Iron Workers Local 433, 667 (1968)

IRON WORKERS LOCAL 433 667

Iron Workers Local 433, International Association of Bridge, Structural and Ornamental Iron Workers,

AFL-CIO (Riverside Steel Construction) and Dwight E. Flack, An Individual. Case 21-CB-2875

February 5, 1968 DECISION AND ORDER

BY CHAIRMAN MCCULLOCH AND MEMBERS

FANNING AND ZAGORIA

On August 23, 1967, Trial Examiner Howard Myers issued his Decision in the above-entitled case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in answer to the Respondent's exceptions.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a threemember 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 only to the extent consistent with our Decision herein.1

The Trial Examiner found that the Respondent Union violated Section 8(b)(2) and 8(a)(1)(A) of the Act by unlawfully causing Riverside Steel Construction to terminate the employment of one Dwight E. Flack. We are unable to concur in this finding.

As set forth in the Trial Examiner's Decision,

Riverside Steel Construction and the Respondent Union are parties to a collective-bargaining agreement, providing, in pertinent part, that all new employees must become members of the Union upon passage of 8 days of employment with the Company; that all new employees hired by the Company must be obtained through the union hiring hall; and that, with respect to employees' union-security obligations, the Company shall not be required to I we hereby correct the following inadvertences in the Trial Examiner's Decision: 'Flack continued to work on the aforesaid Hawthorne job without incident until Thursday, February 9, 1967,' rather than 'Friday,

February 9, 1967,' and, 'the business agent authorized the issuance of permits so Flack might be permitted to work until February 25,' rather than 'February 24.' discharge any employee until it is in receipt of a written request therefor from the Union.

In July 1966 Dwight E. Flack, the Charging Party, arrived in Los Angeles from Florida, and visited the Respondent Union's hiring hall in order to secure work. He was granted awork permit and, during the period July-October 1966, the Respondent Union dispatched Flack to several jobs. On October 27, 1966, the Respondent Union dispatched Flack to the Company. Flack continued to work for the Company without incident until February 9, 1967, when the union business agent telephoned Lowell Fisher, the Company's field superintendent, and advised that Flack, who was working without a current work permit, and was in arrears on his permit fees,2 'was working with no permits and no affiliation with' the Respondent Union. Fisher replied that he would lay off Flack, which he did later in the day. On February 13, 1967, Flack paid his permit fees up to date, and the Respondent Union's business agent subsequently informed Company Official Fisher that he was providing Flack with new permits. Thereafter,

Flack was issued work permits valid until February 25, 1967.

During one of his conversations with the Respondent Union's business agent, Flack was advised that in order to take his test for the 'A' (apprentice) book, he should report to the union hiring hall on February 23, 1967, and bring two 'vouchers'3 and a $100 down payment on the $ 300 initiation fee. On the night of February 23, Flack reported to the Respondent Union's hall at 7:30 p.m. He had made arrangements for Don Dote and Lester Marceau to serve as his 'vouchers,' and brought with him the $100 down payment on the initiation fee. As Flack was standing in the hall with a group of men, Arnett, the Respondent Union's president, appeared, noted Flack's presence, and went into the union meeting.

Dote, a 'voucher,' then arrived, and told Flack that Marceau, the other 'voucher,' would be at the Respondent's hall later. Between 9:30 and 10 p.m., a business agent of the Respondent Union told Flack, in response to Flack's inquiry, that Dote had gone home. At 11:30 p.m., the union meeting ended. Marceau had not shown up, nor had Dote reappeared. However, Flack saw Arnett, the union president, in a back office talking to assistant agent Jake West, and, as Flack approached, Flack heard West say 'He is from another state, and he is just on a permit. We don't have to issue him anymore, and we don't want him.' Flack then asked Arnett if he could have a work permit, and Arnett replied in the negative, adding that they wouldn't issue Flack any more permits.

2 The permit fees of the Respondent Union are $2 50 weekly, while the Union dues are $13.50 monthly.

S A 'voucher' is a coworker who can attest to the applicant's ability to perform satisfactory work.

169 NLRB No. 87

Flack worked on February 24 but, at the end of the day, Flack told company official Fisher what had transpired at Respondent Union's hall the previous evening, and added that he could not obtain another work permit from the Respondent Union (his last permit would expire February 25) and, therefore, that he could no longer work for the Company. Fisher replied that if and when Flack received a work permit or union book, he could return to work. Flack then proceeded to file charges with the Board.

The Trial Examiner found, initially, that an understanding existed between the Company and Respondent Union to the effect that a work permit was a necessary condition of continued employment on the Company's project. Having so found;

the Trial Examiner, relying primarily on Local 742,

Carpenters (J. L. Simmons),' concluded that by refusing to renew Flack's work permit, the Respondent Union caused the Company to discontinue Flack's employment, thus providing the basis for the violation. However, we believe that Local 742 may be distinguished, for there, unlike the instant case, the record reflected that the Company actually informed the employee involved that it was necessary to terminate him for lack of a work permit. The Board had only to infer that the Union, by denying the employee a permit, 'caused' the employee's discharge. In a somewhat related case,

Teamsters et al. (S. A. Scullen, Jr.),5 we found that, the union specifically requested the company to discharge the employee involved. In the instant case, unlike the cases cited, in order to find the 8(b)(2) violation, it is necessary that we infer a union request for Flack's discharge, as to which there is no evidence. We note that even as to the termination of Flack's employment, there is no evidence that the Company took any action.

Rather, the evidence shows merely that Flack quit.

In sum, We are faced here with a situation where the Respondent Union did not request the Company to discharge Flack, and the Company did not actually terminate him. In our view, there is insufficient evidence in the record to support inferences of the foregoing or of an understanding explicit enough to obviate the need for these missing elements. The only comment by the Union that could be construed as a request for Flack's discharge came several weeks earlier, at which time Flack was admittedly in arrears in complying in any respect with his union-security obligation. There is no contention that the Union's call to the Company at that time was unlawful, and there is no evidence to support an inference that the Union would similarly have requested Flack's discharge when it later refused to issue him a work permit. Flack took it upon himself to anticipate such a happening, and volunteered that he could no longer work for the Company. Though the Company did not disagree, the Union cannot be found to have initiated action to remove Flack from the job. In these circumstances, we do not feel justified in concluding that the Union, by denying Flack a work permit, 'caused or attempted to cause' the Company to discharge him. To put the matter another way, though Flack's fears might eventually have proved justified, in the circumstances of this case he 'jumped the gun,' and one can only speculate as to what would have happened next. The burden of presenting affirmative evidence to establish the violation rests upon the General Counsel, and we believe that he has fallen short of establishing the violation in this case. Accordingly, we shall dismiss the complaint in its entirety.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety.

4 Local Union No. 742, United Brotherhood of Carpenters and Joiners of America Q. L. Simmons Company, Inc.), 157 NLRB 451, enfd. 377

F.2d 929 (C.A.D.C.).

' Teamsters, Chauffeurs, Warehousemen, Stablemen and Helpers Local 182 (S. A. Scullen, Jr., F. B . Scullen, Sr., and C. S. Hans d(b(a S. A.

Scullen Co.) 164 NLRB 234.

TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

HOWARD MYERS, Trial Examiner: This proceeding, with the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel' and the Board, and Respondent represented by counsel, was heard before Howard Myers, the duly designated Trial Examiner, at Los Angeles, California, on July 11, 1967,2 upon a complaint, dated April 27, issued by the General...