J. S. Alberici Construction Co., Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1977

231 N.L.R.B. 1038 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. S. Alberici Construction Co., Inc. and Newell D.
McQuerry. Case 14-CA-9878
August 31, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On May 9, 1977, Administrative Law Judge John
F. Corbley issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, and to
adopt his recommended Order, as modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, J. S. Alberici Construction Co., Inc., St. Louis,
Missouri, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Substitute the following for paragraph 2(c):
"(c) Make Newell D. McQuerry whole for any loss
of earnings he may have suffered by reason of the
discrimination against him by payment of a sum
equal to that which he would normally have earned
from the date of the discrimination to the date of
Respondent's offer of employment. The loss of
earnings will be computed in accordance with the
formula set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), together with interest thereon, to
be calculated in accordance with the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962), and Florida Steel Corporation, 231 NLRB 651
(1977)."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of aJl of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry) Wall Products,
nct.. 91 NLIRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
care llly examined the record and find no basis for reversing his findings.
231 NLRB No. 173
In sec. 111B. of his Decision. the Administrative Law Judge inadvertently
refers to the conversation between Supervisor Weaver and employee
Frankenreiter as having occurred on July 8. 1976. whereas the record reveals
that such conversation took place on July 14, 1976.
2 The Administrative Law Judge, in his recommended remedy, provided,
inter alia, that Respondent be required to make discriminatee McQuerry
whole for any loss of earnings suffered as a result of Respondent's unlawful
refusal to hire him for the Chrysler job in July 1976. The Administrative
Law Judge, however, found that Respondent refused to hire McQuerry not
only for that particular job, but for others as well. We therefore shall not
limit backpay to that amount which McQuerry would have earned on the
Chrysler job. Rather, we shall order that he be paid an amount equal to
what he would have earned from the date of the discrimination against him
until the date of Respondent's offer of employment. less net earnings, if any,
during such period to be computed in the manner prescribed in F W
Woolworth Company, 90 NLRB 289 (1950). with interest thereon as set forth
in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and our recent
decision in Florida Steel Corporation, 231 NLRB 651 (1977). In accordance
with Florida Steel, we shall apply the current 7-percent rate for periods prior
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives you, as
employees, the following rights:
To form, join, or help unions
To bargain collectively through a repre-
sentative of your own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all such activities.
WE WILL NOT refuse to hire applicants for
employment or take any reprisal against our
employees because they join, support, or are
sympathetic to International Association of
Bridge, Structural and Ornamental Iron Workers,
Local 396, AFL-CIO, or any other labor organi-
zation.
WE WILL NOT threaten to refuse to hire
applicants for employment because of their
beliefs.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights under Section 7 of the National
Labor Relations Act.
WE WILL notify Newell D. McQuerry, in
writing, that we have no objection to hiring him
for any ironworker job for which he is qualified.
WE WILL place Newell D. McQuerry's name at
the top of a preferential hiring list for positions in
which he is qualified and WE WILL offer him such
a position as soon as it becomes available.
1038
J. S. ALBERICI CONSTRUCTION CO.
WE WILL make up all pay lost by Newell D.
McQuerry as the result of our failure to hire him,
plus interest.
J. S. ALBERICI
CONSTRUCTION CO., INC.
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on February 16, 1977, at St. Louis,
Missouri, pursuant to a charge filed by Newell D.
McQuerry (hereinafter referred to as McQuerry or the
Charging Party) on December 21, 1976, and served on
Respondent by registered mail on or about the same date, a
complaint and notice of hearing issued by the Regional
Director for Region 14 on January 27, 1977, and an
amendment to the complaint issued by the same Regional
Director on February 8, 1977, which complaint and the
amendment thereto were also duly served on Respondent.
The complaint alleges that Respondent violated Section
8(a)(l) of the National Labor Relations Act, as amended,
by telling employees it would not hire an applicant for
employment because of his union beliefs and that Respon-
dent violated Section 8(a)(1) and (3) of the Act by refusing
to employ the Charging Party. In its answer to the
complaint, which was also duly served and amended on the
record at the hearing, Respondent has denied the commis-
sion of any unfair labor practices.
For reasons which appear hereinafter I find and
conclude that Respondent has violated the Act essentially
as alleged in the complaint.
At the hearing, the General Counsel and the Respondent
were represented by counsel. All parties were given the
opportunity to examine and cross-examine witnesses, to
introduce evidence, and to file briefs. The General Counsel
waived the opportunity to present oral argument at the
conclusion of the hearing, but Respondent exercised this
right. The General Counsel and Respondent have subse-
quently filed briefs and Respondent filed a letter question-
ing certain factual allegations in the General Counsel's
brief.'
Upon the entire record in this case, including the briefs
and the letter, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein,
a corporation duly organized under and existing by virtue
of the laws in the State of Missouri.
At all times material herein, Respondent has maintained
its principal office and place of business at 2150 Kienlen
Avenue, in the City of St. Louis and State of Missouri,
herein called its St. Louis place of business. Respondent is,
I Thereafter, the General Counsel moved to strike this letter as an
unauthorized reply brief. I den) this motion. I have, however, carefully
and has been at all times material herein, engaged in the
building and construction industry as a general contractor.
During the year ending December 31, 1976, which period
is representative of its operations during all times material
hereto, Respondent, in the course and conduct of its
business operations, purchased and caused to be transport-
ed and delivered at its Missouri jobsites construction
materials and other goods and materials valued in excess of
$100,000, of which goods and materials valued in excess of
$50,000 were transported and delivered to its Missouri
jobsites, directly from points located outside the State of
Missouri.
The complaint alleges, the answer admits, and I find that
Respondent is now and has been at all times material
herein an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Bridge, Structural and
Ornamental Iron Workers, Local 396, AFL-CIO, herein
called the Union, is and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Relevant Hierarchy
Raymond Pieper has been Respondent's president from
about May 1976. Since that time he has overseen
Respondent's operations, particularly work in the iron-
worker trade, and is the final authority on Respondent's
labor relations policy. I conclude, therefore, that he is now,
and has been at all times material herein, an agent of
Respondent acting on its behalf within the meaning of
Section 2(13) of the Act.
At all times material herein, Walter "Red" Weaver has
been, and is, Respondent's ironworkers' superintendent
and a supervisor of the Respondent within the meaning of
Section 2( 11) of the Act, and its agent.
In September and October 1975, Mr. Jacobsmeyer was a
supervisor of the Respondent within the meaning of
Section 2(1 1) of the Act, and its agent.
B. Background and Sequence of Events
Respondent hires members of the Union to perform its
ironwork.
The Charging Party, McQuerry, has been a member of
the Union for some 13 years. He has also worked for a
number of contractors in Missouri as an ironworker. He
has been employed on several occasions, between 1965 and
1975, by Respondent. While working for Respondent in the
early 1970's he was a job steward and a field steward
covering several counties. He has also served in the
boilermakers trade from time to time since 1959, most
recently in 1976.
During his employment as an ironworker for Respon-
dent, McQuerry has performed tasks in welding, reinforc-
examined the entire record in the light of Respondent's letter and my
findings are made in consideration of the entire record.
1039
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing (rod work), rebars, structural steel, bolting, connecting,
repair of trusses, setting machinery, grading, and such
miscellaneous work as sheeting and installing spray booths.
On or about July 5, 1974, McQuerry was discharged by
Respondent, allegedly for insubordination. He thereafter
filed a grievance which went to arbitration. The arbitrator,
William Stix, in a decision issued May 10, 1975, found that
McQuerry had not been guilty of insubordination when he
responded to a situation in which he was caught in the
meshes of conflicting instructions from two supervisors.
The arbitrator awarded McQuerry backpay, held that
McQuerry had previously enjoyed a position on one of
Respondent's "raising gangs," and directed that Respon-
dent restore him to his position in the gang.
In the meantime, in the summer of 1975, McQuerry was
employed by Kern and Gregory, a different construction
contractor. When McQuerry was laid off by Kern and
Gregory in September 1975, he called "Red" Weaver,
Respondent's ironwork superintendent, about obtaining a
job with Respondent. Weaver responded that Weaver had
to hire McQuerry because of the decision in the arbitration
case.
McQuerry's effort to obtain a job directly from Respon-
dent without going through the Union's hiring hall is
consistent with the Union's practice with Respondent and
other contractors. Only about 20 percent of the Union's
members obtain jobs through referral from the Union's
hall.
McQuerry then began work for Respondent in Septem-
ber 1975 on a microwave tower in Sullivan, Missouri, as a
welder for about 3 weeks.
When McQuerry was laid off from the Sullivan job, this
job was almost over. He was laid off by the foreman,
Robert Higgins, along with several other ironworkers.
Some three ironworkers including Higgins remained to
complete the Sullivan job. On the day before McQuerry
was laid off, Jacobsmeyer, a project engineer for Respon-
dent and an admitted supervisor and agent of Respondent,
told Higgins to lay off three people and to be sure that one
of them was McQuerry. Jacobsmeyer explained to Higgins
that "we" or "they" did not want McQuerry working for
Respondent. 2
Bill Woolsey, a steward in the earlier phase of the
Sullivan job and a friend of McQuerry's, had meanwhile
moved to another microwave tower project of Respondent
in Rolla, Missouri. McQuerry called Woolsey for a position
and Woolsey hired McQuerry at Rolla. McQuerry became
the union steward at Rolla, but the job only lasted about 2
weeks for him when he was again laid off by Respondent in
October 1975.
2 Higgins credibly so testified without dispute. Jacobsmeyer did not
testify. His failure to do so gives rise to an inference, which I draw, that if he
had testified his testimony would have been unfavorable to Respondent.
Avon Convalescent enter, Inc., 219 NLRB 1210, 1213(1975).
:I McQuerry testified as to three calls during this period and had the
telephone bills to establish the dates. Weaver in his testimony did not
question the dates. McQuerry was a bit uncertain as to what was said vis-a-
vIts any specific call except that he asked for work and was told there was
none. Weaver confirmed McQuerry's recollection as to the foregoing.
Weaver further testified that in one of the first of these calls Weaver told
McQuerry he would call McQuerry back. For his part McQuerry recalled
giving Weaver phone numbers where McQuerry could be reached but
McQuerry could not recall which or how many times he gave Weaver this
McQuerry has not been employed by Respondent since
that time, although, as will appear, he has applied for work
from Red Weaver. His layoff by Respondent in the fall of
1975 is not alleged as an unfair labor practice. Respon-
dent's failure to hire him after he had made various oral
applications to Weaver in June and July constitutes the
substance of the complaint herein.
After being laid off in the fall of 1975, the Charging Party
worked for various other contractors in succession -
World Wide Erectors, Kern and Gregory, Montgomery,
and Kern and Gregory again - until March 1976.
On or about March 22, 1976, the Charging Party called
Red Weaver to inquire about work. Weaver told McQuerry
that Weaver had no work at that time but to check back
with Weaver because Weaver had a lot of work coming up
including work at a Chrysler plant, a coal plant, and
another job.
McQuerry then went to the Union's hall in an effort to
obtain a referral but was told that the Union had no
referral requests. McQuerry thereupon went to the hall of
the Boilermakers, a different labor organization, from
which he received a referral to go to work out of town in
New Madrid, Missouri, for Joliett Tower and Tank
Company. He worked for the latter employer from March
28, 1976, to July 22, 1976.
While in New Madrid the Charging Party called Weaver
a number of times in the hope of obtaining work with
Respondent in the St. Louis area.
The telephone calls which concern us here are his three
calls to Weaver on June 27 and 30 and July 8, 1976.
On June 27, McQuerry telephoned Weaver asking for
work and Weaver told McQuerry that Weaver had nothing
at that time but to call Weaver back. During this and
perhaps one or more of the other calls at this time
McQuerry gave Weaver telephone numbers where
McQuerry could be reached if a job opening occurred.
McQuerry requested that Weaver call McQuerry collect in
this eventuality. As Weaver admitted at the hearing, he told
McQuerry he would call McQuerry back. 3
On June 30, McQuerry again called Weaver but was told
that Weaver had no work available.
On July 8, McQuerry telephoned Weaver for about the
third time in less than 2 weeks. McQuerry again asked for
work but was told that none was then available. The
Chrysler job (which began later in July 1976) was discussed
during this conversation. When McQuerry asked Weaver
whether Weaver was going to hire McQuerry or not,
Weaver stated he would but that he would "catch a lot of
fire from the front office." 4
information. Since Weaver admitted his agreement to call back in one of the
first of these calls and McQuerry testified he gave Weaver telephone
numbers - which, I conclude, would obviously help Weaver to call
McQuerry back I find that all of the foregoing occurred in the call of
June 27.
' McQuerry testified that in one of the three calls this statement was
made and that McQuerry made no calls after July 8 because he concluded
that by that time that Weaver was not going to hire him. I find that this
occurred in the third call (the July 8 call) because this would supply
McQuerry a reason for this conclusion. Weaver admitted that McQuerry
asked Weaver something about whether Weaver would put McQuerry to
work and did not deny the "catch fire" response. Indeed. he evaded the
1040
J. S. ALBERICI CONSTRUCTION CO.
McQuerry has not since telephoned Weaver in an effort
to find a job.
On or about July 14, 1976. Weaver visited ajobsite where
Respondent was performing work at a Chevrolet plant.
Weaver at that time spoke to three of Respondent's
ironworkers - Duffy, Owens, and Frankenreiter, in that
order - asking them if they knew of any hands out of work
or if they had any friends who needed a job. Owens gave
Weaver two names. Weaver responded that he was aware
of the two but had been unable to reach them. After Owens
had mentioned a name to Weaver, the latter turned to
Frankenreiter and asked if Frankenreiter knew anyone out
of work. Frankenreiter said he knew a man working out of
St. Louis who wanted to get back to town whom
Frankenreiter identified as McQuerry. Weaver replied that
McQuerry had called Weaver "a couple of weeks ago."
Frankenreiter inquired if Weaver wanted Frankenreiter to
call McQuerry or if Weaver himself wanted to make the
call. Weaver rejoined that he knew McQuerry was a good
hand but Weaver did not think the front office would
approve. Frankenreiter then asked whether, if McQuerry
came to work, he would simply be sent home after being
given 2 hours showup time. Weaver smiled and nodded his
head. Frankenreiter then pursued this and said that
McQuerry had worked for Frankenreiter during the
previous year and had done a fine job for Frankenreiter.
To this Weaver replied that, although McQuerry was a
good man, "his union beliefs just cause trouble on the job."
Within the next 3 days, Respondent hired, as Weaver
admitted, at least five new ironworkers who had been
employed at the Chevrolet plant by Montgomery, another
contractor, who no longer needed them. 5
question when it was put to him by Respondent's counsel - saying instead
he had never been told not to hire McQuerry. Weaver admitted the Chrysler
job wsas discussed in the July 8 conversation.
These findings are based on the credible testimony of Frankenreiter in
this regard. For his part Weaser admitted that the conversation occurred,
Frankenreiter recommended McQuerry, and Weaver indicated to Franken-
reiter that Weaver did not want to hire McQuerry. Weaver was unsure what
reason Weaver gase Frankenreiter for this refusal. He did not specifically
deny saying the front office would not approve. I do not credit Weaver's
statement that he did not say that McQuerry caused trouble on the job with
his union beliefs. I discredit Weaver because I found him uncertain in many
areas oft his testimony and, indeed, before making the instant denial he
testified that he was unsure whether he indicated his reason to Frankenreiter
Ior not wanting the hire McQuerry, He was evasive in at least one particular
already mentioned. I also note, especially, that nowhere did Weaver deny
making the remark to McQuerrs lover the phone), to Frankenreiter (in the
abose-described incident). or to Brown (in a similar incident to be
described Ih:at the front office or company would not approve the hiring of
McQuerrs or that W'eaver would get in trouble with them if he did, Further.
Weaver blinked noticeably on the stand when denying that Pieper.
Respondent's president, ever told him not to hire McQuerry. Weaver also
paused a long time in part of his testimony on the Frankenreiter incident,
Otherwise his testimony was fairly brisk. Frankenreiter, I found to be a
credible and conscientious witness who was corroborated by Weaver in a
number of the miniscule details surrounding the Chevrolet plant incident
aind the new hires which followed.
I reject all of Respondent's attacks upon Frankenreiter's credibility and I
will comment on a few Thus. Respondent argues that it could not have
refused to hire McQuerry because of his union beliefs because it has hired
man) other strong union adherents. However. it is well settled that a
Respondent's failure to commit unlawful discrimination in some instances
does not establish that it will not act unlawfully in others. E.g.. Nachman
(orp atn.n . ¥ I/ R B. 337 F 2d 421 424 ( C.A. 7. 19641. Respondent also
On or about August 20, 1976, Weaver visited a job being
performed by Respondent at a Ralston-Purina facility. One
of the ironworkers in Respondent's crew, Gilbert Reed,
was about to take off a week or two. Apparently having
learned of this upcoming vacancy and, as Weaver admit-
ted, being desirous of obtaining sheeters to finish the job,
Weaver asked Mike Brown, another member of Respon-
dent's crew at that site, whether Brown knew of any
"sheeters" (an ironworker skill) who were "loafing" (viz,
not working, in trade lexicon). Brown replied that he had
spoken to McQuerry the night before and that McQuerry
was looking for a job. Weaver told Brown that Weaver
knew McQuerry and had gone "to school with him."
Weaver added that he, Weaver, had nothing against
McQuerry personally but other people in the company did
not care for McQuerry. Weaver admitted on the stand that
Weaver indicated to Brown in this incident that Weaver
did not "particularly want to hire" McQuerry.
Because a problem developed in the type of sheeting
being used in the Ralston-Purina job, no one was hired to
replace Reed and the entire Respondent crew was laid off
during the following week.6
As I have already noted, McQuerry did not work for
Respondent after the Rolla tower job in October 1975.
Concluding Findings
It is clear from the foregoing and I find that McQuerry
has been a union member for some 13 years and has, in the
past, been a union steward on Respondent's projects - the
most recent occasion for such stewardship being in the fall
of 1975. As a union steward and at other times he was
vigorous in the enforcement of the Union's contract
rights. 7 Weaver admitted he considered McQuerry a leader
says there is a substantial distinction between what Frankenreiter testified
about the incident and what according to McQuerry's testimony -
Frankenreiter told McQuerry about the incident sometime after it occurred.
Frankenreiter testified, in essence, that Weaver said McQuerry's problem
was his "union beliefs" whereas McQuerry testified that Frankenreiter told
McQuerry that Weaver said McQuerry was "'too union." I see no fatal
discrepancy here. Moreoser. McQuerry was not pressed for an exact quote
of the precise words used by Frankenreiter to relay what Weaver said about
McQuerry's unionism. Finally. Respondent contends that Frankenreiter's
version is a fabrication. Again I note Weaver did not deny the reference by
him to Respondent's front office in this conversation. While Respondent
notes that Frankenreiter testified that, after he told McQuerry about the
incident and McQuerry asked Frankenreiter to make a statement,
Frankenreiter replied that Frankenreiter "made one up for him," Franken-
reiter's full testimony on the point was that McQuerry did not tell
Frankenreiter what to say All McQuerry asked for, said Frankenreiter, was
a report of the conversation. What Frankenreiter told McQuerry. he said.
was Weaver's comment as it was made to Frankenreiter.
6 The findings as to this Ralston-Purina incident are based pnmarily on
the credible testimony of Brown in this regard. as largely corroborated or
supplemented without dispute by Weaver. Weaver said he did not recall
whether he gave a reason for his refusal to hire McQuerry but did not think
he gave a reason. This falls short of a certain denial that Weaver made the
statement which was, with certitude, attributed to him by Brown.
I I reach this conclusion on the basis of the following: When querying
Frankenreiter as to what Frankenreiter thought Weaver meant when
Frankenreiter testified that Weaver said that McQuerry's "union beliefs"
cause trouble on a job, Frankenreiter spoke of vigorous enforcement of
union contract rights and gave several examples. After these examples were
supplied. Respondent's counsel asked Frankenreiter if such enforcement
conduct was what he understood Weaver to have referred to in the
conversation - to which Frankenreiter replied in the affirmative From this
(Continued)
1041
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among the men. McQuerry also filed a grievance (or the
Union filed one for him) against Respondent over
McQuerry's discharge by Respondent in 1974 which ended
in arbitration and in a victory for McQuerry (and the
Union). Weaver admitted he was aware of the arbitration
and its result and indeed he mentioned its consequences
when he rehired McQuerry in the fall of 1975.
It is further clear that some official or officials of
Respondent do not want McQuerry to work for Respon-
dent. As has been found, Jacobsmeyer, admitted agent and
supervisor, wanted McQuerry, specifically, to be laid off
from the Sullivan tower job in September or October 1975,
before some other employees. Weaver, as I have found,
told both McQuerry and Frankenreiter in July 1976 that, if
Weaver hired McQuerry, Weaver would get heat from the
front office and, in August 1976, Weaver told Brown that
other people in the company did not care for McQuerry.8
The reason for Respondent's antipathy toward McQuerry
was explained to Frankenreiter in the incident on July 14,
1976, as being McQuerry's "union beliefs," which, as I
have found, equate with his vigorous enforcement of the
Union's rights under a collective-bargaining agreement.
In its brief, besides arguing certain credibility matters or
questions of fact previously disposed of, Respondent
contends that it could not have discriminated against
McQuerry because there was no job opening on any of the
evenings McQuerry requested work from Weaver on June
27 and 30 and July 8, 1976, and that it did not discriminate
against McQuerry at any time after July 8, 1976, because
McQuerry made no application for any positions which
opened after that date. I reject both of these contentions.
While it is true - insofar as this record shows - that
there were no openings for an ironworker at any Respon-
dent project on June 27 and 30 and July 8, 1976, it is clear
that McQuerry did make application for work on those
dates. Although McQuerry stated that it is the custom to
call back and that an applicant can call anytime, Weaver
admitted that, when McQuerry first talked to him in June
(June 27, 1976), Weaver told McQuerry that if something
came up Weaver would call McQuerry back. This means,
and I find, that Weaver considered McQuerry to be a
continuing applicant after the call and that McQuerry
could maintain that status without making a further
contact with Weaver. Yet Weaver refused to call McQuerry
just 17 days later on July 8, 1976, when Weaver wanted
men for Respondent's Chevrolet job and when Franken-
reiter specifically asked Weaver whether Weaver wanted to
call McQuerry or whether Weaver wanted Frankenreiter to
call McQuerry. Weaver further admitted that when Weaver
spoke to Frankenreiter on July 8, 1976, Weaver was
inquiring more for the upcoming Chrysler job than for the
ongoing Chevrolet project. The Chrysler job was the very
and the fact that it was McQuerry whose "union beliefs" were being
discussed, it follows that McQuerry must have engaged in such contract
enforcement when an employee.
I Respondent's president, Pieper. admitted on cross-examination that
there were officials of Respondent at a level below Pieper who are in a
position of responsibility and can put heat on Weaver.
!+ The General Counsel suggests in his brief that McQuerry should have
been rehired by Respondent even at the expense of displacing another
employee, because this was Respondent's obligation under the arbitrator's
decision. If the General Counsel is contending that McQuerry was thus
entitled to a job with Respondent at any and all times since McQuerry's
job Weaver admitted discussing with McQuerry during
their telephone call of July 8, 1976, just 6 days before the
Frankenreiter incident. But Weaver refused to call
McQuerry for either the Chevrolet job or the Chrysler
project.
As noted, at least five employees were newly hired for the
Chevrolet job within a day or two after July 14. The
Chrysler job began in mid-July 1976, and lasted for a
month or so. Weaver testified that the majority of
Respondent's Chrysler crew were transfers from other
projects. This means, and I find, that at least some were not
transfers but were new hires. Weaver further admitted that
in the period from June 1, 1976, to the time of the hearing
herein Respondent has hired 12-14 employees in structural
steelwork and welding - the number hired in other
specialties not being shown by the record.
I have already held that McQuerry is qualified in
numerous phases of the ironworker trade, among others,
installing spray booths (as he had previously done for
Respondent). Some of the employees hired by Respondent
in July 1976 at the Chevrolet plant were for spray booth
work. The record does not show what skills were needed
for the new hires in the Chrysler job, but this is a matter I
need not consider because the only reason given by
Weaver for not calling McQuerry at the time, when
Weaver admitted he was looking for men for the Chevrolet
job and for the Chrysler job, was Weaver's feeling that
McQuerry's union beliefs caused trouble on the job. By the
same token I reject the testimony of Weaver that he did not
hire McQuerry in July 1976 because of McQuerry's
attitude, the fact that McQuerry was working (at New
Madrid from which he was strenuously trying to return to
St. Louis), or because he considered McQuerry to be
primarily a welder or a structural steel worker. I also reject
Weaver's further testimony that his refusal to hire McQuer-
ry was not based on the latter's union beliefs.9
Accordingly, I conclude that Weaver refused to hire
McQuerry because of McQuerry's union beliefs, just as
Weaver told Frankenreiter, and I further conclude that
Respondent has thereby violated Section 8(a)(1) and (3) of
the Act.' 0
I further conclude that, by Weaver's statement in the
presence of Frankenreiter that Respondent would take
reprisal against an applicant for employment because of
that individual's union beliefs, Respondent has violated
Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occurring
in connection with its operations described in section I,
layoff in October 1975 from Respondent's tower job in Rolla, I reject this
contention. For the arbitrator held that McQuerry. before his improper
discharge in 1974, had been a regular member of Respondent's "raising
crew" and was entitled to reinstatement on the "raising crew." This record
does not show whether there was any work for Respondent's "raising crew"
at any time in question here.
'o See Chef Nathan Sez Eat Here, Inc., 181 NLRB 159, enfd. 434 F.2d
126 (C.A. 3, 1970). It is well settled that an applicant for employment is an
employee within the meaning of the Act. Briggs Manufacturing Company, 75
NLRB 569, 570 (1947), and Phelps Dodge Corporation v. N. LR.B., 313 U.S.
177 (1941).
1042
J. S. ALBERICI CONSTRUCTION CO.
above, have a close, intimate, and substantial relationship
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 commerce.
V. THE REMEDY
Having found that Respondent has violated Section
8(a)(3) and (1) of the Act, I shall recommend an order
directing it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act, including the posting of an appropriate
notice.
Since Weaver admitted, when Weaver asked Franken-
reiter on July 14, 1976, the names of ironworkers who
might be available, that Weaver was then thinking more of
the Chrysler job than the Chevrolet job and, since the
Chrysler job was specifically discussed between Weaver
and McQuerry in their last telephone conversation on July
8, 1976, I conclude that Weaver refused to hire McQuerry,
inter alia, for the Chrysler job which began several days
after the July 14, 1976, conversation and lasted a month or
so. Since this job has been completed I will not recommend
that McQuerry be reinstated by Respondent. I will,
however, recommend that Respondent notify McQuerry,
in writing, that it has no objection to hiring him into any
position for which he is qualified and, further, that
Respondent place McQuerry's name at the top of a
preferential list for any ironworker position which will be
filled by Respondent after this Decision and which calls for
any skill in which McQuerry is qualified (e.g., structural,
welding, rod work, sheeting, reinforcing, burning, repairing
of trusses, layout, installation of paint booths, setting
machinery in place, etc.), which position it shall offer him
when a vacancy occurs. I shall also recommend that
McQuerry be made whole for any loss of earnings he may
have suffered by reason of the discrimination against him
by payment to him of a sum of money equal to that which
he would have earned, had he been employed on the
Chrysler job, less net earnings, if any, during such period to
be computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), with 6-percent interest
thereon as required by Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
It will also be recommended in view of the nature of the
unfair labor practices in which Respondent has engaged
(see N.L.R.B. v. Entwistle Manufacturing Company, 120
F.2d 532, 536 (C.A. 4, 1941)), that Respondent be ordered
to cease and desist from infringing in any other manner
upon the rights guaranteed employees by Section 7 of the
Act.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions. and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
3. By refusing to hire Newell D. McQuerry because of
his union beliefs, Respondent has violated Section 8(a)(I)
and (3) of the Act.
4. By the statement of its supervisor and agent, Weaver,
that Respondent would not hire McQuerry because
McQuerry's union beliefs purportedly cause trouble on the
job, Respondent has violated Section 8(aXI) of the Act.
5. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER "
The Respondent, J. S. Alberici Construction Co., Inc., St.
Louis, Missouri, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in, activities in behalf of,
or sympathies toward International Association of Bridge,
Structural and Ornamental Iron Workers, Local 396, AFL-
CIO, or any other labor organization, by discriminating in
regard to hire or tenure of employment or in any other
manner in regard to any term or condition of employment
of any of Respondent's employees in order to discourage
union membership, activities, or sympathies.
(b) Threatening that it will not hire an applicant for
employment because of the applicant's union beliefs or in
any other manner interfering with, restraining, or coercing
its employees in the exercise of rights guaranteed in Section
7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Notify Newell D. McQuerry, in writing, that it has no
objection to hiring him for any ironworker position for
which he may be qualified.
(b) Place Newell D. McQuerry's name at the top of a
preferential hiring list for any ironworker position which
may be filled by Respondent after this Decision for any
skill in which McQuerry is qualified and, when such
position becomes available, offer it to McQuerry.
(c) Make Newell D. McQuerry whole for any loss of
earnings he may have suffered as the result of the
discrimination against him in the manner set forth in "The
Remedy" section herein.
(d) Preserve and, upon 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 recommended Order.
(e) Post at its place of business in St. Louis, Missouri,
copies of the attached notice marked "Appendix."' 2
Copies of said notice, on forms provided by the Regional
Director for Region 14, after being duly signed by
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posed by
(Continued)
1043
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
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."
insure that such notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
1044