Spaw Glass, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1977

233 N.L.R.B. 1288 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spaw Glass, Inc., General Contractor and Jesus V.
Santos
Laborers' Local No. 93, Laborers International Union
of North America and Jesus V. Santos. Cases 23-
CA-6301 and 23-CB-1965
December 16, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 29, 1977, Administrative Law Judge Jerry
B. Stone issued the attached Decision in this
proceeding. Thereafter the Respondent Employer
filed exceptions and a supporting brief. The General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record 1 and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
conclusions, and recommendations of the Adminis-
trative Law Judge only insofar as they are consistent
with this Decision and Order.
We agree with the Administrative Law Judge's
dismissal of the allegation in the complaint that the
Respondent Union violated Section 8(b)(2) and
(I)(A) by refusing to issue Jesus Santos a union
referral card and thereby causing the Respondent to
discharge him. No exceptions were taken to this
finding.
The Administrative Law Judge found that by
refusing to hire Santos because he could not obtain a
union referral card the Respondent Employer violat-
ed Section 8(a)(3) and (1). We disagree.
The Administrative Law Judge found that the
Employer's brick foreman, Gourley, told Santos, a
jobsite applicant for a position as mason tender, that
he would not be hired unless he obtained a referral
card from the local union. Santos requested such a
card, was refused, and accordingly was not hired.
The Employer is party to a collective-bargaining
agreement with the Laborers International Union of
North America which obligates it to abide by
contracts negotiated with local associated general
contractor associations. The relevant contract provi-
sion covering this construction project provided that
the Employer "agree to call the Union Hall for 75%
of applicants for each individual job he has under the
contract."
I As the record adequately presents the position of the parties, the
Respondent Employer's request for oral argument is hereby denied.
233 NLRB No. 191
The Administrative Law Judge also found, con-
trary to the General Counsel's allegation, no credible
evidence that the Local's refusal to issue a card to
Santos was due to his lack of union membership.
Since the General Counsel did not except to this
finding, we proceed on the understanding that the
referral procedure was applied, as to Santos, in a
nondiscriminatory manner. In addition, there is no
allegation by the General Counsel that the percent-
age requirement in the referral provision is unlawful
or illegal. In fact, the Administrative Law Judge
found the provision to be "lawful on its face."
While there may be no illegality with respect to the
percentage provision, there is ambiguity. Clearly the
Employer retains a contractual privilege to hire no
more than 25 percent of his total work force without
resort to referral cards. However, it is not at all clear
whether this privilege comes into effect immediately
at the startup of hiring, subject to eventually reaching
the 75 percent goal, or only when the direct hire of an
individual will not drop the current percentage below
75 percent. This ambiguity was not raised by any of
the parties or by the Administrative Law Judge. They
all assumed that the Employer is permitted at least to
require referral cards from job applicants if fewer
than 75 percent of the work force already hired had
come through referral.
The more crucial ambiguity arises with respect to
the lawful options available to the Employer when he
seeks to increase a work force already 75 percent or
more on referral. The Employer argued that it may
interpret the contract to mean "at least 75 percent."
Thus, he would be free to overcomply with the
provision and to require a card from more than 75
percent of his work force.
The Administrative Law Judge found that the
Employer violated Section 8(a)(3) when Gourley
required Santos to obtain a referral card as a
condition of employment at a time when the
Employer was not privileged to hire directly. He
construed the contract language as reading "no more
than 75%." However, it must be stressed that the
Administrative Law Judge grounded his decision on
his inference from the record evidence that the
Employer had already hired in excess of 75 percent
with referral cards. It would be only at that point that
a dispute would exist requiring the resolution of the
contract's ambiguity.
The Board finds, however, no credible evidence in
the record to support the Administrative Law Judge's
inference that at least 75 percent of the Employer's
work force had already been hired through referral.
The record in this case, consisting only of the
testimony of Santos and Gourley, is entirely devoid
1288
SPAW GLASS, INC.
of any figures that would reveal the ratio of referral
hires to direct hires at the time Santos applied for
work. The plain language of the contract shows that
the percentage requirement applied to the work force
taken as a whole and not to each work crew
individually. The only evidence elicited by the
General Counsel is the undisputed testimony of
Gourley that some of his crew had cards and some
did not, but that in any case the provision referred to
all the laborers on thejobsite.
The evidence does not support the finding that the
Employer was contractually free to hire Santos
without a referral card as part of the 25 percent not
required to come from the union hiring hall. There is
thus no need for us to reach the question as to
whether it is a violation of Section 8(a)(3) for an
employer subject to this referral clause to route more
than 75 percent of its employees through a legal and
nondiscriminatory hiring hall when it is contractually
obligated to hire only 75 percent in this manner.2
Since we find that a preponderance of the
probative evidence on the record as a whole does not
establish that the refusal to hire Santos was in
violation of Section 8(a)(3) and (1) of the Act, we
shall dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
2 Member Murphy notes that the Administrative Law Judge relies
heavily on Gourley's testimony that Gourley did not abide by the 75-percent
union referral system (although discrediting his testimony that he was
unaware of the referral procedure). She concludes, however, that the
evidence is, as General Counsel contends, consistent only with a finding that
Gourley was aware of and in fact used the referral system. Therefore, she
does not adopt his finding that Gourley exercised his own discretion in
hiring and the conclusion he drew therefrom; namely, that the requirement
of referral was discriminatory.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This
proceeding, under Section 10(b) of the National Labor
Relations Act, as amended, was heard pursuant to due
notice on March 21, 1977, at San Antonio, Texas.
The charge in Case 23-CA-6301 was filed on November
22, 1976. The original charge in Case 23-CB-1965 was filed
on December 7, 1976. The amended charge in Case 23-
CB-1965 was filed on February 9, 1977. Cases 23-CA-
6301 and 23-CB-1965 were duly consolidated on February
11, 1977, and the consolidated complaint in this matter was
issued on February 11, 1977. Answers to the complaint
were duly filed by the Respondents.
The issues concern whether (a) the Respondent Compa-
ny hired Jesus V. Santos on November 22, 1976, and
thereafter discharged him on November 22, 1976, because
he could not secure clearance from the Union for said
hiring, in violation of Section 8(aX3) and (1) of the Act,
and whether the Respondent unlawfully interrogated
Santos on November 22, 1976, as to his union membership,
and whether (b) the Respondent Union refused, on
November 22, 1976, to issue a referral to Santos for work at
the Respondent Company'sjobsite and caused the Respon-
dent Company to discharge Santos because he was not a
member of the Union, in violation of Section 8(b)(2) and
(I)(A) of the Act.
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by the General
Counsel, by the Respondent Company, and the Respon-
dent Union and have been considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The facts herein are based on the pleadings and
admissions therein and stipulations removing issues at the
hearing.
Spaw Glass, Inc., General Contractor, the Respondent
Employer, is, and has been at all times material herein, a
corporation duly organized under the laws of the State of
Texas. At all times material herein, the Respondent has
maintained its principal office and place of business at
2727 Kirdy Drive, Houston, Texas, and has an office at the
Baptist Hospital construction site in San Antonio, Texas,
herein referred to as the jobsite, where it is engaged as the
general contractor for the construction of a new hospital
wing.
During a representative 12-month period, the Respon-
dent Employer, in the course and conduct of its business at
its San Antonio, Texas, facility, purchased and received
goods valued in excess of $50,000, which goods were
shipped to its San Antonio, Texas, facility directly from
points located outside the State of Texas.
As conceded by the Respondents and based on the
foregoing, it is concluded and found that Spaw Glass, Inc.,
General Contractor, is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED'
The Respondent Union, Laborers' Local No. 93, Labor-
ers International Union of North America, is and has been
at all times material herein a labor organization within the
meaning of Section 2(5) of the Act.
I The facts are based on the pleadings and admissions therein.
1289
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I11. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues; Supervisory and Agency
Status 2
1. At all times material herein, the following named
persons occupied the positions following their names, and
have been, and are now, agents of the Respondent
Employer, acting on its behalf, and are supervisors within
the meaning of Section 2(11) of the Act: Ray Dillard,
construction superintendent; and George Gourley, brick
foreman.
2. At all times material herein, the following named
persons occupied the positions following their names, and
were agents of the Respondent Union, acting on its behalf,
and are agents within the meaning of Section 2(13) of the
Act: Tony Paredes, business agent; and Abel Gonzales,
international representative.
B. The Hiring Agreement3
Spaw Glass, Inc., does not maintain a collective-bargain-
ing agreement with Laborers' Local No. 93. Spaw Glass,
Inc., is not a member of the Associated General Contrac-
tors Association, nor has it assigned its bargaining rights to
the Associated General Contractors Association. The
aforementioned general factual statements are qualified,
however, to the extent of the meaning of the following
specific facts. Spaw Glass, Inc., has a collective-bargaining
agreement with the International Laborers Union, the
terms of which require Spaw Glass, Inc., to abide by the
terms and conditions of employment as negotiated in local
AGC agreements wherever Spaw Glass, Inc., works. Spaw
Glass, Inc., therefore is obligated to honor the terms of an
AGC agreement of the San Antonio Chapter of the AGC,
effective from June 1, 1976, through March 31, 1977,
relating to construction work performed in the San
Antonio, Texas, area.4
The terms of such agreement have the following
provisions relating to referral procedure.5
ARTICLE XVI
REFERRAL PROCEDURE
I. Contractor recognizes that the Union has available
a pool of manpower and desires to provide as
many men to the jobs as possible; therefore
contractors agree to call the Union Hall for 75%
of applicants for each individual job he has under
contract. The contractor will instruct his repre-
sentatives on the job to comply with this article in
its entirety.
2. It is understood that applicants will be selected by
contractor and referred by Union on a non-
2 The facts are based on the pleadings and admissions therein.
3 The facts are based on stipulations removing and narrowing issues at
the hearing.
4 The Respondent, Spaw Glass, Inc., contends that the arbitration-
grievance provisions in the AGC contract are not applicable to the
Respondent, that the grievance-arbitration procedures applicable to the
Respondent Spaw Glass, Inc., are the ones in its contract with the
discriminatory basis as to Union membership or
lack of membership.
3. Copies of the referral system to be used by the
Union in referring applicants will be provided to
all contractors.
4. All men referred by the Union must present a
referral card similar to the outline shown below to
the employer or his representative when he arrives
at the job site. In addition, the Union will mail
one copy of this referral card to the A.G.C. office.
Name
Social Security No. ---
Mail Address -- Zip --
Type Work for Which Referred --
Name of Union Official ---
Employer's Name ----
Date ------
C. Credibility
Essentially the major questions as to whether the
Respondent, Spaw Glass, Inc., had violated Section 8(a)(3)
and (1) of the Act depend on the determination of
credibility between conflicts in the testimony of Santos and
Gourley.
Santos is a Mexican who has lived in the United States
for 40 years. Santos is a legal resident of the United States,
is 59 years old, and his educational background consists of
having gone to the sixth grade in Mexico. He appeared
intelligent and to reasonably understand the English
language. Most of his testimony was presented in Spanish
and interpreted. As is often the case involving testimonial
interpretation or translation, it is apparent that the witness
also understands what has been stated in English. As
sometimes occurs, such witnesses seem prone to want to
tell a story their own way rather than to simply answer the
questions asked. To an extent Santos was such a witness.
Gourley, as a witness, spoke well. However, his testimo-
ny as to awareness of obligations concerning hiring
arrangements was not impressive.
The most important aspect of the testimonial differences
between Santos and Gourley as far as credibility determi-
nation was the testimony of each as to the number of times
that Santos spoke to Gourley. Thus, Santos spoke of three
occasions. Once was on or about November 18, 1976. The
other two occasions were on November 22, 1976. Gourley
testified to the effect that he only had two conversations
with Santos. One was on November 18, 1976. The other
conversation was on November 22, 1976. Gourley denied
that a second conversation occurred on November 22,
1976. Santos' testimony of the three conversations was
given in such a way that I am completely persuaded that
three conversations occurred. Considering this and the
logical consistency of the facts, I am persuaded that Santos
International Laborers Union. Such possible issue is not germane to this
proceeding.
5 The General Counsel's pleadings also pled that the Union had the
"obligation" to refer 75 percent of the applicants. The Respondent Union's
counsel denied such obligation and contended that referral was qualified as
to availability. In this case, this point does not appear to present a material
issue necessary for resolving.
1290
SPAW GLASS, INC.
was a more frank, forthright, and truthful witness than
Gourley. The facts as found hereinafter relating to the
conversations between Santos and Gourley are based on a
composite of the credited aspects of their testimony.
Testimony of either witness inconsistent with the facts
found is discredited.
D. The Facts
1. On or about November 18, 1976, Santos went to the
Spaw Glass, Inc., jobsite (The Memorial Baptist Hospital
jobsite) in San Antonio, Texas. Santos indicated to
someone at the jobsite that he was looking for work and
inquired as to who was doing the hiring. Apparently the
person that Santos spoke to was a Richard Lopez, the labor
foreman for the general contractor, Spaw Glass, Inc.
Apparently Lopez and Santos had a discussion concerning
his qualifications, that Lopez was not doing any hiring and
had nothing for him, and that Lopez thought the brick
work was about to start. Apparently Lopez asked Santos if
he had worked with bricklayers. Apparently Santos replied
that he had not but could learn.
Brick Foreman Gourley was in the area where Santos
and Lopez were. Lopez hailed Gourley and told him that
Santos was looking for work, that he (Lopez) did not have
anything. Lopez mentioned to Santos that Gourley was the
bricklayer foreman. Santos told Gourley that he was there
looking for work. Gourley asked him what kind of work he
did. Santos told Gourley that he did any kind of work
concerning labor. Gourley told Santos that he had work for
him starting on Monday, that he should come in on
Monday at 7 a.m. Santos asked if he should come to work
if it were raining. Gourley told him that there would be
work, rain or shine, that there would be work inside.6
2. On November 22, 1976, Santos went to the Memorial
Baptist Hospital jobsite of Spaw Glass, Inc. Santos arrived
at the jobsite around 6:15 a.m. Around 6:30 a.m. Brick
Foreman Gourley arrived on the scene. Santos told
Gourley that he was ready to work. Gourley asked Santos
if he had a card. Santos asked Gourley what kind of card.
Gourley told him in effect that he was asking about a union
referral card.7 Santos asked if he could get the union
referral card at the construction office. Gourley told him
no, that he would have to get the union referral card at the
Union's office on Martin Street. Santos told Gourley that
he had no transportation, that it would take him a long
6 Santos construed and the General Counsel contends that the conversa-
tion between Gourley and Santos amounted to an assurance that Santos
would be hired, that Santos therefore was hired on November 18, 1976. 1 am
not persuaded that the facts so reveal. Gourley's testimony was to the effect
that he told Santos of various conditions that affected whether work would
start. I do not credit such testimony. However, I am sure that Gourley was
aware of vanous conditional problems and that he did not view the hinng of
an employee to occur until the employee filled out necessary forms in
connection with the commencement of work.
r The AGC agreement provides for use of a referral card.
8 The facts are based on Santos' credited testimony. Santos testified in
English as to the November 22. 1976, conversation with Gourley. His
testimony switches without specific identification as to who is talking from
statements he made and statements made by Gourley. It is apparent from
the content, however, as to who made what remarks.
D I do not credit Santos' testimony to the effect that he sought union
membership or asked to be initiated into the Union. The overall facts make
it clear that Santos was seeking a permit or union referral card.
'o Santos' testimony was to the effect that the person stated that the job
time to go and get the card. Gourley told him in effect that
he would have to get the card.8
3. Santos left Gourley and proceeded to the union hall
on Martin Street. There he spoke to two men, apparently in
authority, who came to the door of a smaller office in the
union hall. Santos told them that he was looking for the
person in charge. Santos then spoke to the one who
indicated that he was in charge. Santos told such person
that he had a job waiting for him and asked if he could help
him by selling him the union papers. 9 The person to whom
Santos was speaking asked him what the job was that he
was talking about. Santos told such person that the
Company was Spaw Glass, Inc. The person to whom
Santos was speaking told him that the job was a union
referral job, that requests by the company were made by
telephone, that he could not give him a referral card
because a telephone request had not been made and the
job was a union referral job.l? Santos asked if he could get
the referral card if his foreman asked for him by telephone.
The person to whom Santos was speaking told him that this
could not be done because there were too many people on
the waiting list."t
4. Around 9:30 a.m. Santos returned to the Spaw Glass,
Inc., jobsite and spoke to Foreman Gourley. Santos told
Gourley that he had been to the Union and that the Union
did not want to give him the paper (referral card). Gourley
told Santos that, if this were the case, Santos did not have a
job.
5. Gourley testified to the effect that he was unaware of
and did not follow the 75-percent union referral proce-
dures, that he hired men who were known to him or to men
who worked for him, that he hired men at the jobsite or
contacted men known to employees working by word of
mouth, that he did contact the Union when he first came to
a jobsite, that he did see some referral cards, that he did not
give consideration to union membership or union referral
cards in hiring, that he thought he had already hired a man
on November 22, 1976, when Santos showed up, and did
not need to hire Santos, that he had been told by Lopez in
effect that Santos was not skilled as a bricklayer helper,
that bricklayer helpers were mason tenders requiring
certain skills, that he did contact the union hall for Garcia,
who was hired during the week of November 22-27, 1976,
because he had heard that Garcia was on the waiting list,
belonged to the Union, that the person stated he could not give him union
papers because the work belonged to the Union. Considering the collective-
bargaining agreement involved, I am persuaded that the facts are as set
forth. However, even if the exact words were used as testified to by Santos, I
would find the meaning to be that of the facts set out. I am persuaded that
Santos' testimony of words used in his interpretation of the facts and the
meaning to him.
" At the time that Santos was in the union hall on November 22, 1976,
he did not know the names of the two men he spoke to. It is not clear
whether the men introduced themselves or whether someone else told
Santos the name of the man to whom he spoke. In any event, Santos learned
or believed he learned the man's name to be Tony Rangel. Later, a question
arose, and Santos went back to the union hall, asked for the business agent,
and someone told him that the business agent was Tony Paredes. Santos
asked to speak to the business agent. A person there identified himself as
Gonzales, stated that he (Gonzales) was in charge of the Union, gave Santos
a business card, and said, "Tell your lawyer that Gonzales will take care of
everything." The pleadings establish that Paredes is business agent and
Gonzales is International representative of the Union.
1291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that he also called the union hall for another man
when no one was available through other people.
Gourley initially testified to the effect that he had three
laborers working on the morning of November 22, 1976.
The facts as later testified to by him reveal that there were
five laborers who had worked during the preceding week
and who were working on November 22, 1976. Unless
Garcia was hired on November 22, 1976, the facts reveal
that no other laborer was hired on that date. The facts do
not precisely reveal when Garcia was hired.
Considering that I found Gourley clearly to be testifying
falsely as to the number of conversations he had with
Santos, I find Santos' versions of such conversations more
credible than Gourley's as to the existence of the collective-
bargaining 75-percent referral procedures and the use of
referral cards, I discredit Gourley's testimony to the effect
that his motivation not to hire Santos was because of his
lack of skill. I also discredit his testimony to the effect that
he did not hire Santos because he had already hired an
employee on November 22, 1976. 1 also discredit Gourley's
testimony to the effect that he was unaware of the union
referral procedures.
E. Contentions; Conclusions
1. Spaw Glass, Inc.
A. The General Counsel alleges and contends and the
Respondent, Spaw Glass, Inc., denies that the Respondent,
Spaw Glass, Inc., hired Santos on November 22, 1976, and
then fired Santos on November 22, 1976, because he could
not get a union referral card.
I am persuaded that the Respondent did not hire Santos
on November 18, 1976, or on November 22, 1976. The
issue of the question of hiring or refusal to hire Santos has
been fully litigated, however.
Considering all of the facts, I am persuaded that the facts
establish that Gourley had the sole discretion on Novem-
ber 22, 1976, to hire or not to hire Santos, and determined
not to hire Santos unless he had a union referral card.
In this case, and in his brief, the General Counsel alludes
at points to the question of union membership. No
evidence as to union membership or requirement of union
membership for hiring was presented. The case only
involves the question of a union referral card and the need
therefor.
The facts are clear that Gourley, on November 18, 1976,
indicated that the chances were good that Santos would be
hired if he reported to work on November 22, 1976. The
facts are also clear that Foreman Gourley on November
22, 1976, told Santos he would be hired if he got a union
referral card. The facts are also clear that when Santos
reported to Gourley that he could not get a union referral
card, Gourley told Santos he could not hire him.
I note that there is a collective-bargaining agreement
providing for a 75-percent union referral system. Gourley's
testimony was to the effect that he did not abide by such
system. If this is so, it is clear then that Gourley exercised
12 I note in making these findings and conclusions that I have considered
the General Counsel's contentions as to the question of specific requests by
foremen for applicants. I note that the collective-bargaining agreement
involved does not contain such provisions. The evidence does not establish
his own discretion in hiring and that his requirement for
union referral not pursuant to contractual requirements
would make a refusal to hire Santos for such reasons
conduct violative of Section 8(aX3) and (1) of the Act.
Furthermore, however, in view of such testimony, the
existence of such agreement providing for 75-percent union
referral, and the absence of presentation of company
record of "referrals" to reveal a reliance on such contrac-
tual provision for 75-percent union referral, warrant a
finding that Gourley operated on the basis that he had
discretion within the right of selection of 25 percent of
applicants for hire as regards the selection or rejection of
Santos. Accordingly, I conclude and find that the Respon-
dent, Spaw Glass, Inc., by Foreman Gourley, discriminato-
rily refused to hire Santos, on November 22, 1976, because
he did not have a union referral card. Such conduct is
violative of Section 8(aX3) and (1) of the Act. It is so
concluded and found.1 2
B. The General Counsel alleges and contends and the
Respondent, Spaw Glass, Inc., denies that the Respondent,
by Foreman Gourley, on November 22, 1976, interrogated
Santos as to his membership in Respondent Laborers' No.
93 Union.
The facts concerning this issue consist of the questioning
of Santos as to whether he had a union referral card.
Considering the facts relating to the union referral
arrangements, I do not find that such questioning is
violative of the Act. What is violative is the basis of refusal
to hire as previously set forth. There was no questioning, as
alleged, about Santos' union membership. Accordingly, it
will be recommended that the allegations of conduct
violative of the Act in such regard be dismissed.
2. Laborers' Local No. 93, Laborers International
Union of North America
The General Counsel alleges and contends and the
Respondent Union denies that the Respondent Union
caused the Respondent Employer to discharge Santos on
November 22, 1976, by refusal to issue to Santos a union
referral card.
As indicated earlier, the question litigated is one of
"refusal to hire" rather than "discharge." Thus, the
question is whether the facts reveal that the Respondent
Union caused the Respondent Employer to refuse to hire
Santos on November 22, 1976, by refusing to issue a union
referral card to Santos.
Considering all of the facts, I find the facts insufficient to
reveal that the Respondent Union caused the Respondent
Employer to discharge or to refuse to hire Santos on
November 22, 1976.
First, the collective-bargaining provision relating to 75-
percent union referral of applicants appears lawful on its
face. There is no evidence to reveal that the Employer had
that such type provision was followed. Although Gourley specifically asked
for Garcia, evidence was not presented to show whether or not Garcia was
the top man on the waiting list.
1292
SPAW GLASS, INC.
hired such a number of employees as to require its
adherence to the 75-percent referral provision.' 3 Santos'
testimony as to what he was told at the union hall reveals in
effect statements that the Union had a referral agreement
for the job, and that he would not get a referral because of
the persons already on the waiting list. There is no evidence
that specific requests for individuals could be made or were
made other than in accordance with the standing on the
waiting list. Santos was seeking an immediate referral, and
it seems clear that this was what was understood. Santos
did not ask to be placed on a waiting list to await his turn.
Furthermore, there is no evidence that the Union had
any communication with the Employer as to whether
Santos should or should not be hired. Gourley, on his own,
could have hired Santos, Union or no Union, within the
permissible 25-percent that he could select. For all that
appears, statements made to Santos at the union hall were
consistent with the lawful rights of the Union pursuant to
its 75-percent referral procedures. Accordingly, it will be
recommended that the complaint allegations of conduct
violative of Section 8(b)(2) and (I)(A) be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent Employer set forth in
section III, above, occurring in connection with the
Respondent Employer's operations described in section 1,
above, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Employer has
engaged in unfair labor practices, it will be recommended
that the Respondent Employer cease and desist therefrom
and take certain affirmative action to effectuate the policies
of the Act.
It having been found that the Respondent, Spaw Glass,
Inc., refused to hire Jesus V. Santos, on November 22,
13 As indicated in the facts set forth, the facts warrant an inference, as to
the Employer, that the Employer had not hired such number of employees
as to require adherence to the 75-percent referral provision.
1976, in violation of Section 8(aX3) and (1) of the Act, the
recommended Order will provide that the Respondent
Employer offer him instatement in the job for which he
would have been hired absent discrimination, and make
him whole for loss of earnings within the meaning and in
accord with the Board's decisions in F. W. Woolworth
Company, 90 NLRB 289 (1950); Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), except as specifically modified
by the wording of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that the
Respondent Employer cease and desist from in any other
manner interfering with, restraining, and coercing employ-
ees in the exercise of their rights guaranteed by Section 7 of
the Act.
On the basis of the above findings of fact and upon the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
i. Spaw Glass, Inc., General Contractor, the Respon-
dent Employer, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Laborers' Local No. 93, Laborers International
Union of North America, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
3. By refusing to hire Jesus V. Santos on November 22,
1976, the Respondent Employer has encouraged member-
ship in a labor organization by discriminating in regard to
tenure of employment, thereby engaging in unfair labor
practices in violation of Section 8(aX3) of the Act.
4. By the foregoing and thereby interfering with,
restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent
Employer engaged in unfair labor practices proscribed by
Section 8(aX1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
1293