The Hughes Corp.

National Labor Relations Board - Board Decisions

Feb 21, 1962

135 N.L.R.B. 1222 (N.L.R.B. 1962)

1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
registered letter , addressed , to-his last, known ; address, ,that the, aforementioned offer
of reinstatement is continued until 90 days after his discharge from the Armed
Forces. The ibackpay period as to him will run from the date of his discriminatory
discharge until induction into the. Armed Forces 70 and from a date 5 days after
timely application for reinstatement until the date of Respondents ' offer of rein-
statement.
Loss of pay shall be computed and paid in accordance with the formula adopted
by the Board in F . W. Woolworth Company, 90 NLRB 289.
The unfair labor practices found to have been engaged in by Respondents are of
such a character and scope that in order to insure Respondents ' employees of their
full rights guaranteed them by the Act, it will be recommended that Respondents
cease and desist from in any manner interfering with , restraining , and coercing their
employees in their rights to self-organization.
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. International Association of Machinists , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. Sachs & Sons and Helen Sachs, Inc., are a single employer within the meaning
of Section 2(5) of the Act.
3. Respondents , during all material times, have been engaged in, 'and now are en-
gaged in, commerce within the meaning of Section 2 ( 6) and (7) of the Act.
4. By discriminating in regard to the hire and tenure of employment and the terms
and conditions of employment of Creed Tinker, Samuel Ballinger , Harvey D. Camp-
bell, Mart M . Roberts, Jr., Lewis Miller , David Miller , and Andrew Guillory,
thereby discouraging membership in the Union , Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
5. By interrogating their employees regarding their union activities and sympathies,
by threatening their employees with discharge if they join or remain members of the
Union , by threatening their employees with a loss of pay if they remain members of
the Union , and by otherwise interfering with, restraining , and coercing their em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act, Respondents
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
70 The payment of this amount shall be made immediately without awaiting final de-
termination of full amount of award Modern Motor Express , Inc, 129 NLRB 1433.
The Hughes Corporation and Alonzo C. Lanier. Case No. 6-CA-
2281. February 01, 1960
DECISION AND ORDER
On December 1.5, 1961, Trial Examiner Sidney S. Asher, ,Tr., issued
his Intermediate Report, in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the Inter-
mediate Report attaclied hereto. Thereafter, the General Counsel
filed exceptions with a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in colillection with
135 NLRB No. 113.
THE HUGHES CORPORATION 1223
this case to a three-member panel-,[Members Leedom, Fanning, and
Brown].
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
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications noted
below.'
Since Lanier was discriminatorily denied employment on May 1,
before any other employee was hired on May 1, in order to remedy
the unfair labor practice found, Lanier must, if respondent still has
need of the services of journeymen sheet metal workers on the Penne-
lect project, be offered immediate employment as a journeyman sheet
metal worker on that project, without prejudice to such seniority or
other rights and privileges as he would have enjoyed had he been
hired on May 1, 1961, discharging, if necessary, any journeyman
sheet metal worker hired on that project on or after May 1, 1961.
Consistent herewith, the following paragraph is substituted for
paragraph 3 of the notice:
IF WE still need journeymen sheet metal workers on the Penn-
sylvania Electric Company project in Johnstown, Pennsylvania,
we will offer Alonzo C. Lanier immediate employment as journey-
man sheet metal worker on that project without prejudice to such
seniority or other rights and privileges as he would have enjoyed
had he been hired on May 1, 1961, discharging, if necessary, any
journeyman sheet metal worker hired on that project on or after
May 1, 1961.
The notice is further amended by inserting the following addi-
tional paragraph :
Employees may communicate directly with the Board's Re-
gional Office, 2107 Clark Building, 701-17 Liberty Ave., Pitts;
burgh 22, Pennsylvania, Grant 1-2977, if they have any questions
concerning this notice or compliance with its provisions.
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the modifications of provisions 2 (d) and (f) in accord with foot-
notes 29 and 30 of said Recommended Order, and with the further
modifications in the Order and notice noted above.
1 No exceptions were filed relating to the findings and conclusions of the Trial Examiner
The General Counsel ' s exceptions request the Board to modify the recommendations and
notice to conform with the findings and conclusions We find merit in these exceptions.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This case involves allegations that The Hughes Corporation, Luzerne, Penn-
sylvania, herein called the Respondent, on or about May 1, 1961, refused to employ
Alonzo C. Lanier, and thereafter continued to refuse to employ him, because he
had not been referred or cleared by Sheet Metal Workers International Association,
Local 12, AFL-CIO, herein called the Union, although the Respondent did not have
an exclusive referral agreement with the Union, and in order to encourage member-
ship in the Union. It is alleged that this conduct violated Section 8(a) (1) and (3)
of the National Labor Relations Act, as amended (61 Stat 136), herein called
the Act. After the issuance of a complaint by the General Counsel,' the Respondent
filed an answer admitting certain jurisdictional facts; denying that its refusal to em-
ploy Lanier was for a discriminatory reason; alleging that on May 1, 1961, it needed
the services of only one new employee and chose one of two applicants for the
job for reasons completely unrelated to union affiliation; alleging that on May 1,
1961, Lanier was a member of the Union; and denying the commission of any
unfair labor practices.
Pursuant to notice, a hearing was held before me on October 9, 1961, at Johns-
town, Pennsylvania. The General Counsel and the Respondent were represented
and participated fully in the hearing. On November 6, 1961, the General Counsel
and the Respondent filed briefs, which have been duly considered.
Upon the entire record in this case,2 and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and at all material times has been, a Pennsylvania corporation
with its principal office at Luzerne, Pennsylvania, where it is engaged in the sheet
metal and plumbing business. During the year ending May 31, 1961, the Respond-
ent purchased and had delivered to its operations within the Commonwealth of
Pennsylvania goods and materials valued at more than $50,000, which were trans-
ported directly to its operations from points outside the Commonwealth.
The Respondent's answer admits, and it is found, that the Respondent is, and at
all material times has been, engaged in commerce within the meaning of the Act,
and that it will effectuate the policies of the Act for the Board to assert juris-
diction over its operations.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent's answer admits, and it is found, that Sheet Metal Workers Inter-
national Association, Local 12, AFL-CIO, is and at all material times has been, a
labor organization within the meaning of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Background
The Pennsylvania Electric Company, herein called Pennelect, engaged Sordoni
Construction Company of Wilkes-Barre, Pennsylvania, herein called Sordoni, to
erect an office building on property which it owns in Johnstown, Pennsylvania. The
contract between the parties, dated June 20, 1960, provides in pertinent part:
The contractor and his sub-contractors performing his work shall be in good
standing with the trade unions, provided that nothing herein shall require the
violation of Federal, State or other properly instituted authority.
'The term "General Counsel" refers to the General Counsel of the National Labor
Relations Board and his representatives at the hearing
2 The transcript was corrected in certain respects on November 20, 1961 It Is now
further corrected as follows:
Page 19 , line 21: Strike the word "dier" and substitute therefor the word "dire."
Page 20, line 1: Strike the word "CROSS-EXAMINATION " and substitute there-
for the words "VOIR DIRE"
Page 20, line 16: Strike the words "REDIRECT EXAMINATION" and substitute
therefor the words "DIRECT EXAMINATION, CONTINUED."
Page 25, line 10: Strike the word "RECROSS" and substitute therefor the partial
word "CROSS-."
THE HUGHES CORPORATION 1225
Sordoni subcontracted the refrigeration, air-conditioning, plumbing, and heating
work to the Respondent. The Respondent's foreman on this job was Edwin
Thomas? There was no signed collective-bargaining agreement between the Re-
spondent and the Union at any material time. The Respondent's general hiring
procedure was described by Thomas as follows: "They know we got to hire
through the Local on a job like this. That is the first thing we would do, is call
through the Local. . . . That was the normal procedure every place we went." 4
B. Events
The Charging Party, Alonzo C. Lanier,5 was a sheet metal worker and a mem-
ber of the Union. On the morning of Friday, April 28,6 Lanier went to the
Respondent's office at the jobsite and applied to Thomas for a job as journeyman
sheet metal worker. Lanier described his qualifications and told Thomas where he
had previously worked. Thomas replied: "You will have to clear through the
Union." During the conversation Lanier told Thomas that he had sustained a
shoulder injury about 10 years previously, but that it had not interfered with his
work. Lanier left the jobsite and made a telephone call to the Union's office in
Pittsburgh. He was unable to contact any of the Union's business agents and
therefore spoke instead to a clerical employee of the Union. Lanier returned to the
jobsite and reported to Thomas that he had called the Union and obtained
clearance.? Thomas answered: "There is no sense in me calling the Union, if you
have called them. You report to work Monday morning." In response to an
inquiry by Lanier, Thomas estimated that the job would last from 1 year to 16
months.8
Lanier then left the jobsite and went to the office of his former employer, Chapel
Brothers, herein called Chapel. He asked someone at Chapel, "If I go to work for
Hughes Corporation for a period of twelve to sixteen months, well, when this is
over and you have work, will I be able to come back to work for you?" He was
given an affirmative reply. When Lanier arrived at his home, he received a message
from a business agent of the Union. As a result, Lanier unsuccessfully attempted
to contact Joseph Cleary, another business agent of the Union.
About 7:50 a.m. on Monday, May 1, Lanier reported to Thomas at the jobsite
Also present was Fred Braid, a member of the Union. Braid stated to both Thomas
and Lanier that on Friday afternoon (April 28) he had been told by Cleary to
report to the job on Monday morning (May 1). Thomas, saying, "I got this at
home over the weekend," handed Lanier a sheet of paper containing both printed
and handwritten matter.9 It read:
MEMO
From-the HUGHES Corp. Project -------------------
To --------------------- Date ---------------------
Ed Thomas
You cannot hire on the job. All hiring is done thru hall
By --------------------------
8 The Respondent's answer admits that, at all material times, Thomas was a super-
visor and its agent.
4 Thomas further testified that he brought an employee from Luzerne to Johnstown to
work on the project He explained that "According to the Union agreement, we can
bring two men into the territory," that the agreement referred to was between the Re-
spondent and "Local 44" located in Wilkes-Barre, Pennsylvania, and that Local 44's
"territory" does not extend to Johnstown, Pennsylvania
6 Refers ed to in the complaint as Alonzo Lanier
G All dates hereafter refer to the year 1961, unless otherwise noted.
'Lanier testified that "standard procedure" In the Union was that a member' who
was hired on a job within the Union's "jurisdiction" need only report that fact to the
Union and he was "cleared in automatically." I deem the Union 's procedures immaterial
herein.
O The findings of fact regarding these events of April 28 are based upon a synthesis of
the testimony of Lanier and Thomas . Thomas testified: "I told him our process of hir-
ing men was through the local Hall. We call our Local Hall . . . and ask for the
men . . . He said would it be all right if he called . I said 'It doesn't make much differ-
ence to me, as long as it is through the Union."'
9 This finding of fact is based upon Lanier 's testimony . Braid did not testify. Thomas
testified that he found the paper at the Respondent 's office on April 29 and took it to
the jobsite with other documents , and that he did not know who wrote it. He denied
giving it to Lanier. His denial in this respect is not credited.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas stated that there was work for only one man, and suggested that a tele-
phone call be made to the Union. Braid accordingly called the Union's office in
Pittsburgh and asked for Cleary or Robert Furlough, another business agent of the
Union. He then made a second call to a different place, again asking for Cleary or
Furlough, left a message for them to call him, and gave his name and the telephone
number of the jobsite. Both Braid and Lanier "waited around for a couple of hours"
at the jobsite without going to work. About 10:15 a.m. Lanier told Thomas that he
had "to pay a gas bill" and that he would either return or call by telephone. Lanier
then left. Paul Gable, the superintendent of the job, "started to get after [Thomas]
about not having the stuff." About 11:30' or 11:45 a.m., Thomas hired Braid; he
started to work that afternoon.10 About 2:30 or 3 p.m. Cleary called the jobsite and
talked to Thomas.li About 3 or 3:30 p.m. Lanier telephoned to the jobsite. Thomas
informed him "that the call came through" and that he (Thomas) had been told
by Cleary and Furlough "to hire Braid." He added that "in his [Thomas'] position
he had no choice." 12 Lanier did not thereafter return to the jobsite. He did not
seek either call-in pay or unemployment benefits.
On May 3 Lanier filed with the Board charges in Case No. 6-CB-831, alleging
that the Union had violated Section 8(b)(1)(A) and (2) of the Act. On Septem-
ber 26 the Regional Director dismissed those charges. Meanwhile, on June 6,
Lanier had filed the instant charges.
On May 10, Lanier and Thomas met by chance on the street. Lanier testified,
and I find, that Thomas "brought up the subject of the sore shoulder" but added that
"according to him [Thomas] and Cleary . I [Lanier] was in line for a job there."
Between the hiring of Braid on May 1 and the hearing on October 9, the Respond-
ent increased its complement of rank-and-file journeymen sheet metal workers from
3 to 13. In hiring new employees, Thomas testified: "I had our shop steward call the
business agent. Our job steward, he calls the business agent and they send the
men out." Thomas did not contact Lanier to offer him employment. He explained
that he "didn't have his [Lanier's] address. ... Like I said, the normal procedure
was to hire through the Local. . . . If they wanted to send him in, if he was unem-
ployed at the time, he probably would have come in."
C. Positions of the parties
The complaint alleges that on or about May 1 the Respondent , through Thomas,
refused to employ Lanier, and thereafter continued to refuse to employ him, because
he was not referred or cleared by the Union. The General Counsel contends that
Thomas hired Lanier on April 28, but then discharged him on May 1 and replaced
him with Braid, because Lanier had not been sent by the Union, and Braid had.
Alternatively, the General Counsel maintains that, if Lanier was not hired on
April 28, then on May 1 he was a job applicant who was refused employment be-
cause he lacked union referral. Instead of hiring Lanier, argues the General Coun-
sel, the one available job was given to Braid, because Braid had been sent by the
Union.
The Respondent, on the contrary, maintains that it never hired Lanier. Its answer
appears to admit that Lanier was a job applicant on May 1. But it is alleged that on
that date the Respondenthad need of only one additional employee, and that Thomas
chose one of the two applicants for reasons not related to union referral. In support
of this position, the Respondent argues that Thomas had no knowledge "that one
[applicant] was preferred over the other by the Union," both being union members,
and that he selected Braid for the job rather than Lanier "as a matter of personal
choice." In addition to the defense set forth in the answer, the Respondent urges
that it was bound by the contract between Pennelect and Sordoni, and therefore re-
quired by that contract to "remain in . [the] good graces of the local trade
unions." Finally , the Respondent protests that the action of the Regional Director
in dismissing Lanier's charges against the Union in Case No. 6-CB-831 while pro-
ceeding with the instant charges was "highly prejudicial to The Hughes Corporation."
"The finding of fact as to the hour of Braid's hiring is based upon Thomas' undenied
testimony.
"According to Thomas, Cleary asked for Braid and when Thomas informed him that
Braid was working, Cleary replied: "Well, that is all " In view of Thomas' statement
to Lanier later that day, that Cleary told him "to hire Braid," I am not convinced that
Thomas, while testifying, related the entire conversation he had with Cleary.
12The findings of fact regarding this Lanier-Thomas telephone conversation are based
on Lanier ' s undenied testimony.
THE 1-LUGHES CORPORATION 1227
D. Conclusions
1. Lanier's alleged hiring
It will be recalled that on April 28 Thomas directed Lanier to "report to work
Monday morning." The General Counsel contends that this constituted a hiring.
Such a contention, on its face, might appear to be unconsistent with the complaint,
which alleges that "On or about May 1, 1961, the Respondent refuse[d] to
employ Alonzo Lanier, and thereafter continued to refuse to employ Alonzo Lanier."
However , this need not be determined . Even aside from this question of variance,
the record is convincing that Lanier was never hired by Thomas. Lanier never signed
the documents required by the Respondent from newly hired employees,13 nor was it
shown that his name ever appeared on the Respondent 's records as an employee.
Moreover, Lanier's actions indicate that he did not consider himself as having been
hired, for after his first interview with Thomas he went to Chapel and inquired what
his rehire status there would be if he went to work for the Respondent, thus showing
that he had not yet made up his mind. Moreover, after what the General Counsel
asserts to have been his discharge on May 1, Lanier sought neither call-in pay nor
unemployment compensation . 14 Under all the circumstances here present, I con-
clude that Thomas' direction to Lanier on April 28 to report for work on May 1
did not create an employee-employer relationship between Lanier and the Respond-
ent, but merely constituted a promise or commitment by Thomas to hire Lanier on
May 1.
2. The refusal to hire Lanier
Turning now to the General Counsel's alternative theory, that Lanier was a job
applicant on May 1 and was refused employment at that time, this is consistent with
the complaint and, indeed , impliedly admitted in the answer . We come, then, to the
question of why Thomas, confronted with two applicants for a single available job,
hired Braid rather than Lanier , despite his earlier commitment to employ Lanier.
The Respondent argues that, as both Braid and Lanier were members of the
Union, "there is nothing to show that Respondent knew that the Union preferred
Mr. Braid to Mr. Lanier, if in fact it did." This fails to take into account Thomas'
knowledge that Lanier had not been referred by the Union but had come to the
jobsite on his own initiative seeking work, whereas Braid claimed that be had been
referred to the Respondent by the Union-a significant difference between them.
The Respondent also points out that "The actual employment of Mr. Braid took
place before there was any communication [by Thomas] with the Union." But
the facts indicate that Thomas, under pressure from Gable to get the project moving,
decided not to wait for word from the Union, but instead to accept at face value
Braid's statement that he had union referral.15 When the call from Cleary came
later, it merely confirmed what Thomas already suspected, namely, that Braid
and not Lanier had been referred by the , Union.
Thomas testified that he chose Braid over Lanier mainly because of Lanier's
old shoulder injury , 18 but also because Braid could weld, appeared to be younger,
and Lanier indicated lack of interest by leaving the jobsite while the matter of who
would be hired remained undecided . But Lanier 's injured shoulder was a fact
known to Thomas even before he promised Lanier that he would hire him. More-
over, the question of welding could not have had any real importance , for Thomas
did not ask Lanier if he could weld. Finally, Thomas never adequately explained
why he delayed his choice from 7:50 to 11:30 a.m. I conclude that the reasons
1s Thomas testified without contradiction • " Once lie [a job applicant ) signs a time slip
or a Social Security record , or a withholding statement , then he is hired. Then our
Insurance takes over"
14Lanier testified that he did not demand call-in pay because after his conversation
with Thomas on May 10, he felt lie still had a chance of obtaining work with the Re-
spondent , and did not want to antagonize the Respondent . But this fails to explain why
he had,not sought call-in payprior . to May 10
15 Thomas ' testimony on this point is significant*
Q. Has your corporation always hired through the Local?
A That was the normal procedure every place we went.
Q But . . you hired Air Braid rather than Mr Lanier before you had final word
from the local , is that right'
A Well, I was just taking hearsay , that he was sent In there to go to work
I took his word he was sent by the Local.
At one point Thomas testified that this was the only reason
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given by Thomas for preferring Braid over Lanier were mere afterthoughts put
forth to disguise the real reason.
There is ample and cogent evidence that Thomas was concerned only with the
attitude of the Union toward the two rival applicants. Thus, as noted above, he
testified that "we got to hire through the Local on a job like this." 17 And his first
statement to Lanier on April 28 was that Lanier would have to "clear through the
Union." After promising Lanier a job, Thomas received a note informing him that
he could not "hire on the job" and that "all hiring is done thru [the union hiring]
hall." When he next saw Lanier on May 1 he immediately gave him this note.18
He then suggested that a telephone call be made to the Union; obviously he was
interested in what officials of the Union had to say. In addition, when Lanier called
in at 3 or 3:30 p.m. on May 1, Thomas stated "that the call [from the Union] came
through"; that he had been told by Cleary and Furlough `Ito hire Braid"; and that
"in his position he had no choice." Thomas thereby demonstrated beyond question
that the selection of Braid over Lanier was a decision made by the Union alone,
in which he (Thomas) took no part. Any lingering doubt as to why Lanier was
not hired is dispelled by Thomas' testimony on cross-examination:
Q. Wasn't the real reason [that no decision was made from 7:50 to 11:30
a.m.] you were waiting for a call from Cleary to tell you which man to hire?
A. That was in the discussion.
Q. That was in the discussion?
A. I wasn't waiting. It was more or less one of these two men, and I
was
Q. You were going to hire the one that Cleary said, is that right?
A. Right. [Emphasis supplied.]
In view of the foregoing I am convinced, and find, that on May 1 Lanier was
refused employment solely because he lacked referral from the Union, and that the
relative qualifications of Lanier and Braid were disregarded.
3. The Respondent's other defenses
At the hearing and in its brief the Respondent raised additional defenses not set
forth in the answer. In this posture of the pleadings, it may be that these defenses
could be disregarded. Nevertheless, they will be considered.
Pointing to the provision of the 1960 contract between Pennelect and Sordoni
which requires subcontractors on the project to be "in good standing with the trade
unions," the Respondent maintains that it was bound thereby, and that this clause
required it to conduct its hiring on the job in a manner designed to avoid "trouble
of any make, sort, or description . with the local trade unions." In the first
place, as the Respondent was not a signatory to the Pennelect-Sordoni contract, it
is difficult to understand on what theory the Respondent was bound by its terms.
In the second place, the provision in question is couched in vague language, the
precise meaning of which is difficult to determine.19 In any event, even assuming
that the Respondent was bound by the contract, and that it can be construed as
providing for a valid exclusive hiring hall to be operated by the Union, this would
not aid the Respondent For the only contract which might possibly provide a
defense in this type of situation would be one between the Respondent and "a labor
organization." 20 Here the Respondent admittedly had no written agreement with
the Union, and there is no probative evidence of any oral understanding between
the Respondent and the Union. It is accordingly found that the Respondent's
defense based upon the Pennelect-Sordoni contract lacks merit.
There remains the defense that the Respondent was somehow prejudiced by the
Regional Director's dismissal of Lanier's charges against the Union. This also lacks
merit. It is clear that, in such circumstances, Section 8(a)(3) does not require
1Q At oral argument, the Respondent's attorney admitted that its foremen were "in-
structed . . . to inquire into whether or not the prospective Sheet Metal Workers'
journeymen were in, at least, in good standing with Local No. 12 " Surely, the Respond-
ent's interest in the union status of job applicants exhibited more than academic curiosity
1e Regardless of the note's authorship, Thomas, by handing it to Lanier, clearly indi-
cated that he (Thomas) had to conduct himself accordingly
19 At oral argument, the following colloquy took place
TRIAL EXAMINUR: . . . Now, you are asking me to say that that means an exclu-
sive hiring hall arrangement?
Mr. SAYLOR: No, I don't think the contract goes that far.
20 See Section 8 ( f) of the Act.
THE HUGHES CORPORATION 1229
the General Counsel to proceed against the Union as a prerequisite to the issuance
of a complaint , or a finding , against the employer 21
4. Ultimate conclusions
As set forth above, Thomas at first promised to fill the existing vacancy by hiring
Lanier. Later, despite this commitment, Braid was employed instead, solely because
Thomas believed that Braid had been referred by the Union while Lanier had not.
This constituted discrimination against a job applicant prohibited by Section 8(a) (3)
of the Act 22 Moreover, this discrimination encouraged "membership" in the
Union, as that word is used in Section 8(a)(3) of the Act, for it forcibly demon-
strated the absolute necessity of union referral.23 And specific proof of the Re-
spondent's intent is unnecessary where its conduct inherently encourages union
membership. "It is obvious that the discrimination . . . had the natural and prob-,
able effect not only of encouraging nonunion employees to join the Union, but
also of encouraging union employees to retain their union membership." 24 It is
accordingly found that, by refusing employment to Lanier on May 1 because he
lacked union referral, the Respondent discriminated in regard to hire, thereby en-
couraging membership in the Union, in violation of Section 8(a)(3) of the Act,
and interfering with, restraining, and coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act.25
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make-the following:
CONCLUSIONS OF LAW
1. The Hughes Corporation is, and at all material times has. been, an employer
within the meaning of Section 2(2) of the Act.
2. Sheet Metal Workers International Association, Local 12, AFL-CIO, is, and
at all material times has been, a labor organization within the meaning of Section
2(5) of the Act.
3. By denying employment to Alonzo C. Lanier, thereby discriminating in regard
to the hire of job applicants, and encouraging membership in a labor organization,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) of the Act.
4. By the above-described conduct the Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7 of the
Act and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
5. The above-described unfair labor practices, occurring in connection with the
Respondent's operations, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof, and constitute unfair labor
practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.
21 Compare National Union of Marine Cooks and Stewards , CIO. (Burns Steamship
Company), 92 NLRB 877, 879 Indeed, the proceedings against the Union would appear
to be irrelevant to any issue herein N L R B v L. Ronney & Sons Furniture Manu-
facturing Co, 206 F 2d 730, 738 (C.A. 9), cert. denied 346 U. S. 937.
22 It Is no longer open to question that Section 8(a) (3) protects applicants as well as
employees. Phelps Dodge Corp. v N L R.B , 313 U.S. 177.
23 The Radio Officers' Union of the Commercial Telegraphers Union, A.F.L. (A. H. Bull
Steamship Company) v. NLRB., 347 U.S. 17.
24 Gaynor News Company, Inc, 93 NLRB 299, 313, enfd. as mod 197 F. 2d 719 (C.A. 2),
affd 347 U S. 17.
s American Pipe and Steel Corporation, 93 NLRB 54.
It may well be that the Respondent's conduct toward Lanier amounted to Illegal aid
and assistance to the Union in violation of Section 8(a) (2) of the Act. Thomas' state-
ment to Lanier on April 28 that "You will have to clear through the Union" and his
handing the note to Lanier on May 1 might also constitute Independent acts of inter-
ference, violative of Section 8(a) (1) of the Act. But these matters were not covered in
the complaint As these issues either were not "fully litigated " ( Monroe Feed Store,
112 NLRB 1336 , 1337 ) or were litigated "only incidentally in connection with the
8(a)(3) Issue in the case and not as a possible - basis for an Independent . . . finding"
(Crookston Times Printing Company, 125 NLRB 304, 305 ) I deem myself precluded from
considering them.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in this case , I make the following:
RECOMMENDATIONS
I am not persuaded that the Respondent 's past conduct as revealed by the record
in this case is indicative of a predilection to commit other unrelated unfair labor prac-
tices in the future. It will accordingly be recommended that the Respondent cease
and desist only from engaging in the unfair labor practices found and any like or
related conduct 26
If the Respondent still has need of the services of journeymen sheet metal workers
on the Pennelect project,27 it will be recommended that the Respondent offer to
Lanier immediate employment as a journeyman sheet metal worker on that project,
without prejudice to such seniority or other rights and privileges as he would have
enjoyed had he been hired on 'May 1, 1961, discharging, if necessary, any journeyman
sheet metal worker hired on that project after May 1, 1961. It will further be
recommended that the Respondent make Lanier whole for any loss of pay he may
have suffered by paying to him a sum of money equal to that which he would normally
have earned from May 1, 1961 , the date of the discrimination against him, to the
date of the offer of employment or the date on which Lanier 's employment on the
Pennelect project would normally have ended, whichever is earlier, less his net
earnings during such period. The backpay provided for herein shall be computed in
a quarterly manner, as established by the Board 26
It will further be recommended that the Respondent preserve and, upon request,
make available to the Board all records needed to determine the amount of backpay
due hereunder. Finally, it will be recommended that the Respondent post the usual
notices, both at its Luzerne office and at the site of the Pennelect project in Johnstown.
It is therefore recommended that The Hughes Corporation, Luzerne, Pennsylvania,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Encouraging membership in Sheet Metal Workers International Association,
Local 12, AFL-CIO, or any other labor organization, by denying employment to job
applicants lacking clearance or referral therefrom, or in any other manner discrimi-
nating in regard to the hire or tenure of employment of its employees, or any other
term or condition of their employment.
i(b) In any like or related manner interfering with, restraining, or coercing its
employees or applicants for employment in the exercise of rights guaranteed in Sec-
tion 7 of the Act, except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment,
as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action , which is necessary to effectuate the
policies of the Act:
(a) If the Respondent still has need of the services of journeymen sheet metal
workers on the Pennsylvania Electric Company project in Johnstown, Pennsylvania,
offer to Alonzo C . Lanier immediate employment as a journeyman sheet metal worker
on that project, without prejudice to his seniority and other rights and privileges.
(b) Make Alonzo C. Lanier whole for any loss of pay he may have suffered by
reason of the discrimination against him.
(c) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine the
amount of backpay due hereunder.
(d) Post at its office in Luzerne, Pennsylvania, copies of the notice attached hereto
marked "Appendix." 29 Copies of the said notice, to be furnished by the Regional
Director for the Sixth Region, shall, immediately upon receipt, be signed by a duly
authorized representative of the Respondent, and be posted by it for 60 consecutive
26 Compare Gaynor News Company , Inc, supra , at p 301 ; and Superior Tool & The Co.,
132 NLRB 1373
Compare N L R B v. Cornsng Glass Works , 293 F. 2d 784 (C.A. 1).
F W. Woolworth Company , 90 NLRB 289
If these recommendations are adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommendations of a Trial Examiner"
in the notice. If the Board 's Order is then enforced by a decree of a United States Court
of Appeals , the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order "
B. H. HADLEY, INC. 1231
days thereafter in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any other material.
(e) If the Respondent's part of the said project has not been completed, promptly
mail to the said Regional Director signed copies of the above-described notice for
posting, the project manager willing, in conspicuous places at the site of such project.
(f) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report, what steps the Respondent has taken to comply here-
with.30
It is further recommended that, unless within 20 days from the receipt of this
Intermediate Report the Respondent notifies the said Regional Director, in writing,
that it will comply with the foregoing recommendations, the Board issue an order
requiring the Respondent to take the aforesaid action.
11 If these recommendations are adopted by the Board, the words "10 days from the
date of this Order" shall be substituted for the words "20 days from the receipt of this
Intermediate Report."
APPENDIX
NOTICE TO ALL EMPLOYEES AND APPLICANTS FOR EMPLOYMENT
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, you are notified that:
WE WILL NOT encourage membership in Sheet Metal Workers International
Association, Local 12, AFL-CIO, or any other union, by denying employment
to job applicants lacking clearance or referral therefrom, or in any other manner
discriminating in regard to the hire or tenure of employment, or any other
working conditions, of our employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees or applicants for employment in the exercise of their right to
self-organization, to form or join any union, to bargain collectively through
representatives of their own choosing, to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection, or to re-
frain from any and all such activities, except to the extent that such rights may
be affected by an agreement requiring membership in a union as a condition
of employment, as authorized by Section 8(a)(3) of the National Labor Rela-
tions Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
IF WE still need journeymen sheet metal workers on the Pennsylvania Elec-
tric Company project in Johnstown, Pennsylvania, we will offer Alonzo C.
Lanier immediate employment as a journeyman sheet metal worker on that
project, without prejudice to his seniority or other rights and privileges.
WE WILL make Alonzo C. Lanier whole for any loss of pay he may have
suffered because of the discrimination against him.
THE HUGHES CORPORATION,
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.
B. H. Hadley, Inc. and International Association of Machinists,
AFL-CIO. Case No. 21-CA-4492. February 21, 1962
DECISION AND ORDER
On November 21, 1961, Trial Examiner Martin S. Bennett issued
his Intermediate Report herein, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor practices violative
135 NLRB No. 126.