New England Tank Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 15, 1961

133 N.L.R.B. 175 (N.L.R.B. 1961)

NEW ENGLAND TANK INDUSTRIES, INC. 175
unsuccessfully to cover up when originally employed . Security Officer Guber, in his
discretion and at his echelon of responsibility , could keep Schutta 's secret, but as
sound administration , the head personnel officer had no such freedom of action after
Schutta's security file had been broken . Schutta 's early environment and second
generation Polish background possibly militated against him . Under the circum-
stances, Respondent Counsel Wells' refusal to make available confidential security
records in a project as vital to our country 's security as Respondent 's operations is
entirely understandable to the Trial Examiner . He was carrying out security policy
and was entirely within his rights in insisting that only material and relevant
evidence be made available to the General Counsel unless directed and ordered by a
Federal district judge to produce confidential documents and/or testimony . In light
of all of the foregoing and upon the basis of the entire record , in the opinion of the
Trial Examiner , the General Counsel has not sustained the allegations of his com-
plaint by a preponderance of the evidence . The inferences necessary to be drawn to
sustain the complaint lack evidentiary foundation . Accordingly , it will be
recommended that the complaint be dismissed in its entirety.
-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. 'Respondent Company is engaged in commerce within the meaning of the Act.
2. International Association of Machinists , AFL-CIO, is a labor organization
within the meaning of the Act.
3. Respondent has not engaged in unfair labor practices as alleged in the
complaint.
I therefore recommend that the complaint be dismissed.
New England Tank Industries, Inc. and Independent Union of
Plant Protection Employees in the Electrical and Machine
Industry and Oil, Chemical & Atomic Workers , International
Union, AFL-CIO, Local 14-366 . Cases Nos. 1-CA-3302 and
1-CA-3313. September 15, 1961
DECISION AND ORDER
On February 28, 1961, Trial Examiner C. W. Whittemore 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 Intermediate
Report attached hereto. The Respondent and the General Counsel
filed exceptions to the Intermediate Report, together with supporting
briefs.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, except as modified herein.'
1 We agree with the Trial Examiner's finding that Respondent violated Section 8(a) (1)
and (3 ) by refusing to employ, or reemploy , at the Limestone- Searsport pipeline, the in-
dividuals named in the Appendix attached hereto In our opinion , the record amply
supports the conclusion that these individuals were denied employment for reasons rclat-
133 NLRB No. 25.
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
,of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, New England Tank In-
dustries, Inc., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in and activity on behalf of Inde-
pendent Union of Plant Protection Employees in the Electrical and
Machine Industry; Oil, Chemical & Atomic Workers, International
Union AFL-CIO, Local 14-366; or any other labor organization; by
refusing to hire, discharging, laying off, refusing to reinstate, or in
any other manner discriminating against employees or applicants for
employment in regard to their hire and tenure of employment or any
term or condition of their employment, except to the extent permitted
by the proviso to Section 8 (a) (3) of the Act, as amended.
(b) Telling applicants for employment that they will not be em-
ployed because the Respondent is opposed to unions, or warning them
that the Respondent wants to destroy the union.
(c) In any other manner interfering with, restraining, or coercing
applicants for employment or employees in the exercise of the rights
to self-organization, to form labor organizations, to join or assist the
above-named or any other labor organizations, to bargain collectively
lug to their union membership and activities , and not for the reasons advanced by the
Respondent Piasecki Aircraft Corporation , 123 NLRB 348 , enfd 280 F . 2d 575 ( CA. 3),
.cert. denied 364 US 933. In so finding, we do not rely on the antiunion statements
attributed to Robert Spradlin , since there is some question as to his supervisory status,
and the record contains abundant evidence of Respondent's discriminatory motivation
aside from Spradlin's remarks For the same reason, we make no Section 8(a) (1) finding
with respect to Spradlin 's remarks.
In addition to those employees named in the Appendix , there are three other employees--
Elwood Webster, Sarnacki, and Roix-who applied for, and were actually offered, em-
ployment by Respondent , but who declined because of Respondent 's retusal to employ
their coworkers Although the Trial Examiner does not fully set forth his rationale with
respect to these employees , it appears from the Trial Examiner's recommended remedy
that he treats them as unfair labor practice strikers . We agree with this disposition.
These three workers were not strangers to Respondent 's operations , as our dissenting
colleague recognizes . They were , at the time of Respondent 's unfair labor practices, per-
forming precisely the same jobs for the previous pipeline operator . They had applied for
continued employment with Respondent, and their decision to join the strike came only
after Respondent had accepted their applications and invited them to work . The record
Indicates that Respondent understood why these three individuals were withholding their
services. We note that , under the Act, even an applicant for employment is an "employee"
with respect to the' provisions prohibiting discrimination . See Utah Construction Co ,
95 NLRB 196, 203; Phelps Dodge Corp . v. N L R B., 313 U S. 177. Under the circum-
stances, we believe that when Roix, Webster , and Sarnacki chose to withhold their serv-
ices in protest over Respondent 's refusal to employ their coworkers-found herein to con-
stitute an unfair labor practice-they became unfair labor practice strikers . Cf. Ekco
Products Company ( Sts-Brite Division ), 117 NLRB 137, 146 Accordingly , in keeping
with usual Board practice , we shall order that the three striking employees be granted
Immediate employment . upon their unconditional offer to abandon their strike. See, e.g.,
The Cross Co, 127 NLRB 691.
We find no merit in the General Counsel's contention that these three employees should
be placed in the same position as the individuals named in the Appendix, who were
discriminatorily refused employment by Respondent.
NEW ENGLAND TANK INDUSTRIES, INC. 177
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act, or to
refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer the individuals named in the Appendix, attached hereto,
immediate employment at the same or substantially equivalent posi-
tions at which they would have been employed had they not been
discriminated against, without prejudice to their seniority or other
rights and privileges, dismissing, if necessary, to provide employment
for those offered and accepting employment, employees presently em-
ployed at Respondent's Limestone-Searsport pipeline operations.
(b) Make the aforesaid individuals whole for any loss of earnings
they may have suffered by reason of the discrimination against them,
in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(c) In the same manner , upon their unconditional application, offer
immediate employment to Gregory Roix, Elwood Webster, and
Sarnacki, dismissing, if necessary, employees presently employed at
Respondent's Limestone-Searsport pipeline operations, and make them
whole for any loss of pay they may suffer in the event Respondent
fails to employ them within 5 days after their application.
(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 for the determination of the amounts
of backpay due and the rights of employment under the terms of this
Order. ,
(e) Post at each of its stations on the Limestone-Searsport, Maine,
pipeline, copies of the notice and list of names attached hereto marked
"Appendix." 2 Copies of said notice, to be furnished by the Regional
Director for the First Region, shall, after being duly signed by the
Respondent, be posted by it immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by any other
material.
2 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."
624067-62-vol. 133-13
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Notify the Regional Director for the First Region, in writing,
within 10 days from the date of this Order, what steps it has taken
to comply herewith.
MEMBER RODGERS, dissenting in part :
I agree with my colleagues' finding that the record shows the 47
applicants for employment listed in the Appendix were denied em-
ployment for reasons relating to their union membership and activi-
ties, and that Respondent violated Sections 8(a) (1) and (3) by re-
fusing to employ them. However, I do not agree with my colleagues'
conclusion that Elwood Webster, Stanley Sarnacki, and Gregory Roix
were unfair labor practice strikers, and that Respondent should accord
them immediate employment upon their unconditional offer to aban-
don the strike.
The record shows that some time before October 1, when Respondent
was to commence operating the pipeline, Webster, Sarnacki, and Roix,
along with most, if not all, of the employees of Respondent's immedi-
ate predecessor, F. C. McGraw Company, made application for em-
ployment with Respondent. Thereafter, Respondent offered Webster,
Sarnacki, and Roix employment to the same jobs which each was
performing for McGraw. After either considering or accepting the
proffered jobs, Webster, Sarnacki, and Roix, sometime before October
1, notified the Respondent that they would not accept employment
with Respondent. Presumably they took this action because Respond-
ent failed to make similar job offers to the other job applicants who
had worked for McGraw. Webster, Sarnacki, and Roix did not re-
port for work on October 1. Several days later, and after Respondent
had commenced operating the pipeline, Webster, Sarnacki, and Roix
joined with certain former employees of McGraw in picketing Re-
spondent's operations. On these facts I cannot find that Webster,
Sarnacki, and Roix are unfair labor practice strikers.
It has long been recognized by the law,' in common understanding,"
and heretofore the Board has never held to the contrary,5 that to be
3In Jeffery-DeWitt Insulator Co v. N.L.R B., 91 F. 2d 134 ( C A. 4) ; and Iron Moulders
Union v. Allis Chalmers Co, 166 F 2d 45 ( C.A. 7), the courts defined a strike as a
"cessation of work by employees in an effort to get for the employees more desirable
terms"; and in The Point Reyes, 110 F. 2d 608 ( C.A. 5), the court found that the term
"strike" contains two essential ingredients , namely, "There must be the relation of an
employer and employee and there must be a quitting of work."
' Webster's New International Unabridged Dictionary , 2d ed., defines a striker as "a
workman who is on strike" ; and defines a strike as an "Act of quitting work ; specif ,
such an act done by mutual understanding by a body of workmen as a means of refusing
compliance with demands made on their employer ; all stopping of work by workmen in
order to obtain or resisting a change in conditions of employment ." Black's Law Dic-
tionary defines a strike as : "The act of quitting work by a body of workmen for the
purpose of coercing their employer to accede to some demand they have made upon him,
and which he has refused."
5In all those cases where the Board has found certain sympathy strikers to be pro-
tected under the Act, there was a clear employee-employer relationship existing. See,
e g., A. 0. Smith Corporation, Granite City Plant, 132 NLRB 339 ; West Coast Casket
Company, Inc, 97 NLRB 820, enfd . 205 F. 2d 902 ( C.A. 9).
NEW ENGLAND TANK INDUSTRIES, INC. 179
considered a striker one must be an employee of the employer against
whom the strike is directed, and there must be a cessation of work by
the employee. Under the facts in this case, it is manifest that neither
of these elements are present with respect to Webster, Sarnacki, and
Roix.
Here, by rejecting the Respondent's offer of employment and by
thereafter failing to report for work on October 1, Webster, Sarnacki,
and Roix never became employees of Respondent. Having failed to
establish an employee relationship, it is clear that they could not cease
work or withhold their services within the plain meaning of the term
"striker." Accordingly, having failed to meet those requirements
necessary to be considered strikers, I am unable to determine, and
the majority does not explain, how their subsequent picketing, even
if in sympathy with those who were protesting Respondent's unfair
labor practices, somehow converted the status of Webster, Sarnacki,
and Roix to that of unfair labor practice strikers.
MEMBER BROWN took no part in the consideration of the above De-
cision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
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 you that:
WE WILL NOT discourage membership in and activity on behalf
of Independent Union of Plant Protection Employees in the Elec-
trical and Machine Industry; Oil, Chemical & Atomic Workers,
International Union, AFL-CIO, Local 14-366; or any other
labor organization, by refusing to hire, discharging. laying off,
refusing to reinstate, or in any other manner discriminating
against employees or applicants for employment in regard to
their hire and tenure of employment or any term or condition of
their employment,' except to the extent permitted by the proviso
to Section 8 (a) (3) of the Act, as amended.
WE WILL NOT tell applicants for employment that they will not
be employed because the Respondent is opposed to unions, or
warn them that Respondent wants to destroy the union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce applicants for employment or employees in the exercise
of the rights to self-organization, to form labor organizations, to
join or assist the above-named or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of
collective bargaining, or other mutual aid or protection, as guar-
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anteed in Section 7 of the Act, or to refrain from any or all of
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(a) (3) of
the Act, as amended.
WE WILL offer to the individuals named in the attached list
immediate employment at the same or substantially equivalent
positions at which they would have been employed had they not
been discriminated against, without prejudice to their seniority
or other rights and privileges, and will dismiss, if necessary, em-
ployees presently employed at our Limestone-Searsport pipeline
operations. We will make the aforesaid individuals whole for
any loss of earnings they may have suffered by reason of the dis-
crimination against them. In the same manner, upon their uncon-
ditional application, we will offer immediate employment to
Gregory Roix, Elwood Webster, and Sarnacki, and will make
them whole for any loss of pay they may suffer in the event we
fail to employ them within 5 days after their application.
NEW ENGLAND TANK INDUSTRIES, INC.,
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.
Ray Edgecomb
James Gallagher
James White
Howard Grant
Harold Mouton
Robert Allen
Lewis Rich
William Rokes
Evan Haskell
Harry Brown
Arthur Perkins
W. L. Canning
Charles Rogers
David Herson
Theodore Gant
Dana Cox
Robert Dall
Lewis Cawood
Raymond James
Ernest Kennedy
Heywood Davis
Richard Hendrick, Sr.
John A. Davis
Joseph W. Bossie
Philip C. Martin
Hugh Edgecomb
Herman Johndro
Stuart Stockford
Frank,O. Whiting
James O'Callahan
Devlin Perkins
Omar Pease
Franklin Crosby
Durwood Crosby
John Rooney
David Seekins
Malcolm Watts
Irving Stone
Harry Gray
Edward E. Myers
Edward Murray
Jerome Haynes
Herbert Libby
Thornton Austin
Albert Kenney
Emory A. Dakin
Frederick C. Moody
John R. Webster
Edward C. Curry
NEW ENGLAND TANK INDUSTRIES, INC.
INTERMEDIATE REPORT
181
STATEMENT OF THE CASE
Charges having been filed and served in each of the above-entitled cases, an
order consolidating the cases and a consolidated complaint having been issued and
served by the General Counsel of the National Labor Relations Board, an answer
and an amendment thereto having been filed by the above-named Respondent, a
hearing involving allegations of unfair labor practices in violation of Section 8(a) (1)
and (3) of the National Labor Relations Act, as amended, was held in Belfast, Maine,
on December 15 and 16, 1960, before the duly designated Trial Examiner.
All parties were represented at the hearing and were afforded full opportunity to
present evidence pertinent to the issues, to argue orally, and to file briefs. Oral argu-
ment was waived. Briefs have been received from General Counsel and the
Respondent.
A motion has been received from the Respondent to correct certain typographical
errors in the official transcript. It appears that said motion has been served upon
the other parties. No objection having been received, the motion is granted, and the
proposed corrections are hereby ordered made.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
New England Tank Industries, Inc., is a Massachusetts corporation, with its
principal office and place of business in Cambridge, Massachusetts. It is engaged in
the operation of petroleum tank farms and pipelines and general distribution of
fuel and related products. It operates distribution terminals for the United States
Government in various States of the United States, including Florida, California,
and Maine.
Since October 1, 1960, the Respondent has operated and continues to operate a
Government-owned fuel pipeline between Searsport and Limestone, Maine, with
auxiliary pumping stations at Littleton, Argyle, and Mattawamkeag, Maine, under
contract with the Military Petroleum Supply Agency of the United States Govern-
ment, supplying fuel to the Loring Air Base, Limestone, Maine, a military installation
of the United States Government. The current contract under which it operates
exceeds $200,000 for a 12-month period.
The Respondent furnishes services directly related to national defense, pursuant
to a contract with the Federal Government to a value of more than $50,000 annually,
and is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
Independent Union of Plant Protection Employees in the Electrical and Machine
Industry , and Oil , Chemical & Atomic Workers, International Union , AFL-CIO,
Local 14-366 , are labor organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
Only the Searsport-Limestone operation of the Respondent is involved in this
proceeding. When the Respondent assumed this operation October 1, 1960, it did
not hire the employees who had been continuously performing the actual work of
manning and guarding the several installations under preceding contractors. (Gov-
ernment contracts for this operation apparently are awarded annually, after bidding.)
Such employees for a number of years had been represented, for the purposes of
collective bargaining with successive employers, by one or the other of the two labor
organizations named above. The chief allegation of the complaint is that the Re-
spondent failed and refused to hire these employees because they were members of
and were represented by said labor organizations-such refusal being designed
to discourage membership in and activity on behalf of labor organizations
The Respondent concedes, except for a few individuals, its refusal to hire these
employees, and affirmatively asserts that its action was based upon "sound business
reasons." The nature of these claimed reasons will be discussed in Section I1I, C,
below.
B. The relevant facts
The following facts, in the opinion of the Trial Examiner, based upon stipulation,
admission, documents, or credible testimony, fully establish a prima facie case sup-
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
porting General Counsel 's contention that all employees listed in Appendix A,
attached hereto , were unlawfully denied employment by the Respondent:
(1) The chief officer of the Respondent to appear at the hearing , Assistant
Treasurer E. W. Denault, admitted that it was "normal procedure ." both for
preceding contractors operating the pipeline in issue and for his own company at
other operations , upon being awarded a contract to hire the employees who had
performed the operations and worked for the preceding contractor . That is to say:
while there might well be a change in contractors , depending upon the successful
bidder , the operating personnel continued without interruption, in effect being merely
shifted from one payroll to another.
-(2) The Charging Unions were certified by the Board in July 1958 : the Inde-
pendent as the bargaining representative of one unit and the Oil Workers as the
representative of another unit, both units apparently covering all but supervisors
under the Act. F. C. McGraw Company, the Respondent 's immediate predecessor
as operating contractor , recognized these two organizations and was party to a
collective-bargaining agreement in 1959-60.
1(3) As a witness Denault admitted that he knew these employees were repre-
sented by labor organizations.
(4) On August 26 the Respondent was notified that its bid had been accepted.
On the same date the Independent wrote to Denault , asking to negotiate a contract
to become effective upon the Respondent 's assumption of the operation on October 1.
On September 21 the Oil Workers made a similar request for employees in the unit
covered by it. On September 15 the Respondent , through Superintendent W. E.
Erwin , replied to the Independent 's request by stating , in effect , that it did not
intend to "hire the guards presently employed" but had made "arrangements" for
protection services with a "bonded guard service." On September 27, Denault in-
formed the Oil Workers that it was filing a petition with the Board "to determine
whether you are the exclusive bargaining agent."
(5) The Respondent in fact thereafter did enter into contracts with two succeeding
protective agencies for performance of guard duties, but apparently neither was able
to prevail upon enough Maine folk to take the jobs of men who had lived and worked
there for years. In any event , both such agencies abandoned their effort to carry
out their contracts and the Respondent transferred a number of men from other
operations it controlled and hired from whatever source of inexperienced indi-
viduals it could find.
(6) In mid-September the Respondent placed advertisements in local news-
papers soliciting applicants both for guards and "light inside-outside work." During
the hearing the Respondent conceded that all employees then working on the pipe-
line (except 1) 1 filed appropriate applications , only 3 of some 50 employees were
given an opportunity to continue work on its payroll, and none actually were put to
work.2
(7) In mid -September Superintendent Erwin visited the Limestone station and
hired Donald Atwater to continue under the new contractor his position as super-
intendent of that location.
(8) After Erwin left, Atwater told employee Roix that the new contractor had
bid so low that it could not afford to pay union wages. Later Atwater told the same
employee that there would be no union after September 30 because the "company
was against unions."
(9) Before September 30 Atwater also told employees Edgecomb and Stockford
that they would not be employed by the Respondent . When asked the reason, the
superintendent replied that the Company had taken the bid so low that it could not
afford to pay the union scale and wanted to break the unions?
1 Raymond James Competent and undisputed evidence elsewhere in the record, how-
ever, establishes and it is found that James in fact did file an appropriate application
2 These three were Roix , Webster , and Sarnacki The circumstances concerning their
declining the opportunity to work for the Respondent are described below
S Atwater was ill at the time of the hearing and was not a witness . Counsel for the
Respondent proposed and the other parties joined in a stipulation to the effect that if
Atwater were called he would deny the statements attributed to him by certain of
General Counsel's witnesses . The Trial Examiner considers himself bound only by the
limits of the stipulation itself-that Atwater would have given such denials, but is not
aware that such denials must therefore be credited The Trial Examiner believes the
straightforward testimony of General Counsel's witnesses , who were present and sub-
jected to cross-examination
NEW ENGLAND TANK INDUSTRIES, INC. 183
(10) At the same location Erwin told the Government inspector , a wholly
disinterested witness, that the operation would be "non-union."
(11) At the Littleton station, and before September 30, when employee Heywood
Davis asked Erwin regarding employment the latter replied that he would not answer,
but added that the union steward "had him across a barrel ," and that he had had
experience with unions before.4
(12) As noted above, when outside agencies were unable to hire new employees,
the Respondent brought in persons from other operations under Denault control.
Among such transfers was Robert Spradlin , from a New Hampshire station to the
Argyle station on the Searsport-Limestone pipeline . On October 10, Spradlin, in-
forming them that he was a "supervisor," told employees Dall and Cox, former
workers here who had applied but had been denied employment by the Respondent,
that they could go back to work if they would give up the Union .5
C. The Respondent's claims; conclusions
The Respondent offered a good deal of oral testimony through Denault and Erwin
which in substance urges that before assuming its obligations under the Government
contract it decided not to employ any of the individuals then working on the pipeline
because the preceding contractor had experienced "losses" of the various fuels flow-
ing through the pipe line from Searsport to Limestone and it did not want to
encounter similar losses.
The Trial Examiner finds no merit in this claim , for the following reasons:
(1) Not until after the Respondent had openly made it clear that none of the
employees on McGraw 's payroll would be hired by it did it come into any possession
of actual figures of so-called "losses."
(2) At no time did the Respondent even claim that "pilferage" by the present
employees was the sole explanation of whatever losses had occurred, but always
included "mismanagement" as a possible concurrent cause.
,(3) Denault admitted that he never had any actual "evidence" of pilferage, either
before or after making his decision not to hire the employees then on the job.
(4) Two Government inspectors credibly testified that the losses actually shown
under McGraw 's operation were in effect "normal ," except when explained by some
failure of equipment.
(5) There is no evidence that the Government itself ever raised any question as to
the so-called "losses," or that McGraw was in any way ever penalized for them.
(6) The attempt of the Respondent to show a "pattern" of losses during the
months preceding its assumption of the operation falls not far short of logical ab-
surdity. Not until after decision to hire none of the old employees was put into
effect did any management official come into possession of figures showing the actual
losses per month. There is no evidence that it ever became aware of the actual total
of gallons pumped through the line each month. Because restricted, such figures
were not revealed even at the hearing. It appears obvious to the Trial Examiner
that unless the actual flowage were known , the percentage of actual losses could not
be computed and no "pattern" established . Determination of a "pattern" of fabric,
it seems to the Trial Examiner , becomes no more than an exercise of the imagination
when only the warp is discernible and the woof either absent or invisible.
(7) On the contrary, the Trial Examiner is convinced and finds that the fear of
encountering losses if the old employees were retained was a mere pretext , and that
the real reason was that expressed by Atwater to employees at Limestone-the Re-
spondent had so underbid in order to obtain its contract that it did not want to hire
union members and pay union wages-and, as expressed by Erwin, it intended to
operate "non-union."
'Erwin admitted the substance of the comments attributed to him by Davis
5 Spradlin did not deny making these offers and admitted that he had told the em-
ployees he was a supervisor at the New Hampshire station He denied, however, that he
was made assistant superintendent at the latter location until after he had returned from
Argyle. The Trial Examiner cannot credit either his, or Denault's, denial that he was
in fact a management representative while at Argyle Denault admitted that a document
submitted to the Government listing supervisory personnel at the New Hampshire sta-
tion, bearing the date of July 22, 1960 , lists Spradlin as "Assistant Superintendent and
Assistant Air Force Coordinator " And Spradlin admitted, in effect, that his duties at
New Hampshire had always been the same.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, the Trial Examiner concludes and finds that: ( 1) the employees named
in Appendix A were discriminatorily refused hire on October 1, 1960, in order to
discourage membership in and activity on behalf of the two Charging Unions; and
(2) by such refusals , by Atwater's and Erwin's above-quoted statements as to why
employees would not be hired, and by Spradlin 's remarks to employees that they
could regain their jobs if they abandoned the Unions , the Respondent interfered
with, restrained , and coerced employees in the exercise of rights guaranteed by the
Act.
As to employees Roix , Webster , and Sarnacki , competent evidence shows and it
is found that each of them was in fact offered work with the Respondent , but that
they declined to accept the offers , preferring to withold their services until their
fellow workers were given a similar opportunity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above, have
a close, intimate , nand 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 of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
It will be recommended that the Respondent , by registered mail, offer immediate
employment to the employees listed on Appendix A, attached hereto. It will be
recommended that the Respondent also notify , by the same method, employees
Gregory Roix , Elwood Webster , and Sarnacki , that offers of employment are being
made to all who were refused employment in October 1960 and specifically offering
each of them immediate employment . It will be further recommended that the
Respondent make whole all employees listed in said Appendix for any loss of pay
they may have suffered by reason of the discrimination against them , by payment
to each of them of a sum of money equal to that which he would normally have
earned as wages, absent the discrimination , from October 1, 1960 , to the date of the
Respondent 's offer of employment , less their net earnings during the said period and
in a manner consistent with Board policy set out in F. W. Woolworth Company,
90 NLRB 289 , and Crossett Lumber Company , 8 NLRB 440.
Since the violations of the Act which the Respondent has committed are related
to other unfair labor practices proscribed by the Act, and the danger of their com-
mission in the future is reasonably to be anticipated from its past conduct, the pre-
ventive purposes of the Act may be thwarted unless the recommendations are coex-
tensive with the threat . To effectuate the policies of the Act, therefore , it will be
recommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Independent Union of Plant Protection Employees in the Electrical sand Machine
Industry, and Oil, Chemical & Atomic Workers, International Union, AFL-CIO,
Local 14-366, are labor organizations within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of the em-
ployees listed in Appendix A, thereby discouraging membership in and activity on
behalf of the above-named labor organizations , the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the
Act.
3. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. 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.]