Universal Fuel, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1973

204 N.L.R.B. 26 (N.L.R.B. 1973)

26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Universal Fuel, Inc . and Service Employees Interna-
tional Union Local 579, AFL-CIO. Case 10-
CA-9672
June 8, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On February 23, 1973, Administrative Law Judge
George L. Powell issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order with the modifications
noted below.
To effectuate the Administrative Law Judge's find-
ing that the Respondent violated Section 8(a)(1) by
interrogating employee Anderson as to his union
membership, as well as by threatening not to hire him,
we hereby amend his Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent , Universal Fuel, Inc ., Troy,
Alabama , its officers , agents, successors , and assigns,
shall take the action set forth in the Administrative
Law Judge 's recommended Order , as modified below:
1. Insert as paragraph 1(a) the following and re-
letter the remaining paragraphs accordingly:
"(a) Interrogating employees as to their member-
ship in or activities on behalf of the Union."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportuni-
ty to present their evidence , the National Labor Rela-
tions Board has found that we violated the law and
has ordered us to post this notice and we intend to
carry out the order of the Board and abide by the
following:
WE WILL NOT ask any employees whether or not
they are members of, or are engaged in any activ-
ities in behalf of, Service Employees Internation-
al Union Local 579, AFL-CIO.
WE WILL NOT tell any employees they won't be
hired because of their membership in and activi-
ties on behalf of Service Employees International
Union Local 579, AFL-CIO.
WE WILL NOT refuse to hire Talmadge Catron
and Ralph Anderson because of their member-
ship in or activities on behalf of Local 579.
Because it has been decided that we refused to
hire Talmadge Catron and Ralph Anderson in
July 1972 we will hire them , upon their request,
to similar jobs they held as employees of ACTA,
and we will pay them for any wages lost because
we did not hire them.
WE WILL respect your right to help Service Em-
ployees International Union Local 579, AFL-
CIO, or any other union , in any lawful way.
WE WILL also respect your right not to help any
union , except as required by law.
UNIVERSAL FUEL, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office, 730 Peachtree Street NE., Peachtree
Building , Room 701, Atlanta, Georgia 30308, Tele-
phone 404-526-5760.
204 NLRB No. 10
UNIVERSAL FUEL, INC. 27
DECISION
1. STATEMENT OF THE CASE
GEORGE L. POWELL, Administrative Law Judge: The issues
in this case are whether Respondent : ( 1) Threatened em-
ployees that it would not hire them because of their mem-
bership in and activities on behalf of the Charging Party;
and (2) refused to hire Talmadge Catron and Ralph Ander-
son because of their membership in and activities on behalf
of the Charging Party , all in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act, herein called the
Act. (29 U.S.C. Sec. 151, et seq.)
For the reasons hereinafter set forth , I find that the Gen-
eral Counsel has established by a preponderance of the
evidence that Respondent violated the Act as alleged in the
complaint.
Service Employees International Union Local 579, AFL-
CIO, herein called Charging Party or Union, filed a charge
with the Board on July 10, 1972, amended on August 28,
1972, which resulted in a Complaint and Notice of Hearing
issued by the Regional Director for Region 10 against Uni-
versal Fuel, Inc ., herein called Respondent, on September
1, 1972, alleging the violations of the Act set out above.
The case came on for trial before me in a courtroom of
the Government Center in Columbus, Georgia, on October
19, 1972. Briefs were timely filed by Respondent and Gener-
al Counsel on November 8 and 10, 1972, respectively.
Upon the entire record including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs of the parties ; I make the following:
FINDING AND CONCLUSIONS
11 JURISDICTION
Respondent , Universal Fuel, Inc ., is an Alabama corpo-
ration , with its principal office and place of business in
Troy, Alabama , engaged in the refueling of aircraft under
contracts with the U . S. Army at Lawson Army Airfield,
Fort Benning , Georgia , and Fort Rucker, Alabama. Only
the Fort Benning operation is involved in this case . Within
the 12-month period immediately preceding issuance of the
complaint, Respondent received from the U . S. Army, un-
der these contracts , more than $100,000 for refueling air-
craft at the three named airfields . I find Respondent has
been and is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
I also find the Union has been and is a labor organization
within the meaning of Section 2(5) of the Act.
There is no issue concerning jurisdiction.
III THE ALLEGED UNFAIR LABOR PRACTICES
There is a sharp conflict of testimony in this case leading
to difficult and crucial findings of fact based upon the credi-
bility of witnesses . Unless otherwise noted , witnesses are
credited on the basis of their demeanor as they testified.
A. Background
In the past, a service contract had been awarded by the
U. S. Army to a contractor named ACTA Corporation
(hereinafter called ACTA). This contract covered the re-
fueling of aircraft at Lawson Army Air Field in Fort Ben-
mng. But , for the year beginning July 1, 1972, Respondent
was awarded the service contract . The Union was advised
of this change of contractors and immediately telegramed
Respondent and notified it that ACTA's employees were
ready and willing to enter employment with Respondent.
The telegram also requested employment application forms.
Respondent answered the telegram with a letter stating that
all positions of employment had been filed with employees
from Respondent's regular force .' The letter also stated that
future vacancies that may occur would be filled with
Respondent's regular employees . However , Respondent did
not send any employment applications to the Union as
requested . On July 6, 1972, a letter listing the names and
addresses of ACTA's former employees was sent to Respon-
dent informing it that these individuals still seek employ-
ment as refuelers and the Union again asked for
employment application forms. Respondent answered this
communication with a letter , enclosing some employment
application forms, but again stated that any vacancies will
be filled with regular employees , and if Respondent 's regu-
lar employees refuse such employment then it would consid-
er filling vacancies with former ACTA employees.
Respondent began to fulfill its contract obligation at Law-
son Field on June 30 , 1972, 1 day before its contract began.
B. Threatening Employees as a Violation
of Section 8(a)(1)
The complaint alleged that Respondent through John W.
Crawford, its manager and vice president, and Melvin Tate,
its assistant manager, threatened employees that it would
not hire them because of their membership in, and activities
on behalf of, the Union.
Charlie T. Parham creditably testified that he worked for
ACTA on the day shift (8 a.m.-4 p.m.) from August 1, 1971,
to June 30, 1972, the date the last contract expired. On July
1, 1972, around 8:30 a.m., Parham was at the Lawson Field
operation building in the fueling yard when he spoke to
Manager Crawford, asking him, "Do you need any quali-
fied fuelers?" Crawford replied, "No, I couldn't touch one
of you with a ten-foot pole." "Our Company hasn't had any
thing to do with the Union, and we don't intend to, now."
Parham had been introduced to Crawford the day before by
the manager of ACTA. Crawford admitted the conversation
with Parham and Parham's question about employment but
denied that he never made the "ten-foot pole" statement
and did not "believe" he "lead Mr. Parham to believe that
he could not be employed because he was a member of the
Union." As noted above, Parham's statement is credited.
On Saturday, July 8, 1972, Ralph Anderson, who had
worked for ACTA from February to June 29, 1972, refuel-
1 Respondent had a refueling operation at Fort Rucker, Alabama. and it
is from this group that regular employees initially came to work at Lawson
Field
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing aircraft as a part-time worker , approached Assistant
Manager Tate and asked him "if he could use some part-
time help." According to Anderson 's credited testimony,
Tate asked Anderson if he had worked for ACTA and when
Anderson replied "yes ," Tate asked him if he "was unable
to hire the old crew right now, and it would probably be
quite some time before he could use" him.
Some 3 weeks later, Anderson again asked Tate, on the
job, if he could use part-time help. Tate told him he remem-
bered him from the time before and that he "was still unable
to hire anyone from the old crew ." Tate further told him the
Respondent "had something going about the Union."
Tate testified that he had two conversations with Ander-
son the two times he applied for work and that he asked him
if he had been an employee of ACTA but denied asking
Anderson if he were a member of the Union . I credit Ander-
son and find Tate did ask him if he were a union member.
Conclusions as to the 8(a)(1) Allegations
The facts are that:
(a) ACTA employees were members of the Union; (b)
Former ACTA employee Parham asked for work ; (c) Craw-
ford had been introduced to Parham by the manager of
ACTA on the day before and when Parham asked for work
he was told that he [Crawford] couldn't touch Parham with
a 10-foot pole; and (d) that Respondent hasn 't had anything
to do with the Union and didn't intend to have anything to
do with it . These facts add up to a conclusion that Crawford,
in effect, told Parham that Respondent was antiunion, that
Parham was a union suspect and would not be considered
for hire because of that.
Antiunion statements and meanings such as this do tend
to intimidate , coerce , and interfere with the guaranteed
rights of employees to engage in union activities if they wish
to do so .2
As for the incidents concerning Anderson and Tate, Tate
knew Anderson had been an employee of ACTA on July 8,
1972 (he had just asked him), when he asked Anderson if
he were a member of the Union. A question concerning
union membership in circumstances such as I have before
me does tend to interfere with , coerce, and intimidate em-
ployees in the free exercise of their right to engage in union
activities and it violates Section 8(a)(1). Authorities for this
proposition as well as for the Parham incident are too num-
erous to mention.
The statement by Tate to Anderson made near the end
of July 1972 that Respondent "had something going about
the Union," in itself would be no violation of the Act be-
cause of its vagueness , but when considered with the fact
that Respondent was spreading the idea it wouldn 't touch
a union man with a 10-foot pole, this statement just adds
another log to the burning antiunion fire , and must be found
to violate Section 8(a)(1) of the Act.'
2 Parham is not alleged as having been discriminated against for hire in
violation of Sec. 8(a)(3).
3 Former ACTA employee , Catron , also testified to an alleged 8(a)(l)
violation but was unable to identify the speaker as an agent of Respondent
Accordingly it is not considered in making any findings herein.
C. Failing To Hire as a Violation of
Section 8(a)(3) of the Act
Assistant Manager Tate testified that Respondent began
its refueling operations at Lawson Field (on June 30, 1972)
with six employees including himself and Manager Craw-
ford. Three of the six employees worked full time and three
worked part time. They all had come from Respondent's
operations at Fort Rucker. This is uncontested and is ac-
cepted as fact.
However, thereafter Respondent did hire other part-time
employees in July 1972, without asking any of the employ-
ees listed by the Union 's communications of July 6, 1972.
Admitted by Respondent in its brief, Broadnax was hired
on July 18, 1972, having filled out an application for em-
ployment on July 17, 1972, and two other part-time employ-
ees were hired.
Talmadge Catron, an ACTA employee, had come to
work on June 30, 1972, but was told by his manager that the
operation had been released to Respondent that day. Upon
inquiry as to who the new boss was, he was referred to a
man, had a brief conversation with the person, and was not
hired. As Catron cannot identify the person, Respondent
cannot be held responsible for anything Catron says took
place. All that this occurrence can stand for on the case is
to establish the fact that Catron wanted to work and was
unable to do so because of the new employer in the picture.
On the other hand, Ralph Anderson, as noted earlier,
applied for a part-time job on July 8, 1972, from Assistant
Manager Tate. When Tate learned by asking that Anderson
was a union man and a former employee of ACTA, Tate
told him he "was unable to hire the old crew right now, and
it would probably be quite some time before he could use
him." Again, some 3 weeks later, Anderson asked Tate for
a job and was told he (Tate) "was still unable to hire anyone
from the old crew," and that Respondent "had something
going about the Union."
Conclusions as to the 8(a)(3) Alleged Violations
There is no question in this case that Respondent was free
to transfer its other employees to the job in question and
was free to hire members of the so-called minority a without
running afoul of the Act. In fact, he can hire anybody he
wishes to hire so long as he doesn't discriminate in the hire
against a person because he is a union member.
The facts speak rather loudly that former ACTA employ-
ees would not be hired because they were union members.
They all were applicants for jobs pursuant to the Union's
telegram before June 30, 1972, and were identified by name
and address in the July 6 letter from the Union.
Respondent's agents admitted on the witness stand that
they were interested in hiring experienced persons and the
ACTA employees were experienced with nothing said in
derogation of their abilities. Ordinarily an employer would
welcome a list of experienced persons for filling job vacan-
cies, but the evidence here is that Respondent was not inter-
ested in these persons solely because they were union
members. It follows that when Catron and Anderson made
themselves available on the jobsite they were job applicants
Broadnax assertedly was hired as a minority
UNIVERSAL FUEL, INC.
and that when Broadnax and others were hired in their
place because they were union members, they were discrimi-
nated against within the meaning of Section 8(a)(3) and (1)
of the Act. Such discrimination does discourage concerted
or union activities under case authority too numerous to
mention. The time of the discrimination takes place when
the others were hired. Respondent's argument that Catron
and Anderson had not signified whether they were appli-
cants for part-time or full-time jobs has no merit. This
obviously would have been determined in good faith had
Respondent wished to come closer than a "ten-foot pole."
Accordingly, I find Respondent violated Section 8(a)(3) of
the Act by refusing to hire Catron and Anderson at the time
it hired Broadnax and the first of the other part-time hires.
CONCLUSIONS OF LAW
1. Respondent, Universal Fuel, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union, Service Employees International Union
Local 579, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening employees that they would not be hired
because of their membership in and activities on behalf of
the Union, Respondent violated Section 8(a)(1) of the Act.
4. By refusing to hire Talmadge Catron and Ralph An-
derson because they were union members, Respondent vio-
lated Section 8(a)(3) of the Act and also 8(a)(1) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section II , above , have a close , intimate, and
substantial relationship to trade, traffic, and commerce
among the several states and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V THE REMEDY
Having found that Respondent has engaged in unfair
practices in violation of Section 8(a)(1) and (3) of the Act,
I shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent hired other employees
rather than Catron and Anderson, because of the union
membership of the latter two employees, and in order to
provide "a restoration of the situation, as nearly as possible,
to that which would have obtained but for the illegal discri-
mination" (Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177
(1941)), I will recommend that Respondent be ordered to
hire Catron and Anderson as part-time employees, dis-
charging those hired in their stead, and make them whole
for any loss earnings they may have suffered by reason of
the discrimination against them by the payment to each of
them of a sum of money equal to the amount each normally
would have earned from the time of Broadnax's hire, July
29
18, 1972, for Catron, and the time of the hire of the next
hired part-time employee thereafter for Anderson, to the
dates they are hired respectively, less their net part-time
earnings during said period, with backpay computed on a
quarterly basis in the manner established by the Board .5
I shall also recommend that Respondent preserve and,
upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports,
and all other records necessary to analyze and determine
the amounts of backpay due under the terms of this recom-
mended remedy.
Upon the basis of the foregoing findings of fact and con-
clusions of law and from the entire record in the case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following:
ORDER6
Respondent, Universal Fuel, Inc., its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees that it would not hire them
because of their membership in and activities on behalf of
the Union.
(b) Refusing to hire Talmadge Catron and Ralph Ander-
son, or any other former employee of ACTA, because of
their membership in and activities on behalf of the Union,
or any other labor organization.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist
Service Employees International Union Local 579, AFL-
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to
refrain from engaging in such activities, except to the extent
that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of em-
ployment, as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Hire Talmadge Catron and Ralph Anderson, upon
their request, discharging any part-time employees hired
after July 8, 1972, if necessary, to part-time jobs similar to
those they had as employees of ACTA, and make each of
them whole for any loss of pay he may have suffered as a
result of the discriminatory refusal to hire them at the first
opportunity after July 8, 1972, in the manner provided in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
5 F W Woolworth Company, 90 NLRB 289; backpay shall include the
payment of interest at the rate of 6 percent per annum to be computed in
the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
6 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations , automatically become the findings, conclu-
sions, decision and order of the Board , and all objections thereto shall be
deemed waived for all purposes
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board or its agents, for examination and copying , all payroll
records , social security payment records , timecards , person-
nel records and reports, and all other records necessary to
analyze and determine the amounts of backpay due under
the terms of this Order.
(c) Post at its office and terminal at Lawson Army Air-
field , Fort Benning, Georgia , copies of the attached notice
marked "Appendix."7 Copies of said notice , on forms pro-
7 In the event that the Board 's Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
vided by the Regional Director for Region 10, after being
duly signed by Respondent, shall be posted by it for a
period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, de-
faced or covered by any other material.
(d) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
of the National Labor Relations Board," shall read , "Posted pursuant to the
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board "