Bechtel Corp.

National Labor Relations Board - Board Decisions

Apr 5, 1968

170 N.L.R.B. 1128 (N.L.R.B. 1968)

1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bechtel Corporation and Frederick E. Ojala.Case
30-CA-550
April 5, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On October 12, 1967, Trial Examiner Lowell
Goerlich issued his Decision in the above-entitled
proceeding, finding-that Respondent had engaged
in and 'was engaging in certain unfair labor prac-
tices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affir-
mative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, Respondent and the
General Counsel filed exceptions to the Trial Ex-
aminer's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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 Trial Examiner's findings, conclusions,
and recommendations only to the extent consistent
herewith.
The facts, as more fully set forth in the Trial Ex-
aminer's Decision, show that Respondent, at its
White Pine project, was bound by the referral
provisions of the existing area bargaining agree-
ment of Local 19, I.B.E.W. (herein called the
"Union") with local employers. Under the contract
provisions, the Union is the sole source of referral
of applicants for employment. The Union agrees to
refer registered electricians according to four
groupings based upon experience and residence,
without regard to "membership or nonmembership
in the union." The agreement also provided that, in
the event the Union is unable to refer applicants
within 48 hours of the Employer's request, the Em-
ployer is free to hire electricians outside the refer-
ral system but, these outside hires "shall have the
status of `temporary employees' ... and such tem-
porary employees shall be replaced by the provi-
sions of this employment referral system as soon as
registered applicants for employment become
available."
About October 1966 Bechtel began hiring,
through nonunion sources, temporary or "white
card" employees who were not members of the
Union because of the lack of available union re-
gistered applicants. In January 1967 referral system
applicants became available for employment.
Discussions concerning the replacement of tempo-
rary employees under the contract were initiated by
the Union, and Bechtel Superintendent Fusen ex-
pressed doubt as to the "legality" of the replace-
ment provision. After consulting with Respondent's
labor relations advisor, he told Union Representa-
tive Brey that Bechtel would not displace any "non-
union" temporary employee until the Union gave
written assurance that the nonunion employees
could join the Union on equal terms with others.
Brey refused, asserting that the replacement clause
was legal as written and should be abided by. The
Charging Party, Frederick Ojala, was referred to
replace a temporary employee on January 30. Su-
perintendent Fusen denied Ojala employment as-
sertedly because "we had no calls in for people at
the hall, and he came to replace a nonunion man or
temporary employee .... I had been formerly in-
structed to hire nobody under these circumstances.
... [that is] to replace a nonunion man with a
union man."
Contrary to the Trial Examiner, the Respondent's
position on the operation of the replacement clause
was not one which would, in the circumstances dis-
closed by this record, inherently discourage mem-
bership in the Union. The question of how the
replacement provision would be applied had never
arisen before. Its application to the situation
presented would have inevitably resulted in hiring
union members to replace the temporary em-
ployees who were not members of the Union. There
also is some indication from loose phraseology used
in discussions of the problem that the Union was
equating union referral with union membership and
was requiring the displacement of a nonunion tem-
porary with a "Local man." Faced with this situa-
tion, we believe it was not unreasonable for
Respondent to fear that unquestioning acquiescence
in the Union's proposed contract application would
result in unlawful discrimination against the non-
union employees.' Although Respondent did raise
questions in the January talks with Union
Representative James Brey, phrased in terms of
contract "legality," we think the dominant concern
of Respondent was not the contract terms as writ-
ten or construed but rather the application of the
' See, e.g , Superior Roofing Co., 158 NLRB 657, 662-663.
170 NLRB No. 125
BECHTEL CORPORATION 1129
replacement provision to the unique facts
presented. Assurances were thus sought to prevent
unlawful administration of the referral system. The
issue , remained unresolved when Ojala was referred
in accordance with the Union's proposed method of
applying the replacement clause. The denial of em-
ployment to Ojala as a union referral was merely a
means of preserving the Respondent's position on
the lawful application of this clause, and not dis-
crimination against him because of his union mem-
bership. Thus, "the whole course of Respondent's
conduct was directed at 'avoiding discrimination
against nonunion temporaries, and not at excluding
"union labor" from the project. In these circum-
stances,_we find no "inherent" or "inevitable" un-
lawful discrimination against Ojala on January 30,
and, therefore, do not adopt or pass upon the Trial
Examiner's additional findings and conclusions
flowing therefrom.
On March 6, 1967, Ojala was again referred to
the Respondent, this time to a job opening.2 Ojala
was denied employment on the ground that he had
"instigated" a "wildcat" walkout on January 30.
The electricians had walked off the job in apparent
protest of Bechtel's refusal to hire Ojala on January
30. Respondent produced evidence showing it had
reason to believe that, before he left the jobsite,
Ojala had told the employees to walk off. The
Local Agreement contained a no-strike provision.
Respondent had ,the right to refuse employment to
Ojala if he had instigated a strike in violation of a
no-strike clause; such conduct is not protected con-
certed activity. As the Respondent's asserted
reason for refusing to-hire Ojala was this unpro-
tected concerted activity, it was the General Coun-
sel's burden to establish either that the activity was
protected or that Ojala did not in fact engage
therein. The General Counsel came forward with
no,evidence that Ojala in fact did not instigate the
walkout,3 or that his conduct was-protected. Ac-
cordingly, we find that the General Counsel has
failed to establish ah'affirmative case for an 8(a)(3)
or 8(a)(I) finding in the refusal to hire Ojala on
March 6.
Finally, General Counsel urges us to find that
both refusals to hire were unlawful on the ground
that they were motivated by hostility towards Ojala
because of his activities for the Union during a
prior term of employment. He contends that the
reasons advanced by Respondent for the failure to
hire Ojala were pretexts for retaliating against Ojala
for his prior union activities.' In view of his disposi-
tion of the foregoing issues , the Trial Examiner did
not consider this theory. We are confronted with
conflicting testimony in support of General Coun-
sel's position. While not specifically discrediting the
General Counsel's witnesses, the Trial Examiner
implicitly did so by relying heavily, if not exclusive-
ly, on the testimony of Respondent's representa-
tives for his findings of fact: Projecting the Trial Ex-
aminer's credibility resolutions and agreeing with
his acceptance of the Respondent's stated reasons
for refusing Ojala employment on each referral, we
find that General Counsel has not sustained his bur-
den of proving, by a preponderance of the
evidence, that Respondent was motivated by prior
union activity in denying employment to Ojala. Ac-
cordingly, we shall dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
be, and it hereby is, dismissed in its entirety.
2 Under an agreement reached on February 7, 1967, Respondent had
been accepting union referrals to replace temporary employees This ap-
parently had been completed
' Cf NL RB v. Burnup and Sims, Inc , 379-U S 21.
' The-alleged union activities consisted of "talking union" on the job and
complaining about certain job conditions
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH , Trial Examiner: On charges
filed . by, Frederick E. Ojala, herein called the
Charging Party,' the General Counsel of the Na-
tional Labor Relations Board , herein called the
Board , on behalf of the Board by the Regional
Director for Region 30, on May 17, 1967, issued a
complaint and notice of hearing in which Bechtel
Corporation was named the Respondent . It was al-
leged that the Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce within the meaning-of Section 8(a)(1) -and
(3) of the National Labor Relations Act, as
amended , herein called the Act. The Respondent
filed timely ' answer denying that it had engaged in
or was engaging in the unfair labor practices al-
leged.
Pursuant to due notice the case came on to be
heard on July 6 and 7,,- 1967, at Ontonagon,
Michigan . Each party was afforded full opportunity
to be heard , to call , to examine and cross-examine
witnesses , to argue orally on the record, -to submit
proposed findings of fact and conclusions of law,
and to file briefs . All briefs have been reviewed and
considered by the Trial Examiner.
The only issue before the Trial Examiner is
whether the- Respondent violated Section 8(a)(3)
of the Act when it refused employment to Charging
Party Ojala.
Upon the whole record and from his observation
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the witnesses, the Trial Examiner make the fol-
lowing:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Delaware corporation, maintains
its principal office at San Francisco, California, and
at all times material herein has been engaged at
various locations throughout the United States, in-
cluding its facilities at White Pine, Michigan, in the
mining and construction industries.
At the White Pine, Michigan, facilities to which
the Charging Party was referred for work on Janua-
ry 30, 1967, by Local No. 19, International
Brotherhood of Electrical Workers, pursuant to the
Local Agreement noted below, the Respondent was
engaged in "designing and buying equipment and
constructing an expansion of the milling process
and building surface facilities at a new shaft." The
contract for this work involved "about
$16,000,000." At peak employment the Respon-
dent employed about 300 manual and 25 non-
manual employees. The manual employees were or-
ganized into various crafts, one of which was the
electricians' craft. Work falling in this craft's ju-
risdiction was governed by a National Agreement
dated October 27, 1958, between the Respondent
and the International Brotherhood of Electrical
Workers of Washington, D.C., and by a Local
Agreement dated February 16, 1966, by and
between the Houghton-Hancock Division,
Michigan Chapter, National Electrical Contractors
Association, Inc., and Local Union No. 19 of the
International Brotherhood of Electrical Workers.
The Charging Party was a member of Local Union
No. 19, a fact which was known to the Respondent.
Under the National Agreement the Respondent
agreed "to comply with all the terms and conditions
of the applicable local collective bargaining agree-
ment in the area where the work is being per-
formed, including such legally valid referral
procedures and union security provisions as may be
provided in such agreement."
During the past year, a representative period,
Respondent in the course and conduct of its busi-
ness operations performed services valued in excess
of $50,000 at places located outside the State of
California and during the same period Respondent
purchased and received goods and materials, in in-
terstate commerce, valued in excess of $50,000
from sources located outside the State of Califor-
nia.
Respondent admits and the Trial Examiner finds
that the Respondent is and has been at all times
material herein an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION
The Respondent admits and the Trial Examiner
finds that Local Union No. 19, International
Brotherhood of Electrical Workers, herein called
the Union ,= is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The facts herein which are germain to the resolu-
tion of the issue above stated are as follows:
The Local Agreement referred to above provided
for, an employment referral procedure which
required that the "union shall be the sole and ex-
clusive source of referrals of applicants for employ-
ment." The Agreement further provided that the
"union shall select and refer applicants for-employ-
ment without discrimination against such applicants
by reason of membership or non-membership in the
union and such selection and referral shall 'not be
affected in any way by rules, regulations, bylaws,
constitutional provisions or any other aspect or
obligation of union membership policies or require-
ments." Applicants were chosen from a register of
applicants according to a priority grouping as fol-
lows:
The union shall maintain a register of appli-
cants for employment established on the basis
of the groups listed below. Each applicant for
employment shall be registered in the highest
priority group for which he qualifies. - -
GROUP I-All applicants for employment
who have four (4) or more, years' ex-
perience in the trade, are residents of the
geographical area constituting the normal
construction labor market, have passed a
journeyman's (inside wireman's) examina-
tion given by a duly constituted local
union of the International Brotherhood of
Electrical Workers and who have been
employed for a period of at least one (1)
year in the last four (4) years under a col-
lective bargaining agreement between the
parties to this agreement.
GROUP II-all applicants for employment
who- have four (4) or more years' ex-
perience in the trade and who have passed
a journeyman's (inside wireman's) ex-
amination given by a duly constituted
local union of the International Brother-
hood of Electrical Workers.
GROUP III-All applicants for employ-
ment who have two (2) or more years' ex-
perience in the trade, are residents of the
geographical area constituting the normal
construction labor market and who have
been employed for at least six (6) months
in the past three (3) years in the trade
BECHTEL CORPORATION 1131
under a collective bargaining agreement
between the parties to this agreement.
GROUP IV-All applicants for employ-
ment who have worked at the trade for
more than one (1) year.
The Local Agreement further provided:
The employer shall advise the business
manager of the union of the number of appli-
cants needed. The business manager shall refer
applicants to the employer by first referring ap-
plicants in Group I in the order of their places
on the Out of Work List therein and then,
while Group I list remains exhausted, refer ap-
plicants from the Out of Work List in Group II
and then, while Group I and Group II lists,
respectively, remain exhausted, refer appli-
cants successively in the same manner from the
Out of Work Lists in Group III, and then
Group IV.
An exception to the above placement procedure
was made when the employer called for a person of
"special ',skills and ability." Under such circum-
stance the "first applicant in the register possessing
such skills and abilities" was referred.
In the event the registration list was exhausted
and the Union was unable to refer applicants for
employment to the employer ,within 48 hours from
the time of receiving the employer's request, Sun-
days and designated holidays excluded, the Respon-
dent was free to secure applicants without using the
employment referral procedure. Such applicants, if
hired, held the status of temporary employees.
Under the Agreement the employer was required
to notify the Union's business manager promptly of
the names, and social security numbers of the tem-
porary employees (who were also referred to as
white card employees), who were to be "replaced
by the provisions of this employment referral
system as soon as registered applicants for employ-
ment were available. "1
The registration list became exhausted and the
Respondent hired temporary employees. On Janua-
ry 30, 1967, the date upon which the Charging
Party was referred for employment, 25 jobs
covered by the Local Agreement were filled by
temporary employees. On such date these 25 jobs
were available to registered applicants pursuant to
the referral system provided in the Local Agree-
ment.
Shortly prior to January 30, 1967, the Union
opened discussions with the Respondent relative to
replacing temporary employees with registered ap-
plicants which were, at that time, becoming availa-
ble. James W. Brey, vice president and business
manager of the Union, telephoned Glenn L. Fuson,
project superintendent at the White Pine job, and
asked him whether he intended to comply with that
part of the Agreement requiring the replacement of
temporary employees by referrals from the register.
Fuson replied that he was "skeptical" as to the
clause's "legality" and that he would have to confer
with his "labor relations people."2 During the
discussions Brey observed that the clause was "not
only for card members." After conferring with his
"labor relations people" Fuson advised Brey that if
the temporary employees were given "a chance to
join the union under the same circumstances as the
other members and they failed to pass the test" and
a letter was signed to this effect, they could be
replaced.' Brey responded that the clause was
"legal according to his advice from his Interna-
tional" and that the contract "would stand up
under the law." He demanded that the Respondent
abide by the clause. Fuson answered, ". . . I can't
do it, I'd been advised by my people absolutely to
hire nobody referred out to replace a non-union
man, no hiring at all under these circumstances, I
cannot do it because I'd been told not to."
On January 30, 1967,4 Charging Party Ojala, a
registered applicant, appeared at the Respondent's
plant entrance about 8:15 a.m. with a job referral
from the Union where he met William Andreini,
job steward for Local No. 19, who was coming to
work. Andreini and Ojala proceeded to the Respon-
dent's office where Ojala sat in the vestibule while
Andreini sought Gordon Powers, assistant superin-
tendent in charge of the electrical program at
White Pine project. When Andreini located Powers
he told him he had "a man for a job." Powers
replied that he had no call in for a man, whereupon
Andreini reminded Powers that this was a "Local
man and you don't have to have a call in for him."
Andreini said that he was there to "replace one of
the white card men." During the conversation An-
dreini had informed Powers that the applicant was
Ojala.•'
Powers advised Andreini that he had no authority
to replace white card men and that he would have
to take the matter up with Fuson. Powers" and An-
dreini then went into Fuson's office where Fuson
informed Andreini that the Respondent had no call,
in for employees and inquired "how come this man
This provision is sometimes referred to herein as the " replacement
clause "
2 Brey testified that Fuson said that the clause " didn 't look right the way
it was written " and that it was "over and above him" and that he would
"check with the proper people."
Brey testified , " He told me that after he had contacted the labor rela-
tions they had figured we have to take all these people , give them an exam,
classify them and if need be then to take them into our union to make them,
yeah, I think, to make them members."
On November 21, 1966 , Ojala, who had been working at the Respon-
dent 's Palmer , Michigan , construction site, began working on the White
Pine Job He remained at White Pine until he voluntarily terminated to
return to Palmer On January 23, 1967, Ojala was terminated in a reduc-
tion of force at Palmer
' Brey informed Ojala on January 29, 1967, that the Respondent had no
call in for men and that if he appeared as a replacement for a temporary
employee the Respondent might refuse to hire him Olala was the first and
only employee referred by Brey to replace a temporary employee until
after February 7, 1967
' Where there is a conflict in testimony I have credited Powers'
testimony as the more reliable
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be referred out on a job." Andreini replied,
"[U]nder the terms of the contract you don't have
to have a call, we can replace these temporary em-
ployees whenever men are available...." Andreini
pointed the clause out to Fuson and Fuson said that
he agreed with him "heartily" but that he had been
instructed by his "labor relations people to absolu-
tely hire nobody under this condition "
Andreini informed Ojala of the Respondent's
position and suggested that Ojala wait for him in
the change house.'
Powers learned from Andreini that Ojala was in
the change house and transmitted such information
to Fuson. Fuson instructed Powers to tell Ocala to
leave the jobsite or the Respondent would have
"security" remove him. Powers found Ojala in the
change house together with Bill Murphy and four
or five other employees. Powers testified,
So, I go down to the change house immediately
on those instructions. When I arrived at the
change house Ocala, Bill Murphy, Ray
Sharette, Eldon Karhu and there was one more
member there and I can't remember his name,
at the time were all there at a table discussing
the problems that had arisen.
I assumed they were discussing the
problems that had arisen. I walked in and said,
Ojala, you're going to have to leave the White
Pine Mining Company property or we're going
to have security remove you. He related to me,
he says, that's fine, then I get a ride out of
here. So, I turned around and started out. Bill
Murphy, I believe it was, says to me, wait a
minute, and they got in the corner and they
had a little huddle They talked a minute and
said, he will leave. He walked out of the
change house and started toward the gate and I
asked Bill Murphy and them other boys at that
time if they were going to go to work and they
says, no, we're going home, whenever you will
not replace a white card man with a union
member we don't want to have anything to do
with the job, and out the gate they went and
they shut the job down.
Powers informed Fuson that the electricians had
walked off the job. Fuson immediately telephoned
Louis J. Sabin," the Respondent's senior labor rela-
tions representative located at Gaithersburg, Mary-
land, and then Brey. Brey arrived at Fuson's office
about 10 a.m. with Andreini. Upon Fuson's inquiry
as to why the men left the job, Brey relied, "[I]t's
apparent they left because of [the Respondent] not
,eplacing these white card people." Fuson com-
mented, "My information is that's why they hit the
street." Fuson told Brey he could not hire Ojala
"because [he] couldn't under the circumstances of
replacing a white card man with a union member.""
The men returned to work thereafter under or-
ders from the International. On February 7, 1967,
at a meeting between the union representatives and
Fuson and Sabin, the white card issue was capitu-
lated and the Respondent commenced replacing
temporary employees. With each referral the Union
submitted a statement "This is to introduce ... who
is a Group ... employee referred by the Local
Union #19 IBEW and is to replace a temporary
employee." No change was made in the contractual
provision related above.
At the February 7, 1967, meeting Brey requested
that Ojala be given employment; the Respondent
refused. Fuson gave as his reason that in his "esti-
mation the man instigated the walkoff."
On March 6, 1967, in response to a call for em-
ployees from the Respondent the Union again
referred Ocala for employment at the White Pine,
Michigan, location. Powers, upon instructions from
Fuson, refused to hire him. After the February 7,
1967, meeting, Fuson had instructed Powers, if
Ocala appeared for work, that he should not hire
him for in his estimation Ojala "had helped to in-
stigate this wildcat strike."
While the local Agreement contains a no-strike
clause"' none of the electricians were disciplined
for their participation in the walkout.
Concluding Findings
From a review of the record as a whole it would
appear that the Respondent, at least in part," was
motivated to refuse Ocala employment because it
was uncertain as to the legality of the replacement
clause in the Agreement, to wit: ". . . temporary
employees shall be replaced by the provisions of
this employment referral system as soon as reg-
istered applicants for employment are available,"
or, as put by Fuson-"skeptical as to its legality."
Fuson was instructed not to replace a "non-union
man" or a "temporary employee" with a "union
man." Ojala who fell in this category was thus
refused employment.
' As described by Powers, "The change house facility is where the men
who are on the job report to change their clothes, their lunches are there, it
has toilet facilities in it 11
' Fuson testified, "On the morning of January 30 1 told him [Sabin] this
man had come upon the job with a referral and we had no calls in for peo-
ple at the hall, and he came to replace a non -union man or a temporary em-
ployee As per my instructions from our labor relations, 1 refused to hire
him I had been formerly instructed to hire nobody [t]o replace a non-
union man with a union man "
9 Fuson testified that the white card issue was the " main issue " and that
"[o]ther things were mentioned but only incidental and not of any con-
sequence to the main problem
The Agreement provides
There shall he no stoppage of work either by strike or lockout
because of any disputes over matters relating to this agreement
Other reasons were advanced for the Respondent's refusal to hire
Ojala on January 30, 1967 In view of his conclusions drawn herein, the
Trial Examiner has deemed it unnecessary to consider these reasons in
reaching his decision
BECHTEL CORPORATION 1133
The Respondent concedes that "the referral
provisions of article IV of the Local 19 Agreement
were legal on their face"'' (Respondent's brief, p.
5) which finds support in the teachings of Local
357, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America v.
N.L.R.B.; 365 ' U.S. 667.1; Nevertheless, the
Respondent asserts that "Fuson was uneasy about
the interpretation .the union was giving them"
(Brief of Respondent p. 5). But, there is no credible
evidence that the Union was attempting to enforce
these provisions in an unlawful manner. Moreover,
the Respondent did not maintain nor does it now
maintain that, had the replacement clause been ap-
plied as written, Ojala would have been ineligible
for a job or that a job was not available for him. 14
Indeed Fuson agreed with Andreini that the
replacement clause required the replacement of
temporary employees through the referral system
whenever men were available. On the other hand
the Union conceded that the Respondent had com-
mitted no breach of the Agreement in refusing to
hire Ojala.'•' -
On January 30, 1967, a job which Ocala could
have lawfully filled was available for him at the
Respondent's White Pine, Michigan, facilities. The
Respondent's "refusal to hire [Ojala] for an availa-
ble job" was "clearly discriminating" Radio Of-
ficers' Union of the Commercial Telegraphers Union,
AFL v. N.L.R.B.; 347 U.S. 17, 39. Such discrimina-
tion , manifesting itself in the refusal to hire a
prospective employee because he was a "union
man," was clearly proscribed by the Act. Phelps
Dodge Corp. v. N.L.R.B., 313 U.S. 177. "Dis-
crimination against union labor in the hiring of men
is a dam to self-organization -at the source of
supply.... such discrimination .. . inevitably
operates against the whole idea of the legitimacy of
organization.... it undermines the principle which
... is recognized as basic to the attainment of in-
dustrial peace." (Emphasis supplied.) Id, at 185.
Thus it seems plain that the embargo imposed by
the Respondent on the hiring of union labor
referred by the Union pursuant to a lawful union
referral system had the inherent tendency to
discourage union membership and was inherently
destructive of important employee rights protected
by Section 7 of the act. Indeed the Respondent's
refusal to hire Ojala is the kind of conduct which
carries with it "unavoidable consequences which
the employer not only foresaw but which he must
have intended" and thus bears its -own indicia of in-
tent. Cf. Erie Resistor Corporation v. N.L.K.B., 373
U.S. 221, 228, 231. Lately the Supreme Court has
said in N.L.R.B. v. Great Dane Trailers, 363 F.2d
130:
From this review of our recent decisions,
several principles of controlling importance
here can be distilled. First, if it can be
reasonably concluded that the employer's dis-
criminatory conduct was "inherently destruc-
tive" of important employee rights, no proof'of
an antiunion motivation is needed and the
Board can find an unfair labor practice even if
the employer introduces evidence that the con-
duct was motivated by business considerations:
Second, if the adverse effect of the discrimina-
tory conduct on employee rights is "compara-
tively slight," an antiunion motivation must be
proved to sustain the charge if the employer
has come forward with- evidence of legitimate
and substantial business justifications for the
conduct. Thus, in either situation, once it has
been proved that the employer engaged in dis-
criminatory conduct which could have adver-
sely affected employee rights to some extent,
the burden is upon the employer to establish
that it was motivated by legitimate objective
since proof of motivation is most accessible to
him.
Since the discriminatory conduct of the Respon-
dent was inherently destructive of important em-
ployee rights, the Respondent stands convicted of a
violation of Section 8(a)(3) and (1) of the Act un-
less it produces proof that it was motivated by
"legitimate objectives" although an unfair labor
practice may nevertheless be found "even if the
employer introduces evidence that the conduct was
motivated by business considerations."
The Respondent asserts, as is revealed by the
record, that it was motivated to refuse Ojala. em-
ployment because it was uncertain as to the legality
"The Cieneial Counsel comments in his beef, pp 27 to 28, on this
subject
There is nothing on the face of the referral including the provision
for replacement of "temporary employees ," to take it outside the per-
missible limits of hiring halls as established by the Board and the
Courts The contract gives the Employer the right to hire "temporary
employees " when applicants are unavailable under the referral provi-
sions It similarly gives the Union the right to replace these " temporary
employees" with referral applicants when they become available The
conditions for referral of the replacements for "temporary employees"
are not dependent on membership in the Union or other invidious
distinctions , but are based upon a graduated series of qualifying fac-
tors which look to the applicant's experience, length of time in the
trade , completion of qualifying tests and residence in the geographical
area
The Agreement provided
The union shall select and refer applicants for employment with out
discrimination against such applicants by reason of membership or
non-membership in the union and such selection and referral shall not
be affected in any way by rules , regulations , bylaws , constitutional
provisions or any other aspect or obligation of union membership poli-
cies or requirements All such selection and referral shall be in ac-
cordance with the procedure set forth in this article. ,
°a "Had the events of January 30 ended simply with the company's
refusal to take on Ojala, undoubtedly he would have been eligible for rehire
under the agreement reached even if it meant replacing some less qualified
employee " Respondent 's brief, p 20
i' Fuson testified that Brey conceded that the Respondent had "the right
to reject any employee for any reason " Brey testified that he explained to
Ojala that he could not file a grievance because "the company has the right
to refuse" referrals under the Agreement
The Agreement provided "The employer shall have the right to reject
any applicants for employment "
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the replacement clause in the agreement. To
have sustained such uncertainty would mean that
the clause is-illegal . No such claim is made or sup-
ported; nor is there credible evidence that the
Union demanded that the clause be unlawfully ad-
ministered. Under these circumstances to have har-
bored an uncertainty as to the clause's legality
would have attached a construction to the clause
which was not intended nor apparent from the
words used. The fact that the Respondent placed a
misinterpretation of uncertain legality on the clause
did not justify its discrimination against Ojala. Cf.
N.L.R.B. v. Swinerton d/bla Swinerton and Walberg
Company, 202 F.2d 511, 515 (C.A. 9), cert. denied
346 U.S. 814.
The Respondent has come forward with no legiti-
mate motive for its discrimination. Since dis-
criminatory conduct carrying a potential for ad-
verse effect= on employee rights was proved and no
evidence of a proper motivation appeared in the
record, the Trial Examiner finds that by its refusal
to hire Ojala on January 30, 1967, the Respondent
has violated Section 8(a)(3) and (1) of the Act.
See N.L.R.B. v. Great Dane Trailers, Inc., supra.
Section 8(a)(3) of the Act is violated when an
employer refuses to hire a prospective employee
because he is a union man even though the em-
ployer is uncertain as to the legality of the hire, if,
in fact, the hire would not have been illegal. Cf.
N.L.R.B. v. Burnup & Sims, 379 U.S. 21.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with its
operations set forth in section I, above, have a
close, intimate, and substantial relation to trade,
traffic, and commerce among the several States,
and tend to lead to labor disputes, burdening and
obstructing commerce and the free flow of com-
merce. ,
V. THE RECOMMENDED REMEDY
It having been found that the Respondent has en-
gaged in certain unfair labor practices, it is recom-
mended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
It having been found that the Respondent unlaw-
fully refused to employ Frederick E. Ojala on
January 30, 1967, and thereby violated Section
8(a)(3) and (1) of the Act, it is recommended that
the Respondent remedy such unlawful conduct in
accordance with Board policy's by offering
Frederick E. Ojala immediate employment" to the
position he would have occupied- on January 30,
1967, had he been employed on that date by the
Respondent or a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges and by making him whole for any
loss of earnings he may have suffered as a result of
the discrimination against him by the payment to
him of a sum of money equal to the amount he
would have earned from January 30, 1967, to the
date of an offer of employment, less net earning
during said period, to be computed on a quarterly
basis in the manner established by the Board in F.
W. Woolworth Company, 90 NLRB 289, and shall
include interest at the rate of 6 percent per annum
to be computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of the Act.
2. The Respondent is engaged -in commerce
within the meaning of Section 2(6) and (7) of the
Act and it will effectuate the purpose of the Act for
jurisdiction to be exercised herein.
3. By unlawfully -refusing employment to
Frederick E. Ocala on , January 30, 1967, the
Respondent engaged in unfair labor practices
within the meaning of Section,8(a)(3) and (1) of
the Act.
4. By interfering with, restraining, and coercing
its employees in the exercise of their rights guaran-
teed them by Section 7 of the Act, the Respondent
has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are-unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
[Recommended Order omitted from publica-
tion. ]
16 See Rushton Company, 158 NLRB 1730, fn 2
it According to the Respondent, Ojala was denied employment after
January 30, 1967, "because the available evidence indicated, and the
Respondent in good faith believed, that Ojala instigated the wild cat strike
which occurred on January 30" (Respondent's brief, p 8) Whether such
conduct , if proved , would bar Ojala from employment with the Respondent
after January 30, 1967, is immaterial in that the alleged " wild cat strike"
was in protest against the unfair labor practices herein described See Mas-
tro Plasttcr Corp v NLRB , 350 U S 270