Corning Glass Works

National Labor Relations Board - Board Decisions

Nov 3, 1960

129 N.L.R.B. 569 (N.L.R.B. 1960)

CORNING GLASS WORKS 569
V. THE REMEDY
Although I have recommended dismissal of those portions of the complaint
alleging that Robert Tupps and Howard Landoll threatened employees, in the
manner specified in the complaint , I have found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend
that it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
It having been found that surveillance of the employees of Respondent attending
a union meeting interfered with , restrained , and coerced employees , I recommend
that Respondent be ordered to cease and desist from in any like or related manner
infringing upon rights guaranteed,to its employees by Section 7 of the Act.
Upon the foregoing findings of fact , and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Teamsters Local No. 20, is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By taking moving pictures of employees attending or leaving a union meeting,
the Company has engaged in surveillance and has thus interfered with, restrained,
and coerced employees in the exercise of rights guaranteed by Section 7 of the
Act, and has thereby engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
4. Respondent has not threatened its employees with loss of employment, shut
down of the plant , removal of the plant , or other reprisals because of their union
activities , sympathies , affiliation , and membership.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Corning Glass Works and Anthony Kabbaze. Case No. 1-CA-
3046. November 3, 1960
DECISION AND ORDER
On July 15, 1960, Trial Examiner James F. Foley issued his Inter-
mediate Report in the above-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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Jenkins, and
Fanning].
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 entire
record in this case, including the Intermediate Report, the exceptions,
.12 9 NLRB No. 69.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the brief, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Corning Glass
Works, its officers, agents, successors, and assigns, shall:
1. Cease and desist from interfering with, coercing, or restraining
employees in the enjoyment of the right to engage in concerted ac-
-tivity, guaranteed by Section 7 of the Act, or discouraging member-
ship in the American Flint Glass Workers Union of North America,
AFL-CIO, its Local 1007, or any other labor organization, by refusing
to hire employees because of their prior concerted activity, or like
or related conduct.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Anthony Kabbaze the same or substantially equivalent
job, which Corning Glass Works refused to give him because of prior
concerted activity, without prejudice to his seniority and other rights
and privileges he would have enjoyed had he not been denied employ-
ment, and make him whole for any loss of earning he may have suf-
fered by reason of the refusal to hire him, in the manner set forth in
the section of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to the determination of the loss of earnings
suffered by Kabbaze by reason of the refusal of Respondent to hire
him, and other rights under the terms of this Order.
(c) Post at its plant at Central Falls, Rhode Island, copies of the
notice attached hereto marked "Appendix." 1 Copies of such notice,
to be furnished by the Regional Director for the First Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted immediately upon receipt thereof, and be main-
tained by it for a period of 60 days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken
to comply herewith.
1 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
CORNING GLASS WORKS
APPENDIX
NOTICE TO ALL EMPLOYEES
571
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT interfere with, restrain , or coerce our employees
in the exercise of the right to engage in concerted activity, or
discourage membership in the American Flint Glass Workers
Union of North America, AFL-CIO, its Local 1007, or any other
labor organization, by refusing to hire an applicant for employ-
ment because of his prior concerted activity, or by like or related
conduct.
WE WILL offer Anthony Kabbaze the same or substantially
equivalent job he was refused , because of his prior concerted
activity, without prejudice to his seniority or other rights and
privileges he would have enjoyed and had he not been denied
employment.
WE WILL make Anthony Kabbaze whole for any loss of earnings
he may have suffered by reason of our discrimination against him.
All our employees are free to become or remain members of the
American Flint Glass Workers Union of North America, AFL-CIO,
its Local 1007, or any other labor organization , or to refrain from
such membership, except to the extent that this right may be affected
by an agreement authorized by Section 8 (a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
CORNING GLASS WORKS,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This case, brought under Section 10(b) of the National Labor Relations Act, as
amended ( 61 Stat. 136), herein called the Act, on a charge filed by Anthony Kabbaze
on October 29, 1959 , was heard by the duly designated Trial Examiner in Providence,
Rhode Island , on March 11 , 1960, on a complaint of the General Counsel dated
December 21, 1959 , and answer of Respondent Corning Glass Works dated De-
cember 29, 1959.
The complaint alleges that Respondent Corning Glass Works (herein called
Respondent ) discriminatorily refused to hire Anthony Kabbaze , the Charging Party,
on or about October 5, 1959, and continues this discriminatory refusal, thereby
discouraging membership in the American Flint Glass Workers Union of North
America, AFL-CIO ( herein called the Union ), in violation of Section 8(a)(3)
of the Act . It also alleges that by this discriminatory refusal , Respondent has
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interfered with, restrained, and coerced employees in the exercise of the rights
guaranteed employees in Section 7 of the Act, thereby engaging in unfair labor
practices in violation of Section 8(a)(1) of the Act.
Upon the entire record, and from my observation of the witnesses, I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
The complaint alleges and the Respondent admits that Respondent is a New York
corporation with its principal office and place of business at Corning, New York,
and at all times material herein Respondent has maintained a place of business in
Central Falls, Rhode Island, herein called the Central Falls plant. Respondent's
Central Falls plant is engaged in the manufacture, sale, and distribution of glass
products, and annually sells and ships to points outside the State of Rhode Island
products with a value in excess of $50,000. I find that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the Act, and that assertion
of jurisdiction is warranted.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issue
The issue in this case is whether Respondent refused' to hire Anthony Kabbaze,
the Charging Party, because of his prior concerted activity at Owens-Corning Fiber-
glas Corporation, of Ashton, Rhode Island, thereby discouraging membership in the
Union, and by such a refusal to employ, interfered with, restrained, and coerced
employees in the exercise of rights guaranteed in Section 7 of the Act.
B. General background
Kabbaze, the Charging Party, had been actively employed from May 1950 to
August 6, 1959, by Owens-Corning Fiberglas Corporation (herein called Fiberglas).
His occupation was that of machine operator on the "D" shift of that plant. On
August 7, 1959, approximately 28 of the employees on the "D" shift went out on
an economic strike and picketed the plant. The strike ended on September 18, 1959.
Since the "D" shift furnished basic materials to the other shifts, the strike of the
employees on that shift placed the remainder of the plant virtually at a standstill
and kept the major part of the employees idle. Kabbaze and John J. Mungo, another
employee, were the strike leaders. Their names were mentioned in the newspapers,
Pawtucket Times and Woonsocket Call, in connection with the strike. In the
August 10, 1959, issue of the Pawtucket Times it was stated that the Governor of
Rhode Island had sent a telegram to management and to Kabbaze and Mungo
containing the proposal that the State of Rhode Island arbitrate the dispute.
Kabbaze's picture also appeared on television in connection with the dispute.
The Respondent owned 31i percent of the stock of Fiberglas at the time the
latter was being struck. Fiberglas is a Delaware corporation. Respondent has been
enjoined by court order since June 1949 from voting its stock in Fiberglas in any
.election for a director for that company.
C. Kabbaze's application for employment
Kabbaze and Frank McKenna, who had also worked at Fiberglas, applied for
employment at Respondent's Central Falls plant on September 18, 1959.2 Both of
1 The only conduct of Respondent involved in this proceeding is that which transpired
at its Central Falls plant. Respondent operates 11 other plants elsewhere in the United
States.
2 McKenna's application for employment at Respondent's Central Falls plant, which was
In evidence, contained his statement that he had been replaced at Fiberglas. He had
been employed there approximately 91/ years. He had been on the picket line at Fiberglas,
and had been replaced during the strike. At the time of the hearing, an unfair labor
practice charge had been filed against Fiberglas by the Union on behalf of 84 employees
in connection with Respondent's activity about and during the time of the strike One
of the 84 employees was Kabbaze It appears to the Trial Examiner that Kabbaze, like
CORNING GLASS WORKS 573
them received employment application forms. There were 8 to 10 other applicants
present. Kabbaze filed his application before leaving the plant, while McKenna
brought his home with him, and filed it on September 19, 1959, the next day. The
applications were filed with Mrs. Germaine LaRocque, the secretary and receptionist
for Russell White, the personnel manager who did the hiring.3 She told Kabbaze
when he filed his application that persons were hired by application. Mrs.
LaRocque's office and Mr. White's office opened off a reception room. The three
rooms made up a suite of offices for the personnel manager.
The production manager informed White on Thursday evening, Septemebr 17,
1,959, that Respondent needed additional employees . One of Respondent 's other
plants was unable to fill an order for a product which the Central Falls plant also
manufactured. The Central Falls plant undertook to fill part of the order. This
necessitated the hiring of a substantial number of temporary employees in a hurry .4
That evening, White placed a notice on the bulletin board in the cafeteria and
informed employees that the Respondent was hiring so that they could so inform
friends and relatives. Respondent had a policy of favoring applicants who weie
friends or relatives of employees, as well as former employees. White also called
former employees whom he thought would be available.
On September 19, 1959, Personnel Manager White hired Benjamin Hammond,
a former employee , who had been on the picket line with Kabbaze at Fiberglas.5
Hammond filed his application on the morning of September 19, a Saturday. White
told him to report Monday morning , September 21, for a physical. McKenna, who,
had accompanied Kabbaze to Respondent's plant on Saturday, September 18,
informed Kabbaze on September 19 that he had been hired. As previously stated,
McKenna filed his application on September 19, 1959. He was not a former em-
ployee or a relative of an employee. Although the record is silent on the matter,
apparently, he had been interviewed by White on Saturday morning, September 19,
1959. The evidence of record shows that an interview usually precedes hiring. This
is so at least in the case of an application who had not previously worked for
Respondent.
On Monday, September 21, 1959, Kabbaze returned to the Central Falls plant and
asked Mrs. LaRoque if there was any word on his application . She replied that
there was none as Personnel Manager White was out of the city. She indicated she
expected him to be gone 2 or 3 days. White had left on Saturday afternoon,
September 19, 1959 , to take his son to school in Indiana. He returned on September
22, 1959. On September 23, 1959, Kabbaze again returned to the Central Falls
plant. This time he was with Hammond , who was to take physical and eye ex-
aminations . 6 He had appeared at the plant on September 21 for the examinations,
but was told White was out of the city. White saw Kabbaze and Hammond in a
group of seven or eight applicants who were standing in the lane leading to the door
of the Central Falls plant. These applicants , who had worked at Fiberglas, told him
they wished to see him. He asked them if they had filled out application forms
and had left their telephone numbers. They replied that they had. White then said
that that was all he could tell them at that time . All of them left except Kabbaze
and Hammond . White asked Hammond if he was there to take a physical examina-
tion . Hammond replied that he was. Kabbaze said that he would wait for Ham-
mond. White saw Hammond briefly in his office and Kabbaze waited in the outer
office or reception room. Hammond then proceeded to the second floor for the
examinations.
McKenna, had been replaced at Fiberglas during the strike at that Company 's premises
Kabbaze notified the Union 's Local 1007 of his filing of the charge in this proceeding
shortly after he filed it on October 29, 1959
9 Russell White had been employed as personnel manager for 14 years by Respondent.
Prior to his employment with Respondent , he had been assistant to the personnel man-
ager , and training coordinator , at Fiberglas . At the time of the conduct in issue , lie was
instructor in industrial relations at the University of Rhode Island and Bryant College
4 Pursuant to its collective-bargaining contract , Respondent hires only for laborers'
jobs at the minimum rate . Jobs with higher classifications and rates are posted in the
plant Employees with seniority are given these jobs.
5 Hammond 's father, who had died shortly before September 18, 1959, had worked for
35 years at Respondent's Central Falls plant , and had been a pensioner of Respondent's
at the time of his death. White 's acquaintance with Hammond dated back to the time
White was assistant personnel manager at Fiberglas . Hammond had been employed at
Fiberglas for 17 years.
9 All applicants selected by Personnel Manager White were required to take eye and
physical examinations
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Hammond returned to the personnel office, he had a conversation with
White in the latter's office . In the course of the conversation , Hammond said to White
that the person in the outer office was Mr. Kabbaze , and asked if he would talk to
him, that he had a wife and children to support . Kabbaze had asked Hammond to
say a good word to White about him. White replied that he was not hiring that day,
but that he would talk to him.
When Hammond left White to see Mrs. LaRocque to "sign in," White motioned
Kabbaze to come into his office . The latter went into White's office.
According to Kabbaze, White opened the conversation. He said, "You are Mr.
Kabbaze," and Kabbaze replied, "Yes," whereupon White stated that Kabbaze's name
had been in the papers , and that he was going to have a rough time getting a job.
He told him , said Kabbaze, that going to a nonunion plant would be a waste of time,
that even in a union plant they would be a little afraid to hire him. White asked him
at this point if he had filed an application , and if he had a telephone number. Kab-
baze answered "yes" to both questions, and White then said that Respondent hired by
application , and that if anything came up he would call him . He advised against
Kabbaze coming in every day, saying that he would just be a nuisance. Kabbaze
claims that he then told White that at Fiberglas he was not a ringleader just out to
cause trouble as the papers appeared to identify him, but a spokesman elected by the
employees to talk in their behalf. White replied that it may be so , but that manage-
ment would still be leery of him.
On the other hand, White testified that he asked Kabbaze if he had filled out an
application and left his telephone number, and that Kabbaze answered that he had.
According to White that was the end of the conversation . White testified that at the
time he interviewed Kabbaze on September 23, Kabbaze's name was a little familiar
to him because he had an interest in Fiberglas , and he read the Pawtucket Times occa-
sionally. He recognized him as one of the applicants he had seen earlier in the lane
leading to the door of the Central Falls plant.
Kabbaze testified that he returned to the Central Falls plant about a week later.
White was not at the plant. He then testified that on October 5, 1959, he ran into
Jerry Fitzgerald, a fellow employee at Fiberglas, who told him that he and eight other
Fiberglas employees had been hired by Respondent. According to Kabbaze, he
visited the Central Falls plant shortly after lunch on October 5 to see Personnel Man-
ager White. He saw him. He was the only one besides White in White's office. He
did not recall whether there was anyone in the reception room . His testimony is
that White said that it would be impossible to hire him because his name was linked
with the Fiberglas strike, that if he hired him he would be on the spot with the fore-
man and production manager. They would want to know if he, White, was hiring
troublemakers. White further said, according to Kabbaze, that it was a waste of time
for him to come to the plant any more.
On direct examination , White testified that on October 5, when Kabbaze appeared
in his office , he asked him if he wished to see him . Kabbaze said yes, and went into
White's office. White asked him if he had filed his application. Kabbaze said he
heard they hired through friends, and he mentioned that Fred Izza, president of Local
1007 of the Union , was a friend of his. He then wished to know what his chances
were, and White replied that they were not very good . Kabbaze asked if he was
wasting his time coming to the plant. White answered that as long as they had his
telephone number and application , there was nothing else for Kabbaze to do. There
followed Respondent counsel's question , "Did you say anything with regard to .
he might have a problem or trouble finding employment?", and White answered that
"I may have said something like that , I didn 't write it down or anything . I do remem-
ber saying to people, it was common knowledge in our area that Fiberglas people were
having difficulty getting job .. ."
On cross-examination , White gave this version of the conversation of October 5,
between him and Kabbaze:
On that occasion I was sitting in my office , as far as I recollect, and he came into
the outer office and he was standing there, and I said , "Do you want to see me?"
and he said, "Yes," and came into my office and sat down. I asked him how he
was making out, he said , "Not so well ." This is all as far as I can remember, I
don't remember the words , but to my impression that was the general subjects
talked about . He said he wasn 't making out so well, I told him I thought his best
bet was to try to get a job in a Union shop because I thought plants without
Unions might consider him a troublemaker.
Then in response to the question , "Why might they consider him a troublemaker?",
White replied:
CORNING GLASS WORKS 575
Because his name and picture had been in the paper, and I think numbers of
people might associate him as a leader or a person they might not want in their
plant.
White also testified on cross-examination , that he had heard Kabbaze's name men-
tioned in Respondent's Central Falls plant, that he had many friends there, and that
he was pretty well acquainted with Kabbaze's activities at Fiberglas during the course
of the strike there from what he had read in the paper. He had previously testified
that he had read about the strike in the Pawtucket Times.
D. Respondent's defense of its refusal to employ Kabbaze
White testified on direct examination that he decided not to employ Kabbaze when
he first saw him in his office on September 23, 1959. His testimony is that he sized
Kabbaze up during a conversation of a couple of minutes . White stated that he saw
Kabbaze as a person looking to Hammond to put in a good word for him, as a fellow
who had let the people he had come to the plant with go up the lane to the street,
while he hung around thinking he could probably get in by his knowledge that Ham-
mond was a friend of his or knew him, and that he was playing the angles. White, so
he testified, immediately formed the impression that he was a "kind of a cagey wise
guy." According to White, he received such short notice to hire additional people, he
hired people with a first look at them. He obtained a quick impression from the ap-
plications and the way they talked when he interviewed them. He tried to get an idea
of what sort of person they were, whether friendly or antagonistic, and whether they
were the type of person who might be a good employee . White testified that he
followed this procedure in making up his mind not to hire Kabbaze after he inter-
viewed him.
White testified on direct examination that Respondent's Central Falls plant received
about 200 to 300 applications during the period of September 18 and 19, 1959, and
that it hired about 90 persons at that time and about 25 additional persons on or
about October 5, 1959. And he testified that the people who were contacted first
were those who had previously worked at the Central Falls plant, and had been
recommended by others, and some people from Fiberglas like Hammond. He stated
that 25 percent of those hired were from Fiberglas, 25 percent of the applicants were
from Fiberglas , 30 percent of those hired had no-association with Respondent or
Fiberglas , and 45 percent of those hired were former employees or those having
friends or relatives already working for Respondent.
,On cross-examination, White again testified that he did not hire Kabbaze on October
5 because of the "snap decision" he made on September 23. He said that he was of
the same frame of mind after talking to Kabbaze on October 5, because he had made
his original impression and that was it. White's cross-examination further disclosed
that although he had retained a considerable number of the applications filed during
the period of September 18 to October 5, 1959, he did not have Kabbaze's, that he
had discarded it since he did not desire to employ Kabbaze. White denied that he
said to Kabbaze that he would not hire him because of his union activity or strike
activity.
On cross-examination , counsel for General Counsel referred White to two sum-
maries, one dated November 25, 1959 , and one dated November 28, 1959, which were
sent to White under a letter dated November 30, 1959 , from a field examiner attached
to the Regional Office by the name of Dwyer . White remembered seeing the two
summaries , which were summaries of statements made by White to Dwyer on or
about November 25 and 28, 1959 , regarding Kabbaze's application for employment.
White also recalled a letter dated December 1, 1959 , he sent to Dwyer in which he
agreed that the statements attributed to him in the memoranda were his statements.
In the memorandum of November 28, 1959 , it was stated:
White volunteered the information that he did tell Kabbaze he would probably
find it hard to find employment because of his strike activity at Fiberglas.
White admitted that what was stated in the November 28 memorandum was true.
Next counsel for General Counsel referred White to the statement in the November
25 memorandum which reads as follows:
White does not recall in response to a question that he said if he hired Kabbaze
someone else might say to him that he was hiring a troublemaker in view of his
name being in connection with a strike at Fiberglas; White said it sounded like
something he could have said, and if he said it it was with the idea in mind of
getting him out of the office.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After quoting this statement to White, counsel for General Counsel asked him,
"Did you say that to Mr. Kabbaze?" White replied, "Whatever I said there I may
have said." Then counsel for General Counsel repeated this answer of White, where-
upon White said, "It is possible. As I told you a few moments ago, I don't tell a
person why I don't hire him, I usually tell him something so he will leave."
E. Respondent's relations with its employees collective-bargaining representative
It is undisputed that since 1951 Respondent has had collective-bargaining agree-
ments with the Union and its Local 1007 and that its relations with the Union and the
local have been what is considered the best of relations between management and
labor. The record is devoid of any evidence that either the Respondent or Personnel
Manager White had any intention of discouraging membership in the Union or its
Local 1007.
F. Concluding findings
From the analysis of the testimony set out above, I credit the testimony of Kabbaze
as to what transpired in the conversations between him and Personnel Manager
White on September 23 and October 5, 1959. Kabbaze s testimony remained un-
shaken, while White finally admitted that he may have said to Kabbaze that he would
have a difficult time securing employment because of his strike activity at Fiberglas,
and may also have said to Kabbaze that if he hired him someone else might say to
him that he was hiring a troublemaker in view of his name being connected with the
strike at Fiberglas.
I conclude and find from Kabbaze's testimony and the admissions by White that
the latter refused to employ Kabbaze because of his concerted activity at Fiberglas.
Evidence corroborative of Kabbaze's testimony in addition to White's admissions is
the evidence that Kabbaze was a very early applicant, that he had had many years
of experience, that other strikers at Fiberglas were hired even though they applied
after Kabbaze did, and that 30 percent of those hired were not friends nor relatives
of the employees of Respondent's Central Falls plant nor former employees of this
plant, and that Kabbaze's application had been discarded although many other
applications had been retained
In view of the above evidence, I do not give any weight to White's conclusionary
testimony that he decided not to hire Kabbaze on September 23, because of an im-
pression that Kabbaze was a "cagey wise guy" because he did not leave the plant
when the other former workers at Fiberglas left, and he attempted to secure pref-
erence in hiring by reason of Hammond's acquaintance with White. Hammond was
also a former employee of Respondent, as was his father. Since Respondent had an
established policy of favoring applicants who were friends or relatives of employees,
it is difficult to credit White's testimony that he still had the impression that Kabbaze
was a "cagey wise guy" after talking to Hammond. Hammond asked White to inter-
view him, and told him that Kabbaze was in need of a job to support his wife and
children. Kabbaze's desire for employment is understandable. He and Hammond
had sought employment elsewhere on September 23, before they appeared at the
Central Falls plant at noon on that date. Kabbaze's method of getting to see White
by saying he would wait for Hammond with the hope that Hammond would have
the opportunity to ask White to interview him, while somewhat of a "sharp" move,
appears to be of the nature of many of the ways to which an applicant resorts to
get to see a personnel officer. Kabbaze's financial plight called for some degree of
ingenuity. Nor do I credit White's statement that while he may have said to Kab-
baze that he could not hire him because he would be considered as one who hired
troublemakers, he gave this reason to Kabbaze only to get him out of the office, and
that it was not the reason for his refusal to hire him. The best evidence of a person's
state of mind is what he says and does.'' What White said -and did persuade me to
differ with him.
I conclude and find that Respondent's refusal to hire Kabbaze because of his
concerted activity at the Fiberglas plant violated Section 8(a) (1) of the Act. I
also conclude that by this conduct Respondent violated Section 8(a)(3) and (1) of
the Act. While the evidence does not disclose that Respondent intended to dis-
courage membership in the Union, or its Local 1007, it was a foreseeable conse-
quence of its conduct .8
7 American Communications Assn, 0.1.0, et al. v. Douds , 339 P S 382 , 411. 2 Wigmore,
Evidence ( 3d ed .), §§ 244, 256, at seq.
8 The Radio Offeers' Union of the Commercial Telegraphers Union, AFL v. N.L.R B ,
347 U.S. 17, 45-46, 51
DOUGLAS AIRCRAFT COMPANY, INC. 577
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the Operations of the Respondent described 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 com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in a certain unfair labor practice,
I will recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act . Respondent 's conduct does not
disclose any intent to engage in other conduct proscribed by the Act. I shall recom-
mend that Respondent be ordered to cease and desist from interfering with, re-
straining , and coercing its employees , and from discriminating against employees to
discourage membership in the Union or any other labor organization , by refusing to
hire an applicant for employment because of his prior concerted activity, or by like
or related conduct I shall also recommend that Respondent offer to Anthony
Ka,bbaze the job he applied for on September 18, 1959, or a substantially equivalent
job, without prejudice to his seniority and other rights and privileges , and make him
whole for any loss of earnings he may have suffered by reason of Respondent's dis-
crimination against him , by payment to him of a sum of money equal to that which
he normally would have earned as wages from the date he would have been placed
on Respondent 's payroll, absent its unfair conduct, to the date of Respondent's offer
to hire him , less his earnings 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, 291-294 . I shall also recommend that Respondent make available to the Board,
upon request , payroll and other records to facilitate the determination of the amount
due and other rights under this recommended remedy.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the the Act, and the American Flint Glass Workers Union of North
America , AFL-CIO, and its Local 1007, are labor organizations within the meaning
of Section 2(5) of the Act.
2. By refusing to hire Anthony Kabbaze, the Respondent has engaged in and is
engaging in an unfair labor practice within the meaning of Section 8(a)(1) and (3)
of the Act.
3. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7 ) of the Act.
[Recommendations omitted from publication.]
Douglas Aircraft Company, Inc. and Alfred E. Posner. Case No.
91-CA-3777. November 3, 1960
DECISION AND ORDER
On June 14, 1960, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, together with a supporting
brief.
129 NLRB No. 73.
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