Austin & Wolfe Refrigeration

National Labor Relations Board - Board Decisions

Mar 5, 1973

202 N.L.R.B. 135 (N.L.R.B. 1973)

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.