Congoleum Industries, Inc.

CONGOLEUM INDUSTRIES, INC. 359 Congoleum Industries, Inc. and Edmund R. Carlin. Case 16-CA-4251 alleged. The case was tried in Wilburton, Oklahoma, on May 25, 1971. November 29, 1971 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND KENNEDY On August 19, 1971, Trial Examiner Ramey Donovan issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and a supporting brief, the General Counsel filed limited exceptions and a supporting brief, and the Respondent filed a brief in answer to the General Counsel's limited exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Congoleum Industries, Inc., Wilbur- ton, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. 1 Respondent's motion for oral argument is hereby denied, since the record and briefs adequately present the issues and positions of the parties TRIAL EXAMINER'S DECISION RAMEY DONOVAN, Trial Examiner: The charge was filed on February 1, 1971 by Edmund R. Carlin, an individual, against Congoleum Industries, Inc., herein Respondent or Congoleum. The complaint issued on March 17, 1971, and alleged that Respondent caused Lovelace Electric, Inc., to discharge and to deny employment to Carlin and that Respondent also refused to employ Carlin in its plant, all because of Carlin's union and concerted activities, and in violation of Section 8(a)(3) and (1) of the Act. Respondent's answer denies the commission of the unfair labor practices I There is also mention in the record of an office at Trenton, New Jersey. 2 Although the parties at the hearing used the term union or nonunion contractor or subcontractor and we have used the term, it is not explicated in the record. From our experiences and from that of the Board gleaned in many cases in this field, the following brief exposition is made: In the building construction industry, a union contractor is a contractor who is a 194 NLRB No. 53 FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent is a Delaware corporation with a plant and its general executive offices located in Kearny, New Jersey, where it is engaged in the manufacture of carpeting and floor covering. Respondent also has plants at other locations in the United States, including its plant in Wilburton, Oklahoma, which is the plant involved in this proceeding. During a representative 12-month period, Respondent, in the course of its business operations at the Wilburton plant, purchased and delivered to its plant latex, fibers, yarn, and other materials valued in excess of $1 million of which goods and materials valued in excess of $1 million were transported to said plant from States of the United States other than Oklahoma. In this same period, the Respondent, in the course of its business operations, manufactured, sold, and distributed from said plant products valued in excess of $1 million of which products valued in excess of $1 million were shipped from said plant directly to States of the United States other than Oklahoma. It is found that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICE A. Background At some period, evidently in 1968 or no later than early 1969, Congoleum had decided to have certain construction work performed at the Wilburton plant. Barchi was Congoleum's manager of staff engineering. The record indicates that his office was at Congoleum's main office in Kearny, New Jersey.' Barchi was responsibly involved in the drawings and specifications of the new construction work that was to take place at the Wilburton plant and he participated in the letting of the construction contract and the negotiations with the contractor selected. The general contractor who received the contract to perform the Wilburton job was Yarborough. The latter was a union contractor. As is customary in the construction industry, particularly in jobs of some size and involving a variety of types of construction work, subcontracts were let to various specialized subcontractors; for instance, Belco was the electrical subcontractor. Belco was also a union contractor and Barchi testified that all the subcontractors under Yarborough were union contractors except a company installing the sprinkler system that employed "people from here [the Wilburton area]." 2 party to a contract or agreement with an International union, e.g., the Carpenters; the Electrical Workers; Plumbers and Steamfitters, and so forth, or with a Local union affiliated with a particular International. The contract will prescribe such things as wage rates, working conditions, and the procuring of employees through the union. Under the latter , if a union carpenter contractor, for instance, has a construction job where he needs ten journeymen carpenters, he will ask the local carpenters union for ten (Continued) 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The general contract of Congoleum and Yarborough started in February, 1969. According to Barchi, the first phase of the contract was scheduled for completion on November 1, 1969, and the second phase to be completed on July 1, 1970. Barchi states that as "co-architect for the project," it was one of his duties to see that the work was performed according to the terms of the contract and its specifications. In the latter part of 1969 and early 1970, Barchi states that he was at the Wilburton construction project "at least every other week." Because, assertedly, Yarborough was not completing the work within the time periods prescribed and because of poor quality work in some instances, Barchi states that "top level" management of Congoleum cancelled the Yarbor- ough contract in July 1970. Since Yarborough was the general contractor, this meant not only the ending of his relationship with the project but also terminated his subcontractors who might still have work to do. Barchi states that on matters of what he considered to be work deficiencies, he had, prior to the termination of the contract, taken up such matters with the general contractor, Yarborough, since the job project was the general contractor's responsibility. Barchi testified, "I didn't deal with the subcontractors." Types of work that Barchi enumerated as deficient were plumbing, concrete work, and roofing.3 It also appears that there were some labor problems in the Yarborough period. Barchi testified that the last strike he recalled involved a matter of dispute as to which particular craft union should perform some particu- lar work. According to Barchi, "There was a walkout ...." Barchi states that he did not recall an incident involving the iron workers, but Grady, an employee who was working on the job project at the time, states that in July 1970 there was a strike and the iron workers had pickets on the site .4 To replace Yarborough as general contractor, Congole- um entered into a contract with Pate Construction Company. Pate, as general contractor, was to perform most of the work itself, including plumbing, iron work and anything else remaining to be done. However, Pate did have one major subcontractor, Lovelace Electric, Inc., who was to perform the electrical work. Both Pate and Lovelace were nonunion contractors. Pate began work on August '1, 1970, and Barchi states that at the time the contract was given to Pate he had told journeymen. The union will then refer ten journeymen to the contractor and they will work as his employees . Without getting into refinements or details of the process or legal aspects, it is usually the fact that the union in the example above-mentioned will generally refer union journeymen (union members) to the union contractor A union contractor, therefore, customarily is one who employs union members or, in some circumstances, nonunion people who are referred to him by the union and who are therefore employed under the union aegis and within the terms of the contractual hiring agreement whereby the contractor is obliged to secure employees through the union. 3 Barchi states that there is some litigation pending as to what is owed Yarborough under the contract. 4 At the hearing, the General Counsel requested that for background purposes the Trial Examiner take official notice of a Board proceeding involving Respondent that had been tried in Wilburton on January 25-28, 1971, but in which a Trial Examiner's decision had not been issued up to the time of the instant hearing . The General Counsel's request was that the Trial Examiner's decision in the prior case be officially noticed if it issued prior to the time that the instant decision was written Respondent's counsel stated that he had no objection to the instant Trial Examiner's taking such notice. Accordingly, we take the following limited notice: A Pate that when Yarborough had the contract, "the work was not getting completed on time and that the obvious reason was that the men were dogging the job." However, Barchi gave no specific examples to Pate and did not mention any individual names. Nor did he refer to any individual employees at the hearing. According to Barchi, he was satisfied with Pate's assurance that he would complete the contract on time and in a satisfactory manner. Barchi also was satisfied that Pate had or would have "the number of people that were going to be required to do this work." Barchi states that he did not tell Pate that it was the policy of the engineering department not to hire employees who had worked on the project under the union contractors. B. The Refusal to Hire Edmund Carlin Carlin was an electrician who lived in Wilburton. He is a man, we would judge, in his fifties, who appeared to be physically and mentally alert. He formerly had lived in Florida and while in high school he had gone through a 4- year apprenticeship in what he referred to as "the electrical workers union."5 He joined the Union and worked for several years as a union journeyman electrician. When he entered military service in World War II he discontinued paying union dues and was dropped from the Union. After the war, from 1946, he worked as a licensed electrician in various parts of the country but was not a union member. He had 20-25 years' experience in electrical work of all types. In Wilburton he had worked as an electrician on various jobs and he and his wife also operated a recreation center for children in the town. During the course of this recreation work, Carlin became acquainted with Downing, personnel manager of Congoleum. This was over a period of about 6 years. In the last few years Carlin had "quite a lot of contact" with Downing through the latter's children who were engaged in Carlin's model airplane flying project at the recreation center. At the time when Yarborough was the general contractor on the Congoleum construction project in Wilburton, Carlin was hired as an electrician by Belco, the union electrical subcontractor on the job. Apparently Carlin had detailed his background and experience to the local representative of the electrician's union who was furnishing case entitled, "Congoleum Industries, Inc and United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, Cases 16-CA-4037; 16-CA-4102; 16-CA-4130, TXD-379-71," was tried in Wilburton on January 25-28, 1971, before Trial Examiner Samuel Ross The Trial Examiner's decision was issued on July 27, 1971. The decision states that the issues tried were alleged violations of Section 8(a)(1)(3) and (5) of the Act, by Congoleum. The case involved efforts by the Rubber Workers Union, beginning in May, 1970, and thereafter, to organize the manufacturing employees in the Wilburton plant and certain alleged conduct by Congoleum. The decision, inter aka, refers to a construction project involving an addition to the plant that was going on during the organizational effort among the manufacturing plant employees Two instances of picketing of the plant by construction workers are described as occurring on July 22, and 23, 1970. One picket sign bore the name, "Steelworkers " 5 Evidently the International Brotherhood of Electrical Workers (IBEW), AFL-CIO. This is basically a craft union that requires apprenticeship training and in the construction industry this can be regarded as the Electrical Workers Union, at least where union contractors are involved. CONGOLEUM INDUSTRIES, INC. 361 Belco with electricians. The Union gave Carlin a permit to go to work for Belco and he thereafter worked under this permit. Carlin worked for Belco on this job at two periods, August, 1969 to January 1970 when he was laid off in a reduction in force; and again, from May 1970 to about June 17, 1970, when there was again a reduction in force. There is no evidence of complaints or criticism of the quality of Carlin's work for Belco, or about his conduct, either by his employer, Belco, or by anyone else. Thereafter, learning that additional work was being performed on the Congoleum construction project, Carlin telephoned Lovelace, early in September 1970. Lovelace, as mentioned, was the electrical subcontractor under Pate, the new general contractor. When asked about employment as an electrician, Lovelace told Carlin that at that time he did not need a man but to contact him later. About a week or so later, September 10, 1970, Carlin met Lovelace at a local hotel and described his background and experience to Lovelace. He also told Lovelace that he had worked on the Congoleum project. On this occasion or in the prior telephone conversation Lovelace had told Carlin that in order to be hired Carlin would have to "be cleared" by Congoleum. Lovelace explained that if Carlin had been connected or involved in the labor troubles or dispute on the construction project that had previously occurred, he did not think that Carlin could be hired. Carlin apparently explained to Lovelace that he personally had not been involved in any labor dispute or trouble during the prior employment on the project. Carlin testified that "I guess I convinced Mr. Lovelace that there was no reason why .. . they [Congoleum] wouldn't clear me in any way whatsoev- er." In any event, on September 10, Lovelace was apparently satisfied about Carlin's qualifications as an electrician and he told him to come to the plant the following morning. William Lovelace, vice president of Lovelace, is the individual referred to previously as Lovelace. His testimony corroborates substantially that of Carlin regarding contacts between himself and Lovelace in 'September, 1970. For instance, Lovelace testified that since Carlin had told him that he had previously worked on the Congoleum construction project, Lovelace had indicated that he would have "to be cleared" by "Congoleum." According to Lovelace, on September 10, it was understood between himself and Carlin "that he [Carlin] would come to the plant the following day, I believe it was, and see if he could be cleared to go to work." Lovelace states that he had previously discussed with Carlin the latter's qualifications and experience and the indication is clear that, but for the necessity of clearance by Congoleum, Lovelace would have hired Carlin. At a later point, as we shall see, Lovelace specifically so stated. On the morning of September 11, Carlin came to the plant entrance where he met Lovelace. The latter took Carlin inside to the construction area and told him to wait there while Lovelace went to "find out if he [Carlin] could 6 The evidence persuades us that Lovelace also either mentioned to Roy Pate at this time that Carlin had previously worked on the Congoleum construction project or Pate was aware of this by reason of the fact that Lovelace was seeking clearance for Carlin. As we shall see, the only employees of Lovelace on the job who were required to have clearance from Congoleum were employees who had formerly worked on the go to work, if he could be hired." Lovelace then went to Roy Pate, the construction superintendent on the job for Pate. Lovelace told Pate that he had Carlin, an electrician, waiting in the plant and Lovelace asked Roy Pate if Carlin "could be cleared for work."6 Pate said he "would check on this" and he departed elsewhere into the plant for about 15 or 20 minutes. He then returned and told Lovelace that Carlin "wasn't cleared." Lovelace then told Carlin that he "wasn't cleared." Carlin departed the plant after remarking to Lovelace that he felt that he could get himself, cleared because he knew the Congoleum personnel manager personally.? Lovelace, the witness who gave the foregoing testimony, impressed the Examiner as, on the whole, a reliable witness. In our opinion, he had no hostility to either Congoleum or Pate with whom he worked as a subcontractor and his relationship with Carlin was neither that of a friend nor close acquaintance. There is little doubt in our mind that Lovelace described accurately the use of the word "clear" or "not cleared" by himself and Roy Pate regarding Lovelace's request for clearance from Congoleum to hire Carlin as an electrician. For instance, after Lovelace had testified on direct examination regarding the Carlin- Lovelace-Pate episode, above, Respondent's counsel on cross-examination asked Lovelace: Q. What did he [Roy Pate] tell you when he returned? A. That Ed Carlin was not cleared or approved. Q. Pardon me? A. He was not cleared or approved. Q. Do you remember him specifically stating that he was not cleared? A. Do I remember Roy Pate saying this? Q. Yes. A. Yes, I remember it quite well. Otherwise, I would have hired Mr. Carlin.8 It is to be observed that when Roy Pate told Lovelace that Congoleum refused to clear Carlin for employment by subcontractor Lovelace, Pate gave no explanation of why clearance had been denied and Lovelace asked for none. Yet Lovelace after prior conversations with Carlin had been satisfied that Carlin was an experienced and qualified electrician, and Lovelace had an opening for an electrician, Lovelace had also apparently been satisfied after meeting with Carlin that the latter's character or personality were satisfactory since it cannot be assumed that he would have been prepared to hire'a man displaying irresponsible or indolent traits of character. When Pate informed Lovelace that Congoleum would not clear Carlin, if Lovelace had not understood the meaning or implication of lack of clearance, he surely would have asked why a man he considered to be an experienced and qualified electrician and a man he wished to hire was not cleared. Carlin would have been Lovelace's employer, not Congoleum's or Pate's. But Lovelace did not ask for an explanation and Pate offered no explanation of Congoleum job. 7 The acquaintanceship with Personnel Manager Downing has been previously described 8 Carlin testified that at the plant Lovelace, after telling him to wait, returned thereafter and said that Carlin could not go to work because "Congoleum wouldn't clear me ]him, Carlin I." 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD why Carlin was not cleared. Nothing was said to the effect that Congoleum had observed Carlin when he previously had worked on the construction site and Congoleum had determined that as an electrician Carlin did not know a generator from a transformer, or that he was drinking on the job, or that he spent his time standing around and not working or producing. The reason, in our opinion, why Lovelace understood and readily accepted the statement of Pate that, in substance, Lovelace could not hire Carlin because Congoleum would not clear Carlin, was that Lovelace, as he had earlier told Carlin, was aware that employees who were connected with the labor disputes at the Congoleum project under the previous contractors would not be cleared for hiring. Because Carlin had apparently convinced Lovelace that he was not involved in the labor trouble albeit he had worked there under the prior contractor, Lovelace had thought that Carlin would be cleared for hiring. However, when Carlin was not cleared by Congoleum, and Pate so advised Lovelace, the latter understood the reason. Lovelace had started on the Congoleum project as a subcontractor of Pate around August 21, 1970. Among the men he hired at this early stage was an employee named Grady, who had previously worked on the Congoleum job, a fact unknown to Lovelace when he hired him. After Grady was on the job, he was apparently noticed, because Roy Pate came to Lovelace and said that if Lovelace hired any more men who had previously worked at the plant project "they would have to be cleared." This is the first indication that Lovelace had had that such clearance was necessary. It is apparent that when Pate let the electrical subcontract to Lovelace that nothing had been said to Lovelace about securing clearance for employees he hired and Lovelace had gone ahead and hired electrical employees, including Grady. Lovelace at the time had not only been told nothing about the necessity of clearance but he was unaware that Grady had previously worked on the Congoleum job. In his testimony, Lovelace indicates that probably Roy Pate was the person who was first aware that Grady had worked previously on the Congoleum project. Thus, "Since Ted Grady was noticed on the job, I suppose, by Roy Pate, who no doubt knew that he had previously worked there, then is when I got the word that no more men who had previously worked there would go to work until they were cleared." The statement "I suppose" that Roy Pate had first noticed Grady and that Pate knew when he saw Grady that Grady had previously worked on the project is clearly surmise on Lovelace's part and, in our opinion, an erroneous conjecture. Lovelace had not known that Grady had worked there before and, in our opinion, neither had Pate. Pate had nothing to do with Grady and the latter had been hired and put to work by Lovelace under his subcontract. Neither Lovelace nor Pate had been present on the 9 Roy Pate did not testify. 10 Lovelace opined that Grady was cleared "because I think he had a reputation of being an excellent worker..... This speculation was not based on anything said by Pate but was evidently based on the fact that Grady thereafter was a highly satisfactory employee in the work he performed for Lovelace, a fact mentioned by Lovelace in his testimony. Lovelace, although he had been prepared to hire Carlin presumably because he believed he was or would be a good electrician, never had a Congoleum job when it was being performed by Yarbor- ough and his subcontractors. They knew nothing about what employees were working during that period. We are satisfied that it was Congoleum who noticed Grady when he appeared on the job as an employee of Lovelace. Congoleum was in a position to know and evidently did know that Grady had formerly worked on the construction project. It is therefore reasonable to conclude that Congoleum, when it saw Jrady on the job in August or September, informed Roy Pate, the superintendent of general contractor Pate, of Grady's prior employment on the job. But of what importance would it be to Congoleum to mention that a man who had been hired by subcontrac- tor Lovelace, who was evidently satisfied as to his qualifications, had previously worked on the project? The importance was, as additional evidence will bear out, that in our opinion Congoleum, when it saw Grady on the job, told Roy Pate not only of the fact of Grady's prior employment but that hereafter Pate and its subcontractor Lovelace were not to hire anyone who had worked on the project under the prior contractor and subcontractors unless the employee was cleared for employment by Congoleum. And this is what Roy Pate told Lovelace as described above .9 In the foregoing matter of Grady, although Roy Pate told Lovelace that thereafter prehire clearance from Congoleum was necessary before Lovelace hired anyone who had previously worked on the Congoleum plant project, Pate said that Grady could continue to work and that Grady "was cleared." Pate did not tell Lovelace why Grady was cleared, nor, at a later date, did he tell Lovelace why Carlin was not cleared.10 Grady had been cleared to work, albeit somewhat retroactively after his presence on the job was discovered, but nevertheless cleared, although he had previously worked on the project while Yarborough was the general contractor. Grady worked for Yarborough as a general laborer, shoveling mud, driving stakes, and so forth. Nobody asked him about joining the Laborer's Union or any other union while he was thus performing. There is, in fact, no evidence that the Laborer's Union had a representative on the project or that any laborers were members of that Union on the project. Next, Grady performed labor type work for what was evidently the work of the brick-laying or masonry subcontractor. He testified that he was "carrying blocks and mud[?] to the brick layers or block layers." While he was working at this masonry job, a business agent of the union, (Bricklayers?) asked him to join the union. Grady arranged to join the following week but his brother died in California and Grady went to California. How long he was gone, we do not know. When he returned, he went back to work but never saw the business agent , again. Evidently he had been forgotten by the agent and, in any event, Grady made no effort to join chance to determine whether Carlin performed satisfactorily on Lovelace's subcontract. We would assume that if Lovelace or Pate had found that Carlin, after being hired on an hourly basis, was not doing his work satisfactorily, he would have been discharged . This would have been adequate insurance against poor employee performance unless Congole- um's refusal to clear Carlin to work was based on some other consideration. CONGOLEUM INDUSTRIES, INC. 363 the union and worked as a nonunion man. Grady then worked on the project for a company that was installing the sprinkler system. This company was the only nonunion subcontractor on the job. Grady was working for this company in July 1970 when one of the unions, the Iron Workers, according to Grady, picketed the project. Grady, however, crossed the picket line and continued to work. It was certainly Grady's right to cross a picket line if he wished and it is no concern of ours except as a factual matter. Although there is nothing about this in the record, it is our experience in the field of labor law that on a unionized construction project where, as here, the general contractor and all the subcontractors except one are union,'1 picketing of the project by an affiliated construc- tion union, which happened at Congoleum in July, will result in the unionized construction workers on the project refusing to cross the picket line. This is true whether the picket line is actual or symbolic, i.e., the carrying of a picket sign in front of the project. An employee like Grady, who crossed the picket line and continued to work, at least distinguishes himself as either nonunion or as not in sympathy with the particular union cause being projected by the picketing. We regard it as unreasonable to assume that Congoleum, amid its problems and conflicts with the umon contractor and their employees, was not aware and did not note that Grady continued to work on the sprinkler construction and manifested thereby either his nonunion status or at least lack of sympathy with the union picketing of the project. Lovelace had hired and had working for him on the Congoleum project other employees in addition to Grady. None of these employees had previously worked on the project during the incumbency of the prior contractors. No clearance was required or secured for these employees at any time.12 Thomas Pate, owner and head of Pate,13 could recall only Grady as an example of an employee, while Pate was general contractor on the Congoleum job, who had previously worked on the project under the prior contractors.14 Pate said that, while he had no policy against hiring union men, he knew of only two union men who had worked for him on the Congoleum job and he only learned that they were union men when they quit.15 We return now to Carlin, who on September 11, 1970, had been told by Lovelace that he could not be hired because Congoleum had refused to clear him. In the course of the next few days, Carlin endeavored to reach by telephone Congoleum Personnel Manager Downing, whom he knew, in order to find out why he had not been allowed 11 It is not unlikely that Yarborough let the sprinkler subcontract to a nonunion contractor because there was no umon sprinkler contractor available. Commonly, union contractors and union employees in the construction field do not work on the same job with nonunion people. 12 At one point in his testimony Lovelace stated that Roy Pate had implied to him that the previous contractor on the Congoleum project "was unable to get the job done or unable to get the men to get it completed" and, therefore, "it was desirable" that employees, who had previously worked on the job under the former contractor and under former conditions, should "not be put back on the job and have the same thing happen agam." 13 Thomas Pate described his company as "Pate Construction Company or Thomas L. Pate, General Contractor." Roy Pate, the Pate superintendent on the Congoleum job, was the brother of Thomas Pate 14 The number of employees working under the Pate contract vaned but the maximum was about 65. to work for Lovelace on the Congoleum project. Not having succeeded in contacting Downing, Carlin left word for Downing to call him at home. Later, Downing called Carlin at his home. The latter was not present but Mrs. Carlin spoke to Downing on this occasion, explaining that her husband was not there. Downing asked Mrs. Carlin, what did "Ed" [Carlin] want. She replied that he wanted to know why he could not work for Lovelace on the Congoleum job. Downing said he was very sorry because he knew Ed, but it was the policy of the engineering department in Kearny [the Congoleum engineering department], "that he [Downing] didn't have anything to do with it, that it was a policy set down by the engineering department that people that were out there during the labor disputes [while Yarborough, Belco, and so forth, had the construction contract on the Wilburton Congoleum job] couldn't work [could not be hired]." 16 Within the week or two after his rejection for employ- ment on the Congoleum project and after his wife had told him what Downing had said, Carlin contacted the State Employment Office in McAlester, Oklahoma. The man to whom he spoke told him about work on the Congoleum project in Wilburton but he told the state representative about his prior experience in trying to work at that project. Several days later, Carlin received a telephone call from someone at the State Agency to the effect that there was an opening for an electrician at Congoleum. Carlin went to the plant, "with the intention," he says, "of getting in and talking to Mr. Downing." Carlin had become aware at.this point that the opening for an electrician was for a maintenance electrician, a Congoleum plant employee, and not for a construction electrician working for a contractor like Lovelace.17 At the plant there was a Mrs. Hamburg, a representative of the State Employment Service, who was handling the procurement of employees, under the government program abovementioned, for Congoleum's plant. The hiring was a joint operation of Hamburg and Congoleum. Carlin told Hamburg that, before he filled out any application, he "would like to talk to Mr. Downing and find out why I couldn't go to work for the electrical contractor Lovelace After a brief wait, Carlin was admitted to Downing's office. He told Downing that he would like to know why he had not been "cleared to work out there" for Lovelace. Referring to the reason previously given by Downing to Mrs. Carlin, Carlin said that he did not understand why the engineering staff of Congoleum would not clear him because, Carlin said, he was certainly 15 "The reason I know they were union is that they finally came and told me they did not want to work any more. I asked them why and they said they were union:' These two union men had not worked on the Congoleum job previously. 16 Downing did not testify at the hearing. In his brief, the General Counsel states that Downing was in the hearing room during the hearing. While we have no reason to doubt the General Counsel's statement, we do not make an evidentiary finding thereon. However, we do find that there is nothing in the record to show that Downing was not available as a witness. 17 Congoleum was securing its plant employees in Wilburton under a government assisted MDTAOJT program (Manpower and Development Training Act, On The Job Training) and the pay for plant employees under this program was $1.70 per hour. Carlin testified that he had been employed over the years as a heavy construction electrician with a prevailing wage around $6 per hour. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD qualified. Downing agreed that Carlin was qualified but said that the matter "was completely out of his hands, that it was a policy set down by the engineering staff of Congoleum Industries of Kearny, New Jersey," that there would be no men employed that had worked previously with Belco or the other union contractors. Downing said that he could not clear Carlin to go to work because they had "umon trouble" on the project and Carlin had worked for Belco, a union contractor on the job. Downing adhered to his position despite the fact that Carlin told him that he was not a union member, that he had worked for Belco under a union permit, and that he had no part in any union trouble on the job. Although the record shows that Carlin did fill out some kind of an application for employment at the Congoleum plant as an electrician, it is our opinion that, because Carlin learned that the job was that of a maintenance electrician at $1.70 per hour, he was not actually interested in such a job, and he made this reasonably,clear to Downing when he spoke to him on the above occasion. Carlin's testimony, in our opinion, indicates that he was interested in a job as a construction electrician under Lovelace on the Congoleum construction project. For instance, Carlin testified that he probably told Downing regarding employment that he "did not want to work at a dollar seventy an hour"; "I went in [to Downing] with the primary purpose of talking to him concerning why I wasn't cleared to work for the contractor (Lovelace)"; "why I wasn't cleared to work for Mr. Lovelace was my primary reason for going in and talking to Mr. Downing rather than going through filling out an application for Congoleum." Carlin states that in the course of the conversation he probably said that he did not "want to work for a dollar seventy an hour" but wanted to know why he could not work for Lovelace. We adhere to our above conclusion although Carlin testified that he felt that if he was not cleared to work for Lovelace he probably would not be cleared to work for Congoleum. We have earlier described the testimony of Respondent's witness, Barchi. The latter, in his testimony, did not refer to the specific issue of the denial of employment to Carlin on the Congoleum project although the General Counsel had introduced largely uncontroverted evidence that Congole- um had refused to clear Carlin to work for Lovelace because Carlin had worked on the project under a prior union contractor and was therefore identified with the union and with labor trouble. Respondent has relied principally, if not entirely, upon the testimony of Thomas Pate regarding the refusal of employment to Carlin. Thomas Pate's information about the Carlin matter is indirect and somewhat removed from the event itself. Thomas Pate was not a direct participant in what occurred in September, 1970, when Lovelace sought clearance to employ Carlin on the Congoleum job. According to Thomas Pate, he first learned of the Carlin incident a few months after the event when he saw a paper of some kind "from some lawyer or something ...." 18 At this time, according to Thomas Pate, he went to his brother Roy Pate, the Pate Company superintendent on the Congoleum job, "to find out what the deal was." Roy Pate then told Thomas Pate, according to the latter, that Lovelace had come to the jobsite with Carlin and "checked with Roy"; Roy then checked with Congoleum's personnel manager, Gerald Downing, to find,out if Downing knew whether Carlin was "a productive employee," and Downing told Roy Pate that in his opinion Carlin "was not a productive employee"; therefore, Roy ' Pate went back and told Lovelace that Carlin could not and would not be hired. Thomas Pate states that at the time he secured the general contract from Congoleum he had various conversations with Barchi, John Harrison, the Congoleum plant manager, and Downing, the personnel manager of Congoleum. He testified that there was no restriction placed on him as to hiring but he told them that if he "was going to work for them, [he] would be more than willing to cooperate with them in any way possible." Thomas Pate also states that he told Harrison and Downing that if they knew of any people who had previously "worked there" who were "nonproductive workers" he would want to "know this" and would not hire such persons. It was, therefore, according to Thomas Pate, pursuant to Thomas Pate's policy of checking references of applicants, that Roy Pate had checked with Congoleum about Carlin, and Lovelace was not allowed to hire Carlin because Roy Pate had been told by Downing that Carlin was not a productive worker. Since Downing did not testify, we have no direct evidence as to what he told Roy Pate about Carlin. If he did say that Carlin was a nonproductive worker when working for Belco, we have no way to evaluate the accuracy or good faith of such a statement or to determine the basis of such a statement or whether Downing or anyone else in the Congoleum management had observed Carlin performing his work as an electrician or had received any report about his productivity. Since Roy Pate did not testify, we have had no occasion to evaluate his accuracy and credibility as to what he asked Downing, or what Downing told him, or what Roy Pate understood or why he told Lovelace that Congoleum had refused to clear Carlin. In our opinion, the testimony of Thomas Pate, the principal witness of Respondent, who states in effect that Roy Pate made a routine check of Carlin with Congoleum (but not with Belco or Yarborough who were the direct former employers of Carlin) and, therefore, did not allow Lovelace to hire Carlin because Congoleum said Carlin had been an unproductive worker, is not convincing . There is no testimony or substantial evidence that Carlin was not a productive worker or had not been a productive worker, or testimony by Downing or anyone else in Congoleum to this effect, let alone any testimony as to a basis for such a judgment if it was made. 19 18 Possibly the paper was a copy of the charge in the instant case that was filed on February 1 , 1971, or some correspondence relating to the September Carlin event 19 There is no evidence that Grady while working for the union contractors was any more of a productive worker than Carlin All we know about Grady while working on the project while Yarborough was general contractor is that Grady worked for a number of the contractors until their particular work was completed. Since he worked without being discharged, he presumably was a satisfactory worker But we know as much or as little about Carlin's work under the former contractor . Carlin worked in two periods for Belco and was never discharged or, as far as appears , criticized by anyone He worked until the work of his employer was completed and CONGOLEUM INDUSTRIES, INC. We find the uncontroverted testimony of Carlin and his wife, and, in important respects, the testimony of Lovelace and the conversations between Lovelace and Carlin, to be credible. The evidence as to statements made by Downing to Carlin and Mrs. Carlin as to why Congoleum refused to clear Carlin to work for Lovelace persuades us that Congoleum caused Lovelace, through Pate, to refuse to hire Carlin on September 11, 1970, because Carlin had worked on the project under the prior union contractor and was considered to be in some way affiliated or identified with the Union and with past union trouble or potential umon trouble in the future if he or others in his situation were again employed under the successor nonunion contractors 2° There is no convincing evidence that the individual work competence, performance, or productivity of Carlin, while previously employed on the project, was the reason why he was not cleared to work for Lovelace. The clear message to Carlin, on the facts of this case, (or to others similarly situated) was that his error and deficiency was that he had worked on the project for a union contractor and with union members and was therefore identified with the umon trouble that Congoleum had had. The message was that in the future it would be wise not to work for union contractors on a union job, insofar as Congoleum was concerned, and such a message discourag- es activity, i.e., working under the aforementioned condi- tions, that is protected by Section 7 of the Act. Since the "union trouble" that occurred included strikes and such employer-union matters that have not been shown to have been illegal, we find that Congoleum's causing Lovelace, over whom it exercised effective hiring control, to refuse to hire Carlin was a violation of Section 8(a)(1) and (3) of the Act. As we have earlier indicated, we do not believe that Carlin, after his failure to be cleared for employment by Lovelace on September 11, 1970, was interested in employment in the Congoleum factory at that operation's prevailing rate of $1.70 per hour. We believe that Carlin manifested to Downing that he was not interested in plant employment but that he was still interested in working as a construction electrician for the electrical subcontractor. Whether or not Congoleum would have employed Carlin at $1.70 as a manufacturing plant employee is not the issue, and, in any event, cannot be answered with a substantial degree of adequacy. The events and evidence never focused on plant employment for Carlin because in speaking to Downing about employment, Carlin concentrated on the matter of clearance to work as a construction electrician for Lovelace. We therefore recommend dismissal of the complaint allegation that Respondent refused to hire Carlin as an employee in its manufacturing plant. presumably was a satisfactory worker. At the time of the labor trouble, in July, 1970, however, Grady had affirmatively demonstrated his nonunion identification by crossing a umon picket line and continuing to work for a nonunion subcontractor Also, Grady had been hired by Lovelace and was on the job before Lovelace had been advised by Roy Pate that henceforth all employees who had previously worked on the project must be first "cleared" by Congoleum. Grady was allowed to remain, however, by reason of an ad hoc "clearance." 20 Whether entirely correct or not in the case of Carlin, it was a fairly shrewd judgment that if a worker in one of the skilled construction trades, such as the Electrical Workers, was working with the members of the CONCLUSIONS OF LAW 365 By refusing to clear Carlin for employment by contractor Lovelace, over whose hiring policy Respondent exercised effective veto control, because of Carlin's past employment by a union contractor and Carlin's identification with the union under whose auspices he had worked, as more fully explicated above in this Decision, Respondent discriminat- ed against Carlin for the exercise of his rights under Section 7 of the Act and thereby violated Section 8(a)(1) and (3) of the Act. Respondent did not refuse to employ Carlin in its manufacturing plant in violation of Section 8(a)(1) and (3) of the Act. - THE REMEDY Having found that Respondent has engaged in the unfair labor practice, abovedescribed, it will be recommended that Respondent cease and desist from such practices and take certain action to remedy the effects thereof and thereby effectuate the purposes of the Act. It will be recommended that Respondent withdraw its disapproval of the employment of Edmund Carlin by Lovelace or Pate or by any other contractor ' on the Congoleum project and advise Lovelace, Pate, or any other contractor involved, that it has no objection to Carlin's employment. It is further recommended that Respondent make Carlin whole for the wages he lost by reason of the discrimination against him for the period from September 11, 1970, to the date when Carlin's employment would have normally terminated had he been employed by Lovelace. In the event the work is still going on, the cutoff date will be the date when Respondent notifies Carlin, Lovelace, Pate, and any other contractor involved, that it has no objection to the employment of Carlin and has withdrawn any prior disapproval of Carlin's employment. Such backpay as may be due Carlin will be less any net earnings of Carlin during the prescribed period aforementioned. Backpay shall be computed in accordance with the method described in F. W. Woolworth Co., 90 NLRB 289, with interest at 6 percent as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER21 Congoleum Industries, Inc., its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging the right of Edmund Carlin or any other employee similarly situated to work for union contractors and with labor unions and their members either as union members, permit men, or otherwise, as guaranteed to Electrical Workers Union on a union job under a union contractor, that individual- either was a union member or had umon credentials or sufficient identification with the union, to make him acceptable to the union and therefore not basically unsympathetic to union mores and rules either currently or possibly in the future if an appropriate occasion arose 21 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees by Section 7 of the Act, by discriminating in regard to hire, tenure, or other conditions of employment of such employees. (b) Refusing to approve or clear for employment by Lovelace Electric, Inc., or by any other contractor, Edmund Carlin or any other qualified employee similarly situated. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Notify Edmund Carlin, Lovelace Electric, Inc., and Pate Construction Company, Thomas L. Pate, General Contractor, that it has no objection to Carlin's employ- ment. (b) Make Edmund Carlin whole for any loss of wages he may have suffered by reason of the discrimination against him, in the manner set forth hereinabove under the section entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records necessary to analyze the amount of backpay that may be due to Carlin. In conjunction with the backpay obligation, request and obtain from Lovelace Electric, Inc., and Pate Construction Company or Thomas L. Pate, General Contractor, such payroll records, social security records, timecards, and personnel records, and all other records as may be necessary to analyze the amount of backpay due to Carlin, and make such records available to the Board or its agents for the aforesaid purpose of analyzing the amount of backpay that may be due. (d) Post at its plant in Wilburton, Oklahoma, copies of the attached notice marked "Appendix." 22 Copies of said notice, on forms provided by the Regional Director for Region 16, after being signed by Respondent's representa- tive, shall be posted by Respondent 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 any other material. (e) Notify the Regional Director for Region 16, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply herewith 23 22 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order 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." 23 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had an opportunity to present sworn testimony and other evidence, a Trial, Examiner of the National Labor Relations Board has found that we have violated the National Labor Relations Act in certain respects and has-ordered that we remedy the effects of our unfair labor practices and post this notice. WE WILL NOT discriminate against Edmund Carlin or any other employee because he has worked for or has been identified with union contractors and with labor unions working for union contractors. WE WILL advise Lovelace Electric, Inc., and Pate Construction Company, Thomas L. Pate, General Contractor, that we have no objection to the employ- ment of Edmund Carlin or any other employee in the same situation as Carlin. WE WILL pay Edmund Carlin any wages he may have lost by reason of our discrimination against him on the plant construction project. CONGOLEUM INDUSTRIES, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Federal Office Building, Room 8-A-24, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921.