J. S. Alberici Construction Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. S. Alberici Construction Co., Inc. and Newell D. McQuerry. Case 14-CA-9878 August 31, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On May 9, 1977, Administrative Law Judge John F. Corbley issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, and to adopt his recommended Order, as modified herein. 2 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 Administrative Law Judge as modified below and hereby orders that the Respon- dent, J. S. Alberici Construction Co., Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: 1. Substitute the following for paragraph 2(c): "(c) Make Newell D. McQuerry whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment of a sum equal to that which he would normally have earned from the date of the discrimination to the date of Respondent's offer of employment. The loss of earnings will be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), together with interest thereon, to be calculated in accordance with the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977)." 2. Substitute the attached notice for that of the Administrative Law Judge. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of aJl of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry) Wall Products, nct.. 91 NLIRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have care llly examined the record and find no basis for reversing his findings. 231 NLRB No. 173 In sec. 111B. of his Decision. the Administrative Law Judge inadvertently refers to the conversation between Supervisor Weaver and employee Frankenreiter as having occurred on July 8. 1976. whereas the record reveals that such conversation took place on July 14, 1976. 2 The Administrative Law Judge, in his recommended remedy, provided, inter alia, that Respondent be required to make discriminatee McQuerry whole for any loss of earnings suffered as a result of Respondent's unlawful refusal to hire him for the Chrysler job in July 1976. The Administrative Law Judge, however, found that Respondent refused to hire McQuerry not only for that particular job, but for others as well. We therefore shall not limit backpay to that amount which McQuerry would have earned on the Chrysler job. Rather, we shall order that he be paid an amount equal to what he would have earned from the date of the discrimination against him until the date of Respondent's offer of employment. less net earnings, if any, during such period to be computed in the manner prescribed in F W Woolworth Company, 90 NLRB 289 (1950). with interest thereon as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and our recent decision in Florida Steel Corporation, 231 NLRB 651 (1977). In accordance with Florida Steel, we shall apply the current 7-percent rate for periods prior to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives you, as employees, the following rights: To form, join, or help unions To bargain collectively through a repre- sentative of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. WE WILL NOT refuse to hire applicants for employment or take any reprisal against our employees because they join, support, or are sympathetic to International Association of Bridge, Structural and Ornamental Iron Workers, Local 396, AFL-CIO, or any other labor organi- zation. WE WILL NOT threaten to refuse to hire applicants for employment because of their beliefs. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the National Labor Relations Act. WE WILL notify Newell D. McQuerry, in writing, that we have no objection to hiring him for any ironworker job for which he is qualified. WE WILL place Newell D. McQuerry's name at the top of a preferential hiring list for positions in which he is qualified and WE WILL offer him such a position as soon as it becomes available. 1038 J. S. ALBERICI CONSTRUCTION CO. WE WILL make up all pay lost by Newell D. McQuerry as the result of our failure to hire him, plus interest. J. S. ALBERICI CONSTRUCTION CO., INC. DECISION STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case on February 16, 1977, at St. Louis, Missouri, pursuant to a charge filed by Newell D. McQuerry (hereinafter referred to as McQuerry or the Charging Party) on December 21, 1976, and served on Respondent by registered mail on or about the same date, a complaint and notice of hearing issued by the Regional Director for Region 14 on January 27, 1977, and an amendment to the complaint issued by the same Regional Director on February 8, 1977, which complaint and the amendment thereto were also duly served on Respondent. The complaint alleges that Respondent violated Section 8(a)(l) of the National Labor Relations Act, as amended, by telling employees it would not hire an applicant for employment because of his union beliefs and that Respon- dent violated Section 8(a)(1) and (3) of the Act by refusing to employ the Charging Party. In its answer to the complaint, which was also duly served and amended on the record at the hearing, Respondent has denied the commis- sion of any unfair labor practices. For reasons which appear hereinafter I find and conclude that Respondent has violated the Act essentially as alleged in the complaint. At the hearing, the General Counsel and the Respondent were represented by counsel. All parties were given the opportunity to examine and cross-examine witnesses, to introduce evidence, and to file briefs. The General Counsel waived the opportunity to present oral argument at the conclusion of the hearing, but Respondent exercised this right. The General Counsel and Respondent have subse- quently filed briefs and Respondent filed a letter question- ing certain factual allegations in the General Counsel's brief.' Upon the entire record in this case, including the briefs and the letter, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws in the State of Missouri. At all times material herein, Respondent has maintained its principal office and place of business at 2150 Kienlen Avenue, in the City of St. Louis and State of Missouri, herein called its St. Louis place of business. Respondent is, I Thereafter, the General Counsel moved to strike this letter as an unauthorized reply brief. I den) this motion. I have, however, carefully and has been at all times material herein, engaged in the building and construction industry as a general contractor. During the year ending December 31, 1976, which period is representative of its operations during all times material hereto, Respondent, in the course and conduct of its business operations, purchased and caused to be transport- ed and delivered at its Missouri jobsites construction materials and other goods and materials valued in excess of $100,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its Missouri jobsites, directly from points located outside the State of Missouri. The complaint alleges, the answer admits, and I find that Respondent is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Bridge, Structural and Ornamental Iron Workers, Local 396, AFL-CIO, herein called the Union, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Respondent's Relevant Hierarchy Raymond Pieper has been Respondent's president from about May 1976. Since that time he has overseen Respondent's operations, particularly work in the iron- worker trade, and is the final authority on Respondent's labor relations policy. I conclude, therefore, that he is now, and has been at all times material herein, an agent of Respondent acting on its behalf within the meaning of Section 2(13) of the Act. At all times material herein, Walter "Red" Weaver has been, and is, Respondent's ironworkers' superintendent and a supervisor of the Respondent within the meaning of Section 2( 11) of the Act, and its agent. In September and October 1975, Mr. Jacobsmeyer was a supervisor of the Respondent within the meaning of Section 2(1 1) of the Act, and its agent. B. Background and Sequence of Events Respondent hires members of the Union to perform its ironwork. The Charging Party, McQuerry, has been a member of the Union for some 13 years. He has also worked for a number of contractors in Missouri as an ironworker. He has been employed on several occasions, between 1965 and 1975, by Respondent. While working for Respondent in the early 1970's he was a job steward and a field steward covering several counties. He has also served in the boilermakers trade from time to time since 1959, most recently in 1976. During his employment as an ironworker for Respon- dent, McQuerry has performed tasks in welding, reinforc- examined the entire record in the light of Respondent's letter and my findings are made in consideration of the entire record. 1039 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing (rod work), rebars, structural steel, bolting, connecting, repair of trusses, setting machinery, grading, and such miscellaneous work as sheeting and installing spray booths. On or about July 5, 1974, McQuerry was discharged by Respondent, allegedly for insubordination. He thereafter filed a grievance which went to arbitration. The arbitrator, William Stix, in a decision issued May 10, 1975, found that McQuerry had not been guilty of insubordination when he responded to a situation in which he was caught in the meshes of conflicting instructions from two supervisors. The arbitrator awarded McQuerry backpay, held that McQuerry had previously enjoyed a position on one of Respondent's "raising gangs," and directed that Respon- dent restore him to his position in the gang. In the meantime, in the summer of 1975, McQuerry was employed by Kern and Gregory, a different construction contractor. When McQuerry was laid off by Kern and Gregory in September 1975, he called "Red" Weaver, Respondent's ironwork superintendent, about obtaining a job with Respondent. Weaver responded that Weaver had to hire McQuerry because of the decision in the arbitration case. McQuerry's effort to obtain a job directly from Respon- dent without going through the Union's hiring hall is consistent with the Union's practice with Respondent and other contractors. Only about 20 percent of the Union's members obtain jobs through referral from the Union's hall. McQuerry then began work for Respondent in Septem- ber 1975 on a microwave tower in Sullivan, Missouri, as a welder for about 3 weeks. When McQuerry was laid off from the Sullivan job, this job was almost over. He was laid off by the foreman, Robert Higgins, along with several other ironworkers. Some three ironworkers including Higgins remained to complete the Sullivan job. On the day before McQuerry was laid off, Jacobsmeyer, a project engineer for Respon- dent and an admitted supervisor and agent of Respondent, told Higgins to lay off three people and to be sure that one of them was McQuerry. Jacobsmeyer explained to Higgins that "we" or "they" did not want McQuerry working for Respondent. 2 Bill Woolsey, a steward in the earlier phase of the Sullivan job and a friend of McQuerry's, had meanwhile moved to another microwave tower project of Respondent in Rolla, Missouri. McQuerry called Woolsey for a position and Woolsey hired McQuerry at Rolla. McQuerry became the union steward at Rolla, but the job only lasted about 2 weeks for him when he was again laid off by Respondent in October 1975. 2 Higgins credibly so testified without dispute. Jacobsmeyer did not testify. His failure to do so gives rise to an inference, which I draw, that if he had testified his testimony would have been unfavorable to Respondent. Avon Convalescent enter, Inc., 219 NLRB 1210, 1213(1975). :I McQuerry testified as to three calls during this period and had the telephone bills to establish the dates. Weaver in his testimony did not question the dates. McQuerry was a bit uncertain as to what was said vis-a- vIts any specific call except that he asked for work and was told there was none. Weaver confirmed McQuerry's recollection as to the foregoing. Weaver further testified that in one of the first of these calls Weaver told McQuerry he would call McQuerry back. For his part McQuerry recalled giving Weaver phone numbers where McQuerry could be reached but McQuerry could not recall which or how many times he gave Weaver this McQuerry has not been employed by Respondent since that time, although, as will appear, he has applied for work from Red Weaver. His layoff by Respondent in the fall of 1975 is not alleged as an unfair labor practice. Respon- dent's failure to hire him after he had made various oral applications to Weaver in June and July constitutes the substance of the complaint herein. After being laid off in the fall of 1975, the Charging Party worked for various other contractors in succession - World Wide Erectors, Kern and Gregory, Montgomery, and Kern and Gregory again - until March 1976. On or about March 22, 1976, the Charging Party called Red Weaver to inquire about work. Weaver told McQuerry that Weaver had no work at that time but to check back with Weaver because Weaver had a lot of work coming up including work at a Chrysler plant, a coal plant, and another job. McQuerry then went to the Union's hall in an effort to obtain a referral but was told that the Union had no referral requests. McQuerry thereupon went to the hall of the Boilermakers, a different labor organization, from which he received a referral to go to work out of town in New Madrid, Missouri, for Joliett Tower and Tank Company. He worked for the latter employer from March 28, 1976, to July 22, 1976. While in New Madrid the Charging Party called Weaver a number of times in the hope of obtaining work with Respondent in the St. Louis area. The telephone calls which concern us here are his three calls to Weaver on June 27 and 30 and July 8, 1976. On June 27, McQuerry telephoned Weaver asking for work and Weaver told McQuerry that Weaver had nothing at that time but to call Weaver back. During this and perhaps one or more of the other calls at this time McQuerry gave Weaver telephone numbers where McQuerry could be reached if a job opening occurred. McQuerry requested that Weaver call McQuerry collect in this eventuality. As Weaver admitted at the hearing, he told McQuerry he would call McQuerry back. 3 On June 30, McQuerry again called Weaver but was told that Weaver had no work available. On July 8, McQuerry telephoned Weaver for about the third time in less than 2 weeks. McQuerry again asked for work but was told that none was then available. The Chrysler job (which began later in July 1976) was discussed during this conversation. When McQuerry asked Weaver whether Weaver was going to hire McQuerry or not, Weaver stated he would but that he would "catch a lot of fire from the front office." 4 information. Since Weaver admitted his agreement to call back in one of the first of these calls and McQuerry testified he gave Weaver telephone numbers - which, I conclude, would obviously help Weaver to call McQuerry back I find that all of the foregoing occurred in the call of June 27. ' McQuerry testified that in one of the three calls this statement was made and that McQuerry made no calls after July 8 because he concluded that by that time that Weaver was not going to hire him. I find that this occurred in the third call (the July 8 call) because this would supply McQuerry a reason for this conclusion. Weaver admitted that McQuerry asked Weaver something about whether Weaver would put McQuerry to work and did not deny the "catch fire" response. Indeed. he evaded the 1040 J. S. ALBERICI CONSTRUCTION CO. McQuerry has not since telephoned Weaver in an effort to find a job. On or about July 14, 1976. Weaver visited ajobsite where Respondent was performing work at a Chevrolet plant. Weaver at that time spoke to three of Respondent's ironworkers - Duffy, Owens, and Frankenreiter, in that order - asking them if they knew of any hands out of work or if they had any friends who needed a job. Owens gave Weaver two names. Weaver responded that he was aware of the two but had been unable to reach them. After Owens had mentioned a name to Weaver, the latter turned to Frankenreiter and asked if Frankenreiter knew anyone out of work. Frankenreiter said he knew a man working out of St. Louis who wanted to get back to town whom Frankenreiter identified as McQuerry. Weaver replied that McQuerry had called Weaver "a couple of weeks ago." Frankenreiter inquired if Weaver wanted Frankenreiter to call McQuerry or if Weaver himself wanted to make the call. Weaver rejoined that he knew McQuerry was a good hand but Weaver did not think the front office would approve. Frankenreiter then asked whether, if McQuerry came to work, he would simply be sent home after being given 2 hours showup time. Weaver smiled and nodded his head. Frankenreiter then pursued this and said that McQuerry had worked for Frankenreiter during the previous year and had done a fine job for Frankenreiter. To this Weaver replied that, although McQuerry was a good man, "his union beliefs just cause trouble on the job." Within the next 3 days, Respondent hired, as Weaver admitted, at least five new ironworkers who had been employed at the Chevrolet plant by Montgomery, another contractor, who no longer needed them. 5 question when it was put to him by Respondent's counsel - saying instead he had never been told not to hire McQuerry. Weaver admitted the Chrysler job wsas discussed in the July 8 conversation. These findings are based on the credible testimony of Frankenreiter in this regard. For his part Weaser admitted that the conversation occurred, Frankenreiter recommended McQuerry, and Weaver indicated to Franken- reiter that Weaver did not want to hire McQuerry. Weaver was unsure what reason Weaver gase Frankenreiter for this refusal. He did not specifically deny saying the front office would not approve. I do not credit Weaver's statement that he did not say that McQuerry caused trouble on the job with his union beliefs. I discredit Weaver because I found him uncertain in many areas oft his testimony and, indeed, before making the instant denial he testified that he was unsure whether he indicated his reason to Frankenreiter Ior not wanting the hire McQuerry, He was evasive in at least one particular already mentioned. I also note, especially, that nowhere did Weaver deny making the remark to McQuerrs lover the phone), to Frankenreiter (in the abose-described incident). or to Brown (in a similar incident to be described Ih:at the front office or company would not approve the hiring of McQuerrs or that W'eaver would get in trouble with them if he did, Further. Weaver blinked noticeably on the stand when denying that Pieper. Respondent's president, ever told him not to hire McQuerry. Weaver also paused a long time in part of his testimony on the Frankenreiter incident, Otherwise his testimony was fairly brisk. Frankenreiter, I found to be a credible and conscientious witness who was corroborated by Weaver in a number of the miniscule details surrounding the Chevrolet plant incident aind the new hires which followed. I reject all of Respondent's attacks upon Frankenreiter's credibility and I will comment on a few Thus. Respondent argues that it could not have refused to hire McQuerry because of his union beliefs because it has hired man) other strong union adherents. However. it is well settled that a Respondent's failure to commit unlawful discrimination in some instances does not establish that it will not act unlawfully in others. E.g.. Nachman (orp atn.n . ¥ I/ R B. 337 F 2d 421 424 ( C.A. 7. 19641. Respondent also On or about August 20, 1976, Weaver visited a job being performed by Respondent at a Ralston-Purina facility. One of the ironworkers in Respondent's crew, Gilbert Reed, was about to take off a week or two. Apparently having learned of this upcoming vacancy and, as Weaver admit- ted, being desirous of obtaining sheeters to finish the job, Weaver asked Mike Brown, another member of Respon- dent's crew at that site, whether Brown knew of any "sheeters" (an ironworker skill) who were "loafing" (viz, not working, in trade lexicon). Brown replied that he had spoken to McQuerry the night before and that McQuerry was looking for a job. Weaver told Brown that Weaver knew McQuerry and had gone "to school with him." Weaver added that he, Weaver, had nothing against McQuerry personally but other people in the company did not care for McQuerry. Weaver admitted on the stand that Weaver indicated to Brown in this incident that Weaver did not "particularly want to hire" McQuerry. Because a problem developed in the type of sheeting being used in the Ralston-Purina job, no one was hired to replace Reed and the entire Respondent crew was laid off during the following week.6 As I have already noted, McQuerry did not work for Respondent after the Rolla tower job in October 1975. Concluding Findings It is clear from the foregoing and I find that McQuerry has been a union member for some 13 years and has, in the past, been a union steward on Respondent's projects - the most recent occasion for such stewardship being in the fall of 1975. As a union steward and at other times he was vigorous in the enforcement of the Union's contract rights. 7 Weaver admitted he considered McQuerry a leader says there is a substantial distinction between what Frankenreiter testified about the incident and what according to McQuerry's testimony - Frankenreiter told McQuerry about the incident sometime after it occurred. Frankenreiter testified, in essence, that Weaver said McQuerry's problem was his "union beliefs" whereas McQuerry testified that Frankenreiter told McQuerry that Weaver said McQuerry was "'too union." I see no fatal discrepancy here. Moreoser. McQuerry was not pressed for an exact quote of the precise words used by Frankenreiter to relay what Weaver said about McQuerry's unionism. Finally. Respondent contends that Frankenreiter's version is a fabrication. Again I note Weaver did not deny the reference by him to Respondent's front office in this conversation. While Respondent notes that Frankenreiter testified that, after he told McQuerry about the incident and McQuerry asked Frankenreiter to make a statement, Frankenreiter replied that Frankenreiter "made one up for him," Franken- reiter's full testimony on the point was that McQuerry did not tell Frankenreiter what to say All McQuerry asked for, said Frankenreiter, was a report of the conversation. What Frankenreiter told McQuerry. he said. was Weaver's comment as it was made to Frankenreiter. 6 The findings as to this Ralston-Purina incident are based pnmarily on the credible testimony of Brown in this regard. as largely corroborated or supplemented without dispute by Weaver. Weaver said he did not recall whether he gave a reason for his refusal to hire McQuerry but did not think he gave a reason. This falls short of a certain denial that Weaver made the statement which was, with certitude, attributed to him by Brown. I I reach this conclusion on the basis of the following: When querying Frankenreiter as to what Frankenreiter thought Weaver meant when Frankenreiter testified that Weaver said that McQuerry's "union beliefs" cause trouble on a job, Frankenreiter spoke of vigorous enforcement of union contract rights and gave several examples. After these examples were supplied. Respondent's counsel asked Frankenreiter if such enforcement conduct was what he understood Weaver to have referred to in the conversation - to which Frankenreiter replied in the affirmative From this (Continued) 1041 DECISIONS OF NATIONAL LABOR RELATIONS BOARD among the men. McQuerry also filed a grievance (or the Union filed one for him) against Respondent over McQuerry's discharge by Respondent in 1974 which ended in arbitration and in a victory for McQuerry (and the Union). Weaver admitted he was aware of the arbitration and its result and indeed he mentioned its consequences when he rehired McQuerry in the fall of 1975. It is further clear that some official or officials of Respondent do not want McQuerry to work for Respon- dent. As has been found, Jacobsmeyer, admitted agent and supervisor, wanted McQuerry, specifically, to be laid off from the Sullivan tower job in September or October 1975, before some other employees. Weaver, as I have found, told both McQuerry and Frankenreiter in July 1976 that, if Weaver hired McQuerry, Weaver would get heat from the front office and, in August 1976, Weaver told Brown that other people in the company did not care for McQuerry.8 The reason for Respondent's antipathy toward McQuerry was explained to Frankenreiter in the incident on July 14, 1976, as being McQuerry's "union beliefs," which, as I have found, equate with his vigorous enforcement of the Union's rights under a collective-bargaining agreement. In its brief, besides arguing certain credibility matters or questions of fact previously disposed of, Respondent contends that it could not have discriminated against McQuerry because there was no job opening on any of the evenings McQuerry requested work from Weaver on June 27 and 30 and July 8, 1976, and that it did not discriminate against McQuerry at any time after July 8, 1976, because McQuerry made no application for any positions which opened after that date. I reject both of these contentions. While it is true - insofar as this record shows - that there were no openings for an ironworker at any Respon- dent project on June 27 and 30 and July 8, 1976, it is clear that McQuerry did make application for work on those dates. Although McQuerry stated that it is the custom to call back and that an applicant can call anytime, Weaver admitted that, when McQuerry first talked to him in June (June 27, 1976), Weaver told McQuerry that if something came up Weaver would call McQuerry back. This means, and I find, that Weaver considered McQuerry to be a continuing applicant after the call and that McQuerry could maintain that status without making a further contact with Weaver. Yet Weaver refused to call McQuerry just 17 days later on July 8, 1976, when Weaver wanted men for Respondent's Chevrolet job and when Franken- reiter specifically asked Weaver whether Weaver wanted to call McQuerry or whether Weaver wanted Frankenreiter to call McQuerry. Weaver further admitted that when Weaver spoke to Frankenreiter on July 8, 1976, Weaver was inquiring more for the upcoming Chrysler job than for the ongoing Chevrolet project. The Chrysler job was the very and the fact that it was McQuerry whose "union beliefs" were being discussed, it follows that McQuerry must have engaged in such contract enforcement when an employee. I Respondent's president, Pieper. admitted on cross-examination that there were officials of Respondent at a level below Pieper who are in a position of responsibility and can put heat on Weaver. !+ The General Counsel suggests in his brief that McQuerry should have been rehired by Respondent even at the expense of displacing another employee, because this was Respondent's obligation under the arbitrator's decision. If the General Counsel is contending that McQuerry was thus entitled to a job with Respondent at any and all times since McQuerry's job Weaver admitted discussing with McQuerry during their telephone call of July 8, 1976, just 6 days before the Frankenreiter incident. But Weaver refused to call McQuerry for either the Chevrolet job or the Chrysler project. As noted, at least five employees were newly hired for the Chevrolet job within a day or two after July 14. The Chrysler job began in mid-July 1976, and lasted for a month or so. Weaver testified that the majority of Respondent's Chrysler crew were transfers from other projects. This means, and I find, that at least some were not transfers but were new hires. Weaver further admitted that in the period from June 1, 1976, to the time of the hearing herein Respondent has hired 12-14 employees in structural steelwork and welding - the number hired in other specialties not being shown by the record. I have already held that McQuerry is qualified in numerous phases of the ironworker trade, among others, installing spray booths (as he had previously done for Respondent). Some of the employees hired by Respondent in July 1976 at the Chevrolet plant were for spray booth work. The record does not show what skills were needed for the new hires in the Chrysler job, but this is a matter I need not consider because the only reason given by Weaver for not calling McQuerry at the time, when Weaver admitted he was looking for men for the Chevrolet job and for the Chrysler job, was Weaver's feeling that McQuerry's union beliefs caused trouble on the job. By the same token I reject the testimony of Weaver that he did not hire McQuerry in July 1976 because of McQuerry's attitude, the fact that McQuerry was working (at New Madrid from which he was strenuously trying to return to St. Louis), or because he considered McQuerry to be primarily a welder or a structural steel worker. I also reject Weaver's further testimony that his refusal to hire McQuer- ry was not based on the latter's union beliefs.9 Accordingly, I conclude that Weaver refused to hire McQuerry because of McQuerry's union beliefs, just as Weaver told Frankenreiter, and I further conclude that Respondent has thereby violated Section 8(a)(1) and (3) of the Act.' 0 I further conclude that, by Weaver's statement in the presence of Frankenreiter that Respondent would take reprisal against an applicant for employment because of that individual's union beliefs, Respondent has violated Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with its operations described in section I, layoff in October 1975 from Respondent's tower job in Rolla, I reject this contention. For the arbitrator held that McQuerry. before his improper discharge in 1974, had been a regular member of Respondent's "raising crew" and was entitled to reinstatement on the "raising crew." This record does not show whether there was any work for Respondent's "raising crew" at any time in question here. 'o See Chef Nathan Sez Eat Here, Inc., 181 NLRB 159, enfd. 434 F.2d 126 (C.A. 3, 1970). It is well settled that an applicant for employment is an employee within the meaning of the Act. Briggs Manufacturing Company, 75 NLRB 569, 570 (1947), and Phelps Dodge Corporation v. N. LR.B., 313 U.S. 177 (1941). 1042 J. S. ALBERICI CONSTRUCTION CO. above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has violated Section 8(a)(3) and (1) of the Act, I shall recommend an order directing it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act, including the posting of an appropriate notice. Since Weaver admitted, when Weaver asked Franken- reiter on July 14, 1976, the names of ironworkers who might be available, that Weaver was then thinking more of the Chrysler job than the Chevrolet job and, since the Chrysler job was specifically discussed between Weaver and McQuerry in their last telephone conversation on July 8, 1976, I conclude that Weaver refused to hire McQuerry, inter alia, for the Chrysler job which began several days after the July 14, 1976, conversation and lasted a month or so. Since this job has been completed I will not recommend that McQuerry be reinstated by Respondent. I will, however, recommend that Respondent notify McQuerry, in writing, that it has no objection to hiring him into any position for which he is qualified and, further, that Respondent place McQuerry's name at the top of a preferential list for any ironworker position which will be filled by Respondent after this Decision and which calls for any skill in which McQuerry is qualified (e.g., structural, welding, rod work, sheeting, reinforcing, burning, repairing of trusses, layout, installation of paint booths, setting machinery in place, etc.), which position it shall offer him when a vacancy occurs. I shall also recommend that McQuerry be made whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would have earned, had he been employed on the Chrysler job, less net earnings, if any, during such period to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with 6-percent interest thereon as required by Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It will also be recommended in view of the nature of the unfair labor practices in which Respondent has engaged (see N.L.R.B. v. Entwistle Manufacturing Company, 120 F.2d 532, 536 (C.A. 4, 1941)), that Respondent be ordered to cease and desist from infringing in any other manner upon the rights guaranteed employees by Section 7 of the Act. CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions. and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become 3. By refusing to hire Newell D. McQuerry because of his union beliefs, Respondent has violated Section 8(a)(I) and (3) of the Act. 4. By the statement of its supervisor and agent, Weaver, that Respondent would not hire McQuerry because McQuerry's union beliefs purportedly cause trouble on the job, Respondent has violated Section 8(aXI) of the Act. 5. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER " The Respondent, J. S. Alberici Construction Co., Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, activities in behalf of, or sympathies toward International Association of Bridge, Structural and Ornamental Iron Workers, Local 396, AFL- CIO, or any other labor organization, by discriminating in regard to hire or tenure of employment or in any other manner in regard to any term or condition of employment of any of Respondent's employees in order to discourage union membership, activities, or sympathies. (b) Threatening that it will not hire an applicant for employment because of the applicant's union beliefs or in any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Notify Newell D. McQuerry, in writing, that it has no objection to hiring him for any ironworker position for which he may be qualified. (b) Place Newell D. McQuerry's name at the top of a preferential hiring list for any ironworker position which may be filled by Respondent after this Decision for any skill in which McQuerry is qualified and, when such position becomes available, offer it to McQuerry. (c) Make Newell D. McQuerry whole for any loss of earnings he may have suffered as the result of the discrimination against him in the manner set forth in "The Remedy" section herein. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (e) Post at its place of business in St. Louis, Missouri, copies of the attached notice marked "Appendix."' 2 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 12 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 "Posed by (Continued) 1043 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to 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." insure that such notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 1044