W. B. W. Services, Inc.

W. B W. SERVICES, INC. 499 W. B. W. Services, Inc. and Dale R. Canfield. Case 10-CA-8231 May 25, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On November 6, 1970, Trial Examiner Louis Libbin issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engag- ing in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed ex- ceptions to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions, and the entire record in this case, and hereby adopts the findings,' conclu- sions, and recommendations of the Trial Examiner, with the following modifications with respect to The Remedy. The Trial Examiner recommended, inter alia, that the Respondent, if necessary to make jobs available for the discriminatees, discharge any employees hired after March 1, 1970. This language could be construed to permit the Respondent, contrary to normal Board practice and our intention herein that the dis- criminatees be given preference over newly hired em- ployees, not to discharge employees newly hired on or before March 1, 1970, who did not begin work until after March 1, 1970, even if the discharge of such em- ployees was necessary to make jobs available for dis- criminatees. We shall, accordingly, modify the Trial Examiner's recommended Remedy to provide that the Respondent, if necessary to make jobs available for the discriminatees, shall discharge any employees who prior to March 1, 1970, had not performed any work for either the Respondent or J & J. We shall further provide that, if the reduction in force envisioned by the Trial Examiner becomes necessary, the Respondent shall place any discriminatees for whom no work is then available on a preferential hiring list, with priority in accordance with its usual and normal nondis- criminatory standards and its contract with the Union, and thereafter offer them reinstatement as such em- ployment becomes available and before other persons are hired for such work. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner as modified below and hereby or- ders that Respondent, W. B. W. Services, Inc., Val- dosta, Georgia, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Examiner's recommended Order, as so modified. 1. Delete paragraph 2(a) of the Trial Examiner's recommended Order and substitute therefor the follow- ing language: "(a) Offer to the nine discriminatees named here- inafter immediate and full reinstatement to the jobs they would have occupied absent the discrimination against them or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to any seniority or other rights and privileges, discharging if necessary to make jobs available for them any em- ployees who prior to March 1, 1970, had not performed any work for either W. B. W. Services, Inc., or James and James Construction Company; make them whole for any loss of earnings each may have suffered from March 1, 1970, to the date of Respondent's offer of reinstatement; and, if there are insufficient positions for Respondent's work force as then constituted, conduct a nondiscriminatory reduction in force and establish a preferential hiring list, all in the manner set forth in `The Remedy' section of the Trial Examiner's Decision, as modified in this Decision: Dale R. Canfield Paul P. Pelaccio James W. Durst Jesse P. Whitley John B. Guthrie A. T. Smith Houston I. Green Raford W. Hoffman Bobby Bradford" 2. In footnote 10 of the Trial Examiner's Decision, substitute "20" for "10" days. 3. Substitute the attached appendix for the Trial Ex- aminer's Appendix. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government ' In section C, 1, (g), of his Decision, the Trial Examiner was not entirely correct in his statement that certain of Respondent's exhibits were contra- dictory However, such minor discrepancies do not affect his ultimate findings and conclusions, with which we agree, that Respondent violated Section 8(a)(3) and (1) of the Act WE WILL NOT encourage membership in any labor organization by discriminatonly failing and refusing to hire or retain any employees because of 190 NLRB No. 81 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any preference accorded to members of any union, or by discriminating in any other manner with respect to their hire and 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 exer- cise of their rights guaranteed by Section 7 of the Act. WE WILL offer the following individuals im- mediate and full reinstatement to the jobs they would have occupied absent the discrimination against them or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to any seniority or other rights and privileges, discharging if necessary to make room for them any employees who did not work for us or James and James Construction Company before March 1, 1970; WE WILL make up to them the pay they lost, with 6 percent interest; and WE WILL estab- lish a preferential hiring list if we do not have enough jobs for them and for our present em- ployees who were with us or James and James Construction Company before March 1, 1970: Dale R. Canfield Paul P. Pelaccio James W. Durst Jesse P. Whitley John B. Guthrie A. T. Smith Houston I. Green Raford W. Hoffman Bobby Bradford W. B. W. SERVICES, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individu- als, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Peachtree Building, Room 701, 730 Peachtree Street, NE, Atlanta, Georgia 30308, Telephone 404- 526-5760. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis LIBBIN, Trial Examiner: Upon charges filed on March 16 and June 15, 1970, by Dale R. Canfield, an in- dividual, the General Counsel of the National Labor Rela- tions Board, by the Acting Regional Director for Region 10 (Atlanta, Georgia), issued a complaint, dated July 6, 1970, against W. B. W. Services, Inc.,' herein called the Respond- ent. With respect to the unfair labor practices , the complaint alleges, in substance, and Respondent's duly filed answer denies, that Respondent violated Section 8(a)(1) and (3) of the Act by failing and refusing to hire nine named applicants because of their nonmembership in International Brother- hood of Firemen and Oilers, AFL-CIO, Local Union No. 281, herein called the Union. This case was tried before me on August 12, 1970. All parties were given full opportunity to participate in said trial. On September 8, 1970, the General Counsel and the Re- spondent filed briefs, which I have fully considered. For the reasons hereinafter indicated , I find that Respond- ent has violated the Act as alleged in the complaint. Upon the entire record in the case and from my observa- tion of the witnesses while testifying under oath , I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent, an Alabama corporation with a place of busi- ness at Moody Air Force Base in Valdosta, Georgia, is en- gaged there, pursuant to a contract with the United States Air Force, in providing motor pool services for the United States Air Force On a projected basis, over a representative period of 12 months commencing on or about March 1, 1970, Re- spondent will receive in excess of $50,000 for motor pool services provided to the United States Air Force pursuant to its contract at Moody Air Force Base. Upon the above admitted facts, I find, as Respondent also admits in its answer, that Respondent is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, the record shows, and I find , that International Brotherhood of Firemen and Oilers, AFL-CIO, Local Union No. 281, is a labor or- ganization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Introduction; the Issues The nine alleged discnminatees were employed by James and James Construction Company, herein called J & J, which operated a motor pool, supply and motor vehicle mainte- nance department under contract with the United States Air Force J & J had a contract with the Union covering the employees engaged in these operations. While employed by J & J, the alleged discnminatees were at all relevant times nonmembers of the Union. When J & J's contract with the Air Force expired at the end of February 1970, the same operations were performed by Respondent as the low bidder under a new contract with the Air Force. Before commencing operations and even before it had hired its work force, Re- spondent had executed a contract with the Union covering the employees to be employed by Respondent for these opera- ' As corrected at the hearing by stipulation of the parties I W. B W. SERVICES, INC 501 tions. Respondent retained all J & J employees who were members of the Union, without any break in service; it failed and refused to retain the alleged discriminatees who, as previ- ously noted, were not members of the Union. The issue litigated in this proceeding is whether Respond- ent's failure and refusal to hire the alleged discriminatees was discriminatonly motivated in violation of Section 8(a)(1) and (3) of the Act. B. Failure and Refusal To Hire Alleged Discriminatees2 About December 10, 1969, Respondent learned that it was the low bidder on a contract for the operation of a motor pool, supply, and motor vehicle maintenance operation at Moody Air Force Base in Valdosta, Georgia, commencing March 1, 1970. At that time, these same services were provided under an existing contract awarded to J & J and expiring at the end of February 1970. J & J had a contract with the Union which was recognized as the bargaining representative for all its employees engaged in these operations. In October 1969, before Respondent had a labor force or had even become aware that it was low bidder, Respondent and the Union executed a collective-bargaining agreement, effective as of March 1, 1970, covering the employees to be employed by Respondent in the same operations and recognizing the Un- ion as the bargaining representative for all the employees involved in these operations Thereafter, or about that time, the Union sent Respondent a list of the J & J employees who were union members, and Union International Representa- tive Bartlett informed the Board which investigates the con- tractor that the Union had a contract with Respondent and would furnish Respondent a crew, meaning "our union peo- ple." Within 2 weeks after learning of the acceptance of its bid by the Air Force, Respondent hired certain "key" personnel who were to commence work on March 1. Among the "key" personnel was Julian Pike who was informed by December 26, 1969, that he was hired to become Respondent's super- visor over the motor pool operations. At that time, Pike, a member of the Union, was employed in the same position at J & J. With the knowledge and apparent acquiescence of Respondent's Resident Manager Leonard Rutherford, Pike placed a number of Respondent's application forms in the J & J dispatcher's office and drivers' lounge at the motor pool and informed the employees they were available and to fill them out. Thereafter, Pike was aware that the employees were filling out the applications and placing them in a manila folder in a filing cabinet in the dispatcher's office where a number were being accumulated prior to being returned to Respondent's office Beginning with the latter part of December 1969 and con- tinuing through the months of January and February 1970, many of J & J's employees, including the alleged dis- criminatees, routinely filled out the application forms and returned them to the dispatcher's office' Thereafter, Pike from time to time got the employees' applications out of the dispatcher's office and personally brought them to Respond- ent's office where they were stamped with a receipt date. The ' The findings in this section are based on credited evidence which is either admitted or disputed ' Alleged discriminatees Raford Huffman and A T Smith were excep- tions to this procedure A T Smith, who worked in the refueling and maintenance department, filled out his application on December 29, 1969, and returned it to the foreman in the vehicle maintenance shop Huffman, who was employed as purchasing agent, obtained his application from Re- spondent's office, filled it out on December 29, 1969, and gave it to Re- spondent's Resident Manager Rutherford who happened to be in J & J's maintenance shop only occasion when he departed from this procedure was on February 25 when he had an unidentified driver deliver to Respondent's office the applications of seven alleged dis- criminatees, which applications were then date-stamped as having been received February 26, although five had returned their signed applications in January and the other two had returned them earlier in February.' About February 20, Rutherford gave Pike and the mainte- nance shop foreman a list of Respondent's work force. Dur- ing the last few days in February, Pike informed those who were not on the list that they would not be hired by Respond- ents When alleged discriminatee James Durst asked if it was because "we weren't union members," Pike replied, "well, that might have had something to do with it.,, Upon learning that they were not going to be hired by Respondent, several alleged discriminatees went to Respond- ent's office where they spoke to Resident Manager Ruther- ford. Dale Canfield spoke to Rutherford on Thursday morn- ing, February 26, stated that he was shocked about "what was going on," and asked, "What happened?" Rutherford replied that Mr. Whitehead, Respondent's president, had given him "the list of names that would not be rehired." Canfield looked at the list and stated, "this list is nonunion members." When Rutherford said that the Union had nothing to do with it, Canfield asked, "If I'd have been union, would I have had my job?" Rutherford replied, "it would have helped." Ruther- ford stated that they had underbid the motor pool contract low enough so that they had to make a cut. He further stated that within 4 or 5 years everybody would have to be a paid-up union member and pointed out that if Canfield had "been union" Rutherford "couldn't have put his (Rutherford's) brother" in Canfield's place When Bobby Bradford asked Rutherford on Friday morning, February 27, if he would have been hired if he had been union, Rutherford also told him that "it would of helped." Bradford then asked, "well, if I join the union, could you hire me?" Rutherford replied in the negative, adding that he had "agreed with the union to work their men" and that he had some of his own men whom he was "going to bring in." James Durst and Robert Carter, another J & J nonunion employee who had not been hired, asked Rutherford on Thursday afternoon why they had not been hired. Rutherford stated that they had "bid the contract off too cheap and they had to cut corners to make it up " Durst asked if they would have been hired if they had been union members. Rutherford replied that he would give them a "hint" and then stated that within the next 5 years they would have to be a paid-up union member and have a card to work on any kind of a job on the base. Rutherford admitted at the instant hearing that all the union members whose names appeared on the list submitted by the Union as being employed by J & J were retained by Respondent The alleged discriminatees were known by Re- spondent to be nonunion as their names did not appear on the list of J & J union employees furnished by the Union Ruther- ford further admitted that after March 1, 1970, when Re- spondent commenced operations, he hired a number of em- ployees in the motor pool but did not even attempt to contact the alleged discriminatees to see if they were available. Fi- nally, in August Canfield was offered a part-time driver train- The applications of the remaining two alleged discriminatees (Huffman and John Guthrie) had already been submitted to Respondent Thus, Gu- thrie's application was received and date-stamped February 3, 1970, and Huffman had personally delivered his application to Rutherford ' Huffman was informed by Vehicle Maintenance Supervisor Studstill on February 26 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing instructor job which involved typing However , Canfield did not qualify for the job because he could not type., C. Respondent 's Defenses In answer to my question as to the reason why "these discriminatees alleged in the complaint were not rehired by this Respondent," counsel for Respondent stated, "simply, they turned in their application too late and I don 't believe there were enough positions under this motor pool contract to rehire these." Rutherford and Whitehead testified that in all cases except Huffman the sole reason for not hiring the alleged discriminatees was the late receipt of their applica- tions after the work force had already been made up. As to Huffman, Whitehead testified that the reason was dissatisfac- tion with his work performance at J & J . They further testified that in no case was lack of union membership a factor. Upon consideration of the entire record as a whole, I am convinced and find that Respondent's asserted defenses were not the true motivating reasons. In arriving at this finding, I have relied primarily on the following factors: 1. As to the late receipt of the applications Whitehead testified that Air Force regulations required that "key" personnel be hired by December 22, 1969, and that dispatchers are regarded as "key" personnel. He posted in Respondent's office a notice, dated December 15, 1969, and signed by him and union officials, advising that applications of "key" personnel must be in by December 22, 1969, and that all other employees desiring employment must have signed applications turned into Respondent 's office on or before February 16, 1970, or to the union officials. Ruther- ford testified that, pursuant to instructions from Whitehead, he had his work force made up prior to February 16, 1970, and that the applications of the alleged discriminatees were received in his office after that date, practically all of them being date-stamped February 26. (a) At no time did either Rutherford or Whitehead tell any of the alleged discriminatees that late receipt of their applica- tion was the reason for their not being hired . This becomes even more significant in view of their pleas for an explanation (b) The application of alleged discriminatee John B Guth- ne was received in Rutherford's office on February 3, 1970, as the stamp thereon states. This was virtually 2 weeks prior to the stamped date on the applications received from the following three union members employed by J & J: Thomas Sauls, February 17; Jesse Salter, February 17; and Julian Smith, February 14. Respondent knew that these three were union members because their names appeared on the list previously submitted by the Union, whereas Guthrie's name was not on the list. At no time did Respondent offer any explanation as to why it did not hire Guthrie but did hire the three named union members. On the contrary, Respondent glosses over this obviously damaging factor by cavalierly in- cluding Guthrie in its Exhibit 14 which purports to include the applications of nonunion J & J employees who were re- tained by Respondent. (c) Rutherford testified that he had received the applica- tions from all the union member employees of J & J before February 16, 1970. Whitehead testified that he had all the people he was going to hire about 5 days or a week before February 18, 1970. The testimony of both is contradicted by the stamped receipt dates on the applications of the three union members named in the preceding paragraph. They were hired despite the fact that their applications were re- ceived after the announced February 16 deadline. (d) On the one hand , all J & J employees whose names appeared on the membership list which the Union submitted to Respondent about the time of the execution of the union contract were admittedly retained by Respondent even though some of their applications were received by Respond- ent after the claimed deadline of February 16, 1967, and after Rutherford had allegedly already made up his work force. On the other hand, none of the alleged discriminatees, who were all nonunion , were retained even though one application was received and date-stamped by Respondent before the alleged February 16 deadline, as previously found. (e) Rutherford did not deny having told some alleged dis- criminatees who sought an explanation for not being retained by Respondent that he had "agreed with the Union to work their men" and that it would "have helped" them to be retained if they had been union members, as previously found. (f) President Whitehead testified that all his dispatchers were "key" personnel and-that they were hired before Decem- ber 22, 1969, in order to comply with Air Force regulations. Three of the "key" personnel hired by Respondent were James Smith, Roland Insley, and Emory Jordan James Smith's application (Resp.'s Exh . 14-K) shows that it was timely received . However, Insley's application (Resp.'s Exh. 14-I) is dated January 6, 1970, and was not date-stamped by Respondent until January 21, 1970 . Moreover, in his applica- tion, Insley does not even apply for a dispatcher's job; he requests only the position of driver . For Insley had worked only as a driver for J & J, first on a part -time basis and only the last 6 months on a full -time basis. Yet, he was hired in the "key" position of dispatcher about a month after the alleged deadline for the required hiring of "key" personnel. Here then is another instance where Respondent ignored alleged deadlines when it suited its purpose. It seems signifi- cant that Smith and Insley, who were nonunion when em- ployed by J & J, became union members shortly after being employed by Respondent , within 3 days in the case of Insley because, as he testified , "it was a nice organization" which "everybody else was belonging to."' Emory Jordan was not a J & J employee but was retained by Respondent from its "food service" operations. (g) Respondent's exhibits, herein designed by the letter R, do not entirely portray what they are supposed to portray and, in addition, conflict with and contradict each other as well as some of the testimony. Respondent 's Exhibits 14-A through N are supposed to be the applications of nonunion J & J employees who were retained by Respondent . Respond- ent's Exhibit 7 purports to be a list of nonunion employees who were either retained from J & J or were newly hired as of March 1, 1970. According to the record , Respondent's Exhibit 16 was supposed to be the applications of those hired from sources other than J & J; however , it only contains a list of employees purported to have been hired or retained from sources other than J & J. For example, R. J. Wilson's application (Resp . Exh. 14-A) states that as of July 22, 1969 he was unemployed He is listed on Respondent's Exhibit 7 as a newly hired employee. Wen- del Rice's application (Resp . Exh. 14-B) states that as of February 10, 1970, he was unemployed and had never previ- ously made application with Respondent . He is listed on ' It was not dented that Insley had told alleged discriminatees Canfield Rutherford further testified that he "believe[d]" or thought he offered and Bradford that he had promised Rutherford and Whitehead that he Houston Green a job, that he could not remember what kind of lob, and that would join the Union if he were hired I did not receive this testimony as Green turned it down binding on Respondent for its hearsay aspect W. B. W. SERVICES, INC. 503 Respondent's Exhibit 7 as having been retained from J & J. Yet, on Respondent's Exhibit 16 he is listed as a newly hired employee. Albert Brennan (Resp. Exh. 14-C) is listed on Respondent's Exhibit 16 as a newly hired employee Sammy Presley's application (Resp. Exh. -D) states that as of March 18, 1969 , he was unemployed . He is listed on Respondent's Exhibit 7 as a newly hired employee, and on Respondent's Exhibit 16 as having been retained from Respondent's "grounds" operations . Rutherford admitted that Presley had never worked for J & J but testified that he had worked for Respondent the preceding year . The application of Royce Mosley (Resp . Exh. 14-E) states that as of February 5, 1970, he was employed with the U. S. Air Force . William Dixon (Resp. Exh 14-F) is listed on Respondent's Exhibit 16 as retained from Respondent's "housing" operations . John B. Guthrie (Resp. Exh. 14-G) is one of the alleged dis- criminatees who was never retained or hired . The application of Chester Goff (Resp . Exh. 14-H) states that as of March 4, 1970, he was self-employed. He is listed on Respondent's Exhibit 16 as a new hire and on Respondent 's Exhibit 7 as having been retained . Roland Insley (Resp Exh.-I) is listed on Respondent's Exhibit 16 as a new hire . James Smith (Resp. Exh. 14-K) is listed on Respondent 's Exhibit 16 as a new hire and on Respondent's Exhibit 7 as having been re- tained. Joe Tucker (Resp. Exh. 14-L) and Bobbie Burt (Resp. Exh. 14-N) are listed on Respondent 's Exhibit 16 as new hires. Tucker, Burt, and Victor Moore (Resp. Exh. 14-M) had been employed by J & J only on a part-time basis and had less experience than any alleged discriminatee. (h) Rutherford testified that Roland Insley, Ernie Blanton, James Smith, Chester Goff, Tommy Lee , and Wendel Rice were nonunion employees retained from J & J . Yet, as previ- ously noted, Wendel Rice's application states that as of Feb- ruary 10, 1970, he was unemployed and he is listed on Re- spondent's Exhibit 16 as a new hire. Chester Goff s application states that as of March 4, 1970, he was self- employed and he is listed on Respondent's Exhibit 16 as a new hire, also as previously noted . James Smith and Roland Insley are also listed as new hires on Respondent 's Exhibit 16. Respondent did not submit the application of Tommy Lee as part of its Exhibit 14. 2. As to Huffman's work performance Raford Huffman had been employed by J & J since January 1967 as purchasing agent in the supply and parts room. He trained Weaver who was employed there only during the last 6 months. Weaver and Huffman were equals and received the same pay. Weaver would take care of ordering parts from supply, while Huffman would take care of ordering parts by telephone from downtown and issuing parts. Both performed the duties of putting the parts on the shelves and doing the necessary paper work . They covered each other's duties when one was absent . Huffman signed his application on December 29, 1969, and that day personally handed it to Rutherford who happened to be in the maintenance shop which is in the same building with the supply room. Whitehead testified that in October 1969, before bidding on the contract, he made a personal investigation of the opera- tions of J & J's supply room and found that inadequate bench stocks had been established , that parts were improperly co- mingled in piles without proper identification and that Huff- man and Weaver were confused about what and how much stock they had on hand . He further testified that it was in December 1969 that he and Rutherford jointly made the decision not to hire Huffman and that Rutherford was the one who had made the decision to hire Weaver. Respondent adduced no evidence to show that any alleged deficiencies or irregularities in the supply room were attribut- able to Huffman rather than to Weaver . Indeed, there is no dispute of Huffman's credited testimony that the ordering of adequate bench stock was one of Weaver's duties. Nor did Rutherford corroborate Whitehead as to the asserted reason for the failure to hire Huffman . On the contrary, he testified that when Huffman handed his application to him he merely stated "that he was a little bit late putting his application in because his job had already been filled." But alleged late filing of the application is not the reason asserted by Whitehead for the failure to rehire Huffman. Finally, Rutherford gave no explanation as to why he hired Weaver with only 6 months service in the parts department in preference to Huffman with 3 years of service. On the other hand, Huffman credibly testified, without dispute, that Weaver stated he belonged to the Union. D. Concluding Findings Before December 1969 Respondent had received from the Union a list of its members employed by J & J . Thus, before it received any applications or made up any work force, Re- spondent knew which J & J employees were union members and which were nonunion. Respondent admittedly retained and hired all J & J employees whose names appeared on the membership list submitted by the Union . It knew that all the alleged discriminatees were nonunion because their names did not appear on this membership list. Respondent did not hire and retain any of the alleged discriminatees, who were and had been nonunion for many years, even though they had been employed in their respective positions at the Moody Air Force Base for periods ranging from 3 to 10 years.' Whitehead testified that fewer man hour operations were allocated to Respondent under its contract with the Air Force than had been the case under the J & J contract and that this necessitated hiring fewer employees. Accepting that explana- tion at face value, the key to Respondent 's hiring practice is revealed by Resident Manager Rutherford 's statement to al- leged discriminatee Bradford on February 27, when the latter sought an explanation for the failure to retain him, that Re- spondent had "agreed with the Union to work their men," as previously found. Rutherford further stated at that time to alleged discriminatees that if they had been union members, it not only "would have helped" them to be retained but would have given them such a preference to their job that they could not have been replaced by Rutherford's own brother, also as previously found . He also gave them a "hint" that within 5 years only paid up card carrying union members would be able to get any kind of job on the base, as previously found. Upon consideration of all the foregoing in the light of the failure of Respondent's defenses to stand up under scrutiny, as previously demonstrated , I am convinced and find that in failing and refusing to hire and retain the alleged dis- criminatees Respondent discriminated against them by giving preference in employment to J & J employees who were union members By such conduct , I further find, Respondent dis- criminated with respect to their hire and tenure of employ- ment, thereby encouraging membership in the Union , in vio- lation of Section 8(a)(3) and (1) of the Act. ' Whitehead admitted that under the union contract seniority meant length of service with anyone who had the Air Force contract for the motor pool at Moody Air Force Base 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent as described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. By the failure and refusal to employ the nine named discnminatees under the circumstances previously described, Respondent has discriminated with respect to their hire and tenure of employment, thereby encouraging membership in the Union, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act 2. By the foregoing conduct, Respondent has also inter- fered with, restrained, and coerced its employees in the exer- cise of their statutory rights guaranteed by Section 7 of the Act and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent failed and refused to em- ploy the nine discnminatees named in the complaint in viola- tion of Section 8(a)(1) and (3) of the Act, I will recommend that Respondent offer them immediate and full employment to the positions they would have occupied absent the dis- criminatory refusal to employ them or, if those jobs no longer exist, to substantially equivalent positions, discharging any employees hired after March 1, 1970, if necessary to make room for them, without prejudice to any seniority rights or privileges, and make them whole for any loss of earnings each may have suffered as a result of the discrimination, by pay- ment to each of a sum of money equal to that which each normally would have earned as wages from March 1, 1970, to the date of Respondent's offer of employment, less net earnings during such period, with backpay and interest thereon to be computed in the manner described by the Board in F W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. It appears that the man hour operations under Respondent's contract may have been in- sufficient to warrant a work force totalling the discriminatees plus those who were in fact employed on March 1, 1970 Therefore, I will further recommend that if, after the employ- ment of the discriminatees in the manner above set forth, there are insufficient positions for Respondent's work force as then constituted, Respondent may then reduce its force in a nondiscriminatory manner, applying its usual and normal standards as well as those prescribed in its contract with the Union. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended- ORDER Respondent, W. B. W. Services, Inc., Valdosta, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging membership in International Brotherhood of Firemen and Oilers, AFL-CIO, Local Union No. 281, or in any other labor organization, by discriminatorily failing and refusing to hire or retain any employees because of any preference accorded to members of the above or any other labor organization, or by discriminating in any other manner with respect to their hire and tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to the following nine discriminatees immediate and full employment in the jobs they would have occupied absent the discrimination against them or, if those jobs no longer exist, to substantially equivalent positions, discharging any employees hired after March 1, 1970 if necessary to make room for them, without prejudice to any seniority rights or privileges, and make them whole for any loss of earnings each may have suffered from March 1, 1970, to the date of Re- spondent's offer of employment, all in the manner set forth in "The Remedy" section of this Decision: Dale R. Canfield Paul P. Pelaccio James W. Durst Jesse P. Whitley John B. Guthrie A. T. Smith Houston I. Green Raford W. Hoffman Bobby Bradford (b) Notify the above-named discriminatees, if presently serving in the Armed Forces of the United States, of their right to full employment, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at the Moody Air Force Base and its place of business in Valdosta, Georgia, copies of the attached notice marked "Appendix."' Copies of said notice, on forms pro- vided by the Regional Director for Region 10 (Atlanta, Georgia), after being duly signed by Respondent's authorized representative, shall 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 insure that said notices are not altered, defaced, or covered by any other material. ' In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Ap- peals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " W B W. SERVICES, INC. 505 (e) Notify said Regional Director , in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith.10 10 In the event that this recommended Order is adopted by the Board , this writing, within 10 days from the date of this Order , what steps Respondent provision shall be modified to read "Notify said Regional Director , in has taken to comply herewith "