Austin & Wolfe Refrigeration

AUSTIN & WOLFE REFRIGERATION 135 Austin & Wolfe Refrigeration, Air Conditioning and Heating, Inc. and Jack B. Hughes. Sheet Metal Workers International Association, Local No. 359 and Jack B. Hughes. Cases 28-CA-2522 and 28-CB-668 March 5, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On September 20, 1972, Administrative Law Judge Herman Marx issued the attached Decision in this proceeding. Thereafter, Respondent Local No. 359 filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a brief. The Respondent Local No. 359 also filed a brief in opposition to the General Counsel's cross-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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. On the basis of credibility resolutions, the Adminis- trative Law Judge found that Respondent Union, as a condition to contracting with the Company, insisted on the discharge of all sheetmetal workers then in the Company's employ and their replacement by others to be referred from the Union's hiring hall, and that the Union caused the discharge of all the Company's sheetmetal workers as a result of this condition. The Administrative Law Judge further found that the discharge of Hughes, the Charging Party, pursuant to this agreement "would naturally tend to encourage membership in the Union," citing Radio Officers' Union v. N. L. R. B., 347 U.S. 17, 44-45, and thus violated Section 8(a)(3) and 8(b)(2) of the Act. It is of course true, as the dissent states, that to constitute a violation of Section 8(a)(3), there must be both discrimination against an employee for union connected reasons and encouragement or discouragement of union membership thereby. N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26; Local 357, Teamsters [Los Angeles-Seattle Motor Express] v. N.L.R.B., 365 U.S. 667, 675. But the discharge of an employee at the insistence of a union because he had not been referred by the union's hiring hall, or because he was not receiving union scale, is the plainest kind of discrimination. It is rather unusual to argue that because all the employ- ees of a company are discharged for impermissible union-related reasons, then no one employee has been unlawfully discriminated against. Discrimina- tion against all becomes, by the reasoning of the dissent, discrimination against none. It is also true that certain forms of discrimination may be permissible, as where an employer and a union have agreed that hiring shall be done through a nondiscriminatory union-operated hiring hall. Local 357, Teamsters v. N.L.R B., supra But such a lawful hiring-hall clause cannot be applied retroac- tively, that is, to justify the discharge of an employee who was hired before the hiring-hall clause became operative. Teamsters, Local 676 (Tellepsen Petro- Chemical Company), 172 NLRB No. 58. In the Great Dane Trailers case, the Supreme Court summed up the requirements for proof of motivation in 8(a)(3) cases. It placed these cases in two categories: in one the conduct is "so inherently destructive of employee interests" that it may be deemed proscribed without need for proof of an underlying improper motive; in the second, the resulting harm to employee rights is deemed compar- atively slight, so that if a "substantial and legitimate business end is served" the employer's conduct is prima facie lawful, and an affirmative showing of improper motivation must be made. The discharge of employee Hughes for the reason found by the Administrative Law Judge indubitably falls in the first category. Radio Officers' Union v. N.L.R.B., supra; N. L. R. B. v. Erie Resistor Corp., 373 U.S. 221. Moreover, even if we were to consider the case as falling in the second category described in Great Dane Trailers, we cannot agree with the dissent that circumvention of the Government's wage controls is a "legitimate business end." Long ago the Supreme Court admonished the Board that it "has not been commissioned to effectuate the policies of the Labor Relations Act so single-mindedly that it may wholly ignore other equally important Congressional objec- tives." Southern Steamship Company v. N L.R B., 316 U.S. 31, 47. In an earlier day the Board held that a strike to compel an employer to grant wage increases prohibited by the National War Labor Board was not a protected activity. The American News Compa- ny, Inc., 55 NLRB 1302. We very much doubt that the Board or the courts would find that a similar strike today would be deemed protected or that the insistence on a scheme to circumvent lawfully promulgated wage and price controls is in conform- ance with the bargaining obligation required by the Act. ORDER Pursuant to Section 10(c) of the National Labor 202 NLRB No. 4 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Administrative Law Judge directed to Respondent Union and Respondent Employer and hereby orders that Respondents, Sheet Metal Workers International Association, Local No. 359, its officers, agents, and representatives, and Austin & Wolfe Refrigeration, Air Conditioning and Heating, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. CHAIRMAN MILLER, dissenting: This case presents a troublesome issue that has been little discussed or clarified in Board decisions: Under what circumstances is union interference with an employee's employment relationship prohibited and under what circumstances is it permissible? The instant set of facts is a peculiar and doubtless novel one. The alleged discriminatee here was discharged, according to the findings of the Adminis- trative Law Judge, as a result of a scheme initiated by Respondent Union and cooperated in, perhaps reluctantly, by Respondent Employer, the purpose of the scheme being to avoid (or perhaps evade) the Federal wage freeze which was at the time in effect. The scheme was that all of Respondent Employer's employees (all of whom had apparently been receiving below scale rates) should be discharged and a new workforce referred to the Employer through the union hiring hall, the new hires to be compensat- ed at union scale. Meanwhile, the former employees would be referred out through the hall to other jobs at other employers who were already paying union scale. By this means no employee of Respondent Employer would actually receive a wage increase fi om the Respondent Employer and thus, it was believed, the scheme would enable the employees represented by Respondent Union to get a wage increase without directly violating the prohibitions of the freeze. We do not know, nor do I think it particularly material, whether this scheme was a legal or illegal one under a proper interpretation of the Presidential order initiating the freeze, or any regulations issued thereunder. ` Employee Hughes was the only employee who was actually discharged as a result of the operation of this scheme. The remainder of the employees were out on strike at the time this arrangement was arrived at as a settlement of the negotiations between Respondent Employer and Respondent Union. These strikers had already been referred by the Union to other employers during the course of the strike and did not seek reemployment with Respondent Employers, and so there was no practical need for them to be officially terminated as employees of Respondent. Instead, they were simply replaced at the conclusion of the strike settlement by new hires referred through the union hiring hall, as contemplated by the arrangement or agreement above-described. Alleged discriminatee Hughes, however, had worked during the strike and thus the scheme operated with respect to him and in such manner as to cause his actual discharge. The complaint does not allege that when Hughes, following his discharge, went to the union hall seeking to be referred to ajob paying union scale, he was discriminatorily treated there, although Hughes had initially so charged. As the Administrative Law Judge has observed: "Presumably its omission from the complaint was intentional." The Administrative Law Judge held that under the above set of conditions, Respondent Union had caused Hughes' discharge in violation of the Act. In so finding he did not analyze the rather scanty testimony which was adduced in an effort to prove that the discharge of Hughes had been sought because Hughes had worked during the strike. Rather, the Administrative Law Judge, whose con- clusions have here been affirmed by my colleagues, found the violation solely on the ground that the discharge of Hughes pursuant to the collectively bargained scheme to avoid (or perhaps evade) the wage freeze "would naturally tend to encourage membership in the Union, and . . . by discharging him for that reason the Company discriminated against him in violation of Section 8(a)(3) of the Act . . . and that by causing the discharge, the Respon- dent Union violated Section 8(b)(2) of the Act 11 In so holding the Administrative Law Judge relied on the Supreme Court's decision in Radio Officers' Union v. N. L. R. B., 347 U.S. 17, and American Ship Building Co. v. N.L.R.B., 380 U.S. 300. The Administrative Law Judge and my colleagues are finding, in effect, that any union interference with an employee's employment which may encourage membership in the Union is, per se, a violation of the Act. I believe that to be a serious misapplication of existing precedent , and I therefore dissent. The Supreme Court said in the Radio Officers'case (at p. 42): The unfair labor practice is . . . to encourage or discourage membership by means of discrimina- tion. Thus the section does not outlaw all encouragement or discouragement of member- ship in labor organizations : only such as accom- plished by discrimination is prohibited. [Emphasis supplied.] It is true that the Court went on to note that "specific proof of intent is unnecessary ," and the Court discussed at length the power of the Board to draw reasonable inferences. But as we said in AUSTIN & WOLFE REFRIGERATION 137 Philadelphia Typographical Union No. 2 (Triangle Publications, Inc.), 189 NLRB No. 105: However, the fact that a proscribed motivation may be inferred, depending on the nature of the conduct, does not mean that this element is not a material consideration under complaints alleging unlawful discrimination. In short, I understand the law to be not'that a union may never interfere with the employment of an employee, but only that it may not do so if a discriminatory motivation or effect is either specifi- cally proved or may reasonably be inferred from the surrounding facts and circumstances. Under what circumstances, then, may a union interfere with the employment relationship and not be found to have done so for a prohibited purpose? In Local 357, Teamsters v. N.L.R.B., 365 U.S. 667, the Supreme Court found that a union had not violated our Act by causing an employer to discharge an employee who had failed to utilize the contractu- ally agreed-upon hiring hall. It is obvious that this was direct union interference with the employment relationship and as the Court observed, it is also obvious that the very existence of a hiring hall encourages union membership. Yet the Court found that the facts there did not justify an inference of illegal discrimination. The Court further observed (p. 675): When a union engages in collective bargaining and obtains increased wages and improved working conditions, its prestige doubtless rises and, one may assume, more workers are drawn to it. When a union negotiates collective-bargaining agreements that include arbitration clauses and supervises the functioning of those provisions so as to get equitable adjustments of grievances, union membership may also be encouraged. The truth is that the union is a service agency that probably encourages membership whenever it does its job well. But as we said in Radio Officers v. Labor Board, supra, the only encouragement or discouragement of union membership banned by the Act is that which is "accomplished by discrimination." The concurring opinion of Justices Harlan and Stewart is also enlightening on this point. They said (p. 682): For present purposes, it is sufficient to note that what is involved in the general requirement of finding of forbidden motivation, as well as in the limited scope of the heretofore recognized excep- tions to this general requirement, is a realization that the Act was not intended to interfere significantly with those activities of employer and union which are justified by nondiscriminatory business purposes, or by nondiscriminatory attempts to benefit all the represented employees. [Emphasis supplied.] This Board has followed that rationale. We have found union interference in the employment relation- ship innocent when that interference has been justified by business purposes or when such interfer- ence resulted from collective bargaining, the purpose of which was to secure benefits for the totality of the represented employees. We have also permitted union interference with employment where that interference seemed necessary to the orderly opera- tion of a hiring hall being operated for the collective good of the union's constituents. Thus, the Board has dismissed a case in which a respondent union informed an employer to lay off an employee who insisted on working without receiving a subsistence allowance called for by the collective- bargaining contract. Millwrights' Local Union 1102 (Planet Corporation), 144 NLRB 798. The Board also dismissed another complaint in which it was alleged that a union had deprived an individual of his priority standing because of a union rule calling for such action upon the employee's rejection of a job offer. Houston Typographical Union No. 87 (Houston Chronicle Publishing Company), 145 NLRB 1657. And, in more recent days, we have dismissed a complaint against a union which interfered with the employment of a member because of his embezzle- ment of a substantial amount of union funds. Philadelphia Typographical Union No. 2 (Triangle Publications), 189 NLRB No. 105. On the other hand this Board has found improper interference with the employment relationship in cases where no business justification or bona fide bargaining objective could reasonably be found or inferred from the surrounding facts and circum- stances. Thus in Miranda Fuel Company, Inc., 140 NLRB 181 (enforcement denied on other grounds 326 F.2d 172 (C.A. 2)), an improper interference with the employment relationship was found when the union acted for arbitrary or irrelevant reasons and in violation of its duty fairly to represent all employees in the bargaining unit. There the interference with the relationship was contrary to the collective-bar- gaining agreement and the union conduct constituted an arbitrary imposition of an ex post facto rule of its own making. Thus, in that case it was clear that no bona fide collective-bargaining objective or reasoned business justification excused the interference with the employment relationship. The interference was, therefore, found discriminatory as having the fore- seeable effect of encouraging union membership, and was not counterbalanced by any considerations of bargaining benefits for the group represented by the union or other such reasons sufficient to rebut the 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inference that the real purpose of the union action was discriminatory. Attempting to apply these criteria to the instant case, what shall we conclude? The alleged discrimi- natee, Hughes, surely had his employment interfered with by the Union and indeed was discharged by the Employer because of an arrangem 'nt worked out with the Union. But was that interference a discrimi- natory means of encouraging membership in the Union? It was not "discriminatory" vis-a-vis any other employees of Respondent Employer. For the understanding between the Company and the Union was that the employment relationship between Respondent Employer and all of its employees would be terminated with new employees being obtained through the union hiring hall. Meanwhile, Respon- dent's former employees would presumably obtain employment also through the union hiring hall at an improved wage rate. Nor is there here any disparate or discriminatory treatment based on union member- ship. As to a bona fide bargaining objective, we know that the intended result was to achieve a wage increase for all of the persons whom Respondent Union represented and that Respondent Employer had employed, although in order to secure that increase it was necessary for those employees to secure employment with other employers-a rather novel and unusual feature occasioned by a desire to avoid the wage increase prohibitions of the Presi- dent's freeze order. This was indeed an unusual kind of wage bargain- ing, but it was prompted by unusual circumstances. To the discriminatee, his loss of employment may have seemed discriminatory, since before the advent of the Union he had employment with Respondent Employer and after the Union finished negotiating with the Employer he did not. Yet this may not infrequently be the result of collective bargaining. In the course of negotiations, an employer may agree to grant a substantial wage increase but advise the union that if he does so it is going to be necessary for him to tighten his belt and employ a somewhat smaller work force. There is nothing to prohibit a union from joining in such an understanding even though some employees may, in consequence, lose their employment through being laid off or terminat- ed.' As I analyze the facts here they show a genuine intent on the part of the Union to maintain union scale and to achieve wage increases for the Union's constituents. These are classic bona fide objectives of collective bargaining. The parties' chosen means of achieving those objectives here may or may not have been a legal way around the roadblock posed by the Federal wage freeze which was at the time in effect. But whether that means may be regarded by some as immoral, or illegal under some law other than the one we administer, is not the issue before us. The only issue we face is to discern from the facts whether the interference with the employment relationship here was caused by illegal discrimination for the purpose of encouraging union membership, or whether it was instead caused by bargaining considerations designed to benefit the entire group. I am satisfied that it was the latter. For these reasons I respectfully enter this dissent. I As the Supreme Court said in Ford Motor Company v Huffman, 345 U S 330 at p 338 Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees The mere existence of such differences does not make them invalid The complete satisfaction of all who are represented is hardly to be expected DECISION STATEMENT OF THE CASE HERMAN MARX, Administrative Law Judge: The com- plaint alleges, in substance, that a labor organization, Sheet Metal Workers International Association, Local No. 359 (herein the Union or Respondent Union), caused an employer, Austin & Wolfe Refrigeration, Air Conditioning & Heating, Inc. (herein the Company or Respondent Company), to discriminate against an employee, Jack B. Hughes, by discharging and failing and refusing to reinstate him, in violation of Section 8(a)(3) of the National Labor Relations Act i (herein the Act); that by its conduct in the premises, the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act; and that the Respondent Company, by its said discrimination against Hughes, violated Section 8(a)(3) and (1) of the said Act.2 Each Respondent has filed an answer which, in material substance, denies the commission of the unfair labor practices imputed to it in the complaint. Pursuant to notice duly served by the General Counsel of the National Labor Relations Board (herein the Board) upon each of the other parties, a hearing upon the issues in this proceeding was held before me on May 16 and 17, 1972, at Phoenix, Arizona. The General Counsel and the Respondent Union appeared through, and were represent- ed by, respective counsel.3 All parties were afforded a full opportunity to be heard, examine and cross-examine witnesses, adduce evidence, file briefs, and submit oral argument. Upon the entire record, and my observation of the i 29USC §151.etseq 2 The complaint was issued on March 13, 1972, and is based on two charges, one filed on January 25, 1972, in Case 28-CA-2522, and the other, on the same date, in Case 28-CB-668 The two cases have been duly consolidated for hearing Each Respondent has been duly served with a copy of the complaint, the charge applicable to it, and the order of consolidation 3 Counsel for the Respondent Company appeared briefly after the opening of the hearing, but before any evidence was taken, and announced that he had been informed that another attorney was preparing a petition in bankruptcy for the Company, that he "had been instructed (by the Company, presumably] not to defend" in this case, and that he was AUSTIN & WOLFE REFRIGERATION 139 demeanor of the witnesses, and having read and consid- ered the briefs filed with me, I make the following: FINDINGS OF FACT I NATURE OF THE COMPANY' S BUSINESS; JURISDICTION OF THE BOARD The Respondent Company is an Arizona corporation; maintains its principal office and place of business in Phoenix, Arizona; is engaged there in the business of fabricating, selling, installing, and servicing refrigeration, air-conditioning, and heating equipment; and is, and has been, at all material times, an employer within the meaning of Section 2(2) of the Act. In the course and conduct of its business operations during the 12 months immediately preceding the issuance of the complaint, the Respondent Company purchased and received goods or services valued in excess of $50,000, from sources outside the State of Arizona. By reason of such transactions, the Respondent Company is, and has been at all material times, engaged in interstate commerce, and in operations affecting such commerce , within the meaning of Section 2(6) and (7) of the Act. Accordingly, the Board has jurisdiction of the subject matter of this proceeding. II. THE LABOR ORGANIZATION INVOLVED The Respondent Union is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory Statement The Company has two operational divisions , one called the sheetmetal department and the other the service (or refrigeration) department . During the summer season at least, the first is normally staffed with about a dozen employees, and the second with about six. Those in the withdrawing from it He then withdrew Later in the day, the Company's president, Lawrence Reiter, during the course of his testimony, agreed to a suggestion , put to him in interrogative form by the Union's counsel, that "as of yesterday," the Company had filed a bankruptcy petition it was apparent to me that the witness was speculating that a petition had in fact been filed, and had fallen in with the suggestion of counsel Although I indicated at the time that Reiter appeared to me to be speculating, no further evidence was adduced regarding the status of the Company's bankruptcy intentions, nor have I since had any communication regarding the Company from any attorney or other party purporting to represent it, nor from any receiver, trustee , or referee in bankruptcy Reiter's testimony. especially in view of the apparently conflicting statement by the Company's counsel , made shortly before, that a petition was "being prepared," is insufficient to support a finding that the Company had actually filed a bankruptcy petition It is not properly my function to go outside the record to determine whether it has done so, and in the absence of adequate evidence that it has, I proceed with findings and conclusions as though the matter had not been brought up 4 As the complaint alleges, and both answers in effect admit , Reiter and the Company's vice president, Ernest R Stone , have been, at all times material to the issue , supervisors within the meaning of Sec 2(11) of the Act, and "agents" of the Company "acting on its behalf " The admission by the Respondent Union to the foregoing effect is unaffected by its denial in its answer that Reiter and Stone "are now acting as president and vice president" (emphasis that of the Union) 5 Unless otherwise indicated, all dates mentioned below occurred in 1971. sheetmetal department install residential air-conditioning and heating equipment, and the service department employees primarily perform repair and maintenance work on such equipment after installation. Jack B. Hughes, the Charging Party in this proceeding, has worked in "the sheet metal industry" for about 25 years. He entered the Company's employ in August 1970; worked in the sheetmetal department as its "layout man," with the function, in general, of preparing air-conditioning and heating equipment in the shop for subsequent installation ; and was discharged on September 22, 1971, by the Company's president, Lawrence Reiter, under circum- stances to be described later. Reiter supervised the work of both departments during much of Hughes' employment, first as foreman and then, since September 15, 1971, as the Company's president.4 Following an organizational campaign by the Union among the Company's employees in the summer of 1971, the Union and the Company entered into an agreement for a "consent election" under the Board's auspices, with the result that the election was held on August 12, 1971,5 among the employees in a unit consisting of "[a]ll sheet metal workers, refrigeration servicemen , and their helpers and apprentices" (with some unit exclusions not relevant here); and that nine ballots were cast for the Union, five against it, and four were challenged by the Union.6 About 2 weeks after the election , a strike began among the sheetmetal department employees , all of whom, with the exception of Hughes, participated . Striking employees picketed the Company's premises during the strike, but Hughes continued to work throughout the strike, passing through the picket line for that purpose, performing his customary shop duties, and, in addition, completing an outside installation job. The service department employees did not go on strike.? The strike was settled on September 22 as a result of negotiations on that date between the Union and the Company. The Union was represented by two of its business representatives , Leon Razee and Jack Stewart, 6 Ultimately one of the challenges was sustained , and as those remaining could not affect the election results , and the Union then had a majority of the ballots cast, the Board, on October 29, 1971, certified the Union as the bargaining representative of the relevant unit r The Union disclaims any participation in the strike , presenting testimony that sheet metal employees were dissatisfied with the amount of work given them and struck on their own initiative Whether or not that was the strike's origin , some aspects of the record give support to the General Counsel's position that the Union played a role in the strike at least after it began. and in the related picketing One is that the Union 's local number "359" appeared in the picket signs used by strikers Another is that the Union settled the strike by entering into various agreements with the Company. as will appear in more detail later The Union, at that time, had not as yet been certified, and there is no indication that it even consulted the strikers concerning the settlement terms In the circumstances of the settlement , which obviously ended the strike, it is difficult to believe that the Union had had no role in the strike In any case , the issue whether the Union had a hand in it bears principally on the question whether a threat of reprisal by a picket, Arthur Bradford. against Hughes for his nonparticipa- tion in the strike is imputable to the Union and evidences a punitive attitude by it toward Hughes For reasons that will appear , a conclusion as to the legality of Hughes' discharge . and whether the Union caused it, does not hinge on a determination whether his nonparticipation in the strike was a factor in the dismissal, and thus I see no purpose in setting out remarks by Bradford or other pickets , nor any need to decide whether the Union had a role in the strike or picketing 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Company by Reiter and its vice president, Ernest R. Stone. The negotiations led to two "memorandum agreement(s)," both dated September 22, 1971. One, in substance, prescribed wage rates and other terms and conditions for employees in the previously mentioned unit by incorporating, by reference, the provisions of a contract (herein the master contract) in effect between the Union and an association of Arizona air-conditioning contractors. The master contract among other terms, prescribes higher wage rates than those paid by the Company before and during the stnke,8 and obligates signatory employers to requisition employees they need from the Union's hiring hall facilities. The other memorandum agreement, noting that "Execu- tive Order No. 11615" (establishing the national wage-price freeze commonly known as Phase 1, which was due to expire on November 12, 1971) was then in effect, provided, among other things, that six named service department employees then in the Company's employ would "remain at the present wage level until November 13, 1971," and that each, if still employed by the Company on that date, would be "upgraded" to a specified rate applicable to him. It may be observed at this point that application of the master contract scale to the sheetmetal department employees, those on strike as well as Hughes, would have violated the wage freeze, and that no provision was made for their retention. There is no doubt that the subject of their termination was discussed, as is evident from the versions of both Reiter and Razee, the principal witnesses regarding the negotiations, but there is material conflict as to what was said. A determination of the issue whether the Union had a role in Hughes' discharge hinges on a resolution of the conflict. The differing versions will be set out in material substance at a later point. Following execution of the agreements, Reiter and Stone returned to the shop, and about an hour later, toward the end of the workday, Reiter, in Stone's presence, discharged Hughes, giving him his terminal pay, and telling him that the Company had entered into a contract with the Union; that the management wished to retain him, but could not do both that and contract with the Union; that the Union had insisted that all the sheetmetal employees be dis- charged as a condition of contracting with the Company, and that it secure its sheet metal workers through the Union's hiring hall, because the wage freeze precluded payment of the Union's prescribed wage scale to sheetmet- al workers then in the Company's employ, that the Union had agreed to the retention of the service department employees at their current rates because the Company had special need for, them to fill some service contracts; that if he wished other employment, he should report to the hiring 8 For example, compare Hughes'journeyman rate of $6 an hour with the minimum hourly rate of $7 59 in effect, under the master contract, for journeymen at the time of settlement of the strike 9 1 have drawn on the testimony of both Reiter and Hughes for findings as to Reiter's remarks in discharging Hughes Each appeared to me to be giving his best recollection, although Reiter seemed to me to be a reluctant witness Their versions are not in significant disagreement 10 See Reiter's pretrial affidavit which he testified was "a true statement " ii Stone, although present at the meeting, did- not testify The Union called Stewart, as well as Razee (who is the Union's business manager and was its principal spokesman at the meeting), but Stewart's testimony is of hall; that the striking sheetmetal workers would be dispatched from the hiring hall; and that he would be reemployed if there was an opening after the end of the wage freeze, but that he would have "to clear" through the hiring hall.9 As one may infer, the Company did not actually discharge any of the other sheetmetal department employ- ees-all of them participants in the strike. They simply did not return to work following settlement of the strike.iO In fact, most of them had registered for work at the Union's hiring hall, and, as reflected in its job referral records in evidence, had been dispatched to other jobs even before the settlement. On September 22, following execution of the agreements, and before they left the Union's office, Reiter and Stone requisitioned sheetmetal workers from the hiring hall. These, as is evident, were replacements for Hughes and some or all of the strikers. On February 28, 1972, after the Union had been served with a copy of the charge, Hughes had filed against it in this proceeding, the labor organization wrote him a letter stating, among other things, that while it denied his allegations of misconduct, it was, by the terms of the letter, notifying him and the Company that the Union had no objection to his unconditional reinstatement to his former job, and was requesting the employer to offer him such reinstatement. Hughes received the letter on March 2, 1972, and the Company received a copy on the same date. The Company has neither reemployed him nor has it offered him reinstatement. B. The Legality of the Discharge and the Union's Alleged Role In It The sum and substance of the reason given by Reiter to Hughes for the latter's discharge is that the Union, precluded by the Phase I wage freeze from applying its contractual wage rates to sheetmetal workers then in the Company's employ at lower rates, had insisted, as a condition of contracting with the Company (or, in other words, of settling the strike) that such employees be discharged and replaced by men dispatched from the Union's hiring hall, coupling the condition with a proposal that those terminated be dispatched from the hall to other jobs. The ultimate material issue here is whether the Union imposed such a condition, thereby causing the discharge. A resolution of the issue hinges, in turn, on a choice between conflicting versions-one by Reiter and the other by Razee-of what was said at the September 22 meeting regarding the termination of sheetmetal department personnel. i i The participants had met on an earlier occasion little or no help in resolving the credibility issue He evidenced a disposition to generalize with conclusional statements "about" what was said, or what the management "wanted," or what the Union was "trying to tell" the management At one point , after testifying that Reiter and Stone "were talking about wanting to keep" service department employees, and that the Union stated that it had "no objection to anybody they wanted to keep," Stewart testified that he could not recall anything else, adding, "I don't remember anything specifically said by any individual it was a general discussion, and management was talking" I am convinced that the Union participated substantially in the "talking" at the meeting, and am unable to view Stewart's testimony as a reliable guide to what was said there AUSTIN & WOLFE REFRIGERATION (September 15, according to Razee), but Reiter, while alluding to that meeting, gives practically no specifics beyond some intimation that reference by the Union of "the wage problem" to "Washington" (meaning, apparent- ly, the Union's parent International) had been a topic of discussion.12 In any case, describing the September 22 negotiations which culminated in the Company's becoming a party to the master contract, and in settlement of the strike, Reiter, who was called by the General Counsel, gave testimony to the effect that the parties discussed the "problem" resulting from the fact that wage rates paid the Company's employees were subject to the existing wage freeze and were below those prescribed by the master contract; that the Company stated that its service depart- ment employees were "trained" for their work and were needed to fill its service commitments; that the Union then agreed that the Company could continue to employ the service personnel at their respective current rates until the expiration of the wage freeze; that Razee took the position that "the only way the Company could go signatory" (that is, become a party to the master contract) would be to terminate the sheetmetal department employees, "send the men down to the Union Hall, and replace them with journeymen dispatched from the Hall"(who, as is evident, would be paid at the scale prescribed by the master contract); and that the Union insisted upon such a course as a condition of the Company's becoming a party to the master contract. The evident implication of Reiter's account of the negotiations, and of the discharge of Hughes, who, at the time, was the Company's only sheetmetal worker, is that the Company assented to the condition and complied with it by discharging Hughes. According to Razee, at the earlier meeting, the Company stated that it would not reemploy any strikers who had picketed, except one named Searles, and that it "really didn't have any reason to keep" Hughes because he had a record of absenteeism and what seemed to be a "drinking . .. problem." As is evident from Razee's account of the meeting, no agreement was reached there (except that the parties were in accord that the wage freeze would preclude wage increases for any employees retained). Razee, in substance, denies that the Union said anything at either meeting to the effect that as a condition of entering into a contract with it the Company would have to terminate its sheetmetal department employees, send them to the Union's hiring hall, and replace them with others from the hall; and he testified that after some preliminaries (such as determining Reiter's authority to sign a contract), he asked the Company's representatives which employees it wished to retain; that the Company then submitted the names of the service department personnel; that this was followed by the preparation of the memorandum agree- ment pertaining to them and their wage rates, and the execution of both memorandum agreements; that during the course of the preceding discussion, he asked the Company's representatives whether they wished to retain Searles or Hughes, and that they replied in the negative, stating that the Company was not going to retain any sheetmetal department personnel, but only six service 12 The intimation is reflected in Reiter's testimony that at the September 22 meeting the Union stated that "no answer had come back from 141 department employees; and that before they left, Reiter and Stone "ordered men from the Union Hall." What emerges from Reiter's account of the negotiations, if credited, is a device by the Union to avoid the restrictions of the freeze on wage increases for the Company's current sheetmetal employees, whether they had been on strike or not, by insisting, as a condition of contracting with the Company, that the management replace them with men referred from the Union's hiring hall (and paid, obviously, at the contract scale), the Union undertaking to dispatch those replaced to other jobs (also, obviously, at the contract scale). Upon consideration of the whole record, I am convinced for a number of reasons, of the basic truth of Reiter's version. To begin with, the credibility of Reiter's testimony is enhanced by the fact that although he is the Company's chief executive, with a proprietory interest in it as a "partner" with Stone, his account of the negotiations, and of the discharge which came only about an hour after execution of the memorandum agreements, runs counter to the Company's interest, spelling out an unlawful discharge, with attendant liability by it for the consequences. Reiter appeared to me to be a reluctant witness, giving me the impression that he was aware that he was spelling out questionable behavior by the Company, as well as the Union, and was unwilling to do so. No reason appears why he would give untruthful testimony to the detriment of the Company. In contrast, Razee gives a self-serving account of his behavior, which is the primary subject of inquiry in this proceeding. For another matter, Razee's version of the negotiations has an aura of implausibility. Plainly, as is evident from his version, as well as Reiter's, and from the separate agreement pertaining to the service department employees, the fact that the wage freeze prohibited the application of the Union's contract rates to individuals then in the Company's employ was a focal point of the negotiations. Indeed, according to Razee, between the two meetings, he called an attorney for the Union's parent International located in Washington, D.C., to verify the legality of a suggestion contained in a circular letter (Resp. Un. Exh. 2), dated September 1, 1971, from the International's presi- dent to its local affiliates to the effect that during the freeze where "a newly organized" employer has lower rates than the local's scale, and it is deemed necessary "to sign him up," the local should either make an "escrow arrangement" (for the amount of the increase, payable, plainly, after the expiration of the freeze) or "put his (the employer's) men on other jobs for a payroll period or two" (without any "problem," according to the circular, in "switch[ing] back" at the increased rate). Significantly enough, the second suggestion closely resembles the course Reiter attributes to Razee . Yet Razee's version would lead one to believe that there was practically no discussion at the September 22 meeting of any problem of applying the Union's wage scale to the Company's sheetmetal staff. I find this difficult to credit. To be sure, Razee claims that the Company asserted its intention to discharge the strikers because of picketing Washington" regarding the wage problem, thus suggesting some prior discussion about the matter. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "trouble" (not elaborated) they gave the Company, and to dismiss Hughes because of deficiencies in his performance; and the implication of this, and the arrangement to replace those terminated with men from the hiring hall at the contract scale, is that there was no need to discuss the impact of the wage freeze on the strikers or Hughes. But one may reasonably doubt that a union would so readily assent, as Razee's testimony indicates, to an employer's design to discharge strikers the union claims to represent, even if it could dispatch them to otherjobs, but more to the point, I am unable to accept Razee's claim to the effect that the Company decided, of its own volition, during the negotiations to discharge Hughes because of shortcomings in his performance. The fact that Hughes had had 25 years' experience in the sheetmetal industry, and that he was the only 1 of 12 sheetmetal department employees who worked during the strike, carrying much of the burden of the department's work during the period, detracts from the weight of Razee's claim. And it is a potent fact that Reiter and Stone said nothing to Hughes about any shortcomings in his performance at the time of his dismissal, but, on the contrary, that the reason given him at the time was substantially that which Reiter says Razee gave at the September 22 meeting for requiring the discharge. What is more, Reiter has firsthand knowledge of the reason why he discharged Hughes, and under cross-examination by the Union's counsel, he gave much the same reason, in essence, that he gave Hughes in discharging him, and did not accept interrogative suggestions to the effect that Hughes was excessively absent or that there "were other aspects of the employer-employee relationship with Mr. Hughes that caused you to terminate Mr. Hughes other than this reference to this wage price thing." Especially bearing in mind that the reason given by Reiter in his testimony is contrary to the Company's interest, I find that reason more credible than Razee's self-serving disclaimer of any responsibility for the discharge.13 In sum, I do not credit Razee's disclaimer, and, instead, crediting Reiter's version of what was said regarding the 13 1 reach that conclusion notwithstanding testimony by some former employees purportedly quoting Stone or Reiter as expressing some other reason or reasons for the dismissal than that given by Reiter in his testimony Thus Robert Mendenhall quotes Stone as saying on a "social" occasion about 2 months after the discharge that Hughes was discharged because he was "undependable," and because the management had suspected that he had given the strikersjobsite addresses so that these could be picketed Another former employee, Robert Watt, quotes Reiter as saying during the strike that he wished "to get rid of" all the sheetmetal workers, and as stating after the discharge that he had discharged Hughes because he had given strikers jobsite addresses A third, Robert Baietto, testified that shortly after the execution of the contract, Reiter told him that after signing the agreement he decided to discharge Hughes because he "wasn't worth $800 an hour" and his "vote (9) was no good " And another former employee, William Baietto, quotes Reiter as saying shortly before the strike ended that the Company intended to discharge Hughes because his work was deficient, he was absent "half the time," and was "drinking " In contrast to these extra-judicial statements, Reiter's testimony regarding the discharge reason is a firsthand account by the very person who discharged Hughes That explanation, which, by the way, is consistent with a pretrial affidavit (G C Exh 8) given by Reiter to the General Counsel some 3 months before the hearing in this proceeding, is, in my view, a more reliable account of the reason for the dismissal than the statements attributed by others to him or Stone, and I have made corresponding findings 11 In view of the findings made above regarding the condition and its purpose, as reflected in Reiter's credited testimony, I see no need to termination of sheetmetal employees at the September 22 meeting, I find that the Union, on that occasion, as a condition of the Company' s becoming a party to the master contract, insisted on the discharge of all sheetmetal workers then in the Company's employ, and their replace- ment by others to be referred from the Union's hiring hall, offering to dispatch those replaced to other jobs from the hall; that an aim of the condition was to staff the Company's sheetmetal department with employees who could be hired at the applicable contract wage rates, which were higher than the then frozen rates previously paid sheetmetal workers by the Company; that the Company, after becoming a signatory party to the master contract, complied with the condition by discharging Hughes, then the Company's only sheetmetal worker; and that the Union caused the discharge by means of the condition.14 The discharge of Hughes for the reason given him would naturally tend to encourage membership in the Union, and I find that by discharging him for that reason the Company discriminated against him in violation of Section 8(a)(3) of the Act, and interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8(a)(1) of the statute; and that by causing the discharge, the Respondent Union violated Section 8(b)(2) of the Act, and restrained and coerced employees in the exercise of rights guaranteed them by said Section 7, thus violating Section 8(b)(1)(A) of the Act.15 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Company and Respon- dent Union set forth in section III, above, occurring in connection with the operations of the Respondent Compa- ny, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes determine whether the Union, aware at the September 22 meeting that Hughes was then the only sheetmetal employee actually at work for the Company, had the additional aim of bringing about his discharge because he had worked during the strike, and I thus dispense with a recital and analysis of evidence bearing on a claim by the General Counsel to that effect Much of that evidence consists of conflicting versions of what took place after the discharge between Hughes and one or another of the Union's representatives in connection with efforts by Hughes to obtain work through the Union's hiring hall It may be noted in that regard that the complaint does not allege discriminatory treatment of Hughes at the hiring hall, although his charge against the Union contains an express allegation to that effect Presumably, its omission from the complaint was intentional In any case, it would neither add to. nor detract from, the remedy recommended below to decide whether Hughes' nonparticipation in the strike was a factor in his discharge 15 I find no merit in a position b) the Union in its brief (p 28) to the effect that as a precondition of a finding of unlawful discrimination against Hughes there must be proof that "the discrimination was deliberately designed to encourage membership in the union " As the Supreme Court has pointed out, " specific evidence of intent to encourage or discourage union membership is not an indispensable element of proof of violation of §§ 8(a)(3) Thus an employer's protestation that he did not intend to encourage or discourage must be unavailing where a natural consequence of his action was such encouragement or discouragement " Radio Officers' Union v N L R B. 347 U S 17, 44-45 See also American Ship Building Co v NLRB, 380US 300,340 AUSTIN & WOLFE REFRIGERATION 143 burdening and obstructing commerce and the free flow of commerce. On the basis of the foregoing findings of fact, and of the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Union is, and has been at all times material to the issues; a labor organization within the meaning of Section 2(5) of the Act. 2. The Company is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. 3. By discriminating against Jack B. Hughes, as found above, the Company has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the said Company has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By causing the Company to discriminate against Jack B Hughes in violation of Section 8(a)(3) of the Act, as found above, the Union has engaged in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 6. By restraining and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Union has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 7. The aforesaid violations are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Company has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, and that the Union has engaged in unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act, I shall recommend that they cease and desist from their respective unfair labor practices, and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Company discriminatorily dis- charged Jack B. Hughes on September 22, 1971, in violation of Section 8(a)(1) and (3) of the Act, and that the Union caused such discrimination, thereby violating Section 8(b)(1)(A) and (2) of the Act, I shall recommend that the Company offer the said Jack B. Hughes immediate and full reinstatement to his former or a substantially equivalent job, without prejudice to his seniority and other rights and privileges; that the Company and the Union, jointly and severally, make the said Jack B. Hughes whole for any loss of pay he has suffered, by reason of such discrimination, by payment to him of a sum of money equal to the amount of wages he would have earned, but for such discrimination, between the date such discrimina- tion began, as found above, and March 2, 1972, the date on which the Company received a copy of the letter from the Union to Jack B. Hughes, stating that the Union had no objection to his reinstatement by the Company, together with interest on said sum at the rate of 6 percent per annum; 16 that, in addition, the Company make Jack B. Hughes whole for any loss of pay he suffered, or may suffer, by reason of such discrimination, by payment to him of a sum of money equal to the amount of wages he would have earned, but for such discrimination, between March 2, 1972, and the date of a proper offer of reinstatement to him, as aforesaid, together with interest on such sum at the rate of 6 percent per annum; and that the loss of pay and interest be computed in accordance with the formula and method prescribed by the Board in F. W Woolworth Company, 90 NLRB 289, and Isis Plumbing and Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: i7 ORDER A. Austin & Wolfe Refrigeration, Air Conditioning and Heating, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Encouraging or discouraging membership of any employee in Sheet Metal Workers International Associa- tion, Local No. 359, or any other labor organization, by discharging, or otherwise denying employment to, any employee, or in any other manner discriminating against any employee with respect to such employees' hire, tenure of employment, or any term or condition of employment. (b) In any like or related manner interfering with, restraining, or coercing any employee in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative actions which I find will effectuate the policies of the Act: (a) Offer Jack B. Hughes immediate and full reinstate- ment to his former job or, if that no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and jointly and severally with the said Union, and individually, make the said Jack B. Hughes whole as provided in the section entitled "The Remedy." (b) Preserve until compliance with any order for reinstatement and backpay ihade by the Board in this proceeding is effectuated and, upon request, make availa- ble to the said Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and any other records that are relevant to a determination of any right of reinstatement, and of the amount of backpay due, under such order. 16 On February 22, 1972, the Union , after the filing of the charge against it, attempted , but was unable, to reach Hughes, who was then on one of its out-of-work lists, to dispatch him to a job with some employer other than the Company That effort did not toll the Union's backpay liability, since Hughes was entitled to reinstatement by the Company, and the Union had not yet notified the Company that it had no objection to his reemployment 11 In the event no exceptions are filed , as provided by Sec 102 46 of the Board's Rules and Regulations , the findings , conclusions, recommendations and recommended Order herein, shall, as provided in Sec 102 48 of the said 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 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at the Company's place of business in Phoenix, Arizona, copies of the attached notice marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for Region 28, shall, after being duly signed by an authorized representative of the Company, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places there where notices to employees are customarily posted. Reasonable steps shall be taken by the said Company to insure that said notice is not covered, altered, or defaced, by any other material.18 (d) Notify the said Regional Director, in writing, within 20 days from the date of receipt of a copy of this Decision, what steps the Respondent Company has taken to comply therewith.19 3. Sheet Metal Workers International Association, Local No. 359, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing, or attempting to cause, Austin & Wolfe Refrigeration, Air Conditioning & Heating, Inc., to discharge, or otherwise deny employment to, any employ- ee, or in any other manner to discriminate against any employee in regard to his hire, tenure of employment, or any term or condition of employment. (b) In any like or related manner restraining or coercing any employee in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative actions which I find will effectuate the policies of the Act: (a) Jointly and severally with Austin & Wolfe Refrigera- tion, Air Conditioning & Heating, Inc., make Jack B. Hughes whole as provided in the section entitled "The Remedy." (b) Post at its usual membership meeting place, copies of the attached notice marked "Appendix B." Copies of said notice, to be furnished by the Regional Director for Region 28, shall, after being signed by a duly authorized representative of the said Union, be posted by it immedi- ately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including places where notices to members are customarily posted. Reasonable steps shall be taken by the said Union to insure that said posted notice is not altered, defaced, or covered by any other material.20 (c) Forthwith mail copies of the said notice marked "Appendix B" to the said Regional Director, after said copies have been signed as provided above, for posting by Austin & Wolfe Refrigeration, Air Conditioning & Heating, Inc., if it so agrees, at the places where said Company is required to post copies of the notice marked "Appendix A," as provided above. (d) Notify the said Regional Director, in writing, within 20 days from the date of receipt of a copy of this Decision, what steps the said Respondent Union has taken to comply therewith.21 18 In the event that the Board's order is enforced by a judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 19 In the event that this recommended Order.is adopted by the Board, after exceptions have been filed, Par I(2)(d) of such recommended Order shall be modified to read "Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order, what steps the Respondent Company has taken to comply therewith " 20 In the event that the Board's order is enforced by a judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board - 21 In the event that this recommended Order is adopted by the Board. after exceptions have been filed, par B2(d) of such recommended Order shall be modified to read "Notify the said Regional Director, in writing, within 20 days from the date of this order, what steps the Respondent Union has taken to comply therewith " APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board has found that we have violated the National Labor Relations Act, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join or assist any union To bargain collectively through representa- tives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any such activities. WE WILL NOT discharge or otherwise discriminate against any employee because such employee exercises any of such rights. WE WILL NOT in any like or related manner interfere with, restrain or coerce employees in the exercise of any of the said rights. The National Labor Relations Board has found that we discriminated against Jack B. Hughes by discharg- ing him in violation of the National Labor Relations Act, and has ordered us to offer him immediate reinstatement, and to reimburse him for any loss of pay that he has suffered, or may suffer, by reason of such discrimination, together with interest thereon as pro- vided in the Board's order. WE WILL comply with the Board's order. AUSTIN & WOLFE REFRIGERATION, AIR CONDITIONING & HEATING, INC. (Employer) Dated By (Representative) (Title) We will immediately notify the said Jack B. Hughes, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application, after AUSTIN & WOLFE REFRIGERATION discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 7011 Federal Building and U.S. Courthouse P O. Box 2146, 500 Gold Avenue, SW., Albuquerque, New Mexico 87101, Telephone 505- 843-2555. APPENDIX B NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To all members of Sheet Metal Workers International Association, Local No. 359, and employees of Austin & Wolfe Refrigeration, Air Conditioning & Heating, Inc. After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board has found that we have violated the National Labor Relations Act, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join or assist any union To bargain collectively through representa- tives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any such activities. WE WILL NOT cause, or attempt to cause, Austin & Wolfe Refrigeration, Air Conditioning & Heating, Inc., or any other employer, to discriminate against any 145 employee, by discharge or otherwise, because such employee exercises any of such rights. WE WILL NOT, in any like or related manner restrain or coerce employees in the exercise of any of the said rights. The National Labor Relations Board has found that we caused Austin & Wolfe Refrigeration, Air Condi- tioning & Heating, Inc., to discriminate against Jack B Hughes by discharging him in violation of the National Labor Relations Act, and has ordered us, jointly and severally with Austin & Wolfe Refrigeration, Air Conditioning & Heating, Inc., to reimburse him for any loss of pay he suffered by reason of such discrimina- tion, together with interest as provided in the Board's order, between the date of the discharge and March 2, 1972, the date on which we notified Austin & Wolfe Refrigeration , Air Conditioning & Heating, Inc., that we have no objections to his reinstatement to his former job. We have no objections to the employment of Jack B. Hughes by Austin & Wolfe Refrigeration, Air Condi- tioning & Heating, Inc. WE WILL comply with the Board's order. SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL No. 359 (Labor Organization) 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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 7011 Federal Building and U.S. Courthouse P.O. Box 2146, 500 Gold Avenue, SW., Albuquerque, New Mexico 87101, Telephone 505- 843-2555.