Panscape Corp.

National Labor Relations Board - Board Decisions

Aug 29, 1977

231 N.L.R.B. 693 (N.L.R.B. 1977)

PANSCAPE CORPORATION
Panscape Corporation and Richard Burton and David
Jackson. Cases 25-CA-7871-1 and 25-CA-
7871-2
August 29, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On April 16, 1977, Administrative Law Judge Karl
H. Buschmann issued the attached Decision in this
proceeding. Thereafter, Respondent and General
Counsel filed exceptions and supporting briefs. The
Charging Party filed a brief in answer to Respon-
dent's exceptions to the Administrative Law Judge's
Decision.
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, find-
ings,1' and conclusions of the Administrative Law
Judge and to adopt his recommended Order as
modified below.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(1), (3), and (4) of the Act
when it unilaterally implemented a discriminatory
exclusive hiring hall procedure and applied this
procedure in April 1976 to the Charging Parties,
Richard Burton and David Jackson. He did not find
that Respondent's assignment of Jackson to dig a
ditch by hand, after his reemployment in May 1976,
constituted a constructive discharge. We agree with
these findings.
We disagree, however, with the remedy of rein-
statement and full backpay recommended by the
Administrative Law Judge as it applies to Jackson
and possibly as to Burton as well. The Administra-
tive Law Judge found that subsequent to the filing of
the charge on April 12, 1976, which is the subject of
this case, Respondent, at the urging of the National
Labor Relations Board, offered reemployment to
Burton and Jackson. Jackson accepted the offer and
began work on May 23, 1976. Burton, on the other
hand, refused the job as he had already obtained
other employment.
' In the absence of exceptions, the Board adopts, proforma, the finding
of the Administrative Law Judge that Respondent did not institute the
exclusive hiring hall procedure for the sole purpose of discriminating against
Burton and Jackson.
The General Counsel 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 all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry WBall Products,
231 NLRB No. 89
With regard to Burton, the remedy of reinstate-
ment with backpay may be appropriate. It is unclear
from the record whether Respondent made a valid
offer to have the Charging Parties return to work in
May 1976. In the absence of such evidence, the
question of what the remedy should be must be left
to our compliance procedure. If at the compliance
stage it should be determined that a valid offer was
made in May 1976, then Burton would not be
entitled to more than backpay for the period between
his request for reemployment and the offer to return
to work. If, however, Respondent's offer was not a
valid one, the proper remedy would be the one
granted by the Administrative Law Judge.
This reasoning does not, however, apply to
Jackson. Whether or not Respondent's offer was a
valid one is moot, as Jackson accepted it and
performed work within his previous job description
as a landscape employee for approximately 5
months. As stated above, the Administrative Law
Judge found, and we agree, that Jackson voluntarily
left his job and was not constructively discharged. He
is not, therefore, entitled to reinstatement with full
backpay. Jackson is, however, entitled to backpay for
the period between his request for work and
Respondent's offer of reemployment. Accordingly,
we have decided to reverse that portion of the
Administrative Law Judge's remedy which provides
for reinstatement with backpay for Jackson and have
revised the corresponding Order and notice provi-
sions to conform to this Decision.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 and
hereby orders that the Respondent, Panscape Corpo-
ration, Muncie, Indiana, its officers, agents, succes-
sors, and assigns, shall take that action set forth in
the said recommended Order, as so modified:
1. In paragraph l(c) substitute the words "In any
other manner" for the words "In any like manner."
2. Substitute the following for paragraph 2(a):
"(a) Offer Richard D. Burton immediate and full
reinstatement to his former position or, if such
position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority, or to
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In par. I(c) of his recommended Order. the Administrative Law Judge
uses the narrow cease-and-desist language. "In any like manner," rather
than the broad injunctive language, "In any other manner," which the
Board traditionally provides in cases involving serious 8(aX3) discrminato-
ry conduct. See N.LR.B v. Entwistle Mfg Co.. 120 F2d 532, 536 (C.A. 4,
1941). Accordingly, we shall modify the Administrative Law Judge's
recommended Order and notice.
693
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other rights previously enjoyed, and make him whole
for any loss of pay or other benefits suffered by
reason of the discrimination against him in the
manner described in the section entitled 'The
Remedy,' as modified, 3 provided that it is found that
a valid offer to return to work was not made. If such
an offer was made he will be entitled only to be made
whole for any loss of pay or other benefits suffered
by reason of the discrimination against him for the
period between April 12, 1976, when he asked to
return to work, and when Respondent extended a
valid offer of reemployment."
3. Add the following as paragraph 2(b) and
reletter the subsequent paragraphs accordingly:
"(b) Make David R. Jackson whole for any loss of
pay or other benefits suffered by reason of the
discrimination against him for the period beginning
April 16, 1976, when he asked to return to work, until
the time a valid offer of reemployment was made by
Respondent, in the manner described in 'The
Remedy,' as if no such offer was extended, the period
shall end on May 23, 1976, when Jackson was rehired
by Respondent."
4. Substitute the attached notice for that of the
Administrative Law Judge.
:' In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for penods 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
After a hearing at which all sides had a chance to
give evidence, the National Labor Relations Board
has found that we violated the National Labor
Relations Act and has ordered us to post this notice.
We intend to carry out the Order of the Board and
abide by the following:
WE WILL offer Richard D. Burton immediate
and full reinstatement to his former position or, if
such position no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights previously enjoyed, and
make him whole for any loss of pay or other
benefits suffered by reason of the discrimination
against him provided it is found that a valid offer
to return to work was not made to him. If such an
offer was made he will be entitled only to be
made whole for any loss of pay or other benefits
suffered by reason of the discrimination against
him for the period between April 12, 1976, when
he asked to return to work, and when we
extended a valid offer of reemployment to him.
WE WILL make David R. Jackson whole for any
loss of pay or other benefits suffered by reason of
our discrimination against him for the period
beginning April 16, 1976, when he asked to return
to work, until the time we extended a valid offer
of reemployment to him. If no such offer was
made the period ends May 23, 1976, the date we
rehired him.
WE WILL NOT discriminate against employees
in regard to hire or tenure of employment, or any
term or condition of employment, because of
their union or protected, concerted activities or
because they gave testimony or filed charges
under the Act.
WE WILL NOT promulgate, adopt, or effectuate
a discriminatory rule which limits employment to
those who are union members in good standing
and are dispatched by the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed in Section 7 of the Act
except to the extent that such rights may be
affected by lawful agreements in accordance with
Section 8(a)(3) of the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any
labor organization.
PANSCAPE CORPORATION
DECISION
KARL H. BUSCHMANN, Administrative Law Judge: The
original charges were filed on April 12, 1976. The cases
were consolidated, and the complaint in the matter issued
on May 27, 1976. The hearing was held in Indianapolis,
Indiana, on October 21, 1976. The case involves allegations
(I) that Panscape Corporation violated Section 8(a)(1), (3),
and (4) of the National Labor Relations Act, as amended,
when it required that the Charging Parties, Jackson and
Burton, be dispatched by the Union before it would
reemploy them; (2) that the Respondent violated Section
8(a)(1) and (3) of the Act when it unilaterally implemented
a rule that all new hires be dispatched by the Union; and
(3) that the Respondent assigned Jackson to such onerous
tasks that it constructively discharged him in violation of
Section 8(aX 1), (3), and (4) of the Act.'
All parties were afforded full opportunity to participate
in the proceeding. Briefs filed by the General Counsel and
I With respect to the last allegation, General Counsel has moved to
amend the complaint.
694
PANSCAPE CORPORATION
on behalf of the Charging Parties were considered. The
Respondent elected not to file a brief.
Upon the entire record and from my observation of the
witnesses, I hereby make the following findings of fact and
conclusions of law.
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER 2
Panscape Corporation, the Respondent, is, and has been
at all times material herein, a corporation organized under
the laws of the State of Indiana. At all times material
herein, the Respondent has maintained its principal office
and place of business at Muncie, Indiana, where it has
been engaged in the construction industry as a landscaping
and earthmoving contractor. In the course and conduct of
its business operations, Respondent has purchased, trans-
ferred, and delivered to the Muncie facility and other
construction jobsites located in the State of Indiana goods
and materials valued in excess of $50,000, which were
transported to said facility directly from States other than
the State of Indiana. Respondent, in the course and
conduct of its business operations, performed services
valued in excess of $50,000, in States other than the State of
Indiana.
As admitted by the Respondent and based on the
foregoing, I find that the Respondent is, 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 3
Local Union 1112, Laborers' International Union of
North America, AFL-CIO, herein sometimes referred to as
the Union, is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
Panscape Corporation, referred to as simply Panscape or
the Respondent, is engaged in the construction industry as
a landscaping and earthmoving contractor. It is bound by a
collective-bargaining agreement with the Laborers' Inter-
national Union of North America, State of Indiana District
Council, which was executed in October 1974, and which
expired in March 1977. The contract provides, inter alia,
that "[i In the hiring of Employees, the Employer recognizes
that the Union is a source of manpower and will therefore
use it as a source when in need of Employees." (Art. V, sec.
1.) It also gives the employer "complete freedom of
selection in hiring . . . provided, however, that there shall
be no discrimination." (Art. V, sec 2.)
Although the contract does not provide for an exclusive
hiring hall arrangement between the Respondent and the
Union, the Respondent admits that in June 1975 it decided
to hire only those persons referred to it by the Union. It is
the General Counsel's contention that the Respondent did
not implement this policy until March 1976 and only made
2 The facts are based on the pleadings and admissions therein.
lhid.
union dispatch a condition of employment at that time in
order to avoid having to rehire the Charging Parties,
Burton and Jackson.
The record shows that in the spring of 1975, Burton,
Jackson, and a third employee, Shreve, engaged in
protected concerted activity in order to obtain a wage
increase. On June 6, 1975, the Respondent fired the three
employees. Jackson and Burton were rehired in August
1975. In October 1975, they testified at an unfair labor
practice proceeding4 in which the Respondent was found
to have discharged Jackson, Burton, and Shreve in
violation of Section 8(aXl) and (3) of the Act. After that
hearing, Jackson and Burton continued to work until mid-
December when they were laid off because of the winter
weather.
In late February, Burton asked Panscape's landscape
superintendent, Douglas Spence, whether he could come
back to work. He was informed that there was no work for
him now, but that he should check back in I month.
Burton called again about a job around April I and was
then told that he would have to go through the Union and
be dispatched by the Union. On April 12, 1976, he wrote to
the Respondent indicating his willingness to begin work.
At the beginning of April, Jackson, too, made several
unsuccessful attempts to contact Spence. In mid-April,
Jackson wrote to Respondent indicating his readiness to
work. On April 20, Kuhrman Hull, the president of
Panscape, wrote to Jackson and to Burton stating:
In reply to your letter of April 16, 1976, we would be
happy to have you back to work and all you need to do
is go to the Local 1112 Union Hall and be dispatched
to us as your turn comes up.
At some uncertain date, probably in mid-April, the
Respondent wrote to the Union and requested information
on the status of Burton and Jackson. In a phone call and in
a letter dated April 28, George McMahan, the secretary for
Local Union 1112, responded, noting that Burton had been
suspended, and that Jackson's dues were paid only through
February 1976.
Apparently, neither Jackson nor Burton went to the
union hiring hall to be dispatched. Instead, they filed
unfair labor practice charges with the National Labor
Relations Board on April 12, 1976, the date on which
Burton first wrote to the Respondent requesting a job,
before either Burton or Jackson had received a written
reply from Panscape, and even before Jackson had
received any response to his request to be reinstated.
On May 2, 1976, Panscape hired two employees whom
the Union had dispatched at its request. The two were laid
off in late May when the Respondent, at the urging of the
National Labor Relations Board, offered reemployment to
Burton and Jackson. Jackson accepted the Respondent's
offer and began work on May 23, 1976; Burton did not
accept a job, because he already had obtained other
employment.
Respondent argues that it instituted the system of hiring
only those referred by the Union on or about June 6, 1975,
' Panscape Corporation, 224 NLRB 616 (1976).
695
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the date of the discharge of Jackson, Burton, and Shreve.
Prior to that time, it had been the practice of the
Respondent to hire employees who sought work without
requiring them to go through the hiring hall. Hull had
several explanations for the change of policy. He said that
he believed that the collective-bargaining agreement with
the Union required him to hire only persons dispatched by
the Union. He later elaborated on that statement, explain-
ing that he decided he would hire from the Union as much
as possible and would only deviate from that policy when
he couldn't obtain sufficient manpower from the Union.
While he admitted that the Union's secretary, McMahan,
told him that he could hire men directly, and that no union
official had ever indicated otherwise, he held to his
interpretation of the contract nonetheless, because he
stated that this was the way in which the other unions with
whom he dealt operated. Hull admitted that he did not
begin hiring only those dispatched by the Union immedi-
ately after the signing of the contract in 1974, and that he
had hired and rehired several people in the winter of 1975
because they were the first employees to work under the
new contract. But Hull explained that, in the spring of
1975, he had incurred problems with two unions, each
advising his workers in the landscaping division. He
credibly testified:
Your Honor, after the June 6, 1975 episode when the
conflict of two different unions telling us what to do
and where to hire our people and the procedure that we
follow, I at that time made the decision that from that
point forward as much as possible we would hire from
Local Unions as we were contracted to do with our
local union contract. The only deviance of this is at
times in which we cannot get manpower from the union
and they have us bring in additional help and sign them
up to get our work done.
After June 6, Hull stated that he determined to operate
strictly according to what he believed to be the terms of the
contract.
Between June 6 and December 31, 1975, the Respondent
hired only three employees besides Burton and Jackson.
He indicated that they were hired without union referral
because it was mid-June when he needed them and all the
other laborers had jobs. Since the wage scale in the
landscaping division of Panscape was less than for laborers
elsewhere, he had trouble getting workers. Excluding
Jackson, only three full-time workers were hired between
January I and mid-June 1976, and all three were dis-
patched from the Union.
The record further reflects that Hull sought to hire only
those dispatched by the Union because he feared that if he
took employees who had not paid union dues the Union
might take adverse action against the firm like a strike or
shutdown. Hull admitted, however, that the Union had
never threatened such action.
In addition to the allegations that the Respondent
utilized an illegal hiring procedure, the General Counsel
contends that, only 3 working days before the hearing in
this case, the Respondent assigned Jackson to such
arduous work that it forced Jackson to quit; thus, it is
argued, the Respondent constructively discharged Jackson.
In this regard, the record shows that on Friday, October 16,
1976, Hull took Jackson from the jobsite at which he was
working in Indianapolis, Indiana, and brought him to
Panscape's headquarters in Muncie, Indiana. Hull request-
ed Jackson to dig a ditch 150 feet long, 30 inches deep, and
2 feet wide. He gave him a spade, a shovel, and a pick,
which had only a 1-1/2-foot handle. He set no deadline on
when the work was to be finished, but merely asked
Jackson how long he thought it would take. Jackson
answered: "A long time." He began work, and worked
until the end of the day without complaint.
Jackson was annoyed with the job he had been given. He
stated that he had never received an assignment like that
before, and that he felt that he was being treated unfairly.
He was particularly upset that he had been given a short-
handled pick to do the job. He believed that a backhoe
could have been used on the job and that he should not
have been asked to do it by hand. He also believed that he
would be paid at a lower wage scale at the plant than he
would have in Indianapolis. Angry at having been given
the task, Jackson left work on Friday afternoon, deter-
mined that he would not return. At no time did he express
his dissatisfaction to his employer or inform him that he
was quitting.
Jackson had been given Monday morning off so that he
could make arrangements to adopt a child. When he did
not appear for work on Monday afternoon or on Tuesday,
the Respondent wrote to him stating that he would be fired
if he did not come to work on Wednesday. Jackson did not
appear for work on Wednesday.
Spence, Respondent's landscape superintendent, testified
that digging ditches for landscaping and drainage purposes
was in the job description of the landscape employees. Hull
gave uncontested testimony that this work was not the
most arduous assignment given to those employed in the
landscape division. Jackson adamantly held to the position
that he had never been asked to dig a ditch by hand before,
but admitted that he had dug "footers" by hand. A footer is
a narrow trench for which a backhoe cannot be used.
Jackson admitted that Hull did not mistreat him when he
gave him this assignment, that Hull had always treated him
in a friendly manner, and that the superintendent, Spence,
had also treated him well. He noted that they had
permitted him to work an hour of overtime on the day he
was given the job ditchdigging, and that they allowed him
to take Monday morning off.
B. Analysis
The discriminatory exclusive hiring hall: The General
Counsel submits that the Respondent's unilateral imple-
mentation of the policy that it would hire only those
dispatched by the Union is a violation of Section 8(a)(1)
and (3) of the Act. The provisions of the collective-
bargaining agreement, cited 'previously, indicate that
Panscape had no written agreement with the Union
establishing an exclusive hiring hall. Similarly, it does not
appear that Panscape had an oral or implicit agreement
with the Union concerning one. Indeed, the record shows
that the Union informed the Respondent that it could hire
laborers without prior union clearance. The decision to use
the Union-so far as practical-as an exclusive source of
696
PANSCAPE CORPORATION
labor was, therefore, the Respondent's own choice. Even
without the existence of a formal exclusive hiring hall
agreement, the Board can find such an exclusive hiring
agreement exists in practice, and I so find. Chicago Local
No. 245, Lithographers and Photoengravers International
Union (Alden Press, Inc.), 196 NLRB 720, 720-721 (1972).
Exclusive hiring hall arrangements are not illegal per se.
Such an agreement is unlawful only if it, in fact, results in
discrimination. Local 357, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America [Los Angeles-Seattle Motor Express] v. N.L.R.B.,
365 U.S. 667, 674, 676 (1961). Chicago Local No. 245, supra,
196 NLRB at 721. It is the motive or purpose behind the
procedure that is important. Local 357, supra, 365 U.S. at
675.
And the arrangement is illegal if it is designed to permit
only union members in good standing to obtain jobs.
Respondent has admitted that in its opinion the Union
would dispatch only members "in good standing," and that
this was the basic reason for Respondent's decision to hire
new employees only when they were dispatched by the
Union. With this procedure, Respondent hoped to avoid
union problems. Its decision and practice from June 15,
1976, to May 1977, to hire employees who were dispatched
by the Union and who were in good standing with the
Union is clearly discriminatory. The fact that Respondent
deviated in some instances from the self-imposed exclusive
hiring hall procedure does not render this practice any less
discriminatory, particularly with respect to employees
Jackson and Burton. Accordingly, I find that Panscape
violated Section 8(a)(l) and (3) of the Act by its use of an
illegal hiring procedure.
Discrimination against Jackson and Burton: I do not
believe that Respondent had adopted the exclusive hiring
hall procedure for the sole purpose of discriminating
against Jackson and Burton, two of the three employees
who were found in the prior Board decision 5 to have been
discharged in violation of Section 8(a)(1) and (3) of the
Act. As already stated, Kuhrman Hull credibly testified
that he had adopted the procedure in June 1976 because of
certain problems which he had encountered with two
competing unions. Yet, the record shows that Respondent
had not always followed the practice and that on several
occasions laborers were hired without union referral.
Whatever Hull's motive may have been in adopting this
procedure, initially, is is certainly clear that he used the
exclusive hiring hall procedure as a device to refuse
employment to Jackson and Burton. Having already
concluded that Hull's unilateral decision and practice to
insist on a prior dispatch from the Union in order to insure
that potential employees were in good standing with the
Union, I have no difficulty in finding that Respondent
used the exclusive hiring hall procedure discriminatorily
with respect to both Jackson and Burton in violation of
Section 8(a)(1) and (3).
The reason for Respondent's action against the two
employees here is based on the events already adjudicated
in the Board's prior Decision. There, the Board found that
Panscape had union animus and that Burton and Jackson
were discharged for protected concerted activities. Burton
and Jackson were among the most important witnesses in
the prior case. Accordingly, by clear inference, Respon-
dent's adverse action against these two employees was
predicated on their participation as witnesses in the prior
proceeding and constitutes a clear violation of Section
8(a)4) of the Act.
The alleged constructive discharge: The General Counsel
contends that the Respondent violated Section 8(a)(1), (3),
and (4) of the Act when it assigned Jackson to dig a ditch
by hand. General Counsel argues that the Respondent gave
Jackson this assignment in order to punish him for his
previous participation in protected concerted activity and
because he filed unfair labor practice charges. It is also
alleged that the Respondent sought to discourage Jackson
from testifying against it at the present unfair labor
practice proceeding. I find that General Counsel's conten-
tions in this regard are not supported by the record.
To show constructive discharge, the theory must be that
the Respondent's purpose was to make the employee so
uncomfortable in his work or his job so intolerable and
undesirable that he would have no choice but to quit, and
that the Respondent had an illegal motive in assigning the
work. New Castle Lumber and Supply Co., Division of Peter
Kuntz Co., 203 NLRB 937, 940 (1973). In this case, the
General Counsel failed to show that the work was so
onerous that Jackson had no choice except to quit, or that
the Respondent assigned him this job assuming that it
would force him to quit. Although the work may have been
more arduous than other types, it was not the most
strenuous type of work assigned to employees in the
landscape division, nor was it uncommon for employees to
have to dig ditches. The record shows that Jackson himself
had dug holes or ditches on prior occasions. Jackson was
not told to finish the job in an unreasonably short period of
time. When asked how long he thought it would take, he
replied, "a long time." He was not urged to move faster.
Jackson did not complain about the task nor did he
attempt to procure better tools, even though he felt that the
pick which he was given was inadequate. He worked at the
particular assignment for almost the entire working day,
and even though he had "walked off'" the job, Respondent
gave him another chance at reporting for work at which
time he could have stated his objections to his employer.
But Jackson never complained and simply refused to
report for work. He admitted that his superiors treated him
politely at all times.
The fact that Jackson would be working at a lower wage
rate at Panscape's headquarters in Muncie than he would
have in Indianapolis was in accord with prevailing union
wages in the respective locations, and it was not at all
unusual for employees in the landscape division to be
employed in Muncie rather than Indianapolis. It appears
that working at either site would have been expected of all
employees at one time or another. The fact that Jackson
was temporarily assigned to a job less agreeable than other
assignments is perhaps a ground for his dissatisfaction. But
the assignment was not so disagreeable, onerous, or
intolerable so as to induce him to quit. Montgomery Ward
; 224 NLRB616.
697
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
& Co., 160 NLRB 1729, 1742 (1966). For these reasons, I
find that the Respondent did not constructively discharge
Jackson in violation of Section 8(aX)(1), (3), or (4) of the
Act. 6
CONCLUSIONS OF LAW
1. Panscape Corporation, the Respondent, is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local Union 1112, Laborers' International Union of
North America, AFL-CIO, is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
3. By unilaterally adopting a discriminatory rule in the
nature of an exclusive hiring hall which limits employment
to those who are union members in good standing and who
are dispatched by the Union, the Respondent violated
Section 8(a)(l) and (3) of the Act.
4. By using the "exclusive hiring hall" procedure as a
device in order to refuse employment to David R. Jackson
and Richard D. Burton, who were not in good standing
with their Union and who had testified in a prior unfair
labor practice case, Respondent violated Section 8(a)(1),
(3), and (4) of the Act.
5. Any other substantive allegations contained in the
complaint or in the brief have not been sustained.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
It having been found that the Respondent failed to rehire
David R. Jackson and Richard D. Burton in violation of
Section 8(a)(1), (3), and (4) of the Act, the recommended
Order will provide that the Respondent offer each
reinstatement to his former job, and make each whole for
loss of earnings within the meaning and in accord with the
Board's decisions in F. W. Woolworth Company, 90 NLRB
289 (1950), and Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I recommend the issuance of the
following:
" General Counsel's motion to amend the complaint in fn. I of his brief
is, therefore, denied.
T In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor RelationsBoard, 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
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
ORDER7
The Respondent, Panscape Corporation, Muncie, India-
na, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing to rehire or otherwise discriminating against
employees in regard to hire or tenure of employment, or
any term or condition of employment because of their
union or protected concerted activities, or because they
gave testimony or filed charges under the Act.
(b) Promulgating, adopting, or effectuating a discrimina-
tory rule which limits employment to those who are union
members in good standing and are dispatched by the
Union.
(c) In any like manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer David R. Jackson and Richard D. Burton
immediate and full reinstatement to their former positions
or, if such positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority, or
other rights previously enjoyed, and make each whole for
any loss of pay or other benefits suffered by reason of the
discrimination against each in the manner described in the
section entitled "The Remedy."
(b) 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.
(c) Post at Respondent's plant at Muncie, Indiana, copies
of the attached notice marked "Appendix." 8 Copies of said
notice, on forms provided by the Regional Director for
Region 25, after being duly signed by Respondent's
representatives, shall be posted by it immediately upon
receipt thereof, and be maintained by Respondent 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
insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
8 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
698