Refrigeration Systems Co.

National Labor Relations Board - Board Decisions

Aug 23, 1996

321 N.L.R.B. 1085 (N.L.R.B. 1996)

1085
321 NLRB No. 154
REFRIGERATION SYSTEMS CO.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In the last paragraph of sec. II,C,2 of the judge’s decision,
‘‘House’’ should read ‘‘Mushena.’’
2 We agree with the judge that the Respondent violated Sec.
8(a)(3) of the Act by unlawfully refusing to consider the five appli-
cants for hire. We find that the Respondent is obligated to make
whole those applicants it would have hired but for its unlawful re-
fusal to consider their applications. Backpay will not be limited to
the Rocky Hill job, but will include any amounts these
discriminatees would have received on other jobs to which the Re-
spondent would later have assigned them. Finally, if the Respondent
would later have assigned any of these discriminatees to current
jobs, it will be directed to hire those individuals and place them in
positions substantially equivalent to those for which they applied at
Rocky Hill. We leave to compliance the determination of these
issues. See Ultrasystems Western Constructors, 316 NLRB 1243
(1995).
The Order, as modified, contains remedial provisions that are in
accord with our decision in Indian Hills Health Care Center, 321
NLRB 144 (1996).
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Refrigeration Systems Company and Plumbers and
Pipefitters Local 777. Case 34–CA–6849
August 23, 1996
DECISION AND ORDER
CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
On March 27, 1996, Administrative Law Judge Mar-
ion C. Ladwig issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied and set forth in full below.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Refrigeration Systems Company, Colum-
bus, Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing to give applicants nondiscriminatory con-
sideration for employment because of their member-
ship in Plumbers and Pipefitters Local 777, or any
other labor organization.
(b) Coercively interrogating employees about their
union membership.
(c) Threatening to terminate employees because of
their union activities.
(d) Stating that the Company was promulgating its
disciplinary policy at the jobsite because of the em-
ployees’ union activities.
(e) Demoting any employee because of the employ-
ee’s union organizing.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole Robert Dutton, Michael Ford,
Thomas Livingstone, Gregory Piryk, and Jon Shook
for any losses they may have suffered by reason of the
Respondent’s refusal to consider them for hire in the
manner described in this decision. Offer employment
to any of them who would currently be employed but
for the Respondent’s unlawful refusal to consider them
for hire in the positions for which they applied or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges to which they would have
been entitled if they had not been discriminated against
by the Respondent.
(b) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(c) Within 14 days after service by the Region, post
at its facilities in Columbus, Ohio, and at all its current
domestic jobsites, and mail to all former employees at
its Rocky Hill, Connecticut jobsite and to the above-
named employees, copies of the attached notice
marked ‘‘Appendix.’’3 Copies of the notice, on forms
provided by the Regional Director for Region 18, after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings,
the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employ-
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1994 unless otherwise indicated.
2 By agreement of the parties (Tr. 550–551), the following missing
parts of application files are received in evidence as G.C. Exh. 21:
Forms I–9, W–4, IT–4, and CT–W of employees Walter Salo,
Thomas Colwell, Walter Scovish, and Carl Garbe, as well as
Colwell’s school tax form, Scovish’s second IT–4 form, and Garbe’s
signature page.
ees employed by the Respondent at any time since De-
cember 15, 1994.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not
specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to give applicants nondiscrim-
inatory consideration for employment because of their
membership in Plumbers and Pipefitters Local 777, or
any other labor organization.
WE WILL NOT coercively question any employee
about union membership.
WE WILL NOT threaten to terminate employees be-
cause of their union activities.
WE WILL NOT state that we announced our discipli-
nary policy at a jobsite because of union activities.
WE WILL NOT demote any employee because of the
employee’s union organizing.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make whole Robert Dutton, Michael Ford,
Thomas Livingstone, Gregory Piryk, and Jon Shook
for any losses they may have suffered by reason of our
refusal to consider them for hire; and WE WILL offer
employment to any of them who would currently be
employed but for our unlawful refusal to consider them
for hire in the positions for which they applied or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges to which they would have
been entitled if we had not discriminated against them.
REFRIGERATION SYSTEMS COMPANY
Rick Concepcion and Thomas E. Quigley, Esqs., for the Gen-
eral Counsel.
Ronald L. Mason, Esq. (Emens, Kegler, Brown, Hill & Rit-
ter), of Columbus, Ohio, for the Company.
Thomas M. Brockett, Esq., of East Hartford, Connecticut, for
the Union.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This case
was tried in Hartford, Connecticut, on August 28 and 29,
1995. The charge was filed December 15, 19941 (amended
January 26, 1995), and the complaint was issued January 30,
1995.
The Company, an Ohio nonunion refrigeration contractor,
was unable to obtain state licenses for its regular employees
to perform its pipefitting and welding work at the Rocky
Hill, Connecticut jobsite. On November 6 it placed a news-
paper ad for licensed welders and pipefitters, and again on
November 20, but ‘‘Very few’’ employees applied.
On November 22, in response to the November 20 ad, five
union members went with their Local 777 Business Agent
Robert Musheno to the jobsite to apply for the jobs.
Musheno introduced himself to Company Superintendent
John House and said the men were licensed and qualified.
House responded, ‘‘This isn’t a union job.’’ Musheno said,
‘‘You have an ad in the paper for people, and we’re here to
apply for a job.’’ As House admitted at the trial, Musheno
‘‘said he had five hungry men that wanted to work.’’
House gave Musheno application forms and the men began
filling them out. Later, when Musheno handed him the appli-
cations, House–without offering to interview any of the ap-
plicants and without even looking at the applications–turned
the union members away by telling Musheno, ‘‘I’ll get back
to [you] later,’’ which he failed to do. House claimed at the
trial that ‘‘I don’t know’’ his reason for not asking Musheno
at the time if the applicants would take a welding test. His
‘‘normal practice’’ had been to interview and give welders
a welding test without their first submitting an application.
Although Musheno renewed the applications that day by
mail, House never considered hiring any of the union appli-
cants.
The primary issues are whether the Company, the Re-
spondent (a) failed on and since November 22 to hire the
five union members because of their union affiliation and,
(b) unlawfully interrogated and threatened to terminate em-
ployees and engaged in other coercive antiunion conduct, in
violation of Section 8(a)(3) and (1) of the National Labor
Relations Act.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Company, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, has been engaged as a refrig-
eration contractor in the construction industry at its facility
in Columbus, Ohio, and annually performs over $50,000 in
1087REFRIGERATION SYSTEMS CO.
services outside the State. The Company admits and I find
that it is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Operating Nonunion
Clayco Construction Company, a union general contractor
in Missouri, bid the Cisco food storage plant in Rocky Hill,
Connecticut as a nonunion contractor and engaged the non-
union Company as the refrigeration contractor. (Tr. 360–361,
365, 420.)
The Company had intended to assign its regular employees
to do the pipefitting and welding at the Rocky Hill jobsite.
None of them, however, had a Connecticut license to per-
form the work and the Company failed in its efforts to have
them licensed. Obviously to avoid hiring licensed union
members and paying the union scale, it first engaged
Agentry, a local hiring agency, to refer licensed pipefitters
and welders (to be paid $18 an hour, without benefits). The
union scale at that time was $22.47 an hour, plus benefits,
totaling $31.92 an hour. (Tr. 264, 313, 376–377, 420–422,
491, 544, 557; G.C. Exh. 17, p. 10.)
Agentry referred two employees, pipefitter/welder James
Collins and pipefitter Carl Garbe. They had answered
Agentry’s October 30 newspaper ad for licensed employees
to work on a ‘‘3 month temporary assignment in Rocky
Hill.’’ The Company’s jobsite Superintendent John House
interviewed them, gave Collins a welding test, and hired
them at the $18 rate. They began work on Monday, Novem-
ber 7. On November 9, the third day of their employment,
House informed Garbe that ‘‘he was getting rid of the
Agentry because they were paying them too much money’’
and if Garbe wanted to continue working he ‘‘would have
to take a cut in pay from $18 an hour down to $16 an hour’’
(without medical benefits). Garbe agreed and submitted his
written application as a pipefitter, but Collins (a ‘‘very ac-
complished welder’’) refused to work for $16 an hour and
quit. (Tr. 268–271, 276–277, 313, 319, 371–373, 376–378,
422–423; G.C. Exhs. 12, 18.)
Meanwhile House had informed the Company that ‘‘every-
body was asking $18 around here, and that I could . . . try
and work them for $16.’’ The Company placed a November
6 newspaper ad for licensed welders and pipefitters, and
House directly hired union pipefitter Walter Scovish on No-
vember 8 and nonunion pipefitter Monty Champagne on No-
vember 9. That week he gave nonunion welders Thomas
Colwell and Rick Etheridge as well as Gregory Remey (an
unrevealed member of a Canadian local) a welding test to be
sent to its Columbus, Ohio lab for certification in an esti-
mated 2 or 3 weeks. (Tr. 331–332, 378, 380–381, 385, 401,
423, 425–426, 491; G.C. Exhs. 13, 19–21.)
It is undisputed, as Garbe credibly testified, that House
told him the job would last from [until] the end of February
perhaps into March (about 4 months) and that House needed
9 or 10 fitters and welders for the job. Although normally
‘‘you work as a team, one fitter, one welder,’’ House ‘‘said
that he needed more welders than fitters.’’ (Tr. 377–380.)
After getting an insufficient response to its November 6
newspaper ad to fill the need for 9 or 10 licensed employees,
the Company placed the ad a second time on November 20,
but still ‘‘Very few’’ [nonunion] men applied. (Tr. 541–542;
G.C. Exh. 8.) This second time, however, Union Business
Agent Robert Musheno went to the jobsite with five unem-
ployed union members to apply for the advertised jobs. As
discussed below, House told Musheno ‘‘This isn’t a union
job’’ and turned the union applicants away by telling
Musheno, ‘‘I’ll get back to [you] later,’’ which he failed to
do. He did not even look at their applications and did not
offer to interview any of them or give the welders a welding
test.
On December 12 Musheno wrote President Robert Apple-
ton a letter, advising that ‘‘Local 777 will be organizing your
Company’’ and designating Carl Garbe ‘‘as a jobsite orga-
nizer.’’ This was the Company’s first notice that it had any
union members on the job. Superintendent House admitted
that ‘‘Until I was notified by Mr. Appleton, I didn’t know
I had any union people on my job because that’s [sic] was
a nonunion contract [emphasis added].’’ (Tr. 386, 446–448,
544; G.C. Exh. 16.)
B. Coercive Antiunion Conduct
1. Walter Salo’s evidence
On December 13 Superintendent House employed non-
union welder Walter Salo through the state unemployment
office, not knowing that Salo had once sought union mem-
bership and wanted to join the Union. Like other employees,
he was paid $16 an hour as a temporary employee, working
without benefits. (Tr. 17–19, 33, 53; G.C. Exh. 3; R. Exh.
13.)
Salo credibly testified that before work on December 15
(after President Appleton advised House about the union or-
ganizing), House took him ‘‘off to one side by myself’’ out-
side the job trailer and ‘‘asked me if I was in the Union [em-
phasis added].’’ Then shortly after lunch, outside the me-
chanical room, House ‘‘said that he had an organizer on the
job, and he had to do something about getting rid of the two
union men that were working, but he had to do it right and
be diplomatic about it [emphasis added].’’ He named Garbe
and Walter Scovish as the union members. (Tr. 22–24.)
At quitting time, in the presence of other employees, Salo
asked House ‘‘if he wanted me to see if I could get ahold
of some people that I knew that may be out of work, li-
censed men. And he said, fine, just as long as they’re not
union [emphasis added].’’ (Tr. 24, 47.)
On December 16, House handed Salo a copy of the Com-
pany’s October 14, 1982 ‘‘Disciplinary Policy,’’ which had
already been signed by the three other nonunion employees,
Monty Champagne, Thomas Colwell, and Richard Etheridge.
The policy set out the Company’s progressive discipline and
concluded: ‘‘This policy is not meant to restrict the authority
of our foreman and we wish to emphasize that a person is
subject to immediate dismissal for a flagrant violation of pol-
icy.’’ (Tr. 24–25; G.C. Exh. 4.)
Salo said he ‘‘wasn’t really crazy about signing it’’ be-
cause of the provision for immediate dismissal without warn-
ing. In response, House ‘‘[t]old me not to worry about it, just
sign it’’ because ‘‘it didn’t apply to me, that it was just the
first step to get rid of the union problems.’’ (Emphasis
added.) Salo signed it above where union members Carl
Garbe and Walter Scovish later signed. (Tr. 25–26.)
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After this conversation Salo told House he had a friend,
an unemployed nonunion welder who was licensed and inter-
ested in going to work. House said, ‘‘[B]ring him in and
we’ll give him a test.’’ The following day, Saturday, Decem-
ber 17 the friend, John Von Deck, followed Salo to the job-
site and Salo watched House give him a welding test. Then
House ‘‘said he would have to send the weld test out for the
testing at their laboratory, and he would let him know what
the results were.’’ About 2 weeks later (after the Company
was served on December 19 with a copy of the Union’s De-
cember 15 NLRB charge, alleging the unlawful refusal to
hire five union members on November 22), House told Salo
that ‘‘there was a freeze on and he couldn’t hire any people
because of the problem with the Union.’’ (Tr. 27–29, 44;
G.C. Exh. 1B; R. Exh. 15.)
Around December 17 or 18 Salo began reporting House’s
conduct to Musheno ‘‘Because I didn’t agree with what was
going on.’’ Musheno asked if he would tell the NLRB what
he knew, and he did. Salo was strongly prounion. He came
from a ‘‘strong union family’’ and had once sought union
membership by signing the work book at the union hall ‘‘as
the first step.’’ Although he did not participate in the orga-
nizing effort, Musheno sent the Company a letter on January
30, 1995, naming him as jobsite organizer ‘‘to give him
some protection in case he was fired for any organizing ac-
tivities.’’ After he was laid off about the second week in
April, the Union permitted him—as it had permitted Garbe
the previous August—to join, paying a $100 (organizer’s)
initiation fee instead of the customary $1000 fee. Because he
had a State welding license in Rhode Island, the Union soon
referred him to a powerplant job in that State. (Tr. 30–32,
36–39, 44–46, 49–58, 244, 300–305, 346–348, 355, 405–407;
R. Exhs. 1–3.)
2. Carl Garbe’s evidence
On November 22 when Musheno came to the jobsite with
five union members to apply for jobs, House (as union mem-
ber Garbe credibly testified) asked, ‘‘[I]f I was a member of
the Union. And I asked him, ‘Why?’ And he said, ‘Because
there is a union business agent on the job.’ And I told him,
‘No,’’’ because ‘‘I was afraid I would lose my job.’’ As
found, House on that occasion told Musheno ‘‘This isn’t a
union job’’ and turned the union applicants away by telling
Musheno, ‘‘I’ll get back to [you] later,’’ which he failed to
do. (Tr. 385–386.)
On December 15, before learning that Garbe was a union
organizer, House treated him as if he were a leadperson, hav-
ing him relay instructions to the other employees working on
the rooftop, where most of the work was being performed.
Although, as Garbe credibly testified, he was usually a few
minutes late in arriving in the morning, House would go to
the roof, ‘‘talk to me about the job, tell me what he wanted
to do next, and . . . tell me to have other people do this or
that, basically relaying orders through me,’’ and then ‘‘he
would leave’’ the roof. (Tr. 379, 382–384, 402, 410–413.)
After receiving word on December 15 of Garbe’s organiz-
ing for the Union, however, ‘‘John House avoided me’’ and
‘‘would give me orders on my own job, what to do, but
nothing more.’’ Then, under the newly promulgated discipli-
nary policy, House gave Garbe a written warning for his re-
peated tardiness. (Tr. 384–385, 413.) The warning is not al-
leged to be unlawful.
As indicated, the Company was served on December 19
with a copy of the Union’s December 15 NLRB charge, al-
leging the refusal to hire union members. After that, it did
not pursue its plans ‘‘to get rid of’’ the two union members.
It did not discharge either Scovish (who took a voluntary
layoff in January 1995) or Garbe (who quit in March 1995
when the Union referred him to the Millstone Nuclear Power
Plant after his name was reached on the Union’s work book,
which Garbe had signed in October). (Tr. 370, 386–388,
457.)
3. Contentions and concluding findings
In the Company’s defense, Superintendent House claimed
that he did not engage ‘‘in any conversations with the em-
ployees about the Union’’ after President Appleton informed
him about December 15 that Carl Garbe was a union orga-
nizer and told him not to ‘‘talk a lot about the Union’’ and
‘‘just to mind my business and get the job done, and get in
and get out.’’ He specifically denied that he talked to Walter
Salo about the Union, that he threatened to fire anyone for
engaging in union activity, or that he told Salo ‘‘that this
policy did not apply to him’’ or that ‘‘this policy was only
going to be used to get rid of’’ his union problems. He
claimed that he never heard of a person named John Von
Deck (although Von Deck’s December 17 application, with
the first page filled out, is a company exhibit), that ‘‘Not that
I know of’’ did he give Von Deck a welding test, and that
he had no conversations with anybody who was recommend-
ing that he hire Von Deck as a welder. (Tr. 447–450, 493;
R. Exh. 15.)
House did not specifically deny interrogating Garbe on
November 22 about being a union member. He admitted that
‘‘I might have asked him, yeah, if he was union affiliated
[when hiring him] because he had a license’’ and ‘‘Usually
I don’t ask more than once.’’ (Tr. 546.) House claimed that
he never gave Garbe directions to relay to the work force,
that he always gave directions to the employees himself, and
that he did not treat Garbe any differently before and after
December 15 and did not demote him. (Tr. 450–451.)
The Company in its brief (at 23, 38–39) challenges Salo’s
credibility, implying that the Union gave him favored treat-
ment for being a witness at the trial, charging him only $100
for an initiation fee and referring him soon afterward to a job
(in Rhode Island). From their demeanor on the stand, how-
ever, I was impressed most favorably by both Salo and
Garbe as being forthright, truthful witnesses. I credit their
testimony and discredit House’s claims to the contrary. As
discussed later, House appeared willing to fabricated any tes-
timony that might help the Company’s cause.
I find that House’s interrogation of Garbe on November 22
(in the context of his turning away the five union applicants)
and his interrogation of Salo on December 15 (in the context
of his statement to Salo about ‘‘getting rid of the two union
men’’ on the payroll and his statement—in the presence of
other employees—that he wanted licensed men ‘‘just as long
as they’re not union’’) were obviously coercive, violating
Section 8(a)(1) of the Act.
I also find that House’s statement to Salo that ‘‘he had to
do something about getting rid of the two union men that
were working, but he had to do it right and be diplomatic
about it’’ was an unlawful threat to terminate employees be-
cause of their union activities, in violation of Section 8(a)(1).
1089REFRIGERATION SYSTEMS CO.
I further find that House’s statement to Salo—that the dis-
ciplinary policy with the immediate-dismissal provision did
not apply to him (a nonunion employee), but was ‘‘just the
first step to get rid of the union problems’’—was informing
him that the Company was promulgating the policy at the
jobsite because of its employees’ union activities. I find that
the statement, by the superintendent, tended to coerce em-
ployees in the exercise of their Section 7 rights, in violation
of Section 8(a)(1).
Concerning the alleged demotion of Garbe about Decem-
ber 16, it is true that House had not formally promoted him
to be a leadperson. I find, however, that before House
learned that Garbe was a union organizer, House had been
treating him as a leadperson, having him relay instructions
to the other employees. I therefore find that House
discriminatorily demoted Garbe from this informal lead-
person position upon being informed of his union organizing,
violating Section 8(a)(3) and (1).
In the Company’s brief (at 39–40)–which it submitted be-
fore the Supreme Court rendered its decision in NLRB v.
Town & Country Electric, 116 S.Ct. 450 (1995)—the Com-
pany contends that Garbe was not an ‘‘employee’’ protected
by the Act and therefore that no company action taken
against Garbe can be a violation. The Company bases the
contention on the evidence that the Union ‘‘took care of’’
Garbe’s health care benefits while he worked for the Com-
pany and while, at the same time, he ‘‘engaged in organizing
efforts on the behalf of the Union, and maintained contact
with Musheno.’’ (Tr. 306–307, 325–326, 344–345, 405, 415;
R. Exh. 6.) The Court having ruled to the contrary, I reject
the contention.
C. Failure to Hire Union Members
1. Shortage of licensed nonunion employees
As Superintendent House admitted, he wanted to hire li-
censed fitters and welders ‘‘as quickly as possible’’ and ‘‘get
in and get the job done and get out.’’ (Tr. 498, 515.)
He began the project on November 7 with one pipefitter
(Carl Garbe) and one pipefitter/welder (James Collins). As
found, he stated he needed 9 or 10 fitters and welders to
complete the project—in about 4 months—by the end of
February or into March 1995 and needed more welders than
fitters. On November 9, when he reduced the wages from
$18 to $16 an hour, the one welder quit.
By November 22, after the Company placed the newspaper
ads for licensed welders and pipefitters on November 6 and
20, House had employed only three of the 9 or 10 needed
employees. All three were fitters, and two of them (Garbe
and Walter Scovish)—without his knowledge—were union
members who had Business Agent Musheno’s approval to
work on the nonunion job and who were in contact with him.
The other fitter (nonunion employee Monty Champagne) also
worked at the $16 rate, without benefits. As found, the union
scale was $22.47 an hour, plus benefits, totaling $31.92 an
hour. House testified that several guys told him the union
wage rates were $28 and $30 an hour. (Tr. 269, 272–274,
276, 331, 378–381, 386, 405, 423, 491.)
During the week of November 7, Gregory Remey and
nonunion welders Thomas Colwell and Rick Etheridge vis-
ually passed House’s welding test, but House did not receive
the report of their successfully passing the lab test until No-
vember 23, when he began calling to determine if they were
still available to work. He hired the three welders, not being
aware that Remey was a member of a Canadian local. (Tr.
331–332, 401, 426–429, 438–439, 544; R. Exhs. 8–10.)
As found, House was unable to assign his unlicensed regu-
lar fitters and welders to perform the work; he was not call-
ing the Union for the referral of licensed employees; and
very few licensed nonunion employees had responded to the
newspaper ads. Little progress was being made in meeting
the 4-month goal for completing the job. Instead of being
able to quickly hire 9 or 10 fitters and welders to perform
the work at the $16 rate, House found that there was a short-
age of licensed nonunion employees available to work at that
rate.
2. The Union’s organizing effort
Many of the Union’s unemployed members had seen the
newspaper ads and were telephoning Business Agent
Musheno about the Rocky Hill project. Previously, on other
nonunion projects, Musheno had taken unemployed members
to the jobsites when the contractors ‘‘were in a hiring mode’’
and had obtained employment for them. ‘‘[O]nce our mem-
bers had gone to work for them, we have signed contractors
that way.’’ (Tr. 272, 276, 278–281, 328.)
Upon seeing the Company’s second newspaper ad on No-
vember 20, Musheno concluded that the Company could not
get qualified nonunion employees and decided to have more
union members ‘‘go down to the jobsite and apply for jobs.’’
He further ‘‘decided to take the members down there myself
onto the jobsite, and put in applications and try to get my
people hired.’’ (Tr. 276–279.)
As Musheno credibly testified, he wanted to make sure the
Company knew he was a union business agent ‘‘[b]ecause
my intent was to organize this company and this jobsite.’’
He knew where the jobsite was (one of the members who
called him lived in Massachusetts and was unfamiliar with
the area), and ‘‘I went in to make sure they got all the appli-
cations, and I just wanted to go onto the jobsite to see the
job itself.’’ (Tr. 280–281, 562–563.)
On Tuesday morning, November 22, Musheno drove some
of the unemployed members and met with seven of them
near the jobsite. There they decided that he would go with
five of them (Robert Dutton, Michael Ford, Thomas Living-
stone, Gregory Piryk, and Jon Shook) and that the remaining
two members (George Contos and David Foor) would follow
about 30 minutes later. (Tr. 196–197, 282, 295–296, 364,
563–564, 572.)
Describing the qualifications of the five union members
who accompanied him, House credibly testified (Tr. 281–
282, 294):
[T]hey were excellent men who have worked on these
type projects before. This isn’t the first job [of this
type] that’s ever been built in the State of Connecticut,
an ammonia system job, and these men have all worked
on [projects like this]. They have either been foremen,
superintendents, welders, steamfitters, [and they] fit
right into the qualifications that were being asked for
in the advertisements.
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. Five union members turned away
Upon arriving at the jobsite on November 22, Business
Agent Musheno went into the general contractor’s trailer,
identified himself to Clayco Project Manager Jimmy Clay,
and asked to see the person hiring for the Company. Clay
called Superintendent House on the walkie-talkie and said
that the business agent of the Pipefitters Union was there and
wanted to talk to him. (Tr. 282–283.)
By the time House came to the construction trailer, union
welders Contos and Foor had already arrived. House first
walked up to Contos and Foor, who were standing in front
of Foor’s truck near the trailer, and told them ‘‘I’ve got to
go talk to these guys first.’’ House walked behind Foor’s
truck to where Musheno and the five union applicants were
waiting, about 50 or 75 feet away. (Tr. 572–576.)
Musheno introduced himself, gave his business card to
House, and said the five persons with him were licensed
qualified people who ‘‘would like to fill out job applica-
tions.’’ As Musheno further credibly testified (Tr. 283, 285):
[House] said, ‘‘This isn’t a union job.’’ I said, ‘‘It
doesn’t matter . . . . . You have an ad in the paper for
people, and we’re here to apply for a job . . . . The
men [are here] to go to work. They are available for
work, and they will work under the same conditions as
other people [are] working on the jobsite.
House recalled saying that ‘‘[O]ur company is not going
to sign no union contract,’’ and admitted that Musheno said,
‘‘[T]hese guys are hungry. They want to go to work.’’ After
obtaining the application forms, House returned and gave
them to Musheno. The five union members began filling
them out on the car hoods. (Tr. 283–284, 361–362, 431–433,
531.)
Meanwhile, House returned to Foor’s truck and asked Foor
and Contos ‘‘if we were affiliated with the men over there
[emphasis added]?’’ Foor answered ‘‘no’’ for them. House
then gave them the application forms and said, ‘‘[H]e wanted
to look over [the] applications’’ after they filled them out.
The two union members filled out their applications, went in-
side the trailer, and gave them to House. The Company pro-
duced Contos’ but not Foor’s application at the trial. (Tr.
562, 565–566; R. Exh. 14.)
House asked Foor and Contos there in the trailer if they
were affiliated with any union. Foor falsely answered no.
Contos answered yes and explained that ‘‘he had to eat, he
had to work.’’ House told him, ‘‘Well, you’d better stay over
here [inside the trailer] until they leave so they don’t see
you.’’ (Tr. 566.) House admitted that when Contos answered
he was a union member, House asked him, ‘‘What’s your
union going to say about it?’’ referring to Contos’ working
on a nonunion job, and Contos answered that the Union
‘‘told me to take and look for my own work.’’ I discredit
House’s denial that he asked Contos to stay in the trailer out
of the sight of the Union. (Tr. 547–548.) I note that in its
brief (at 33) the Company admits that House ‘‘warned
Contos that perhaps he should hide from other union mem-
bers and the union business agent.’’
While waiting for the five union members with Musheno
to fill out their applications, House spent about 20 minutes
in the trailer, interviewing Foor and Contos and telling them
about the job and the welding test. He told them that ‘‘[I]f
we couldn’t pass the welding test, he could put us on as fit-
ters until we could pass the welding test.’’ (Tr. 348–349,
567, 570–571.)
Foor and Contos waited in the trailer until Musheno left
with the five union members. House promised to call Foor
about the job, but ‘‘I never got a phone call.’’ Foor (who
lived in Massachusetts) did not learn until 2 days later that
a State license was required. House gave Contos a welding
test three times, but he failed the test each time. House then
offered to hire him as a fitter, but Contos refused the offer.
(Tr. 440–442, 567–568, 570, 577–578.)
In sharp contrast to his telling Foor and Contos, after
learning that they were not with Musheno, that he wanted to
look over their applications, then interviewed them and of-
fered them welding tests, House turned away the five union
members with Musheno—without offering to interview or to
give a welding test to any of them and without even looking
at their applications. (Tr. 285–286, 512, 552.)
House admitted that when Musheno handed him the five
applications he said, ‘‘I’ll get back to [you] later,’’ which he
failed to do. On the fifth page of each of the six-page appli-
cation forms, under ‘‘For Personnel Department Use Only,’’
House checked ‘‘No’’ after ‘‘Arrange Interview’’ and wrote
after ‘‘Remarks’’: ‘‘They just came by with BA.’’ (He was
referring to Business Agent Musheno.) He testified that ‘‘I
just put [the five applications] all in an envelope’’ and admit-
ted that he did not give the applications ‘‘any serious consid-
eration’’ for open positions after November 22. (Tr. 433,
435, 452–453, 559; G.C. Exhs. 5–7, 10–11.)
On cross-examination House was asked (Tr. 532), ‘‘What
differentiates the group [of five union members, whom he
did not offer welding tests, from Contos, whom he gave the
test three times]?’’ House answered: ‘‘I don’t know.’’ House
still had no explanation to give on redirect examination. He
then testified (Tr. 551–552):
Q. [BY MR. MASON] . . . Why did you not ask Mr.
Musheno if the individuals who applied would take a
welding test?
A. I don’t know at the time [emphasis added].
Although not admitted by the Company at the trial or in
its brief, I find it obvious that House interviewed and offered
union member Contos a welding test on November 22, but
failed to either interview or offer a welding test to any of
the five union members with Musheno, because Foor dis-
associated himself and Contos from Musheno.
House not only turned away the five union members by
promising Musheno ‘‘I’ll get back to [you] later,’’ which he
failed to do, but he also failed to respond to Musheno’s re-
newal of the applications in a letter to him that afternoon.
The letter read (G.C. Exh. 14; Tr. 291):
Let me introduce Mr. Jon Shook, Mr. Robert Dutton,
Mr. Gregory Piryk, Mr. Thomas Livingstone, and Mr.
Michael Ford. Each of these gentlemen have four or
more years experience in the trade, are residents of this
area, have passed a journeyman examination given by
a duly constituted construction Local Union, have been
certified as journeymen by a joint apprenticeship and
training committee and are licensed by the State of
Connecticut.
1091REFRIGERATION SYSTEMS CO.
These applicants have filled out applications in re-
sponse to your newspaper ad on November 22, 1994 at
the jobsite and are willing to work under the same
terms and conditions which you have extended to other
employees who are qualified in the trade.
If for any reason you refuse to accept these applica-
tions, or if you consider same deficient in any manner,
please advise me immediately so that remedial action
may be taken. Please feel free to contact any of these
applicants through this office.
4. Operating shorthanded
After November 22, the Company operated shorthanded in
preference to hiring any of the five union members.
House hired the three welders (Colwell, Etheridge, and
Remey) when he was informed on November 23 that they
had passed the lab test. He was unable, however, before the
Company placed a freeze on hiring, to employ a sufficient
number of licensed fitters and welders who were nonunion—
or who appeared to be nonunion from their applications—to
fill his need for 9 or 10 fitters and welders. House stated
there was a hiring freeze sometime after the Company was
served on December 19 with a copy of the Union’s NLRB
charge, alleging an unlawful refusal to hire union employees.
(Tr. 29, 426–429; R. Exhs. 8–10.)
Following the union members’ response to its November
20 newspaper ad, the Company no longer placed any news-
paper ads for licensed employees. House, however, suc-
ceeded in obtaining a nonunion welder (Salo) through the
State unemployment office. House gave him a welding test
on November 29 or 30 and hired him on December 13 upon
being informed that he had passed the lab test. (Tr. 17–20;
G.C. Exh. 3.)
On November 30, House hired pipefitter Richard Harrison,
a union member who had worked on other nonunion jobs.
Harrison concealed his union membership from House by
listing on his application only nonunion employers and
showing only the nonunion $16 and $18 wages he had been
earning. House scheduled Harrison to start work on Monday,
December 5, but Harrison advised House that Monday that
he could not take the job because he was unable to find day
care for his infant daughter. (Tr. 177–185, 188, 443–444;
G.C. Exh. 9.)
On December 7, as the Company admits in its brief (at 9),
welder Remey quit. House learned that day that Remey was
a member of a Canadian local, which was forbidding him to
work on the nonunion job. Evidently because Remey was not
a member of the Union (Local 777), House did his best to
persuade him to remain on the job, but Remey quit that same
day. (Tr. 332–333, 383, 438–439.)
As found, House had told Garbe that he needed 9 or 10
fitters and welders and ‘‘more fitters than welders’’ (indicat-
ing the need of 5 or more welders). The departure of Remey
left only two welders (Colwell and Etheridge) on the job
from December 7 to 13, when House was able to hire Salo
after learning that he had passed the lab test.
House continued his search for licensed employees, as re-
vealed by his response to Salo’s question on December 15,
about whether House wanted him ‘‘to see if I could get
ahold of some people that I knew that may be out of work,
licensed men.’’ As found, House answered, ‘‘Fine, just as
long as they’re not union.’’ Then on December 16, Salo told
House he had a friend, an unemployed welder who was li-
censed and interested in going to work. House said to bring
him in and ‘‘we’ll give him a test.’’ Salo did so on Saturday,
December 17, and watched House give welder John Von
Deck the welding test.
It was about 2 weeks later (around the first of January
1995), after the Company was served on December 19 with
a copy of the Union’s NLRB charge, that House told Salo
that ‘‘there was a freeze on and he couldn’t hire any people
because of the problem with the Union.’’ This placed a limit
of three fitters and three welders and resulted in a continued
shorthanded operation, undoubtedly causing a delay in the
completion date.
5. The Company’s defenses
a. For not interviewing or testing on November 22
As found, Superintendent House turned away the five
union members when Business Agent Musheno submitted
their applications to him on November 22, without offering
to interview or give a welding test to any of them and with-
out even looking at the applications.
Although House claimed (Tr. 498) that it did not matter
to him ‘‘one way or the other whether or not these people
were union or nonunion,’’ he protested to Musheno that
‘‘This isn’t a union job’’ and admittedly declared that ‘‘our
company is not going to sign no union contract.’’ As further
found, Musheno stated that ‘‘You have an ad in the paper
for people, and we’re here to apply for a job,’’ and that the
men were licensed and qualified and were there to go to
work under the same conditions as other employees.
House gave unpersuasive explanations for not following
his ‘‘normal practice’’ of giving applicants an interview and
offering to give a welding test to welder applicants, without
their first submitting an application. (Tr. 497, 512.) He testi-
fied that the five union members ‘‘didn’t talk to me. Not one
of them came over to talk to me.’’ None of them said, ‘‘Hey,
here’s my application.’’ (Tr. 436.) He later testified (Tr. 531,
543):
[N]one of them talked to me direct. . . . [Musheno]
just wanted applications. He was not representing no-
body. He come and asked me for five applications. He
said he had five hungry men that wanted to work. I
give him five applications. He’s the one that brought
them back. They didn’t bother to take and even come
and talk with me.
. . . .
Well, I guess I’m not used to somebody coming up
and having one individual take a whole group and not
be able to talk to them all one-on-one, somebody that’s
not interested to come and check out.
I mean, if I filled an application out, I don’t want
somebody talking for me.
House admitted that If he had offered a test to the union
applicants on November 22 and they had passed that test,
‘‘They would have been hired if they were to take the test.’’
(Tr. 526–527.) But instead of interviewing the five union
members and offering the welders a welding test, House
1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
turned them away by telling Musheno, ‘‘I’ll get back to
[you] later,’’ which he failed to do. (Tr. 433, 559.)
I find that House’s purported reasons for not following his
‘‘normal practice’’ of interviewing and testing applicants
were obviously fabricated.
b. For not hiring after November 22
(1) Incomplete applications
One reason House gave for not considering the union
members for open positions after November 22 was that the
applications were incomplete. He claimed that he therefore
believed—despite what Musheno had told him about the
hungry union members wanting to go to work—that the ap-
plications were a hoax, not submitted because the union ap-
plicants were actually seeking work, but because they were
merely laying the predicate for drawing unemployment com-
pensation. (Tr. 362–367, 433–437, 453, 542.)
Yet when he wrote on the fifth page of each of the five
applications an explanation to the personnel department of
why the applicants were not interviewed or hired, House stat-
ed nothing about the applications being incomplete. He wrote
only the following on each of them: ‘‘They just came by
with BA’’—indicating his concern about their appearing at
the jobsite with the union business agent. (G.C. Exhs. 5–7,
10–11.)
Moreover, House testified that his primary interest in an
application was to determine if the applicant was properly li-
censed. (Tr. 515–517.) He already knew that ‘‘all union guys
usually are licensed’’ (Tr. 551), and Musheno told him that
the five union members were licensed qualified people. (Tr.
283.) As found, House admitted that if he had offered the
union applicants a welding test and they passed it, they
would have been hired. (Tr. 526–527.)
Furthermore, as found, Musheno renewed the applications
in a letter to House that same day, stating that ‘‘If for any
reason you refuse to accept these applications, or if you con-
sider same deficient in any manner, please advise me imme-
diately so that remedial action may be taken.’’ House ig-
nored and never answered the letter.
I find that this purported reason (incomplete applications)
for not considering the union members for employment is
another fabrication.
(2) Hiring freeze
House gave an inconsistent reason for not later offering
employment to the five union members. This purported rea-
son was that because of a hiring freeze, no jobs were avail-
able. This contention conflicts with House’s testimony (Tr.
453) that if the five union applicants had filled out their ap-
plications (on November 22), he would have called them for
the positions that Harrison was hired to fill (on November
30) and Salo was tested for (on November 29 or 30) and
hired to fill (on December 13).
Regarding a hiring freeze, as found, Superintendent House
informed Salo about the first of January 1995 that he could
not hire nonunion welder John Von Deck, whom House had
given a welding test on December 17, because ‘‘there was
a freeze on and he couldn’t hire any people because of the
problem with the Union.’’ Between the date of the welding
test and the announcement of the hiring freeze, the Company
had been served with a copy of the Union’s NLRB charge,
alleging the unlawful refusal to hire union members.
When House was called as the only company representa-
tive or employee to testify as a defense witness, he agreed
that there was a hiring freeze, but he claimed that it occurred
weeks earlier. I find that his conflicting testimony reveals
that this defense was fabricated.
House testified at one point that on November 25, the Fri-
day after the November 20 newspaper ad for licensed weld-
ers and pipefitters appeared, Coordinator Michael Donnelly
telephoned and said he had ‘‘a full staff, an equal three and
three,’’ and that Donnelly had ‘‘jumped the gun’’ and placed
the November 20 newspaper ad by mistake. (Tr. 510–511.)
As found, the three pipefitters were Champagne, Garbe,
and Scovish (hired the week of November 7) and the three
welders were Colwell, Etheridge, and Remey (hired after
House was notified on November 23 that they had passed the
lab test).
The obvious problem with this version of the Donnelly’s
telephone call is that House continued seeking nonunion em-
ployees after November 25. He obtained Salo, a nonunion
welder, through the state unemployment office and gave him
a welding test on November 29 or 30. On November 30
House hired union pipefitter Harrison, believing him to be a
nonunion employee. Then on December 15, after House
hired Salo on December 13 to replace welder Remey who
suddenly quit on December 7, House accepted Salo’s offer
to ‘‘get ahold of’’ some licensed men, telling Salo, ‘‘just as
long as they’re not union.’’
House had earlier given a conflicting version of the pur-
ported Donnelly telephone call, omitting any reference to the
November 20 newspaper ad being placed by mistake. This
time House claimed that Donnelly told him on Friday (De-
cember 2) that his crew was filled and that Donnelly just
wanted a six-man crew of three welders and three fitters. ‘‘I
told him I hired’’ (Harrison on Wednesday, November 30)
and he said, ‘‘Well, we will see what happens,’’ but ‘‘they
really wanted to go with six-man crew, three welders and
three fitters.’’ (Tr. 444–445.)
In still another version of the purported Donnelly tele-
phone call, which he claimed this time he received on Fri-
day, December 2, House again omitted any reference to the
newspaper ad being placed by mistake and omitted any ref-
erence to Donnelly’s stating, ‘‘Well, we will see what hap-
pens.’’ House claimed instead that Donnelly told him that
Donnelly had talked to President Appleton and they ‘‘said
they had enough men; that I should not hire any more,’’ and
Donnelly ‘‘thought I had already went over my quota [em-
phasis added].’’ House claimed that he responded, ‘‘Well,
the guy didn’t show up,’’ referring to Harrison’s not report-
ing to work on Monday, December 5. (Tr. 445.)
According to this version, Appleton announced the hiring
freeze, not on Friday, December 2, but on Friday, December
9, the Friday after Harrison declined the job on Monday, De-
cember 5. Furthermore, Donnelly would not have told House
on December 9 that he thought House ‘‘had already’’ gone
over his quota of six employees. That was 2 days after weld-
er Remey quit without prior notice on December 7, leaving
only two welders on the job.
Thus, in contending that the hiring freeze occurred weeks
earlier than the first of January 1995, House claimed three
different dates that Donnelly advised him of the freeze, on
1093REFRIGERATION SYSTEMS CO.
November 25 and December 2 and 9, and gave conflicting
versions of what Donnelly said.
By his demeanor on the stand, House appeared willing to
fabricated any testimony that might help the Company’s
cause. I discredit his claim that the Company adopted a hir-
ing freeze on November 25, December 2, or December 9. I
find that if there had been such a hiring freeze, House would
not have accepted Salo’s offer on December 15 to ‘‘get
ahold of’’ some nonunion licensed men, telling Salo, ‘‘just
as long as they’re not union.’’ Nor would House have given
Von Deck a welding test on December 17 and told Von
Deck ‘‘he would let him know what the results were.’’
Moreover, even if the Company had imposed a hiring
freeze shortly after House turned away the five union mem-
bers on November 22, without offering to interview or test
them, and after the Union renewed the applications that same
day, the Company has not offered any nondiscriminatory rea-
son for imposing such a freeze, undoubtedly delaying its
completion of the project.
I note that House’s lack of credibility is illustrated by his
explanation for interviewing union welder Contos (after Foor
disassociated himself and Contos from Business Agent
Musheno). House claimed (Tr. 437–438):
Q. BY MR. MASON: Now, can you tell me whether
or not you interviewed a Mr. Contos for employment?
A. Yes, sir.
Q. What position was he being interviewed for?
A. Welder.
Q. Why were you seeking another welder when you
had Mr. Contos in?
A. Because Remey had taken and notified me that he
was having to leave.
To the contrary, House interviewed Contos on November
22, and it is undisputed that House did not hire Remey until
after November 23. The Company admits that Remey quit on
December 7 (2 weeks later) and House admitted that when
Remey advised him that his Canadian local was forbidding
him to work on the nonunion job, Remey ‘‘just finished out
the day and left.’’ (Tr. 438–439.) It is obvious that House
would not have known at the time he interviewed Contos on
November 22 that Remey was leaving.
6. Concluding findings
I find that the General Counsel has made a strong prima
facie showing that a motivating factor in the Company’s fail-
ure on and after November 22 to even consider hiring the
five union members who accompanied Business Manager
Musheno to the jobsite was their union membership. Wright
Line, 251 NLRB 1083 (1980).
I make this finding particularly in view of (a) Superintend-
ent House’s coercive interrogation of employees about their
union membership; (b) his statement that he had to get ‘‘rid
of the two union men’’ on the job ‘‘and be diplomatic about
it’’; (c) his stating that the Company promulgated its discipli-
nary policy at the jobsite ‘‘to get rid of the union problems’’;
(d) his failure to follow his ‘‘normal practice’’ of giving ap-
plicants an interview and offering a welding test to welder
applicants, but instead turning the five union members away
without even looking at their application; and (e) his hiring
after November 22 only employees who were, or were be-
lieved to be, nonunion.
Finding the Company’s defenses to be fabricated and lack-
ing in merit, I find that the Company has failed to carry its
burden to show that it would have failed to hire the union
applicants in the absence of their union membership.
The Company contends in its brief (at 40, 48) that ‘‘the
Union is on trial here’’ for engaging in ‘‘a salting campaign
against the Company.’’ The Company admits (at 25–26),
however, that House had never heard of ‘‘salts’’ until
‘‘shortly before this trial’’ and that he did not even know
‘‘what such a program was or what its implication would be
to the Company.’’
The counsel for the General Counsel argued at the trial
(Tr. 466) that the reference to a salting campaign is ‘‘an
after-the-fact rationalization or an attempt to muddy the wa-
ters to get the court off track, and I submit there is no rel-
evance to it in any possible way.’’
In view of the Company’s admission that House had no
knowledge of a salting campaign, I agree that the reference
to such a campaign is irrelevant. I find it clear that House’s
failure to hire the five union members was not motivated by
a belief that they were engaged in a salting campaign. Cf.
NLRB v. Town & Country Electric, above, 116 S.Ct. at 457
(refusing to interview ‘‘employees’’ on the union’s payroll).
CONCLUSIONS OF LAW
1. By failing to give five union members nondiscrim-
inatory consideration for the temporary employment at the
Rocky Hill, Connecticut jobsite, the Company has engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and (7)
of the Act.
2. By (a) coercively interrogating employees about their
union membership, by (b) threatening to terminate employees
because of their union activities, and by (c) stating that the
Company was promulgating its disciplinary policy at the job-
site because of the employees’ union activities, the Company
violated Section 8(a)(1) of the Act.
3. By demoting an employee because of his union organiz-
ing, the Company violated Section 8(a)(3) and (1).
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having failed to give five union members
nondiscriminatory consideration for temporary employment
at the Rocky Hill, Connecticut jobsite, it must make whole
those it otherwise would have hired for any loss of earnings,
computed on a quarterly basis from date of failure to hire to
date of nondiscriminatory layoff before completion of the
project, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]