report, Bettencourt
observed that Welch and Fenton had huddled with a group
of workmen on the other side of the building. The job
foreman then approached Bettencourt and told him that
Fenton was closing the job down because there were
nonunion men on the job, namely Bettencourt and another
workman named Santos. Bettencourt then left the job and
phoned Judson Steel's general superintendent, James F.
Harris.
In the latter part of April 1970, Bettencourt was working
for Judson Steel on the Tanforan job at Burlingame.
Fenton and Welch came on to the jobsite and had
Bettencourt and the other workmen sign a steward's report.
Pointing to Bettencourt, Fenton told the workmen that they
were working with a nonunion man, and in the presence of
the others told Bettencourt that he shouldn't even be on the
job. Bettencourt told the foreman what had occurred, who
then told Bettencourt to get off the job. Bettencourt phoned
General Superintendent Harris and told him what had
occurred. Harris assigned Bettencourt to another job at
Mountain View. At the Mountain View job, Bettencourt
was instructed to meet with Harris the following morning at
San Jose. At this meeting Bettencourt was discharged by
Judson Steel. The discharge letter dated April 28, 1970,
read as follows:
We are required by our contract with District
Council of Iron Workers of the State of California and
Vicinity, to discharge any employee pursuant to Section
4, Union Security, upon written request from the Local
Union, when we are served with a letter stating all
pertinent facts showing the noncompliance for remain-
ing a member in good standing of the Union.
Enclosed herewith, is a copy of the letter from the
Union stating the above mentioned facts.
You will be re-hired when the Union issues the
proper clearance.
Attached to the April 28 discharge letter was a letter dated
April 22, 1970, from Fenton to Judson Steel. Insofar as
pertinent to Bettencourt, Fenton's letter read as follows:
In regard to our recent meeting and the employment
of Journeymen Iron Workers and Apprentice Iron
Workers in violation of the collective bargaining
agreement and apprenticeship standards, please be
advised they cannot be hired until properly accepted
and indentured into the proper Joint Apprenticeship
Committee or be in compliance with the provisions of
the agreement.
s s s s s
R. L. Bettencourt 572 66 3071-see previous corre-
spondence dated June 17, 1969, Sept. 15, 1969.10
Union's office on September 19, 1969 . 1 attribute this error to an innocent
deficiency in memory and as not reflecting on Bettencourt 's veracity.
9 Apparently after this incident in March, Bettencourt filed his initial
unfair labor practice charge with the Board on March 20, 1970.
10 The June 17, 1969, letter claimed that Bettencourt , among others, had
been hired by Judson Steel on the Chinese Cultural Center Job at San
Francisco in violation of section 5-L of the collective-bargaining
IRON WORKERS, LOCAL 377 71
B Analysis and Conclusionary Findings
Section 8(b)(2) of the Act provides that it shall be an
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 Section 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 the initiation fees uniformly required
as a condition of acquiring or retaining membership
Section 4 of the collective-bargaining agreement to which
the Respondent and Judson Steel are bound provides that
"Every other person covered by this Agreement and
employed to perform work covered by this Agreement shall
be required, as a condition of employment, to apply for and
become a member of and to maintain membership in good
standing . . on or after the expiration of eight (8)
continuous or accumulative days of employment "
Bettencourt was hired as a new employee by Judson Steel
on September 12, 1969 Within the 8 days provided for in
the union-security clause of the agreement, namely on
September 19, 1969, Bettencourt applied for membership in
the Union. I find that by their conduct on September 1969,
December 1969, January 1970, and March 1970, the
Respondent's business representatives, Welch and Fenton,
declined to entertain Bettencourt's repeated applications
for union membership. Upon Bettencourt's visits to the
union hall in September, January, and March, Fenton
rebuffed Bettencourt's attempts tojoin the Union, insisting
that he must first take a GED test beacuse he was not a high
school graduate. When Bettencourt came to the hall in
January to join the Union, Fenton, after keeping Betten-
court waiting for 3 hours,told him he was too busy to talk to
him as he was leaving to have coffee. Moreover, on
Bettencourt's September visit to the union hall, Fenton told
him that applications were not being taken until after
December 1 and, when Bettencourt sought to obtain union
membership in January 1970, Fenton told him no
applications would be accepted until April 1, 1970
It is clear, and I find, that the Respondent, by its agent,
Fenton, attempted to cause and caused Judson Steel to
discharge Bettencourt This was accomplished preliminari-
ly by Fenton's action in threatening to close down three
different Judson Steel jobs by threats of strike action in
March and April 1970 at the San Francisco International
Airport, at the Emporium in Mountain View, and at
Tanforan in Burlingame as I have related earlier in this
Decision.
Finally on April 22, 1970, Fenton in writing requested
Judson Steel to discharge Bettencourt because allegedly
employed in violation of the collective-bargaining agree-
ment, that is "Bettencourt did not apply for membership or
make an attempt to apply as an apprentice iron worker "
(See G C Exh. 4.) Complying with the Union's demand,
agreement As I have recited earlier in this Decision, Judson Steel
discharged Bettencourt in June 1969, following this June 17 letter In the
September 15 1969, letter, Fenton reported to Judson Steel as follows
In reply to your letter regarding the hiring of Richard Bettencourt
please be advised Bettencourt, a "beginner" iron worker was formerly
in the employ of Northwestern Steel Co, and also Judson Steel Co on
the Chinese Cultural Center Project, San Francisco Bettencourt did
Judson Steel discharged Bettencourt as of April 28, 1970, as
not a union member within the requirements of the union-
security clause.
In its brief, the Respondent argues that Bettencourt
"never offered to pay uniform dues or initiation fees despite
the fact that he obtained work in violation of the contract
and worked under the contract for many months while the
Union patiently waited for him to offer dues and initiation
fees." The Respondent further argues that "In order for the
General Counsel to sustain his case he has to prove that the
charging party [Bettencourt] proffered the payment of
initiation fees and/or dues uniformly required."
Initially, I find, contrary to the Respondent's contention,
that Judson Steel's hire of Bettencourt on September 12,
1969, was not in violation of the collective-bargaining
agreement At the time of Bettencourt's hire there had been
a standing telegraphic order dating back to June 6, 1969, for
12 ironworkers and repeated oral requests thereafter which
the Respondent was unable to fill. In fact, during the entire
summer season of 1969 extending to December 1969, the
Union was unable to fill Judson Steel's request for
ironworkers. Consequently, under section 5, subsection L,
of the agreement, Judson Steel was free to hire workmen
not referred by the Respondent. This it did in the hire of
Bettencourt at the journeyman scale on September 12,
1969 Under the collective-bargaining agreement, the
employer is the sole judge of the competency of his
ironworkers. He may reject workmen referred by the Union
and he may retain in his employ ironworkers who in his
judgment are the most competent, laying off or discharging
workmen irrespective of seniority considerations t t
General Superintendent Harris who authorized the hiring
of Bettencourt testified credibly and without contradiction
that Bettencourt was one or approximately 100 ironworkers
comprising his permanent work force, and that he retained
Bettencourt in his employ from the date of his hire on
September 12, 1969, to the date of his discharge, at the
Union's demand, on April 28, 1970. Harris further testified
credibly and without contradiction that Bettencourt was
one of his best workers, testifying additionally "I would say
he would be in the top of what I have seen, and I've seen a
lot of men in my time."
Additionally, it is suggested in the Respondent's brief
that Bettencourt's failure to seek entry into the apprentice-
ship program in some mannerjustifies the Union's action in
procuring his discharge.
The answer to that contention is that the apprenticeship
program is expressly deleted from the hiring hall provisions.
Section 5, subsection K, of the contract specifically
provides that "This Section 5 shall not apply to the hiring of
Apprentices." I find, therefore, that Judson Steel's hire of
Bettencourt on September 12, 1969, did not violate the
work-referral provisions of the collective-bargaining
agreement and that Bettencourt's September 12, 1969, hire
was permitted by section 5, subsection L, of the agreement.
not apply for membership or make an attempt to apply as an
apprentice iron worker Therefore he cannot be hired under Section 5
Sub-Section L of the agreement
Section 4, subsection E, of the contract provides as follows The
individual employer shall be the sole judge of the qualifications of all of his
employees and may on such grounds discharge any of them
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This brings us to the issue whether Bettencourt's
nonmembership in the Union constituted legitimate
justification for the Union's action in attempting to cause
and eventually causing Judson Steel to discharge Betten-
court
The Respondent argues that it became the duty of
Bettencourt under the union-security clause of the contract
to tender the initiation fees and dues uniformly required for
union membership, that Bettencourt made no such tender
before his discharge, and, that being the case, the demand
for his discharge and his subsequent discharge were not
violative of the Act
It is a fact, and the General Counsel does not contend
otherwise, that a tender of initiation fees and dues was not
made by Bettencourt But it is now firmly established by
Board and court precedent that a tender is excused where
the union fails to notify the employee of his obligations
under the Act or where a tender would have been futile.12
The employee must be dealt with fairly by the union. He
must be advised of the amount of initiation fees and dues
and the union must exhibit a willingness to accept such
moneys In the instant case, it is clear that the union
representatives, Fenton and Welch, at no time explained to
Bettencourt the amount of initiation fees and dues
acceptable to the Union to acquire membership or
manifested a willingness to accept Bettencourt into the
Union. Instead, Welch, for example, handed Bettencourt
an "Application for Referral Only" when he applied for
union membership on September 19, 1969, and Fenton told
Bettencourt he would have to take a GED test and further
that he was not taking applications until after December 1,
1969 When Bettencourt visited the union hall again in
December 1969 seeking membership, Fenton kept him
waiting 3 hours and then refused to see Bettencourt with the
impertinent excuse that he was going out for coffee. In
January 1970, Fenton again refused to take Bettencourt's
application for membership, again telling him he would
have to take a GED test and, additionally, applications
were not being taken until after April 1, 1970. And again
when Bettencourt applied for union membership to Fenton
in March 1970, he was refused for the stated reason that he
did not have a high school education or a GED test. It is
clear, and I find, on the basis of Bettencourt's treatment by
Welch and Fenton on the four occasions he sought union
membership, that a tender of initiation fees and dues by
Bettencourt would have been futile and such tender would
not have been accepted
It is noted here that the Respondent produced no
witnesses in support of its denial that it had violated the
Act, and the testimony of the General Counsel's witnesses
stands uncontradicted by opposing witnesses. The Respon-
dent's motive in refusing membership to Bettencourt is not
clear Such refusal may have been based on a union policy
12 Pipehners Local Union No 798 Bauer Dredging Co, Inc 174 NLRB
No 130, Granite Steel Company, 169 NLRB No 144, International
Longshoremen's and Warehousemen's Union Local 17 (George Mower), 172
NLRB No 227, Local 98D, Operating Engineers (Construction Field
Surveys), 156 NLRB 545 Philadelphia Sheraton Corp, 136 NLRB 888
enfd 320 F 2d 254 (C A 3) N L R B v Machinists, Local 504
[Westinghouse Electric Corp], 203 F 2d 173 (C A 9), N L R B v Hotel,
Motel and Club Employees' Union, Local 568, AFL. C'1O [Philadelphia
Sheraton Corp J, 320 F 2d 254 (C A 3)
1 1 Moreover, as i have pointed out earlier in this Decision the hiring of
that journeyman status could be achieved only after
completion of the apprenticeship, but there is no evidence
that such a policy obtained or that all Journeymen had gone
through the apprenticeship program before attaining
journeymen status.13 Then again the Union's treatment of
Bettencourt in refusing to welcome him into union
membership may have been based on a desire to maintain
the existing shortage of ironworkers in their geographical
jurisdiction. This contrived shortage of ironworkers
obviously gives the Respondent greater bargaining powers
and assures work for their members. I am of the opinion
that it is unnecessary to determine the Respondent's real
motive in refusing union membership to Bettencourt. To
find the violation, it is sufficient for me to conclude, as I do,
that the Respondent attempted to cause and caused Judson
Steel to discharge Bettencourt because of his lack of union
membership, and with respect to whom membership in the
Respondent had been denied on a ground other than his
failure to tender periodic dues and initiation fees uniformly
required as a condition of acquiring or retaining member-
ship. The Respondent, I find, thereby violated Section
8(b)(2) and 8(b)(1)(A) of the Act.14
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activity of Respondent set forth in section III, above,
occurring in connection with the operations of Judson Steel
Corporation set forth in section I, above, has a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tends to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
On the basis of the foregoing findings, and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Judson Steel Corporation is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3 By attempting to cause and causing Judson Steel
Corporation to discriminate against Richard J. Bettencourt
in violation of Section 8(a)(3) of the Act, the Union has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(b)(2) and (1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent engaged in unfair
labor practices, I shall recommend that it cease and desist
apprentices is specifically excluded from the hiring hall requirements by
section 5, subsection K, of the contract
ij See cases cited at in 12 See also Sully-Miller Contracting Company,
152 NLRB 1623, where the Trial Examiner stated, 1633 Under the
circumstances described above, it is found that the Respondent Union
sought and obtained Lucero's discharge not because it was seeking the
enforcement of the Respondent Employer's contractual obligation to
secure workmen through the Union's hiring hall, but because Lucero was
not only not a union member but was unable to become one due to the
Union's refusal to admit hint to membership
IRON WORKERS , LOCAL 377 73
therefrom and take certain affirmative actions in order to
effectuate the policies of the Act.
It having been found that the Respondent is responsible
for the discrimination suffered by Battencourt, it will be
recommended that it make him whole for any loss of pay he
may have suffered by reason of the discrimination against
him, by payment to him of a sum of money equal to that
which he would have earned as wages from the date of the
discrimination against him to the date of his reinstatement
or the date Respondent notifies Judson Steel Corporation
that it has no objection to his reinstatement to any existing
or future jobs or projects of said Employer, whichever is the
earlier date, less interim earnings, and in a manner
consistent with the Board policies set out in F W
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co, 138 NLRB 716
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended-
ORDER 15
Respondent, International Association of Bridge, Struc-
tural and Ornamental Reinforced Iron Workers, Riggers &
Machinery Movers, Local Union 377, AFL-CIO, its
officers, agents and representatives, shall:
I Cease and desist from:
(a) Causing or attempting to cause Judson Steel
Corporation to discriminate against Richard J. Bettencourt
or any other of its employees in violation of Section 8(a)(3)
of the Act.
(b) In any like or related manner restraining or coercing
employees of Judson Steel Corporation in the exercise of
their rights guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected by any agreement
requiring membership in a labor organization as a
condition of employment in accordance with Section
8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which is
designed to effectuate the policies of the Act
(a) Notify Judson Steel Corporation, in writing, that it
has no objection to the reinstatement or employment of
Richard J. Bettencourt on any of its existing or future
projects, and furnish Richard J. Bettencourt a copy of such
notification
(b) Notify Richard J. Bettencourt 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
(c) Make Richard J. Bettencourt whole for any loss of
pay which he may have suffered as a result of the
discrimination against him by payment to him of a sum of
money equal to that which he would normally have earned
from the date of the discrimination against him to the date
he is reinstated by Judson Steel Corporation or the date
Respondent notifies Judson Steel Corporation that it has
no objection to his reinstatement, whichever is earlier, said
backpay to be computed in the manner set forth in the
section hereof entitled "The Remedy."
(d) Post at its office in San Francisco , California, copies
of the attached notice marked "Appendix." 16 Copies of
said notice, to be furnished by the Regional Director for
Region 20, after being duly signed by a representative of
Respondent, shall be posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter. in conspicuous places, including all places where
notices to its members are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Deliver to the Regional Director for Region 20 signed
copies of said notice in sufficient numbers to be posted by
Judson Steel Corporation, if the Employer is willing.
(f) Notify said Regional Director, in writing, within 20
days from the date of receipt of this Decision, what steps
Respondent has taken to comply herewith.17
In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes
'u In the event that the Board's Order is enforced by a Judgement 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 "
17 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, notify said Regional Director, in writing,
within 20 days from the date of this Order what steps 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
WE WILL NOT cause or attempt to cause Judson Steel
Corporation to discriminate against Richard J Betten-
court or any of its employees in violation of Section
8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain
or coerce employees of Judson Steel Corporation in the
exercise of their rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be
affected by an agreement requiring membership in a
labor organization as a condition of employment in
accordance with Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure
Act of 1959
WE WILL notify Judson Steel Corporation, in writing,
that we have no objection to the reinstatement or
employment of Richard J Bettencourt on any of its
existing or future projects, and we shall furnish the said
employee with a copy of such notification.
WE WILL make whole Richard J Bettencourt for any
74
loss of pay he may have suffered by reason of the
discrimination against him , caused by our Union.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE : 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.
INTERNATIONAL
ASSOCIATION OF BRIDGE,
STRUCTURAL AND
ORNAMENTAL REINFORCED
IRON WORKERS, RIGGERS &
MACHINERY MOVERS,
LOCAL UNION 377,
AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)