Corning Glass Works

CORNING GLASS WORKS 569 V. THE REMEDY Although I have recommended dismissal of those portions of the complaint alleging that Robert Tupps and Howard Landoll threatened employees, in the manner specified in the complaint , I have found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that surveillance of the employees of Respondent attending a union meeting interfered with, restrained, and coerced employees, I recommend that Respondent be ordered to cease and desist from in any like or related manner infringing upon rights guaranteed,to its employees by Section 7 of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Teamsters Local No. 20, is a labor organization within the meaning of Section 2(5) of the Act. 3. By taking moving pictures of employees attending or leaving a union meeting, the Company has engaged in surveillance and has thus interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. Respondent has not threatened its employees with loss of employment, shut down of the plant, removal of the plant, or other reprisals because of their union activities, sympathies, affiliation, and membership. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Corning Glass Works and Anthony Kabbaze. Case No. 1-CA- 3046. November 3, 1960 DECISION AND ORDER On July 15, 1960, Trial Examiner James F. Foley issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. 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 entire record in this case, including the Intermediate Report, the exceptions, .12 9 NLRB No. 69. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the brief, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Corning Glass Works, its officers, agents, successors, and assigns, shall: 1. Cease and desist from interfering with, coercing, or restraining employees in the enjoyment of the right to engage in concerted ac- -tivity, guaranteed by Section 7 of the Act, or discouraging member- ship in the American Flint Glass Workers Union of North America, AFL-CIO, its Local 1007, or any other labor organization, by refusing to hire employees because of their prior concerted activity, or like or related conduct. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Anthony Kabbaze the same or substantially equivalent job, which Corning Glass Works refused to give him because of prior concerted activity, without prejudice to his seniority and other rights and privileges he would have enjoyed had he not been denied employ- ment, and make him whole for any loss of earning he may have suf- fered by reason of the refusal to hire him, in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to the determination of the loss of earnings suffered by Kabbaze by reason of the refusal of Respondent to hire him, and other rights under the terms of this Order. (c) Post at its plant at Central Falls, Rhode Island, copies of the notice attached hereto marked "Appendix." 1 Copies of such notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by an authorized representative of the Re- spondent, be posted immediately upon receipt thereof, and be main- tained by it for a period of 60 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. (d) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 1 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." CORNING GLASS WORKS APPENDIX NOTICE TO ALL EMPLOYEES 571 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT interfere with, restrain , or coerce our employees in the exercise of the right to engage in concerted activity, or discourage membership in the American Flint Glass Workers Union of North America, AFL-CIO, its Local 1007, or any other labor organization, by refusing to hire an applicant for employ- ment because of his prior concerted activity, or by like or related conduct. WE WILL offer Anthony Kabbaze the same or substantially equivalent job he was refused, because of his prior concerted activity, without prejudice to his seniority or other rights and privileges he would have enjoyed and had he not been denied employment. WE WILL make Anthony Kabbaze whole for any loss of earnings he may have suffered by reason of our discrimination against him. All our employees are free to become or remain members of the American Flint Glass Workers Union of North America, AFL-CIO, its Local 1007, or any other labor organization , or to refrain from such membership, except to the extent that this right may be affected by an agreement authorized by Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. CORNING GLASS WORKS, 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. INTERMEDIATE REPORT STATEMENT OF THE CASE This case, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, on a charge filed by Anthony Kabbaze on October 29, 1959 , was heard by the duly designated Trial Examiner in Providence, Rhode Island, on March 11 , 1960, on a complaint of the General Counsel dated December 21, 1959, and answer of Respondent Corning Glass Works dated De- cember 29, 1959. The complaint alleges that Respondent Corning Glass Works (herein called Respondent ) discriminatorily refused to hire Anthony Kabbaze , the Charging Party, on or about October 5, 1959, and continues this discriminatory refusal, thereby discouraging membership in the American Flint Glass Workers Union of North America, AFL-CIO (herein called the Union ), in violation of Section 8(a)(3) of the Act. It also alleges that by this discriminatory refusal , Respondent has 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interfered with, restrained, and coerced employees in the exercise of the rights guaranteed employees in Section 7 of the Act, thereby engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. Upon the entire record, and from my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT The complaint alleges and the Respondent admits that Respondent is a New York corporation with its principal office and place of business at Corning, New York, and at all times material herein Respondent has maintained a place of business in Central Falls, Rhode Island, herein called the Central Falls plant. Respondent's Central Falls plant is engaged in the manufacture, sale, and distribution of glass products, and annually sells and ships to points outside the State of Rhode Island products with a value in excess of $50,000. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that assertion of jurisdiction is warranted. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issue The issue in this case is whether Respondent refused' to hire Anthony Kabbaze, the Charging Party, because of his prior concerted activity at Owens-Corning Fiber- glas Corporation, of Ashton, Rhode Island, thereby discouraging membership in the Union, and by such a refusal to employ, interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act. B. General background Kabbaze, the Charging Party, had been actively employed from May 1950 to August 6, 1959, by Owens-Corning Fiberglas Corporation (herein called Fiberglas). His occupation was that of machine operator on the "D" shift of that plant. On August 7, 1959, approximately 28 of the employees on the "D" shift went out on an economic strike and picketed the plant. The strike ended on September 18, 1959. Since the "D" shift furnished basic materials to the other shifts, the strike of the employees on that shift placed the remainder of the plant virtually at a standstill and kept the major part of the employees idle. Kabbaze and John J. Mungo, another employee, were the strike leaders. Their names were mentioned in the newspapers, Pawtucket Times and Woonsocket Call, in connection with the strike. In the August 10, 1959, issue of the Pawtucket Times it was stated that the Governor of Rhode Island had sent a telegram to management and to Kabbaze and Mungo containing the proposal that the State of Rhode Island arbitrate the dispute. Kabbaze's picture also appeared on television in connection with the dispute. The Respondent owned 31i percent of the stock of Fiberglas at the time the latter was being struck. Fiberglas is a Delaware corporation. Respondent has been enjoined by court order since June 1949 from voting its stock in Fiberglas in any .election for a director for that company. C. Kabbaze's application for employment Kabbaze and Frank McKenna, who had also worked at Fiberglas, applied for employment at Respondent's Central Falls plant on September 18, 1959.2 Both of 1 The only conduct of Respondent involved in this proceeding is that which transpired at its Central Falls plant. Respondent operates 11 other plants elsewhere in the United States. 2 McKenna's application for employment at Respondent's Central Falls plant, which was In evidence, contained his statement that he had been replaced at Fiberglas. He had been employed there approximately 91/ years. He had been on the picket line at Fiberglas, and had been replaced during the strike. At the time of the hearing, an unfair labor practice charge had been filed against Fiberglas by the Union on behalf of 84 employees in connection with Respondent's activity about and during the time of the strike One of the 84 employees was Kabbaze It appears to the Trial Examiner that Kabbaze, like CORNING GLASS WORKS 573 them received employment application forms. There were 8 to 10 other applicants present. Kabbaze filed his application before leaving the plant, while McKenna brought his home with him, and filed it on September 19, 1959, the next day. The applications were filed with Mrs. Germaine LaRocque, the secretary and receptionist for Russell White, the personnel manager who did the hiring.3 She told Kabbaze when he filed his application that persons were hired by application. Mrs. LaRocque's office and Mr. White's office opened off a reception room. The three rooms made up a suite of offices for the personnel manager. The production manager informed White on Thursday evening, Septemebr 17, 1,959, that Respondent needed additional employees. One of Respondent's other plants was unable to fill an order for a product which the Central Falls plant also manufactured. The Central Falls plant undertook to fill part of the order. This necessitated the hiring of a substantial number of temporary employees in a hurry .4 That evening, White placed a notice on the bulletin board in the cafeteria and informed employees that the Respondent was hiring so that they could so inform friends and relatives. Respondent had a policy of favoring applicants who weie friends or relatives of employees, as well as former employees. White also called former employees whom he thought would be available. On September 19, 1959, Personnel Manager White hired Benjamin Hammond, a former employee, who had been on the picket line with Kabbaze at Fiberglas.5 Hammond filed his application on the morning of September 19, a Saturday. White told him to report Monday morning, September 21, for a physical. McKenna, who, had accompanied Kabbaze to Respondent's plant on Saturday, September 18, informed Kabbaze on September 19 that he had been hired. As previously stated, McKenna filed his application on September 19, 1959. He was not a former em- ployee or a relative of an employee. Although the record is silent on the matter, apparently, he had been interviewed by White on Saturday morning, September 19, 1959. The evidence of record shows that an interview usually precedes hiring. This is so at least in the case of an application who had not previously worked for Respondent. On Monday, September 21, 1959, Kabbaze returned to the Central Falls plant and asked Mrs. LaRoque if there was any word on his application. She replied that there was none as Personnel Manager White was out of the city. She indicated she expected him to be gone 2 or 3 days. White had left on Saturday afternoon, September 19, 1959, to take his son to school in Indiana. He returned on September 22, 1959. On September 23, 1959, Kabbaze again returned to the Central Falls plant. This time he was with Hammond , who was to take physical and eye ex- aminations. 6 He had appeared at the plant on September 21 for the examinations, but was told White was out of the city. White saw Kabbaze and Hammond in a group of seven or eight applicants who were standing in the lane leading to the door of the Central Falls plant. These applicants , who had worked at Fiberglas, told him they wished to see him. He asked them if they had filled out application forms and had left their telephone numbers. They replied that they had. White then said that that was all he could tell them at that time . All of them left except Kabbaze and Hammond. White asked Hammond if he was there to take a physical examina- tion. Hammond replied that he was. Kabbaze said that he would wait for Ham- mond. White saw Hammond briefly in his office and Kabbaze waited in the outer office or reception room. Hammond then proceeded to the second floor for the examinations. McKenna, had been replaced at Fiberglas during the strike at that Company 's premises Kabbaze notified the Union 's Local 1007 of his filing of the charge in this proceeding shortly after he filed it on October 29, 1959 9 Russell White had been employed as personnel manager for 14 years by Respondent. Prior to his employment with Respondent , he had been assistant to the personnel man- ager, and training coordinator , at Fiberglas . At the time of the conduct in issue , lie was instructor in industrial relations at the University of Rhode Island and Bryant College 4 Pursuant to its collective-bargaining contract, Respondent hires only for laborers' jobs at the minimum rate. Jobs with higher classifications and rates are posted in the plant Employees with seniority are given these jobs. 5 Hammond's father, who had died shortly before September 18, 1959, had worked for 35 years at Respondent's Central Falls plant , and had been a pensioner of Respondent's at the time of his death. White's acquaintance with Hammond dated back to the time White was assistant personnel manager at Fiberglas . Hammond had been employed at Fiberglas for 17 years. 9 All applicants selected by Personnel Manager White were required to take eye and physical examinations 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Hammond returned to the personnel office, he had a conversation with White in the latter's office. In the course of the conversation , Hammond said to White that the person in the outer office was Mr. Kabbaze, and asked if he would talk to him, that he had a wife and children to support . Kabbaze had asked Hammond to say a good word to White about him. White replied that he was not hiring that day, but that he would talk to him. When Hammond left White to see Mrs. LaRocque to "sign in," White motioned Kabbaze to come into his office . The latter went into White's office. According to Kabbaze, White opened the conversation. He said, "You are Mr. Kabbaze," and Kabbaze replied, "Yes," whereupon White stated that Kabbaze's name had been in the papers, and that he was going to have a rough time getting a job. He told him , said Kabbaze, that going to a nonunion plant would be a waste of time, that even in a union plant they would be a little afraid to hire him. White asked him at this point if he had filed an application , and if he had a telephone number. Kab- baze answered "yes" to both questions, and White then said that Respondent hired by application, and that if anything came up he would call him . He advised against Kabbaze coming in every day, saying that he would just be a nuisance. Kabbaze claims that he then told White that at Fiberglas he was not a ringleader just out to cause trouble as the papers appeared to identify him, but a spokesman elected by the employees to talk in their behalf. White replied that it may be so , but that manage- ment would still be leery of him. On the other hand, White testified that he asked Kabbaze if he had filled out an application and left his telephone number, and that Kabbaze answered that he had. According to White that was the end of the conversation . White testified that at the time he interviewed Kabbaze on September 23, Kabbaze's name was a little familiar to him because he had an interest in Fiberglas , and he read the Pawtucket Times occa- sionally. He recognized him as one of the applicants he had seen earlier in the lane leading to the door of the Central Falls plant. Kabbaze testified that he returned to the Central Falls plant about a week later. White was not at the plant. He then testified that on October 5, 1959, he ran into Jerry Fitzgerald, a fellow employee at Fiberglas, who told him that he and eight other Fiberglas employees had been hired by Respondent. According to Kabbaze, he visited the Central Falls plant shortly after lunch on October 5 to see Personnel Man- ager White. He saw him. He was the only one besides White in White's office. He did not recall whether there was anyone in the reception room . His testimony is that White said that it would be impossible to hire him because his name was linked with the Fiberglas strike, that if he hired him he would be on the spot with the fore- man and production manager. They would want to know if he, White, was hiring troublemakers. White further said, according to Kabbaze, that it was a waste of time for him to come to the plant any more. On direct examination, White testified that on October 5, when Kabbaze appeared in his office, he asked him if he wished to see him . Kabbaze said yes, and went into White's office. White asked him if he had filed his application. Kabbaze said he heard they hired through friends, and he mentioned that Fred Izza, president of Local 1007 of the Union, was a friend of his. He then wished to know what his chances were, and White replied that they were not very good. Kabbaze asked if he was wasting his time coming to the plant. White answered that as long as they had his telephone number and application, there was nothing else for Kabbaze to do. There followed Respondent counsel's question , "Did you say anything with regard to . he might have a problem or trouble finding employment?", and White answered that "I may have said something like that , I didn't write it down or anything. I do remem- ber saying to people, it was common knowledge in our area that Fiberglas people were having difficulty getting job .. ." On cross-examination , White gave this version of the conversation of October 5, between him and Kabbaze: On that occasion I was sitting in my office, as far as I recollect, and he came into the outer office and he was standing there, and I said , "Do you want to see me?" and he said, "Yes," and came into my office and sat down. I asked him how he was making out, he said, "Not so well." This is all as far as I can remember, I don't remember the words, but to my impression that was the general subjects talked about . He said he wasn't making out so well, I told him I thought his best bet was to try to get a job in a Union shop because I thought plants without Unions might consider him a troublemaker. Then in response to the question, "Why might they consider him a troublemaker?", White replied: CORNING GLASS WORKS 575 Because his name and picture had been in the paper, and I think numbers of people might associate him as a leader or a person they might not want in their plant. White also testified on cross-examination , that he had heard Kabbaze's name men- tioned in Respondent's Central Falls plant, that he had many friends there, and that he was pretty well acquainted with Kabbaze's activities at Fiberglas during the course of the strike there from what he had read in the paper. He had previously testified that he had read about the strike in the Pawtucket Times. D. Respondent's defense of its refusal to employ Kabbaze White testified on direct examination that he decided not to employ Kabbaze when he first saw him in his office on September 23, 1959. His testimony is that he sized Kabbaze up during a conversation of a couple of minutes . White stated that he saw Kabbaze as a person looking to Hammond to put in a good word for him, as a fellow who had let the people he had come to the plant with go up the lane to the street, while he hung around thinking he could probably get in by his knowledge that Ham- mond was a friend of his or knew him, and that he was playing the angles. White, so he testified, immediately formed the impression that he was a "kind of a cagey wise guy." According to White, he received such short notice to hire additional people, he hired people with a first look at them. He obtained a quick impression from the ap- plications and the way they talked when he interviewed them. He tried to get an idea of what sort of person they were, whether friendly or antagonistic, and whether they were the type of person who might be a good employee . White testified that he followed this procedure in making up his mind not to hire Kabbaze after he inter- viewed him. White testified on direct examination that Respondent's Central Falls plant received about 200 to 300 applications during the period of September 18 and 19, 1959, and that it hired about 90 persons at that time and about 25 additional persons on or about October 5, 1959. And he testified that the people who were contacted first were those who had previously worked at the Central Falls plant, and had been recommended by others, and some people from Fiberglas like Hammond. He stated that 25 percent of those hired were from Fiberglas, 25 percent of the applicants were from Fiberglas, 30 percent of those hired had no-association with Respondent or Fiberglas, and 45 percent of those hired were former employees or those having friends or relatives already working for Respondent. ,On cross-examination, White again testified that he did not hire Kabbaze on October 5 because of the "snap decision" he made on September 23. He said that he was of the same frame of mind after talking to Kabbaze on October 5, because he had made his original impression and that was it. White's cross-examination further disclosed that although he had retained a considerable number of the applications filed during the period of September 18 to October 5, 1959, he did not have Kabbaze's, that he had discarded it since he did not desire to employ Kabbaze. White denied that he said to Kabbaze that he would not hire him because of his union activity or strike activity. On cross-examination, counsel for General Counsel referred White to two sum- maries, one dated November 25, 1959 , and one dated November 28, 1959, which were sent to White under a letter dated November 30, 1959, from a field examiner attached to the Regional Office by the name of Dwyer . White remembered seeing the two summaries, which were summaries of statements made by White to Dwyer on or about November 25 and 28, 1959 , regarding Kabbaze's application for employment. White also recalled a letter dated December 1, 1959 , he sent to Dwyer in which he agreed that the statements attributed to him in the memoranda were his statements. In the memorandum of November 28, 1959, it was stated: White volunteered the information that he did tell Kabbaze he would probably find it hard to find employment because of his strike activity at Fiberglas. White admitted that what was stated in the November 28 memorandum was true. Next counsel for General Counsel referred White to the statement in the November 25 memorandum which reads as follows: White does not recall in response to a question that he said if he hired Kabbaze someone else might say to him that he was hiring a troublemaker in view of his name being in connection with a strike at Fiberglas; White said it sounded like something he could have said, and if he said it it was with the idea in mind of getting him out of the office. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After quoting this statement to White, counsel for General Counsel asked him, "Did you say that to Mr. Kabbaze?" White replied, "Whatever I said there I may have said." Then counsel for General Counsel repeated this answer of White, where- upon White said, "It is possible. As I told you a few moments ago, I don't tell a person why I don't hire him, I usually tell him something so he will leave." E. Respondent's relations with its employees collective-bargaining representative It is undisputed that since 1951 Respondent has had collective-bargaining agree- ments with the Union and its Local 1007 and that its relations with the Union and the local have been what is considered the best of relations between management and labor. The record is devoid of any evidence that either the Respondent or Personnel Manager White had any intention of discouraging membership in the Union or its Local 1007. F. Concluding findings From the analysis of the testimony set out above, I credit the testimony of Kabbaze as to what transpired in the conversations between him and Personnel Manager White on September 23 and October 5, 1959. Kabbaze s testimony remained un- shaken, while White finally admitted that he may have said to Kabbaze that he would have a difficult time securing employment because of his strike activity at Fiberglas, and may also have said to Kabbaze that if he hired him someone else might say to him that he was hiring a troublemaker in view of his name being connected with the strike at Fiberglas. I conclude and find from Kabbaze's testimony and the admissions by White that the latter refused to employ Kabbaze because of his concerted activity at Fiberglas. Evidence corroborative of Kabbaze's testimony in addition to White's admissions is the evidence that Kabbaze was a very early applicant, that he had had many years of experience, that other strikers at Fiberglas were hired even though they applied after Kabbaze did, and that 30 percent of those hired were not friends nor relatives of the employees of Respondent's Central Falls plant nor former employees of this plant, and that Kabbaze's application had been discarded although many other applications had been retained In view of the above evidence, I do not give any weight to White's conclusionary testimony that he decided not to hire Kabbaze on September 23, because of an im- pression that Kabbaze was a "cagey wise guy" because he did not leave the plant when the other former workers at Fiberglas left, and he attempted to secure pref- erence in hiring by reason of Hammond's acquaintance with White. Hammond was also a former employee of Respondent, as was his father. Since Respondent had an established policy of favoring applicants who were friends or relatives of employees, it is difficult to credit White's testimony that he still had the impression that Kabbaze was a "cagey wise guy" after talking to Hammond. Hammond asked White to inter- view him, and told him that Kabbaze was in need of a job to support his wife and children. Kabbaze's desire for employment is understandable. He and Hammond had sought employment elsewhere on September 23, before they appeared at the Central Falls plant at noon on that date. Kabbaze's method of getting to see White by saying he would wait for Hammond with the hope that Hammond would have the opportunity to ask White to interview him, while somewhat of a "sharp" move, appears to be of the nature of many of the ways to which an applicant resorts to get to see a personnel officer. Kabbaze's financial plight called for some degree of ingenuity. Nor do I credit White's statement that while he may have said to Kab- baze that he could not hire him because he would be considered as one who hired troublemakers, he gave this reason to Kabbaze only to get him out of the office, and that it was not the reason for his refusal to hire him. The best evidence of a person's state of mind is what he says and does.'' What White said -and did persuade me to differ with him. I conclude and find that Respondent's refusal to hire Kabbaze because of his concerted activity at the Fiberglas plant violated Section 8(a) (1) of the Act. I also conclude that by this conduct Respondent violated Section 8(a)(3) and (1) of the Act. While the evidence does not disclose that Respondent intended to dis- courage membership in the Union, or its Local 1007, it was a foreseeable conse- quence of its conduct .8 7 American Communications Assn, 0.1.0, et al. v. Douds, 339 P S 382 , 411. 2 Wigmore, Evidence (3d ed.), §§ 244, 256, at seq. 8 The Radio Offeers' Union of the Commercial Telegraphers Union, AFL v. N.L.R B , 347 U.S. 17, 45-46, 51 DOUGLAS AIRCRAFT COMPANY, INC. 577 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the Operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in a certain unfair labor practice, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act . Respondent's conduct does not disclose any intent to engage in other conduct proscribed by the Act. I shall recom- mend that Respondent be ordered to cease and desist from interfering with, re- straining, and coercing its employees , and from discriminating against employees to discourage membership in the Union or any other labor organization , by refusing to hire an applicant for employment because of his prior concerted activity, or by like or related conduct I shall also recommend that Respondent offer to Anthony Ka,bbaze the job he applied for on September 18, 1959, or a substantially equivalent job, without prejudice to his seniority and other rights and privileges , and make him whole for any loss of earnings he may have suffered by reason of Respondent's dis- crimination against him , by payment to him of a sum of money equal to that which he normally would have earned as wages from the date he would have been placed on Respondent's payroll, absent its unfair conduct, to the date of Respondent's offer to hire him, less his earnings during said period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294 . I shall also recommend that Respondent make available to the Board, upon request, payroll and other records to facilitate the determination of the amount due and other rights under this recommended remedy. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7 ) of the the Act, and the American Flint Glass Workers Union of North America, AFL-CIO, and its Local 1007, are labor organizations within the meaning of Section 2(5) of the Act. 2. By refusing to hire Anthony Kabbaze, the Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(1) and (3) of the Act. 3. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7 ) of the Act. [Recommendations omitted from publication.] Douglas Aircraft Company, Inc. and Alfred E. Posner. Case No. 91-CA-3777. November 3, 1960 DECISION AND ORDER On June 14, 1960, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, together with a supporting brief. 129 NLRB No. 73. 586439--61-vol. 129--38