Tryco Steel Corp.

National Labor Relations Board - Board Decisions

Jul 15, 1971

192 N.L.R.B. 97 (N.L.R.B. 1971)

TRYCO STEEL CORP.
Reinforcing Iron Workers, Local Union No. 426,
International Association of Bridge , Structural and
Ornamental -Iron Workers, AFL-CIO (Tryco Steel
Corporation) and Charles P. - Schmelter. Case
7-CB-2172
July 15, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On January 4, 1971, Trial Examiner -Samuel Ross
issued his Decision in theabove-entitled' proceeding,
finding that the Respondent had engaged in and was
engaging- in certain unfair labor practices, and
recommending -that it cease and desist therefrom and
take certain affirmative action, as set forth in-, the
attached Trial Examiner's Decision. Thereafter,' the
General Counsel filed exceptions to the Trial Examin-
er's Decision and a supporting brief, and the Respon-
dent filed cross-exceptions and a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as -amended, the
National Labor Relations Board has delegated its
powers in connection-with°this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made - at , the hearing and finds that no
prejudicial error was committed. The rulings- are
hereby affirmed. The Board has"considered the Trial
Examiner's Decision,- the exceptions and briefs, -and
the entire record in the case; and hereby adopts the
findings," 'conclusions, and recommendations of the
Trial-Examiner, as modified below.
We agree with the Trial Examiner that the=Respon-
dent, by attempting to cause, and by causing, Tryco
Steel Corporation to refuse to- employ Charles P.
Schmelter because he was not a member of the
Respondent and did not have a work permit issued by
it, thereby violated Section 8(a)(2) of the Act.
However, we find, contrary to the Trial Examiner,
that the letters of June 9, 1970, by Respondent's
counsel to Schmelter and Tryco, which the Trial
Examiner himself characterized as "equivocal," did
not terminate the Respondent's backpay obligation to
Schmelter.
Where a union undertakes to remedy its prior
unlawful conduct, the Board has recognized the
inequity in continuing to charge it with backpay
1 These findings are based, in part , upon credibility determinations of
the Trial Examiner to which the Respondent has constructively excepted.
After careful review of "the record, we ' conclude that these credibility
findings are not- contrary to the clear preponderance of all the relevant
evidence. Accordingly, we find no basis for distrubing these findings.
Standard Dry Wall Products Inc., 91 NLRB 544, enfd. 188 F .2d 362 (C.A.
3). ' ' ,
97
liability simply because the employer, ,whose actions
the union cannot control, declines to hire the victim of
the past, union-caused discrimination,-2 Nonetheless,
the Board has in this type of case required clear,
unequivocal action by the union; so as not to permit it
to escape liability by virtue of a token 'act not
calculated or likely to achieve a correction-of the
wrong committed a -
Respondent in this 'case has previously been
recalcitrant in living up to its statutory obligations
with respect to work permits. Thus,` as chronicled by
the Trial Examiner, Respondent in 1965 was' ad-
judged guilty of criminal contempt of a court.decree
in continuing to require work permits of nonmembers.
Again, in 1970 Respondent was €otmd $' to ' have
required work permits of nonmember's in violation of
Section 8(b)(1)(A).4 In that case, ashere, Respondent
attempted to limit its back pay liability by a communi-
catiorf-to the employer'' that it would not object to the
employment of the discriminatee-. However, the
Board found that Respondent's"action was'suf€icient-
ly unclear as to render the communication ineffective
for tolling purposes.
-
-
We believe the same situation obtains in°theepresent
case. Respondent's discriminatory policy`was' carried
out by Business Manager' Wheeler - and Steward
Grant. The June 9 letters were not from Wheeler or
Grant but from counsel who not only disclaimed that
Respondent had done anything wrong, by virtue of a
false representation that Tryco had had no openings
for the discriinatee, but also failed-to indicate in any
manner that Business Agent Wheeler, Ste"ward Grant,
and others responsible for -carrying 'out' the Union's
policies had been -instructed-to cease their'-discrimina-
tion. The letter sent by counsel to Tryco was such that,
in,view of Respondent's previous, repeated -conduct of
this -unlawful- 'character, We Would anticipate that
Tryco's representatives would view it-With, consider-
able ' skepticism, Indeed, our reading of, the letters
from Respondent's counsel-leaves-us with the convic-
tion that Respondent was not in fact-seeking-to cure
its previous misdeeds but rather to limit its liability
with as guarded- a statement to Tryco and, Schmidt as
it could, it thought, getaway With. Weneed not decide
whether a letter of -this character would-satisfy in
other ' situations for with this :Respondent a more
affirmative communication was necessary to erase the
effect of its unlawful conduct. In view-of the -findings
of the Trial Examiner, with which-we "agree, -that the
Union's failure to inform its "stewards and member-
2 Pinkerton 's National Detective Agency, Inc., 90 NLRB 205, 213.
3 See, e.g., Local 595, International Association of Bridge, Structural and
Ornamental ` Iron Workers (Clinton Construction` Co.),^ 109 NLRB 13, 1&-79;
Bricklayers, Masons and Plasterers' International Union , Bricklayers Local
No. 2 (Glenshaw Glass Co., Inc.), 176,NLRB No. 54.
4 Reinforcing Iron Workers, Local `Union' No. 426' (Great' Lakes
Contracting of Detroit, Inc.), 180 NLRB No. 124. `
-
-
192 NLRB No. I
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship that work -,permits were not required was a
substantial -factor in- the Union 's continued mainte-
nance and - enforcement of its, , illegal work permit
policy, we, do not believe that the Union can be said to
have, unequivocally expressed its willingness , to cease
its unlawful conduct , until it has informed its stewards
and membership, as well as Tryco, that work permits
are not required as a condition of employment.
We shall therefore direct that the Respondent make
Schmelter - whole for any Joss of , pay suffered as a
result._ of the Aiscriminationvagainst him from May-26,
1970, to 5 -days after unequivocal notification in
writing by ,the Respondent's business manager .to its
stewards and membership , _as well as to Tryco and
Schmelter,- that it has no policy'-of requiring, work
permits for Tryco and Schmelter and that it has no
objection , to, Schmelter's hire by Tryco. Further, in
vied, of the , 1,rial Examiner's own ` finding as -to -the
Union 's, failure_'properly, to instruct its members and
stewards ,coiicermng such permits , we shall require the
Respondent = io,,-notifya; its job , stewards that work
permits
-"
as a condition of employment are not
required of nonmembers . We shall also amend the
notice.,attached as Appendix , to the Trial Examiner's
Decision by,;inserting therein a_ statement that the
espondent will _ not require such permits as a
condition of employment.
ORDER ,
Pursuant to Section 10(c) of the National Labor
Relations Act, as , .mended, , the National Labor
Relations Board adopts asits Order the recommend-
ed Order- of the Trial Examiner, as herein modified,
and, hereby orders that the Respondent, Reinforcing
Iron Workers, ,Local Union , No. 426, International
Association of Bridge, ,Structural and, Ornamental
Iron, Workers, AFL-CIO, its - officers,; agents, and
representatives, shall take, the, action set-forth in the
Trial Examiner's recommended Order as so modified:
- I.- , Delete- -paragraph 2(b) of the recommended
Order and-.substitute the following:
(b) ,Make Charles P. Schmelter: whole, for any
loss of pay-he-may have suffered as a result of the
discr-inunation ^caused,against' him in,the manner
set forth, in, the-section of the Trial Examiner's
Decision, entitled "TheRemedy," as modified by
the