Tyler Pipe and Foundry Co.

TYLER PIPE AND FOUNDRY COMPANY 1187 Tyler Pipe and Foundry Company and Raymond Quarles. Case No. 16-CA-1328. August 24, 1961 DECISION AND ORDER On December 22, 1960, Trial Examiner Henry S. Sahm 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 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support of its exceptions,, and the General Counsel filed a brief in support of the Intermediate Report. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Upon the basis of 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, Tyler Pipe and Foundry Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging concerted activity by refusing to hire applicants for employment because of union or concerted activities, or otherwise discriminating in any other manner against any of its employees or applicants for employment in regard to their hire or tenure of em- ployment, or any term or condition of their employment because of their union or concerted activities. (b) In any other manner, interfering with, restraining, or coercing its employees in the exercise of the right to engage in concerted activi- ties for the purpose of other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all of such activities. 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Members Rodgers, Leedom, and Fanning]. 2 We make the following corrections of inadvertent errors appearing in the Intermediate Report which do not, however, affect the ultimate conclusions : Chelf stated that there was no crane operator's job available on the day Quarles applied for work, rather than there was no job then available. Quarles' starting wage scale as a laborer was the same as the starting wage scale of machine shop trainees , that is, $1 25 an hour rather than $1.35 an hour. 132 NLRB No. 113. 614913-62-vol. 132-76 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole Raymond Quarles in the manner set forth in that section of the Intermediate Report entitled "The Remedy" for any loss of pay he may have suffered by reason of the Respondent's dis- crimination against him. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, • all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to, analyze and compute the amount of backpay due. (c) Post at its plant in Tyler, Texas, the notice attached hereto marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken _ by Respondent to ensure that said notices are not altered, defaced, or' covered by other material. (d) Notify the Regional Director for the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. 3In 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." APPENDIX NOTICE TO ALL EMPLOYEES 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, we hereby notify our employees that: WE WILL NOT discourage our employees from engaging in con- certed activity, by discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them in Section 7 of the Act. WE WILL make whole Raymond Quarles for any loss of pay suffered by, him as a result of the discrimination against him in refusing to hire 'him because he was involved in a labor dispute. All our employees are free to become,or remain members, or to re- frain from becoming or remaining members, of any labor organiza- tion. We will not discriminate in regard to hire or tenure of employ- TYLER PIPE AND FOUNDRY COMPANY 1189 went, or any term or condition of employment, against any employee because of membership in, or activity on behalf of, any labor organization. TYLER PIPE AND FOUNDRY COMPANY, 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 Issue Whether the Respondent refused to hire an applicant for employment because of his involvement in a labor dispute or whether the applicant was not hired because of lack of requisite qualifications. Upon the entire record, there are hereby made the following: FINDINGS OF FACT Raymond Quarles, the Charging Party, filed a charge on January 29, 1960, with the National Labor Relations Board against the Respondent , Tyler Pipe and Foundry Company. The Regional Director, acting for the General Counsel , issued a com- plaint on March 11, 1960, alleging Respondent violated Section 8(a)(3) of the National Labor Relations Act (61 Stat . 136) which provides that it is unlawful for an employer to discriminate against an employee "in regard to hire or tenure of employment- :..." The Respondent filed its answer on March 22 , 1960, alleging: that when Raymond Quarles applied for a position he gave his qualifica- tions in an application. Respondent did not hire him and continues to refuse to offer employment to him in the machine shop , for the reason that it has no opening therein and the man who was hired at the time in the machine shop instead of Quarles was eminently more qualified in past training and experience to take the position than was said Raymond Quarles, particularly in view of the fact that Raymond ,Quarles had no qualifications whatsoever for hiring in the machine shop, .. . On November 9, 1959, when Raymond Quarles made application to Respond- ent, he signed a written application form in which he stated that he had been a crane operator for Lone Star Steel Company for a period of ten years, and the only other jobs that he listed were : drill press operator for one -month at Loma Plastic in Fort Worth , and as a laborer for Delta Engineers in Houston for a period of two months and twelve days, and as a laborer with Brown & Root for a period of twenty-eight days. Furthermore, Mr. Quarles, at the time he applied, made it clear that he was interested in obtaining a position as a trainee in the machine shop and was not interested in a laborer's job. Respond- ent does not have, and has never had, any classification of trainee in the machine shop for which Quarles possessed the necessary qualifications. The operation of a crane is no experience at all for running a machine in Respondent's ma- chine shop, nor is the other short periods of experience listed in his application, and Respondent says that Raymond Quarles doesn't have any qualifications whatsoever for a position in the machine shop. Furthermore, on March 16 , 1960, Respondent . offered [Quarles] em- ployment as a laborer at $1.25 per hour, and he accepted said offer, and is now working for Respondent as a laborer. A hearing was held in Tyler, Texas, before Henry S. Sahm , the duly designated Trial Examiner . Ruling was reserved upon the motion of the Respondent to dis- miss the proceeding and is hereby ruled upon in accordance with the findings and conclusions made herein . The General Counsel and Respondent filed briefs which have been given full consideration. 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. THE BUSINESS OF THE RESPONDENT Respondent, Tyler Pipe and Foundry Company, a Texas corporation, located in Tyler, Texas, is engaged in the manufacture of soil pipe and fittings. During the year 1959, Respondent purchased raw materials consisting principally of scrap metal valued in excess of $50,000, of which more than $50,000 worth was shipped in interstate commerce to the plant from points outside the State of Texas. During the same period, Respondent sold products consisting principally of soil pipe and fittings, valued in excess of $50,000, of which more than $50,000 worth was shipped in interstate commerce from its plant to points outside Texas. No jurisdictional issue is involved in this proceeding as Respondent admits that it is engaged in commerce within the meaning of the Act. It is found, therefore, that Respondent is subject to the jurisdiction of the Board. If. THE UNFAIR LABOR PRACTICES A. The testimony Raymond Quarles, the Charging Party and alleged discriminatee, applied for a job with Respondent, Tyler Pipe and Foundry Company, on November 9, 1959. He was interviewed by Jack D. Chelf, of Respondent's personnel staff, who testified that his "primary duty is the employment of personnel in the plant." Chelf gave Quarles an application form which he filled out and on the basis of the information in the application, Chelf interviewed Quarles.' At the time of the interview, Chelf testified, "We had only one job available which was for a machine operator in the machine shop." 2 Quarles' application indicated he had some machine operating experience so Chelf decided to refer him to Paul F. Lilly, machine shop foreman,3 where vacancies existed for machine shop trainee jobs. During the course of Lilly interviewing Quarles, reference was made by Lilly to the information in Quarles' written applica- tion that the "reason for leaving" his last place of employment, Lone Star Steel Company, where he was a crane operator, was a "labor dispute." Quarles testified that Lilly said to him, "The only bad thing I can see is how come you left the Lone Star? . I told him they had a wildcat strike and I never had went back to work. He said he thought that was settled. I said as far as I know it is.. . I told him that I had personally talked to Mr. E. B. Germany [president of Lone Star Steel Company] . and he told me that he would give me a recommendation if I wanted it but it would be in [the letter] of recommendation that I was misled in a wildcat strike. And I told him I could get him one. He said, `Well, we [would] like to have one.' " Quarles obtained a letter dated November 11, 1959, from E. B. Germany, the president of Lone Star Steel, where he was employed for 10 years, addressed to the president of Respondent Company, which he brought to Chelf about November 16. This letter reads as follows: Mr. Raymond Quarles has been in to see me and tried to work out a program whereby he could get forgiveness for his activities in the 1957 strike at our plant. We have sought someway to try and bring him back into the plant, but be- cause of the litigation and the threat of unfair labor practices my attorneys have refused to allow me to work out anything with him. I am thoroughly convinced, however, that he is sincere in his statement that he has learned his lesson and will not be guilty of such conduct again. He says he was misled by people whom he thought were his friends, but he has learned better. He was one of the 200 that the Arbitrator allowed us to discharge, and whom the Union are now suing us to have re-instated. It is found that Chelf is a supervisor within the meaning of Section 2(11) of the Act for the following reasons. His primary duties, to quote him, were employment of personnel and "placing the people on jobs that are open in the plant." In performing this function, Chelf testified that he interviews all applicants first, screens them, eliminat- ing those he believes not qualified, and referring those who pass his screening test to department heads The final decision as to whom shall be hired is made jointly by him- self and the department supervisor. 2 See footnote 11, infra. It was stipulated that Lilly was a supervisor within the meaning of Section 2(11) of the Act. TYLER PIPE AND FOUNDRY COMPANY 1191 I am very sympathetic to these 200, whom the Union has apparently deserted, at least that is what he and the others tell me. If you could do anything for him on his promise of behaving himself and being a good worker, I would appreciate it very much. After Chelf finished reading the letter, he said, according to Quarles: "'It looks pretty good. It is a better recommendation than our company will give you.' He said he just did not have anything right now." 4 Quarles then contacted his Congressman, Lindley Beckworth, on or about Decem- ber 7, at his office in Gladewater, Texas, and requested his help in obtaining employ- ment with the Respondent Company. Congressman Beckwith wrote on December 7, 1959, to Tom R. Harvin, an official of the Respondent Company, and a super- visor within the meaning of the Act. The letter reads as follows: Please note the enclosure. Mr. Quarles is highly recommended to me. Any consideration you can give him will be appreciated. It is my understanding Mr. Gene Germany wrote you a letter November 1 on this case. Please return. Upon receiving this letter, Harvin, assistant personnel manager, spoke to Chelf who gave him Quarles' personnel file which included the letter from E. B. Germany, Quarles' former employer at Lone Star Steel Company. Harvin, using Respondent's letterhead, office, and secretarial help, dictated a reply to Congressman Beckworth on December 10, 1959, as follows: I appreciate very much your interest in Mr. Quarles. Mr. Quarles contacted us some time in November, and at the same time delivered a letter from Mr. Germany which was written in his behalf. We understand from Mr. Germany that Mr. Quarles took quite an active part in the strike two years ago at Lone Star, however, Mr. Germany is of the opinion that Mr. Quarles has repented for his activity at that time. As you know, Lindley, we are getting larger and must be particularly careful with any- one who might be an agitator. That is why I have said to you many times, I can not go along with the Union view point. So many good men get caught in their web. I would appreciate anything you might be able to furnish us in regards to Mr. Quarles. If we can be convinced that he has no more connection with the Union and would not come into our plant and agitate, we might have a spot for him. Quarles was offered a job as a laborer by Respondent by a letter dated March 16, 1960, which he accepted, and he went to work on March 21.5 At the time of the hearing he had been promoted to the position of a drag line trainee. Respondent's contention, asserted for the first time at the hearing and not in its answer,6 that Harvin's letter to Congressman Beckworth was a personal communica- tion and, therefore, not binding upon Respondent because it was written in Harvin's individual capacity is rejected for the following reason. Harvin was assistant per- sonnel manager of Respondent. Underneath his signature on the letter to Congress- man Beckworth was his title "Assistant Personnel Manager." In such capacity, he was answering Congressman Beckworth's request regarding Quarles' application for a job with Respondent. As assistant personnel director, it was one of Harvin's duties to handle such matters. His reply to Congressman Beckworth, therefore, is binding upon Respondent. B. Discussion and conclusions It is not essential in order to make a finding of an unfair labor practice under Sec- tion 8(a) (3) of the Act that the status of an employee be held by the person against 4 When Chelf was asked on cross-examination why he characterized Germany's letter as "good," he answered : "The reason I would think this letter would be a good letter in his favor was that Mr Germany tells us about his being convinced that he [Quarles] learned his lesson and would not be guilty of such conduct again " Chelf also acknowl- edged that Germany's letter had no bearing with respect to Quarles' qualifications as it makes no reference to the quality of Quarles' work while employed at Lone Star Steel Company 5 The charge in this case was filed on January 29, 1960. 0 See Texas Natural Gasline Corporation, 116 NLRB 405, 413, footnote 13. Respond- ent's answer states that when Quarles applied for a job, he "made it clear . . [he] was not interested in a laborer's job " 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whom the alleged discrimination has been directed for this provision of the Act has express application to a discrimination as to hire.? Discrimination in hiring as well as in firing is proscribed by Section 8(a)(3). If an applicant for employment is refused employment because of union membership or activities, such refusal consti- tutes an unfair labor practice within the meaning of Section 8(a)(3) because such refusal has the effect of discouraging those activities protected by Section 7 of the Act and thereby infringes upon the right of employees as well as applicants for employment .8 - For the reasons hereinafter explicated, it is concluded and found that Quarles was refused employment by Respondent when he applied for a job on November 9, 1959, because of his involvement in labor activities when he was employed by the Lone Star Steel Company. Quarles impressed the trier of these facts as a forthright and credible witness. The events narrated by him follow a logical sequence, which are more consistent both with the attendant circumstances in this case and the inherent probabilities of what are believed to be the facts surrounding Respondent's rejecting Quarles' ap- plication for employment on November 9, 1959. "The statement of a party, not inherently improbable or impossible, is entitled to the weight the trier of the facts believes he should attach to it. It needs no support or corroboration to achieve validity. The mere fact one party to a conversation denies the fact or import of a conversation does not invalidate or destroy the testimony of one who relates it.... All such matters are validly brought to the attention of the trier of fact below, and properly urged, but are of no great significant value to the Court, once the trier of fact below has come to its decision." 9 Moreover, it is not believed that there was merely a coincidental connection be- tween Respondent's decision not to hire Quarles and Chelf's and Lilly's interest in and remarks about Quarles' involvement in a labor dispute at the Lone Star Steel Company. See supra. Corroborative, if not conclusive of this belief is Harvin's letter to Congressman Beckworth in which he expressed the Company's apprehension about Quarles' "active part in the strike two years before at Lone Star ... - ." Then, too, Chelf stated at one point in his testimony that there was no job avail- able on the day Quarles applied, yet he referred him to Lilly, the foreman of the machine shop.10 However, Quarles testified, that he was told by Chelf, there was at least one trainee job available 11 However, Lilly did not mention the unavail- ability of a. job but testified that the reason he did not consider Quarles for a trainee job was due to lack of qualifications.12 The shifting reasons given for not hiring 7 N L.R B v. George D. Auchter Company, et at, 209 F. 2d 273, 277 (C.A. 5), enfg. 102 NLRB 881 8 Phelps Dodge Corp. v. N L.R.B., 313 U.S. 177; N.L R B. v. Waumbec Mills, 114 F. 2d 226 (CA. 1) ; Bituminous Material & Supply Co. v N.LR.B., 281 F. 2d 365 (CA. 8) N.L R.B. v. Tewtile Machine Works, Inc., 214 F. 2d 929, 931 (C.A. 3) ; T H. Burns, et al, d/b/a Burns and Gillespie, 101 NLRB 1181 ; Montgomery Hardwood Flooring Company, Inc., 72 NLRB 113; J08. W. Fournier, Rome Lincoln-Mercury Corp, 86 NLRB 397. 9NL.R.B. v. Combined Century Theatres, Inc., et al., 278 F. 2d 306, (CA 2). 10 Chelf testified on direct examination that after interviewing Quarles, he considered him an eligible employee for employment. Based on this determination, Chelf referred Quarles to Lilly, foreman of the machine shop. Page 90 of the transcript. n Accord : N.L.R B. v. San Angelo Standard, Inc., 228 F. 2d 504, 508 (C A. 5), enfg. as modified 110 NLRB 1091. Chelf testified on direct examination that when Quarles applied for work on November 9, "we only had one job available which . . . called for a machine operator in the machine shop." - Pages 89, 101, and 102 of transcript. Lilly testified that there was a machine operator's job available Page 109. Two men were hired in the machine shop ; one, some time in December, and another, on December 16, 1959. A machine shop trainee's starting wage scale is $1.25 per hour whereas Quarles' starting scale when he was hired on March 21, 1960, as a laborer was $1.35 an hour. This might indicate that a machine shop trainee's job does not require experience 12 See Akin Products Company, 99 NLRB 1270, where a refusal to hire seven appli- cants who were known to be union adherents was held discriminatory, despite the fact that there were insufficient jobs for all applicants since the employer's announced reason for rejection was the employees' union adherence. The Board said Our disagreement with the Trial Examiner centers therefore upon what relevance to the issues raised in the complaint, should be accorded the fact that the Respondent could not hire all applicants or retain an existing staff. Unlike the Trial Examiner, we deem this fact of little significance in determining the Respondent's real motive TYLER PIPE AND FOUNDRY COMPANY 1193 Quarles, as evidenced by the different versions and contradictory reasons given by Cheif and Lilly which contradicted themselves and one another, not only tend to dis- credit each of the contradictory reasons advanced, but also serve to indicate that they may have been intent on covering up a proscribed reason for not hiring Quarles, thereby adding 'support to an inference that the true reason was a discriminatory one. Moreover, Respondent's shifting reasons for explaining its basis for not hiring Quarles, the Board had held in other cases, are often indicative of a discriminatory intent,13 and the Respondent's inconsistent or contradictory explanations of its de- cision not to hire Quarles is a circumstance indicating its motivation.14 It is concluded and found, therefore, that the evidence, realistically viewed, estab- lishes that the real reason for the refusal to hire Quarles was Respondent's appre- hension, as stated by Harvin in his letter to Congressman Beckworth that ". . . we must be particularly careful with anyone who might be an agitator." This is believed to be an unmistakable reference to the Respondent's fear that due to Quarles' involvement in a labor dispute at his previous place of employment, he might engage in union activities and "agitate" among Respondent's employees. Corroborative of this conclusion is Harvin's letter to Congressman Beckworth in which he states: "If we can be convinced that he has no more connection with the Union and would not come into our plant and agitate, we might have-a•spot for him." 15 It is, therefore, concluded and found that by the discriminatory refusal to hire Quarles on November 9, 1959, Respondent violated Section 8(a)(3) of the Act. ,By the same act, Respondent interfered with, restrained, and coerced Quarles in the exercise of rights guaranteed by Section 7 of the Act and thereby violated Section 8(a)(1) of theAct.16 M. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a) (1) and (3) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent denied employment to Raymond Quarles on November 9, 1959, it will be recommended that he be made whole for any loss of pay he may have suffered by reason of the discrimination against him by the payment of a sum of money equal to that which he would normally have earned as wages in such position from the date of the discrimination against him to March 21, 1960, the date when he entered Respondent's employ, less his net earnings during said period. It is also recommended that Respondent, upon reasonable request, make available to the Board and its agents, all payroll and other records pertinent to the analysis of the amount due as backpay. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, there are hereby made the following: CONCLUSIONS OF LAW 11. Respondent is and, at all times relevant herein, was engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Raymond Quarles by denying him employment, thereby discouraging the exercise by workers of full freedom of association for the purpose of negotiating and adjusting the terms and conditions of their employment or other mutual aid or protection, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act.17 In selection. Where, as here, it appears affirmatively that certain employees were rejected because of, their union activity, it can be no defense to the complaint that the Employer could not hire both the women it did select and the ones rejected 13 Thomas W. Dint, et al., co-partners, d/b/a Dant d Russell, Ltd, 92 NLRB 307, 320 "N L R B v Condenser Corporation of America, 128 F. 2d 67, 75 (C A 3) ; Inter- national Furniture Company, 98 NLRB 674, 678, enfd. 199 F. 2d 6418, 650 (C A. 5) 15 General Counsel's Exhibit No 4 16 Veta Mines, Incorporated, 36 NLRB 288, where employment was denied because of applicant's union activities and participation in union strike at his prior place of employment. 17 The language normally used which refers to discriminatory conduct on the part of an employer "discouraging membership in the union" is not here used as there was no union involved in this proceeding 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By interfering with , restraining, and coercing Quarles in the exercise or rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Mooney Aircraft, Inc. and Lodge 725, International Association of Machinists, AFL-CIO. Cases Nos. 23-CA-1015 and 23-CA- 1056. August 24, 1961 DECISION AND ORDER On March 16, 1961, Trial Examiner Arnold Ordman issued his In- termediate 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 Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint and recommended that the complaint be dismissed with respect to these allegations. Thereafter the General Counsel filed exceptions to the Intermediate Report and a supporting brief. No exceptions were filed by the Respondent. Pursuant to Section 3 (b) of the Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [Members Rodgers, Leedom, 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 Intermedi- ate Report, the General Counsel's exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, except as modified herein. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent by its vice president, Ander- son, and the chief of its planning department, McDaniel, reprimanded 1 The Respondent filed no exceptions to the findings and conclusions of the Trial Examiner that the Respondent had engaged in certain unfair labor practices alleged in the complaint. Accordingly, the Board pro forma adopts all these findings and conclu- sions of the Trial Examiner. 132 NLRB No. 100.