Architectural Glass & Metal Co.

National Labor Relations Board - Board Decisions

Mar 17, 1995

316 N.L.R.B. 789 (N.L.R.B. 1995)

789
316 NLRB No. 128
ARCHITECTURAL GLASS & METAL CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 After the judge’s decision in this case issued, the U.S. Supreme
Court granted certiorari in Town & Country Electric v. NLRB, 147
LRRM 2133 (8th Cir. 1994), petition for cert. granted docket No.
94–947 (1994).
We have amended the judge’s recommended Conclusion of Law
3 to reflect properly the violations found.
Architectural Glass & Metal Co., Inc. and Glaziers,
Architectural Metal & Glass Workers, Local
1165. Case 25–CA–22963
March 17, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On November 18, 1994, Administrative Law Judge
Martin J. Linsky issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
as modified and to adopt the recommended Order.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law 3
and 4 and renumber the subsequent Conclusion of
Law.
‘‘3. By interrogating Harry Zell about his union ac-
tivity, the Respondent violated Section 8(a)(1) of the
Act.
4. By refusing to hire Harry Zell because of his
union activities, the Respondent has violated Section
8(a)(1) and (3) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Architectural Glass &
Metal Co., Inc., Indianapolis, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
J. Steven Robles, Esq., for the General Counsel.
David Miller, Esq., of Indianapolis, Indiana, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On January
3, 1994, a charge was filed by the Glaziers, Architectural
Metal & Glass Workers, Local 1165 (Union) against Archi-
tectural Glass & Metal Co., Inc. (Respondent).
On February 28, 1994, the National Labor Relations
Board, by the Regional Director for Region 25, issued a
complaint alleging that Respondent violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act), when
it unlawfully interrogated an applicant for employment and
when it failed and refused to hire that same applicant for em-
ployment, Harry Zell, because of his activity on behalf of the
Union.
Respondent filed an answer in which it denied that it vio-
lated the Act in any way.
A hearing was held before me in Indianapolis, Indiana, on
September 27, 1994.
Upon the entire record in this case, to include posthearing
briefs timely filed by the General Counsel and Respondent,
and upon my observation of the demeanor of the witnesses,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and has been at all times material herein,
a corporation existing under and by virtue of the laws of the
State of Indiana.
At all material times herein, Respondent has maintained an
office and place of business in Indianapolis, Indiana, where
it is, and has been at all times material herein, engaged in
the installation of metal and glass components for the con-
struction of buildings.
During the past 12 months, a representative period, the Re-
spondent, in the course and conduct of its business oper-
ations, purchased and received at its Indianapolis facility
products, goods, and materials valued in excess of $50,000
directly from points outside the State of Indiana.
Respondent admits, and I find, that it is now, and has been
at all material times herein, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is now, and
has been at all material times herein, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Harry Zell, a 24-year-old man, became on August 1, 1993,
a full-time paid field representative for the Union. His pay
was $600 per week plus expenses. In addition, he had full
medical insurance and was covered by a pension. His main
job was to organize employees. As a field representative he
was authorized to apply for and accept employment at non-
union employers in order to organize its employees. If he
went to work for a nonunion employer Zell would continue
to receive his full union salary plus benefits as well as any
pay he might receive from his job with the nonunion em-
790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployer. He would continue to carry out his union duties in
his off hours. If the Union wanted him to quit a nonunion
employer he was working for and seek employment with an-
other nonunion employer Zell testified he would have done
so. Legally, of course, Zell could refuse the Union’s request
to quit and continue his employment with the nonunion em-
ployer. In order to avoid union discipline he probably would
have to resign his union membership.
On August 3, 1993, Zell applied for a job with Respondent
who had placed an ad in the local newspaper seeking appli-
cants for employment.
Zell filled out an application form. He left blank the space
on the application form where the applicant is asked to iden-
tify his current employer. He listed in the section called for
a list of former employers. He did not state on the form that
he was an employee of the Union.
Respondent is a nonunion commercial glass and glazing
company with approximately 25 employees. Its three prin-
cipals are Greg Menefee, Tim Nelson, and Robert Peel.
Menefee is in charge.
On August 3, 1993, Menefee was on vacation and Zell,
after filling out an application for employment, was inter-
viewed by Peel and Nelson. Although Peel and Nelson were
aware that Zell had worked for union contractors because
they recognized the names of the contractors the three men
did not discuss the Union during the interview.
Peel and Nelson told Zell they would get back to him. The
following day Respondent called Zell and left a message for
him to call Respondent. Zell called Respondent back and
spoke with Peel and Nelson. Zell secretly recorded the con-
versation he had with Peel and Nelson and a transcript of
that conversation is in evidence as General Counsel’s Exhibit
3.
Suffice it to say during the telephone conversation Peel of-
fered Zell an $8-an-hour helpers job to start the following
Monday, August 9, 1993. When Zell laughed and asked if
his being a member of the Union would be a problem Peel
put Nelson on the phone. Nelson told Zell that Respondent
would get back to him.
While one can speculate what Peel and Nelson’s reaction
would have been had Zell laughed and asked if they’d be
any problem since he was not a member of the Union. That
did not happen and we will never know how Peel and Nel-
son would have reacted.
Greg Menefee, Respondent’s president, was advised by
Peel and Nelson of what they thought was Zell’s odd behav-
ior, i.e., laughing and asking if his being a union member
would be a problem. Menefee learned from Mark Officer,
president of Pre-Fab, a nonunion company which Harry Zell
had signed to a union contract, that Zell was a field rep-
resentative for the Union.
Menefee called Zell. Zell returned his call on August 23,
1993, and Menefee told Zell that Respondent would not be
hiring him. This phone conversation between Zell and
Menefee was not recorded.
There is a conflict as to whether Menefee asked Zell if
Zell was in the Union and was going to stay in the Union,
which Zell claimed was said and which would be unlawful
interrogation, or whether Menefee asked Zell if Zell was a
field representative for the Union and would remain one if
hired, which Menefee claimed was said and would also be
unlawful interrogation if, and only if, it is unlawful to refuse
to hire a full-time paid union organizer because the person
is a full-time paid union organizer. Since I find that it is un-
lawful to refuse to hire a full-time paid union organizer be-
cause of that status I conclude that under either Zell or
Menefee’s version of the conversation Respondent engaged
in unlawful interrogation in violation of Section 8(a)(1) of
the Act.
As to exactly what was said in the conversation I found
both Zell and Menefee credible, therefore, the party with the
burden of proof looses and I credit Menefee’s version of the
conversation. I find that Zell was mistaken.
It is clear from the record that Menefee refused to hire
Zell or withdrew the offer of employment, depending on how
you look at it, because Zell was a full-time paid union field
representative who would, if hired, try to organize Respond-
ent’s employees.
Respondent’s claim that both before and after it refused to
hire Zell that it did in fact hire union members is irrelevant.
Respondent, I note, had hired a number of persons, i.e., Dan
Rowe, Tim Nelson, Mike Haynes, Tom Gillcrest, and Wayne
Morris, who had union ties before Zell even applied for a job
and Respondent hired union members Greg Matthews in
September 1993 and Steve Amos, a voluntary union orga-
nizer, in April 1994 after Zell had been turned down for em-
ployment.
Menefee claims that Zell falsified his application when he
didn’t list his union employment and it is Respondent’s pol-
icy to fire applicants who submit false applications but it
never has had to do so. Zell claims that he didn’t put down
his union employment because he thought he was lawfully
permitted not to disclose his union membership. Zell was
less than candid but Respondent, I find, did not even seize
on this lack of candor except as an afterthought.
Zell’s lack of candor does not render him a less than bona
fide applicant for employment.
Applicants for employment are employees under the Act
and entitled to its protection. See Phelps Dodge Corp. v.
NLRB, 313 U.S. 177, 181–188 (1941).
It is settled Board law that full-time paid union organizers
are employees and entitled to protection under the Act. See
Sunland Construction Co., 309 NLRB 1224 (1992); Town &
Country Electric, 309 NLRB 1250 (1992), enf. denied 34
F.3d 652 (8th Cir. 1994).
There is a split in the circuit courts, however, on this
issue. The District of Columbia, Second and Third Circuits
hold that a full-time paid union organizer is an employee
under the Act and entitled to its protection. See Willmar
Electric Service, 968 F.2d 1327, 1329–1331 (D.C. Cir.
1992); NLRB v. Henlopen Mfg. Co., 599 F.2d 26, 30 (2d Cir.
1979); and Escada (USA), Inc. v. NLRB, 970 F.2d 898 (3d
Cir. 1992). But the Fourth, Sixth, and Eight Circuits hold to
the contrary. See H. B. Zachry Co. v. NLRB, 886 F.2d 70,
72 (4th Cir. 1989); Ultrasystems Western Constructors v.
NLRB, 18 F.3d 251, 255 (4th Cir. 1994); NLRB v. Elias
Brothers Big Boy, Inc., 327 F.2d 421, 427 (6th Cir. 1964);
and Town and Country Electric v. NLRB, supra.
I am, of course, bound by Board law unless and until
modified by a decision from the U.S. Supreme Court.
The argument behind the notion that a paid union orga-
nizer is not a bona fide applicant for employment and not
entitled to protection under the Act apparently had its basis
in the notion that there is an inherent conflict of interest
791ARCHITECTURAL GLASS & METAL CO.
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
when a servant serves two masters. But is there really such
a conflict of interest. For example, police officers and mem-
bers of the military are theoretically on duty 24 hours a day
and, of course, the members of the military are subject to
overseas assignment in the event of an emergency, but would
a police officer or a member of the military not be consid-
ered a bona fide applicant for employment just because of
their status. Would a student whose main objective is to
graduate be considered something other than a bona fide ap-
plicant for employment just because he or she is a student.
The police officer, military member, and student all serve
two masters.
Respondent claims it would not hire a full-time employee
who had a full-time job elsewhere but Menefee never asked
if Zell’s union job would interfere with his job with Re-
spondent. I might add that many working women, especially
those with younger children, quite reasonably look on their
mothering responsibilities as a full time or close to it job that
they do in additon to their ‘‘outside the home’’ jobs. What
about employees who spend large amounts of time participat-
ing in coaching, scouting, or other voluntary efforts. Should
they lose protection under the Act because they serve two
masters?
Accordingly, relying on Board law I find that Respondent
violated Section 8(a)(1) and (3) of the Act when it refused
to hire Harry Zell because Zell was a full-time paid union
field representative.
REMEDY
The remedy for this unlawful refusal to hire and unlawful
interrogation should be the issuance of a cease-and-desist
order, the posting of a notice, and the requirement that Re-
spondent offer a job to Zell and give him backpay. There
was evidence that Zell was offered employment elsewhere
and chose not to accept it and that evidence will be relevant
in determining what backpay, if any, Zell should receive to
remedy this unfair labor practice. However, that is a matter
best left to the compliance stage of this litigation.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in operations affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By unlawfully interrogating Harry Zell about his union
activity and refusing to hire Harry Zell because of his pro-
tected concerted activity on behalf of the Union Respondent
violated Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, Architectural Glass & Metal Co., Inc.,
Indianapolis, Indiana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Unlawfully interrogating applicants for employment
about their union activity.
(b) Refusing to hire employees because they engage in
protected concerted activity on behalf of a union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Harry Zell the position of helper or if that po-
sition no longer exists, to a substantially equivalent position,
without prejudice to his seniority and other rights and privi-
leges.
(b) Make Harry Zell whole for any loss of pay and other
benefits suffered by him commencing on August 9, 1993.
Backpay to be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as computed
in New Horizons for the Retarded, 283 NLRB 1173 (1987)
(see generally Isis Plumbing Co., 138 NLRB 716 (1962)).
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Indianapolis, Indiana, copies of
the attached notice marked ‘‘Appendix.’’2 Copies of the no-
tice, on forms provided by the Regional Director for Region
25, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National Labor
Relations Board has found that we violated the National
Labor Relations Act and has ordered us to post and abide by
this notice.
792 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT unlawfully interrogate applicants for em-
ployment about their activities on behalf of the Union.
WE WILL NOT refuse to hire employees because they en-
gage in protected concerted activity on behalf of a union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed to them under Section 7 of the Act.
WE WILL offer to Harry Zell the position of helper or, if
that position no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other rights and
privileges.
WE WILL make Harry Zell whole for any loss of pay or
benefits he suffered because of the discrimination against
him, plus interest.
ARCHITECTURAL GLASS & METAL CO., INC.