Spaw Glass, Inc.Download PDFNational Labor Relations Board - Board DecisionsDec 16, 1977233 N.L.R.B. 1288 (N.L.R.B. 1977) Copy Citation DECISIONS OF NATIONAL LABOR RELATIONS BOARD Spaw Glass, Inc., General Contractor and Jesus V. Santos Laborers' Local No. 93, Laborers International Union of North America and Jesus V. Santos. Cases 23- CA-6301 and 23-CB-1965 December 16, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On June 29, 1977, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter the Respondent Employer filed exceptions and a supporting brief. The General Counsel filed a brief in support of 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 1 and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, conclusions, and recommendations of the Adminis- trative Law Judge only insofar as they are consistent with this Decision and Order. We agree with the Administrative Law Judge's dismissal of the allegation in the complaint that the Respondent Union violated Section 8(b)(2) and (I)(A) by refusing to issue Jesus Santos a union referral card and thereby causing the Respondent to discharge him. No exceptions were taken to this finding. The Administrative Law Judge found that by refusing to hire Santos because he could not obtain a union referral card the Respondent Employer violat- ed Section 8(a)(3) and (1). We disagree. The Administrative Law Judge found that the Employer's brick foreman, Gourley, told Santos, a jobsite applicant for a position as mason tender, that he would not be hired unless he obtained a referral card from the local union. Santos requested such a card, was refused, and accordingly was not hired. The Employer is party to a collective-bargaining agreement with the Laborers International Union of North America which obligates it to abide by contracts negotiated with local associated general contractor associations. The relevant contract provi- sion covering this construction project provided that the Employer "agree to call the Union Hall for 75% of applicants for each individual job he has under the contract." I As the record adequately presents the position of the parties, the Respondent Employer's request for oral argument is hereby denied. 233 NLRB No. 191 The Administrative Law Judge also found, con- trary to the General Counsel's allegation, no credible evidence that the Local's refusal to issue a card to Santos was due to his lack of union membership. Since the General Counsel did not except to this finding, we proceed on the understanding that the referral procedure was applied, as to Santos, in a nondiscriminatory manner. In addition, there is no allegation by the General Counsel that the percent- age requirement in the referral provision is unlawful or illegal. In fact, the Administrative Law Judge found the provision to be "lawful on its face." While there may be no illegality with respect to the percentage provision, there is ambiguity. Clearly the Employer retains a contractual privilege to hire no more than 25 percent of his total work force without resort to referral cards. However, it is not at all clear whether this privilege comes into effect immediately at the startup of hiring, subject to eventually reaching the 75 percent goal, or only when the direct hire of an individual will not drop the current percentage below 75 percent. This ambiguity was not raised by any of the parties or by the Administrative Law Judge. They all assumed that the Employer is permitted at least to require referral cards from job applicants if fewer than 75 percent of the work force already hired had come through referral. The more crucial ambiguity arises with respect to the lawful options available to the Employer when he seeks to increase a work force already 75 percent or more on referral. The Employer argued that it may interpret the contract to mean "at least 75 percent." Thus, he would be free to overcomply with the provision and to require a card from more than 75 percent of his work force. The Administrative Law Judge found that the Employer violated Section 8(a)(3) when Gourley required Santos to obtain a referral card as a condition of employment at a time when the Employer was not privileged to hire directly. He construed the contract language as reading "no more than 75%." However, it must be stressed that the Administrative Law Judge grounded his decision on his inference from the record evidence that the Employer had already hired in excess of 75 percent with referral cards. It would be only at that point that a dispute would exist requiring the resolution of the contract's ambiguity. The Board finds, however, no credible evidence in the record to support the Administrative Law Judge's inference that at least 75 percent of the Employer's work force had already been hired through referral. The record in this case, consisting only of the testimony of Santos and Gourley, is entirely devoid 1288 SPAW GLASS, INC. of any figures that would reveal the ratio of referral hires to direct hires at the time Santos applied for work. The plain language of the contract shows that the percentage requirement applied to the work force taken as a whole and not to each work crew individually. The only evidence elicited by the General Counsel is the undisputed testimony of Gourley that some of his crew had cards and some did not, but that in any case the provision referred to all the laborers on thejobsite. The evidence does not support the finding that the Employer was contractually free to hire Santos without a referral card as part of the 25 percent not required to come from the union hiring hall. There is thus no need for us to reach the question as to whether it is a violation of Section 8(a)(3) for an employer subject to this referral clause to route more than 75 percent of its employees through a legal and nondiscriminatory hiring hall when it is contractually obligated to hire only 75 percent in this manner.2 Since we find that a preponderance of the probative evidence on the record as a whole does not establish that the refusal to hire Santos was in violation of Section 8(a)(3) and (1) of the Act, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 2 Member Murphy notes that the Administrative Law Judge relies heavily on Gourley's testimony that Gourley did not abide by the 75-percent union referral system (although discrediting his testimony that he was unaware of the referral procedure). She concludes, however, that the evidence is, as General Counsel contends, consistent only with a finding that Gourley was aware of and in fact used the referral system. Therefore, she does not adopt his finding that Gourley exercised his own discretion in hiring and the conclusion he drew therefrom; namely, that the requirement of referral was discriminatory. DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was heard pursuant to due notice on March 21, 1977, at San Antonio, Texas. The charge in Case 23-CA-6301 was filed on November 22, 1976. The original charge in Case 23-CB-1965 was filed on December 7, 1976. The amended charge in Case 23- CB-1965 was filed on February 9, 1977. Cases 23-CA- 6301 and 23-CB-1965 were duly consolidated on February 11, 1977, and the consolidated complaint in this matter was issued on February 11, 1977. Answers to the complaint were duly filed by the Respondents. The issues concern whether (a) the Respondent Compa- ny hired Jesus V. Santos on November 22, 1976, and thereafter discharged him on November 22, 1976, because he could not secure clearance from the Union for said hiring, in violation of Section 8(aX3) and (1) of the Act, and whether the Respondent unlawfully interrogated Santos on November 22, 1976, as to his union membership, and whether (b) the Respondent Union refused, on November 22, 1976, to issue a referral to Santos for work at the Respondent Company'sjobsite and caused the Respon- dent Company to discharge Santos because he was not a member of the Union, in violation of Section 8(b)(2) and (I)(A) of the Act. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by the General Counsel, by the Respondent Company, and the Respon- dent Union and have been considered. Upon the entire record in the case and from my observation of witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The facts herein are based on the pleadings and admissions therein and stipulations removing issues at the hearing. Spaw Glass, Inc., General Contractor, the Respondent Employer, is, and has been at all times material herein, a corporation duly organized under the laws of the State of Texas. At all times material herein, the Respondent has maintained its principal office and place of business at 2727 Kirdy Drive, Houston, Texas, and has an office at the Baptist Hospital construction site in San Antonio, Texas, herein referred to as the jobsite, where it is engaged as the general contractor for the construction of a new hospital wing. During a representative 12-month period, the Respon- dent Employer, in the course and conduct of its business at its San Antonio, Texas, facility, purchased and received goods valued in excess of $50,000, which goods were shipped to its San Antonio, Texas, facility directly from points located outside the State of Texas. As conceded by the Respondents and based on the foregoing, it is concluded and found that Spaw Glass, Inc., General Contractor, 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. 1. THE LABOR ORGANIZATION INVOLVED' The Respondent Union, Laborers' Local No. 93, Labor- ers International Union of North America, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. I The facts are based on the pleadings and admissions therein. 1289 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I11. THE UNFAIR LABOR PRACTICES A. Preliminary Issues; Supervisory and Agency Status 2 1. At all times material herein, the following named persons occupied the positions following their names, and have been, and are now, agents of the Respondent Employer, acting on its behalf, and are supervisors within the meaning of Section 2(11) of the Act: Ray Dillard, construction superintendent; and George Gourley, brick foreman. 2. At all times material herein, the following named persons occupied the positions following their names, and were agents of the Respondent Union, acting on its behalf, and are agents within the meaning of Section 2(13) of the Act: Tony Paredes, business agent; and Abel Gonzales, international representative. B. The Hiring Agreement3 Spaw Glass, Inc., does not maintain a collective-bargain- ing agreement with Laborers' Local No. 93. Spaw Glass, Inc., is not a member of the Associated General Contrac- tors Association, nor has it assigned its bargaining rights to the Associated General Contractors Association. The aforementioned general factual statements are qualified, however, to the extent of the meaning of the following specific facts. Spaw Glass, Inc., has a collective-bargaining agreement with the International Laborers Union, the terms of which require Spaw Glass, Inc., to abide by the terms and conditions of employment as negotiated in local AGC agreements wherever Spaw Glass, Inc., works. Spaw Glass, Inc., therefore is obligated to honor the terms of an AGC agreement of the San Antonio Chapter of the AGC, effective from June 1, 1976, through March 31, 1977, relating to construction work performed in the San Antonio, Texas, area.4 The terms of such agreement have the following provisions relating to referral procedure.5 ARTICLE XVI REFERRAL PROCEDURE I. Contractor recognizes that the Union has available a pool of manpower and desires to provide as many men to the jobs as possible; therefore contractors agree to call the Union Hall for 75% of applicants for each individual job he has under contract. The contractor will instruct his repre- sentatives on the job to comply with this article in its entirety. 2. It is understood that applicants will be selected by contractor and referred by Union on a non- 2 The facts are based on the pleadings and admissions therein. 3 The facts are based on stipulations removing and narrowing issues at the hearing. 4 The Respondent, Spaw Glass, Inc., contends that the arbitration- grievance provisions in the AGC contract are not applicable to the Respondent, that the grievance-arbitration procedures applicable to the Respondent Spaw Glass, Inc., are the ones in its contract with the discriminatory basis as to Union membership or lack of membership. 3. Copies of the referral system to be used by the Union in referring applicants will be provided to all contractors. 4. All men referred by the Union must present a referral card similar to the outline shown below to the employer or his representative when he arrives at the job site. In addition, the Union will mail one copy of this referral card to the A.G.C. office. Name Social Security No. --- Mail Address -- Zip -- Type Work for Which Referred -- Name of Union Official --- Employer's Name ---- Date ------ C. Credibility Essentially the major questions as to whether the Respondent, Spaw Glass, Inc., had violated Section 8(a)(3) and (1) of the Act depend on the determination of credibility between conflicts in the testimony of Santos and Gourley. Santos is a Mexican who has lived in the United States for 40 years. Santos is a legal resident of the United States, is 59 years old, and his educational background consists of having gone to the sixth grade in Mexico. He appeared intelligent and to reasonably understand the English language. Most of his testimony was presented in Spanish and interpreted. As is often the case involving testimonial interpretation or translation, it is apparent that the witness also understands what has been stated in English. As sometimes occurs, such witnesses seem prone to want to tell a story their own way rather than to simply answer the questions asked. To an extent Santos was such a witness. Gourley, as a witness, spoke well. However, his testimo- ny as to awareness of obligations concerning hiring arrangements was not impressive. The most important aspect of the testimonial differences between Santos and Gourley as far as credibility determi- nation was the testimony of each as to the number of times that Santos spoke to Gourley. Thus, Santos spoke of three occasions. Once was on or about November 18, 1976. The other two occasions were on November 22, 1976. Gourley testified to the effect that he only had two conversations with Santos. One was on November 18, 1976. The other conversation was on November 22, 1976. Gourley denied that a second conversation occurred on November 22, 1976. Santos' testimony of the three conversations was given in such a way that I am completely persuaded that three conversations occurred. Considering this and the logical consistency of the facts, I am persuaded that Santos International Laborers Union. Such possible issue is not germane to this proceeding. 5 The General Counsel's pleadings also pled that the Union had the "obligation" to refer 75 percent of the applicants. The Respondent Union's counsel denied such obligation and contended that referral was qualified as to availability. In this case, this point does not appear to present a material issue necessary for resolving. 1290 SPAW GLASS, INC. was a more frank, forthright, and truthful witness than Gourley. The facts as found hereinafter relating to the conversations between Santos and Gourley are based on a composite of the credited aspects of their testimony. Testimony of either witness inconsistent with the facts found is discredited. D. The Facts 1. On or about November 18, 1976, Santos went to the Spaw Glass, Inc., jobsite (The Memorial Baptist Hospital jobsite) in San Antonio, Texas. Santos indicated to someone at the jobsite that he was looking for work and inquired as to who was doing the hiring. Apparently the person that Santos spoke to was a Richard Lopez, the labor foreman for the general contractor, Spaw Glass, Inc. Apparently Lopez and Santos had a discussion concerning his qualifications, that Lopez was not doing any hiring and had nothing for him, and that Lopez thought the brick work was about to start. Apparently Lopez asked Santos if he had worked with bricklayers. Apparently Santos replied that he had not but could learn. Brick Foreman Gourley was in the area where Santos and Lopez were. Lopez hailed Gourley and told him that Santos was looking for work, that he (Lopez) did not have anything. Lopez mentioned to Santos that Gourley was the bricklayer foreman. Santos told Gourley that he was there looking for work. Gourley asked him what kind of work he did. Santos told Gourley that he did any kind of work concerning labor. Gourley told Santos that he had work for him starting on Monday, that he should come in on Monday at 7 a.m. Santos asked if he should come to work if it were raining. Gourley told him that there would be work, rain or shine, that there would be work inside.6 2. On November 22, 1976, Santos went to the Memorial Baptist Hospital jobsite of Spaw Glass, Inc. Santos arrived at the jobsite around 6:15 a.m. Around 6:30 a.m. Brick Foreman Gourley arrived on the scene. Santos told Gourley that he was ready to work. Gourley asked Santos if he had a card. Santos asked Gourley what kind of card. Gourley told him in effect that he was asking about a union referral card.7 Santos asked if he could get the union referral card at the construction office. Gourley told him no, that he would have to get the union referral card at the Union's office on Martin Street. Santos told Gourley that he had no transportation, that it would take him a long 6 Santos construed and the General Counsel contends that the conversa- tion between Gourley and Santos amounted to an assurance that Santos would be hired, that Santos therefore was hired on November 18, 1976. 1 am not persuaded that the facts so reveal. Gourley's testimony was to the effect that he told Santos of various conditions that affected whether work would start. I do not credit such testimony. However, I am sure that Gourley was aware of vanous conditional problems and that he did not view the hinng of an employee to occur until the employee filled out necessary forms in connection with the commencement of work. r The AGC agreement provides for use of a referral card. 8 The facts are based on Santos' credited testimony. Santos testified in English as to the November 22. 1976, conversation with Gourley. His testimony switches without specific identification as to who is talking from statements he made and statements made by Gourley. It is apparent from the content, however, as to who made what remarks. D I do not credit Santos' testimony to the effect that he sought union membership or asked to be initiated into the Union. The overall facts make it clear that Santos was seeking a permit or union referral card. 'o Santos' testimony was to the effect that the person stated that the job time to go and get the card. Gourley told him in effect that he would have to get the card.8 3. Santos left Gourley and proceeded to the union hall on Martin Street. There he spoke to two men, apparently in authority, who came to the door of a smaller office in the union hall. Santos told them that he was looking for the person in charge. Santos then spoke to the one who indicated that he was in charge. Santos told such person that he had a job waiting for him and asked if he could help him by selling him the union papers. 9 The person to whom Santos was speaking asked him what the job was that he was talking about. Santos told such person that the Company was Spaw Glass, Inc. The person to whom Santos was speaking told him that the job was a union referral job, that requests by the company were made by telephone, that he could not give him a referral card because a telephone request had not been made and the job was a union referral job.l? Santos asked if he could get the referral card if his foreman asked for him by telephone. The person to whom Santos was speaking told him that this could not be done because there were too many people on the waiting list."t 4. Around 9:30 a.m. Santos returned to the Spaw Glass, Inc., jobsite and spoke to Foreman Gourley. Santos told Gourley that he had been to the Union and that the Union did not want to give him the paper (referral card). Gourley told Santos that, if this were the case, Santos did not have a job. 5. Gourley testified to the effect that he was unaware of and did not follow the 75-percent union referral proce- dures, that he hired men who were known to him or to men who worked for him, that he hired men at the jobsite or contacted men known to employees working by word of mouth, that he did contact the Union when he first came to a jobsite, that he did see some referral cards, that he did not give consideration to union membership or union referral cards in hiring, that he thought he had already hired a man on November 22, 1976, when Santos showed up, and did not need to hire Santos, that he had been told by Lopez in effect that Santos was not skilled as a bricklayer helper, that bricklayer helpers were mason tenders requiring certain skills, that he did contact the union hall for Garcia, who was hired during the week of November 22-27, 1976, because he had heard that Garcia was on the waiting list, belonged to the Union, that the person stated he could not give him union papers because the work belonged to the Union. Considering the collective- bargaining agreement involved, I am persuaded that the facts are as set forth. However, even if the exact words were used as testified to by Santos, I would find the meaning to be that of the facts set out. I am persuaded that Santos' testimony of words used in his interpretation of the facts and the meaning to him. " At the time that Santos was in the union hall on November 22, 1976, he did not know the names of the two men he spoke to. It is not clear whether the men introduced themselves or whether someone else told Santos the name of the man to whom he spoke. In any event, Santos learned or believed he learned the man's name to be Tony Rangel. Later, a question arose, and Santos went back to the union hall, asked for the business agent, and someone told him that the business agent was Tony Paredes. Santos asked to speak to the business agent. A person there identified himself as Gonzales, stated that he (Gonzales) was in charge of the Union, gave Santos a business card, and said, "Tell your lawyer that Gonzales will take care of everything." The pleadings establish that Paredes is business agent and Gonzales is International representative of the Union. 1291 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that he also called the union hall for another man when no one was available through other people. Gourley initially testified to the effect that he had three laborers working on the morning of November 22, 1976. The facts as later testified to by him reveal that there were five laborers who had worked during the preceding week and who were working on November 22, 1976. Unless Garcia was hired on November 22, 1976, the facts reveal that no other laborer was hired on that date. The facts do not precisely reveal when Garcia was hired. Considering that I found Gourley clearly to be testifying falsely as to the number of conversations he had with Santos, I find Santos' versions of such conversations more credible than Gourley's as to the existence of the collective- bargaining 75-percent referral procedures and the use of referral cards, I discredit Gourley's testimony to the effect that his motivation not to hire Santos was because of his lack of skill. I also discredit his testimony to the effect that he did not hire Santos because he had already hired an employee on November 22, 1976. 1 also discredit Gourley's testimony to the effect that he was unaware of the union referral procedures. E. Contentions; Conclusions 1. Spaw Glass, Inc. A. The General Counsel alleges and contends and the Respondent, Spaw Glass, Inc., denies that the Respondent, Spaw Glass, Inc., hired Santos on November 22, 1976, and then fired Santos on November 22, 1976, because he could not get a union referral card. I am persuaded that the Respondent did not hire Santos on November 18, 1976, or on November 22, 1976. The issue of the question of hiring or refusal to hire Santos has been fully litigated, however. Considering all of the facts, I am persuaded that the facts establish that Gourley had the sole discretion on Novem- ber 22, 1976, to hire or not to hire Santos, and determined not to hire Santos unless he had a union referral card. In this case, and in his brief, the General Counsel alludes at points to the question of union membership. No evidence as to union membership or requirement of union membership for hiring was presented. The case only involves the question of a union referral card and the need therefor. The facts are clear that Gourley, on November 18, 1976, indicated that the chances were good that Santos would be hired if he reported to work on November 22, 1976. The facts are also clear that Foreman Gourley on November 22, 1976, told Santos he would be hired if he got a union referral card. The facts are also clear that when Santos reported to Gourley that he could not get a union referral card, Gourley told Santos he could not hire him. I note that there is a collective-bargaining agreement providing for a 75-percent union referral system. Gourley's testimony was to the effect that he did not abide by such system. If this is so, it is clear then that Gourley exercised 12 I note in making these findings and conclusions that I have considered the General Counsel's contentions as to the question of specific requests by foremen for applicants. I note that the collective-bargaining agreement involved does not contain such provisions. The evidence does not establish his own discretion in hiring and that his requirement for union referral not pursuant to contractual requirements would make a refusal to hire Santos for such reasons conduct violative of Section 8(aX3) and (1) of the Act. Furthermore, however, in view of such testimony, the existence of such agreement providing for 75-percent union referral, and the absence of presentation of company record of "referrals" to reveal a reliance on such contrac- tual provision for 75-percent union referral, warrant a finding that Gourley operated on the basis that he had discretion within the right of selection of 25 percent of applicants for hire as regards the selection or rejection of Santos. Accordingly, I conclude and find that the Respon- dent, Spaw Glass, Inc., by Foreman Gourley, discriminato- rily refused to hire Santos, on November 22, 1976, because he did not have a union referral card. Such conduct is violative of Section 8(aX3) and (1) of the Act. It is so concluded and found.1 2 B. The General Counsel alleges and contends and the Respondent, Spaw Glass, Inc., denies that the Respondent, by Foreman Gourley, on November 22, 1976, interrogated Santos as to his membership in Respondent Laborers' No. 93 Union. The facts concerning this issue consist of the questioning of Santos as to whether he had a union referral card. Considering the facts relating to the union referral arrangements, I do not find that such questioning is violative of the Act. What is violative is the basis of refusal to hire as previously set forth. There was no questioning, as alleged, about Santos' union membership. Accordingly, it will be recommended that the allegations of conduct violative of the Act in such regard be dismissed. 2. Laborers' Local No. 93, Laborers International Union of North America The General Counsel alleges and contends and the Respondent Union denies that the Respondent Union caused the Respondent Employer to discharge Santos on November 22, 1976, by refusal to issue to Santos a union referral card. As indicated earlier, the question litigated is one of "refusal to hire" rather than "discharge." Thus, the question is whether the facts reveal that the Respondent Union caused the Respondent Employer to refuse to hire Santos on November 22, 1976, by refusing to issue a union referral card to Santos. Considering all of the facts, I find the facts insufficient to reveal that the Respondent Union caused the Respondent Employer to discharge or to refuse to hire Santos on November 22, 1976. First, the collective-bargaining provision relating to 75- percent union referral of applicants appears lawful on its face. There is no evidence to reveal that the Employer had that such type provision was followed. Although Gourley specifically asked for Garcia, evidence was not presented to show whether or not Garcia was the top man on the waiting list. 1292 SPAW GLASS, INC. hired such a number of employees as to require its adherence to the 75-percent referral provision.' 3 Santos' testimony as to what he was told at the union hall reveals in effect statements that the Union had a referral agreement for the job, and that he would not get a referral because of the persons already on the waiting list. There is no evidence that specific requests for individuals could be made or were made other than in accordance with the standing on the waiting list. Santos was seeking an immediate referral, and it seems clear that this was what was understood. Santos did not ask to be placed on a waiting list to await his turn. Furthermore, there is no evidence that the Union had any communication with the Employer as to whether Santos should or should not be hired. Gourley, on his own, could have hired Santos, Union or no Union, within the permissible 25-percent that he could select. For all that appears, statements made to Santos at the union hall were consistent with the lawful rights of the Union pursuant to its 75-percent referral procedures. Accordingly, it will be recommended that the complaint allegations of conduct violative of Section 8(b)(2) and (I)(A) be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Employer set forth in section III, above, occurring in connection with the Respondent Employer's operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Employer has engaged in unfair labor practices, it will be recommended that the Respondent Employer cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It having been found that the Respondent, Spaw Glass, Inc., refused to hire Jesus V. Santos, on November 22, 13 As indicated in the facts set forth, the facts warrant an inference, as to the Employer, that the Employer had not hired such number of employees as to require adherence to the 75-percent referral provision. 1976, in violation of Section 8(aX3) and (1) of the Act, the recommended Order will provide that the Respondent Employer offer him instatement in the job for which he would have been hired absent discrimination, and make him 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); Isis Plumbing & Heating Co., 138 NLRB 716 (1962), except as specifically modified by the wording of such recommended Order. Because of the character of the unfair labor practices herein found, the recommended Order will provide that the Respondent Employer cease and desist from in any other manner interfering with, restraining, and coercing employ- ees in the exercise of their rights guaranteed by Section 7 of the Act. On the basis of the above findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW i. Spaw Glass, Inc., General Contractor, the Respon- dent Employer, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Laborers' Local No. 93, Laborers International Union of North America, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to hire Jesus V. Santos on November 22, 1976, the Respondent Employer has encouraged member- ship in a labor organization by discriminating in regard to tenure of employment, thereby engaging in unfair labor practices in violation of Section 8(aX3) of the Act. 4. By the foregoing and thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent Employer engaged in unfair labor practices proscribed by Section 8(aX1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 1293 Copy with citationCopy as parenthetical citation