United Steel Fabricators, Inc.

432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in its reference to a permit. Two permits were actually involved--one from the District Council to which any member of a local which, itself, was a member of that Council could get; the other permit was one issued by Respondent. The former .did not entitle a member of a sister local to get his own employment in the juris- diction of the local in which he sought work. With reference to the one issued by the Respondent, Parker testified that, when he was a member of Respondent, it was Respondent's practice not to issue such a permit until a man was dispatched to a job. Hence, he would, in such case, have both the permit and the dispatch slip. The issuance by the Respondent of a permit to Parker for the month of July, 1965, without giving him a dispatch slip at the same time, suggests that Respondent did not deem a dispatch slip to be needed in this case since Parker was already in the Company's employ. I note that Respondent's business agent supplied Foreman Izer, who was a member of a sister local, with a work permit but not a dispatch .slip. Although Izer, as a supervisor, was recognized as entitled to be brought into the jurisdiction by the Company, his situation of being on the payroll before -coming in (and as therefore not needing to be dispatched) was parallel to Parker's. On the entire record, I find that Respondent caused the Company to terminate Parker's employment because Parker had not been dispatched by Respondent as required by practices sought to be enforced by Respondent but not as required by the terms of the contract between the Company and the Respondent . Although Parker was a member of a sister local, this, I believe was not, by itself, a motivat- ing factor in Respondent's conduct. It is involved only to the extent that Parker was not registered with Respondent. However, Respondent 's insistance upon com- pliance with its unilaterally established hiring rules as a basis for causing Parker's termination, alone, establishes a violation by Respondent of the Act since the effect of Respondent's conduct was to cause the Company to discharge Parker and thereby "to encourage members to perform obligations or supposed obligations of membership." i5 Accordingly, I find that Respondent, by causing the Company to terminate Parker's employment in violation of Section 8(a) (3) of the Act, violated Section 8(b)(2) and (1)(A) of the Act. 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) Charles T. Parker Construction Company is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. (2) The Respondent is a labor organization within the meaning of Section 2(5) of the Act. (3) By causing said Charles T. Parker Construction Company to discharge William H. Parker on July 7, 1965, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8 (b)(2) and (1)(A) ,of the Act. (4) The aforesaid unfair labor practices are unfair labor practices affecting .commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record .in the case, I hereby make the following: [Recommended Order omitted from publication.] u Radio Officers' Union [Bull Steamia1up ] v. N L R.S., 347 U.S. 17, 52. United Steel Fabricators, Inc. and International Union of Elec- trical, Radio and Machine Workers, AFL-CIO. Case 23-CA- 2184. October 25, 1966 DECISION AND ORDER On July 25, 1966, Trial Examiner Benjamin B. Lipton issued his Decision in the above-entitled proceeding, finding that the Respond- ent had not engaged in unfair labor practices as alleged in the com- 161 NLRB No. 36. UNITED STEEL FABRICATORS, INC. 433 plaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Exam- iner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. 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 Trial Examiner's Decision, the General Counsel's exceptions and brief, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. [The Board adopted the Trial Examiner's Recommended Order and dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case was heard before Trial Examiner Benjamin B. Lipton on March 8, 1966, in San Antonio, Texas, upon a complaint by the General Counsel 1 alleging that United Steel Fabricators , Inc., herein called Respondent , violated Section 8(a)(1) and (3) of the Act. All parties were represented at the hearing and were afforded full opportunity to present relevant evidence . At the close, oral argument on the record was waived . Briefs filed by the General Counsel and Respondent have been duly considered. Upon the entire record in the case, and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT At its principal place of business in San Antonio, Texas, Respondent is engaged in the manufacture and prefabricating of metal buildings . During the year preced- ing issuance of the complaint, Respondent had a direct inflow in interstate com- merce of goods and materials valued in excess of $50,000 . Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union of Electrical , Radio and Machine Workers, AFL-CIO, herein called the Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Essential issues (1) As violative of Section 8(a)(1), the General Counsel contends that in a telephone conversation Foreman Tom Wilburn, Jr., told Antonio Garcia, an employee of Dixie Form and Steel Company , herein called Dixie, that Respondent would not employ applicants who were engaged in a strike or other concerted activity a Dixie. 'The charge by the Union was filed and served on October 8, 1965, and the complaint thereon was issued by the General Counsel on December 20, 1965. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (2) As violative of Section 8(a)(3), the General Counsel contends that Respondent refused to hire Justo A. Gonzales and Arturo Alejandro Villarreal because of their concerted activity and their membership in the Union. Respondent denies the alleged violations, and affirmatively states that it refused to hire Gonzales and Villarreal for the reasons that it had no job openings, that they have not since requested employment, and "further that such applicants did not submit proper applications to begin with." B. General Counsel's case-in-chief Gonzales testified in substance as follows: He and Villarreal 2 worked for Dixie in San Antonio, Texas, until June 1965,3 when they went out on strike with other employees of that firm. On August 4 (while the strike was in progress), they visited Respondent's plant and spoke (in Spanish) to Foreman Wilburn in an effort to obtain employment with Respondent.4 Wilburn said that-"Possibly in about two weeks ... he might have an opening" for Gonzales as a feeder and Villarreal as a punch operator, both at $1.90 an hour. Gonzales had no telephone and Wil- burn took a number where Villarreal could be reached. On August 9, after receiv- ing a call from Wilburn, they came to the plant about 2:30 p.m. Wilburn said he needed two men and gave them applications to fill out. While they were filling out the forms (and Gonzales was in the process of entering his height),5 Wilburn told them to finish because they had to take a physical examination and the doctor was about to leave. Wilburn wrote the name and address of Dr. Smith on the applica- tions (which also contained spaces for detailed medical data). They left " immedi- ately"-at 2:55 p.m.b Before that, Wilburn said he would employ them and they were to return the next day at 8 a.m. to go to work. At the doctor's office, they had to wait for about an hour before being examined. The doctor's secretary kept their applications. Dr. Smith examined them, made entries on their applications, indicated they had passed, and said he would send the forms back to Respondent. On August 10, about 8 a.m., they reported at the plant, with their work clothes, tools, and lunch,and told Wilburn they were ready for work. Wilburn said he was sorry but he could not give them work. "He said why and then he left for his office." 7 They followed him to his office and reminded him that he told them the previous day he "needed two men." They left and have not since gone back to the plant or spoken to Wilburn.8 In their conversations with Wilburn no mention was made of their Dixie employment or the strike. About 9:30 a.m., they appeared at the office of "the Union of the Dixie Steel Company," and spoke to Raymond Mendez, a Dixie employee and president of the local union. In connection with his employment in 1964, Gonzales had made out similar applications for Respondent. With unmistakable emphasis, the application form states, in large, bold type-"TO BE PLACED ON THE PAYROLL, ALL JOB APPLICANTS MUST FILL OUT THIS FORM COMPLETELY." Gonzales admitted that he understood this requirement at the time.9 He stated merely that, 2 He did not testify. See footnote 21, -infra. 8 All dates are in 1965 unless otherwise shown. 4 As stated by Gonzales, in 1964 he had worked for 10 days with Respondent, under Wilburn, and had quit without notice Although he sent word through his wife that he was going to Mexico, it was then in fact that he commenced his job with Dixie. 6 His application form shows no entry under "Height." 6 There is no evidence that an appointment was made or that Wilburn was in com- munication with the doctor's office, located away from the plant. 7 On cross-examination, Gonzales testified that Wilburn did not tell them why he could not give them work. 8 During the period of the strike at Dixie, from June through September, Gonzales did not apply for work at any company other than Respondent. 6 Gonzales testified in Spanish but stated that he understands English "a little bit." The applications of Gonzales and Villarreal, in evidence, contain significant omissions ; e g., particularly relating to past employment and past medical experience. It is apparent that Gonzales and Villarreal skipped over these questions on their applications, which they signed at the end. I would find that they did so deliberately, because they wished to withhold such information. (Gonzales did not indicate that he was then aware of the fact' that Wilburn knew of his taking employment with Dixie when he had quit Respondent in 1964 and reported that he left for Mexico ) UNITED STEEL FABRICATORS,- INC. 435 when they were sent to Dr. Smith, they had no time to complete the forms. I do not credit Gonzales in this regard.10 Raymond Mendez testified that Gonzales and Villarreal came to him at the union office, in the presence of other named individuals. After Gonzales related "the sequence of events," Mendez said he wanted to find out "what went on," and asked "if anybody knew the foreman," Wilburn." Antonio Garcia "volunteered" that he knew Wilburn, and requested permission to use the telephone "to know what [Mendez] wanted to know, why these people hadn't gotten on there after being offered the job and being told to come back to work." Garcia proceeded to make the call to Wilburn, as described below (and presumably related the sub- stance thereof to Mendez). About 15 minutes later, Mendez himself telephoned Respondent's plant, was told he would have to talk to 0. W. Maxey (president and general manager),12 who was then unavailable, and Mendez left his name and number. Thereafter, Maxey returned the call. Mendez raised the subject of Respondent's failure to hire Gonzales and Villarreal. He testified that Maxey "asked who in the hell I was, trying to tell him what to do . that hadn't I learned my lesson in Dixie, that I couldn't run the whole show." Maxey insisted that there were no such two men, as Gonzales and Villarreal, and that he did not know anything about their applications.13 Mendez then called Dr. Smith, whom he did not know-("I asked him who he was. He said he was Dr. Smith.") Dr. Smith told him that he had examined Gonzales and Villarreal, that they had passed, that it was standard procedure for him to keep their application forms and send them through to the Company, and that he had forwarded these forms in the morning mail. Garcia - testified that Mendez asked if "anybody knew anybody" at Respondent, but did not ask for anybody to call Respondent "and find out why they weren't hired." He called Wilburn because he was looking for a job himself. He knew Wilburn as a classmate in vocational training school and casually thereafter. He told Wilburn he was looking for work. Wilburn asked him what he could do, and he answered-"weld, fit, check forms, a lot of things." Wilburn asked-"if I was in that strike with the rest of the union members. And I said it wasn't a strike, it was a lockout." Then Wilburn said "that he wasn't hiring anybody from Dixie." At this point, Garcia "told him about Mr. Gonzales and Mr. Villarreal, that they had passed their physical, they went over there with their tools ready to go to work, how come he wasn't going to use them . . . . He said no, they had decided not to use them because of a change or something in the contract." Wilburn had also asked him if he "was behind the union out there," and he replied that he was "just behind the majority of the boys." Following the above testimony, the General Counsel rested. Respondent there- upon moved to dismiss the complaint . After hearing arguments on both sides, I denied the motion , indicating that a study of the record was required, that enough circumstances were established for Respondent to put in its defense, but that the ruling did not mean necessarily that the allegations in the complaint would be sustained on such evidence. Now upon careful review of the record, I am of the opinion that the General Counsel , bearing the burden, failed to make out a prima facie case with respect to these allegations. I find particularly deficient in the evidence the necessary ingredient of discriminatory motive. To establish animus and motive by Respondent, the General Counsel relies upon the following: (1) Garcia's testimony that Wilburn asked him whether he was "in that strike with the rest of the union members" and "was behind the union out there," and that Wilburn commented that "he was not hiring anyone from Dixie." (2) The "logic" or assumption that on August 9, Wilburn must have reported to Maxey that he had just sent two employees to the doctor and instructed 10 As part of General Counsel's case, Wilburn was called to testify for a limit purpose, during which he stated , inter alia, that Gonzales and Villarreal did not fill out their ap- plications while they were in his office. 11 On cross-examination , Mendez insisted that he had asked "if anybody knew anybody over there." • "Mendez knew that Maxey was formerly a salesman at Dixie. See Maxey 's testimony, infra. 18 It is noted that Mendez did not testify that he alluded in his conversation with Maxey to Garcia's earlier telephone call to Wilburn. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them to report to work the next morning-or "the inference that Maxey learned of Wilburn's impropriety in hiring two employees, the result of which could have disrupted advantageous business relationships between Respondent and Dixie." There is no evidence of an "advantageous business relationship" being disrupted; nor would such a motive, even if shown, warrant the finding of a discriminatory purpose under the Act. Though a speculative possibility, it cannot reasonably be inferred from this evidence that "in the interim," after sending Gonzales and Villarreal to the doctor, Wilburn spoke to Maxey and was then, for unlawful reasons, overruled on hiring these applicants. Garcia's testimony is inconsistent, internally and with that of Mendez, that his purpose in calling Wilburn was to seek a job for himself. I would find that this was merely a ruse-and that serious doubt is cast on the credibility of his testimony. Rather it is evident that he was con- cerned with the question raised by Mendez, in the presence of Gonzales and Villarreal, as to why these two men were not hired and that, specifically, he was told by Wilburn it as "because of a change or something in the contract." And his conversation with Wilburn was in the context of their supposed friendship. Even accepting Garcia's full testimony, Wilburn's inquiry as to whether he was "in the strike with the rest of the union members"-would not alone prove animus by Respondent against these strikers. Nor does Wilburn's statement that he was not hiring anyone from Dixie 14 indicate prima facie any unlawful motive. Especially in light of the situation involving a strike at an unrelated company, nothing in the evidence can be fairly construed as showing opposition or hostility by Respondent toward these strikers or their union activities. Further, there is no evidence that Respondent was hiring other applicants, but not those from Dixie, or even that any jobs were available then or in the reason- able near future. C. Respondent's case Moreover, considering the evidence adduced in Respondent's defense, the entire record would not provide the necessary proof to support the General Counsel's complaint. In Foreman Wilburn's testimony, the particular reason for not hiring Gonzales and Villarreal was attributed to his receipt of information that Respondent did not obtain an anticipated contract for a certain job. Although the General Counsel challenges the credibility of this assigned ground, it is unrefuted and finds cor- roboration by Maxey, Respondent's president, and in the stipulated evidence that Respondent did no hiring of skilled employees for about 2 months after Gonzales and Villarreal were refused employment.i5 The normal working complement comprised 30-35 employees since February, when there was a general layoff of about 30 employees. In the previous year, Respondent had reduced its force from a maximum of 100 employees because of economic difficulties. The general practice of Respondent in processing applicants for employment was plausibly and credibly explained by Wilburn and Maxey. The procedures they described relate essentially to the hiring of experienced or skilled personnel; laborers or helpers are ordinarily obtained "off the street," whenever needed. All applicants are interviewed by Wilburn. He is regularly in touch with the salesmen to keep abreast of Respondent's actual or probable requirements for additional men. If seriously considered for immediate or future hire, the applicant is given an application form, usually to be filled out at the plant, and sent for a physical examination.16 The application is personally brought back to Wilburn, who looks it over, and sometimes helps the applicant in filling out the form. Wilburn then brings the completed application into Maxey, indicating that he wants to hire the 14 The General Counsel did not establish that Respondent had any knowledge that Vil- larreal was an employee of Dixie and a striker. Nor, indeed, was it shown that Respondent was even aware, during the material period, of Gonzales' current employment with Dixie and striker status. 15 On October 5, Vidaurri was employed as a punch operator, and on October 19, Gutier- rez was employed as a layout man. Both had come to the plant looking for work, having been in layoff status with Respondent since the past February. Nor were any common laborers hired until mid-September or October 16 In frequent instances, Respondent undertakes the expense ($5) of having applicants medically examined even though they are not subsequently hired. UNITED STEEL FABRICATORS, INC. 437 applicant. The final decision is then made by Maxey, who usually approves Wilburn's recommendation except only if he thinks there is not enough work to justify the hire. Concerning the initial request for employment by Gonzales and Villarreal in early August, Wilburn's testimony was, in substance, similar to that given by Gonzales,17 i.e., that he had nothing then but was expecting work and he would let them know.18 On August 9, about 8:30 a.m., he called the number Villarreal had given him and left word 19 requesting Gonzales and Villarreal to come to the plant and sub- mit applications. He decided to send for them at this time because-the sales manager had (the previous Wednesday) informed him that the "chances were very good" that Respondent would get a particular job on which it had bid; Gonzales had worked for him before and was a "friend," whom he desired to help; both Gonzales and Villarreal were experienced men of a type which was in scarce supply, and he wanted to make sure of them in advance should it develop that they would be needed by Respondent When Gonzales and Villarreal came to the plant, about noon on August 9, he gave them application forms and sent them to be examined by Dr. Smith They requested and were permitted to take the appli- cations home, but with instructions from Wilburn to fill them out completely and bung them back.20 He did not tell them that they were hired and to commence work the next day (as testified by Gonzales). About 2 p.m. that day, he learned from the sales manager that Respondent did not get the anticipated contract award. Before leaving the plant that evening, he called and left the message for Gonzales and Villarreal that "the work we had planned on fell through. We haven't got it." However, early on August 10, Gonzales and Villarreal reported at the plant, with their work clothes and lunch, ready for work. Responding to his question, they said they left their applications at the doctor's office. He told them they had to bring the applications back so that he could keep them in the file. He asked if they had received the message he left for them the night before, and Villarreal replied that he had He informed them that the contract he was expecting had fallen through and he could not put them on at the present time. They said "all right" and left. Concerning Garcia's telephone call later that morning, Wilburn testified that he told Garcia that an expected contract had fallen through and he could not hire him, but suggested to Garcia another place that he knew was hiring. When at a later point Garcia raised the question of why Gonzales and Villarreal were not hired, he gave the same reason. He did not know Garcia was on strike, denied asking him if he was behind the union at Dixie, and denied that he told him he was not hiring from Dixie. Garcia himself volunteered the information that he was involved in a lockout at Dixie He had discussed these matters with Garcia as a "friend." Maxey testified on cross-examination that he had helped to finance Dixie when it started in business; that he was once a stockholder in that company and had worked there as a salesman; but that he left Dixie in 1959. He explained that Respondent has a large gauge shear for cutting metal plate, and that it takes minor contracts for the use of this shear from competitive companies in the area. During the past year or more, and predating the strike at that plant, it had performed such contracts for Dixie. When Mendez called him from the union hall on August 10, he had no knowledge of the preceding events involving Gonzales and Villarreal. Mendez asked why he did not hire the two men sent over by the Union to work for Respondent. He reacted by telling Mendez that he had built his own business and did not have to take "any gab" from him or anyone else. He said he did not know anything about the matter, but would take it up with Wilburn if Mendez wanted to check on it. Thereafter, he learned from Wilburn what had transpired. He testified that Gonzales and Villarreal would not have been hired 17 While Gonzales fixed this first visit as occuiring on Augn.t 4, Wilburn firmly stated that it took place on a Saturday, but was unsure of the date, which lie estimated as August 7. is Wilburn isas generally aware at the time that Gonzales bad been employed at Dixie, and he had previously heard on television about a strike at that plant-although these subjects were not discussed with Gonzales and Villarreal 19 With the desk clerk at Villarreal's hotel 2' As Wilburn testified, Gonzales (who was not literate in English) said lie did not know how to fill out the application form. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without their applications completed; and in a letter to the Board dated October 15, in evidence, he stated that the improper applications would have caused Respondent "to fire them if we had hired them." 21 Wilburn was confused and inconsistent as to dates , and less than persuasive in all his reasons for wanting to help Gonzales, much less Villarreal about whom he admitted he knew nothing. Nevertheless, these negative factors in Respondent's case cannot, in the absence of positive evidence in the record, support any inference of a discriminatory motive on Respondent's part. At most, only a basis for sus- picion appears. On the other hand, I am unable to credit Gonzales that he and Villarreal were flatly told by Wilburn that they were hired and to report to work- although they might have mistakenly believed, in the circumstances, that their recall by Wilburn on August 9 was for the specific purpose of hiring them. The probabilities are far greater that they would not be hired before the results were known of their physical examinations, and before their applications were filled out showing at least their past employment history and similar qualifying data normally required by employers of applicants. Other elements in the evidence raise questions as to the sincerity of Gonzales and Villarreal in seeking employment with Respond- ent. Gonzales admitted that he applied at no other companies during the course of the strike; he made no further attempts to obtain work with Respondent, although encouraged by Wilburn; and he as well as Villarreal deliberately, I find, withheld significant information on their application forms. From an evidentiary standpoint, the absence of testimony by Villarreal could only operate to detract from the General Counsel's case.22 While not controlling, per se, the General Counsel's failure to show available jobs for Gonzales and Villarreal, and the Respondent's clear evidence that it hired no employees for a period for about 2 months after the incidents in question, constitute important considerations in the ultimate determination herein.23 Accordingly, it is concluded that the record does not sustain the alleged viola- tions of Section 8(a)(1) and (3). CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The allegations of the complaint that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act have not been supported by substantial evidence. RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety. al However, Wilburn indicated that the incomplete applications had no bearing upon his decision not to employ Gonzales and Villarreal ; that he would normally have assisted them in completing the forms before bringing the applications into Maxey. 27 The General Counsel's attorney asserted at the close of the hearing that Villarreal is "undoubtedly" a citizen of Mexico; that 2 weeks before the hearing he attempted, without success, to obtain Villarreal's address ; and that he heard only last night that Villarreal was in Monterey, Mexico. Further, he stated that he probably would have called Villarreal, who speaks English, rather than Gonzales ; however, he considered that in any event the testimony of only one of the two complainants was necessary to establish his case. 23 See Iowa Beef Packers, Inc., 144 NLRB 615. Chevrolet, Division of General Motors Corporation and Braxton C. Shankle. Cases 31-CA-43 and 88. October 05, 1966 DECISION AND ORDER On August 1, 1966, Trial Examiner E. Don Wilson issued his Decision in the above-entitled proceeding, finding that the Respond- 161 NLRB No. 37.