Albritton Engineering Corp.

National Labor Relations Board - Board Decisions

Sep 26, 1962

138 N.L.R.B. 940 (N.L.R.B. 1962)

`940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-Albritton Engineering Corporation and Joe Alvarado , Hiram A.
Brewster, Eleanor E. Currie , Clara L. Stabler, Manuel Ruiz,
Vivian Rust Gossett , M. S. Copeland , Pete Ramirez, Victor
Espinoza , Fred Alanis , Albert Kacer, Rita M. Johnson, Velma
Hines, Roy Clanton, Henry F. Charanza , Bernard Pivonka,
'George Hurt, Albert Faust, Lola Burlin , Elma Chambers,
and Johnny Munoz. Cases Nos. 23-CA-1237-1, 03-CA-19237-2,
23-CA-1237-3, 23-CA-1237-4, 23-CA-1237-5, 23-CA-1237-6, 23-
CA-1237-7, 03-CA-1237-9, 23-CA-1237-10, 23-CA-1237-14, 23-
CA-1237-15, 23-CA-1237-16, 23-CA-1237-17, 23-CA-1237-18,
23-CA-1237-19, 23-CA-1237-20, 23-CA-1237-21, 23-CA-1237-23,
23-CA-1237-25, 23-CA-1237-26, and 23-CA-1237-27. September
26, 1962
DECISION AND ORDER
On April 25, 1962, Trial Examiner Owsley Vose issued his Inter-
mediate Report herein , finding that the Respondent engaged in un-
fair labor practices and recommending that it cease and desist there-
from and take affirmative action, as set forth in the attached Interme-
-date Report. Thereafter, the Respondent filed exceptions to the In-
termediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act , the Board
has delegated its powers in connection with this case to a 'three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the Trial Examiner's rulings and finds
no prejudicial error. The rulings are affirmed . The Board has con-
sidered the Intermediate Report, the exceptions and brief , and the
'entire record in the case , and adopts the findings , conclusions, and
recommendations of the Trial Examiner with the additions indicated
below.'
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner,2 with the following changes and additions in the
Appendix :
In adopting the Trial Examiner 's conclusion that the Respondent unlawfully denied
available jobs to Espinoza and Ruiz on May 23, 1961, we are convinced, as was the Trial
'Examiner, that the Respondent was chargeable with prior knowledge of their availability
and desire for employment. In so concluding, we have considered as relevant not only
the evidence specifically relied on by the Trial Examiner but also that establishing that
(a) in January 1961, Espinoza telephoned Respondent's plant, notified the answering party
that he was looking for employment and also attempted several times thereafter to reach
Respondent 's personnel manager, identifying himself as the caller each time; and (b) on
May 15, 1961, Ruiz personally filed a written application for employment with Respondent.
'In fulfilling the requirement of paragraph 2(a) of the Order , Respondent's offer of
Immediate employment to the discriminatees shall be made without prejudice to the
138 NLRB No. 115.
ALBRITTON ENGINEERING CORPORATION 941
1. Add to the end of the third indented paragraph of the notice
the words : "and the Board's Order."
2. Insert the following paragraph immediately below the signature :
NoTE.-WWE WILL notify any of the above-named employees
presently serving in the Armed Forces of the United States of
their right to full reinstatement upon application in accordance
with the Selective Service Act after discharge from the Armed
Forces.
3. Change the sentence beginning with the words "This notice must
remain posted . . ." to read "This notice must remain posted for 60
consecutive days from the date of posting, ..." instead of stating
"60 days from the date hereof."
seniority and other rights and privileges they would have enjoyed as of the date they
would have been employed absent the discrimination against them.
Interest on backpay shall be computed in the manner set forth in Isie Plumbing d Heat-
ing Co, 133 NLRB 7'16 For reasons set forth in the dissent in that case, Member
Leedom would not award interest on backpay and does not approve the award here.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by the above-named individuals on various dates between
May 12, 1961, and November 29, 1961, the General Counsel, on December 1, 1961,
issued an amended order consolidating cases and amended complaint alleging that
the Respondent, by refusing to reemploy, as vacancies subsequently arose, certain
former employees whom it had replaced during an economic strike, had engaged
in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act.
Thereafter, pursuant to due notice, a hearing was held in the above-consolidated
cases before Trial Examiner Owsley Vose at Bryan, Texas, on various dates between
January 8 and 25, 1962. All parties appeared and were represented by counsel
at the hearing, and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to present oral argument. Subsequent to the hearing
both the General Counsel and the Respondent filed helpful briefs with the Trial
Examiner, and counsel for the Charging Parties filed a statement adopting the brief
of the General Counsel. These briefs have been fully considered.
Upon the entire record and my observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTIONAL FINDINGS
The Respondent, a Texas corporation, owns and operates two plants at Bryan,
Texas, where it is engaged in the manufacture, sale, and distribution of aluminum
windows. During the past year, the Respondent sold and shipped directly to points
outside of Texas products valued in excess of $100,000. I find, as the Respondent
admits, that it is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act, and that it will effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
Local 458, International Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers and Helpers, AFL-CIO, herein called the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Background
1. The bargaining negotiations with the Union; the parties reach an impasse in early
June 1960
In August 1959, pursuant to a consent-election agreement, an election was held,
and the Union was thereafter certified as the bargaining representative of the em-
ployees at the Respondent's two plants at Bryan, Texas. Negotiations for a
collective^bargaining contract commenced about a month after the certification was
issued and continued until an impasse was reached in the early part of June 1960.
2. President Albritton's speech to the employees
In the latter part of the week beginning May 23, 1960, while the negotiations
with the Union were still in progress, the Respondent's president, Ford D. Albrit-
ton, Jr., had the employees of both plants cease work shortly before the end of the.
day shift and assemble in the picnic area of the new plant where he talked to them
for about a half hour.' Albritton told the assembled group that he was going to
take this last chance to talk to them, that they formerly had all been "one big
family" to him and that he wanted to keep it that way. Asserting that he had built
up the business himself, Albritton declared that he was not going to let a union
come in and tell him what to do .2 Albritton referred to the Texas right-to-work
law and stated that regardless of whether the employees were members of the Union,
they did not have to join any strike which might be called. He assured the employees
that the Respondent would protect those who saw fit to work during a strike. Point-
ing to the employees' entrance to the plant, Albritton warned that if the employees
walked out that door he would not take them back in, that they would be replaced
as the Company had numerous applications in its files from persons who would like
to work for it .3
1 There Is a conflict in the testimony concerning the date this talk was given and as to
certain of the circumstances leading up to President Albritton 's giving of this talk. The
General Counsel's witnesses ' testimony concerning the date on which this speech was
made ranged from the middle of May 1960 to shortly before the strike ; but a majority
of those having any recollection of the date placed it at least 2 weeks before the strike
The Respondent's witnesses, with the exception of President Albritton himself, placed
the speech as having been a week or two before the strike. Albritton testified that he
made the speech on Wednesday, June 8. According to Albritton, he recalled the date
because It was shortly after several women conferred with him on June 6 for the purpose
of obtaining assurance that the plant would continue to operate In the event of a strike
An Interoffice memorandum in the Respondent's files discloses that this meeting with the
women employees did in fact take place on June 6. However, in view of the fact that
three employees, Brewster, Hines, and Burlin, were on vacation the entire week com-
mencing June 6, as the parties stipulated, and yet all were present during the speech,
I find that Albritton was mistaken In his recollection of the date on which the speech
was made, and that it was made prior to his conferring with the three women on June 6
I find, in accordance with the testimony of the General Counsel's witnesses, that the
speech was made the latter part of the week beginning Monday, May 23, 1960, as stated
in the text above.
P Several witnesses testified that Albritton went further and declared that he "would
rather close the plant then let the union come In." Albritton did not specifically deny
making this statement, except by inference; his version omits any references to such a
statement being made by him. Since numerous other witnesses failed to attribute such
statements to Albritton, I conclude that the few witnesses who testified concerning this
additional remark were giving their Interpretation of what Albritton meant in saying that
he was no going to let a union come in and tell him what to do
3 The foregoing finding is based on the composite testimony of 19 of the employees
who were present when the speech was made. Albritton testified that he merely Informed
the employees that, in the event of a strike, they could be permanently replaced If, after
being notified to return to work, they failed to do so. Albritton specifically denied going
further and saying that the employees would not be taken back in the event they remained
out on strike. However, 17 of the employees testified that Albritton made such a state-
ment. Their versions range from Munoz': "that If we did go out on strike, not to bother
to come back, that we would be replaced," to that of Ruiz: "if anybody walked out of
that building to go out on strike, he wouldn't hire the people that walked out, he would
never hire them back to go to work again ." In view of the fact that all the witnesses,
ALBRITTON ENGINEERING CORPORATION 943
3. The strike ; President Albritton 's speeches to employees the first day of the strike
On June 13, 1960, the Union called a strike and approximately 54 of the 140
employees in the Respondent 's 2 plants ceased working and engaged in picketing of
the plants. All 21 individuals here involved participated in the strike. Toward the
end of the workday on the first day of the strike, Albritton made separate speeches
at both plants . He made his speech from a prepared text, which is as follows:
I want to thank all of you for coming to work this morning.
I want to express my appreciation for the loyalty which you have shown to
our Company by your presence here today.
Since the election last August, our Company has had a series of meetings with
representatives of the Boilermaker's Union in an effort to arrive at a contract.
Despite the repeated efforts of our Company, the Boilermakers' Union has
refused to have a contract and the Union now decided to strike.
Perhaps you know the RIGHTS OF THE UNION.
The Union has a right to call a strike and to engage in peaceful picketing.
No Union can legally threaten, coerce, intimidate, or in any way prevent or
make any effort to prevent any person from coming to work.
So far as I know, there are no criminal elements who are or who will be
engaged in picketing this plant.
I hope that all of the members of this Union will always conduct themselves
in a lawful manner.
Perhaps you know the RIGHTS OF EMPLOYEES.
Under the Federal Laws and the Laws of the State of Texas you have a
RIGHT TO WORK.
You are protected under the Federal Laws from being threatened, intimidated,
or coerced by any representative of the Boilermaker's Union.
You are protected under both the Federal ,and the Laws of the State of Texas
against violence, threats of violence, mass picketing or any other acts by which
any representative of this Union attempts to prevent you from coming to work.
I want all of you to know that it is the intention of our Company to see that
your RIGHT TO WORK is not violated.
I want you to know the RIGHTS OF OUR COMPANY.
I want all of you to know that both of our plants will continue to operate
and all of you will continue to have a job, so long as you want to work.
We will continue all of the present working conditions without change.
We have not discharged any employees who have refused to come to work.
I want all of you to know that all employees who are absent today will be
given an opportunity to return to work.
In the even some of those on strike chose not to return , it is our intention
to hire permanent replacements.
It is my belief that this strike should never have been called by the Union.
I can see no reason why it should not be called off at once; however, it may
be the intention of the Union to continue this strike for several days. [Emphasis
in original draft
4. The Respondent 's replacement of all the strikers
During the strike, the Respondent sent to all of the strikers here involved copies of
the following letter.
If you desire to return to Albritton Engineering Corporation , please report to
work no later than 7:00 a.m . on Monday , June 20, 1960.
excepting two for each side, were excluded from the hearing room, the uniformity of the
Charging Parties' testimony to the effect that Albritton had stated that strikers would not
be taken back is entitled to weight in resolving the conflict in the testimony. (Only 2 offi-
cials of the Respondent and only 2 of the 21 of the Charging Parties were present
throughout the hearing and all witnesses were under strict instructions not to discuss
their testimony or the case with one another until after the conclusion of the hearing )
Under all the circumstances , I conclude that the conflicting testimony must be resolved
in favor of the employees' version. As indicated above, Albritton's recollection of the
circumstances prompting him to make the speech has already been shown to be faulty
This is shown by his placing of the speech after his conference with the three women on
June 6, although the record clearly indicates that the speech was made prior to his con-
ference on June 6.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is my duty to inform you that if you do not return to work by the above
time, you may be permanently replaced by one of the many applicants who
would like to go to work for ALENCO.
Under the Texas Right to Work Law you have a right to work where you
please, whether you belong to a Union or not.
With the exception of Malcolm Martin who returned to work on June 20, none
of the strikers returned to work by the date specified in the letter, and Respondent
commenced replacing the strikers on June 20. By July 25, all of the strikers except
A. J. Carroll and Manuel Ruiz, who were Respondent's two oldest employees in
point of service, had been replaced. Carroll applied for work on July 26 and was
put back on the payroll on the following day. As the strikers were replaced, the
Respondent sent them letters stating that they had been terminated. Ruiz was taken
off the payroll in December 1960.
On July 22, the Union notified the strikers that it was withdrawing its financial
support of'the strikers. The strikers decided against continuing the strike without
the Union's support, and the picketing of the plants was discontinued at 2 p.m. on
July 22. Commencing on July 25, 1960, and at various times in the year following,
the strikers applied for reemployment at the Respondent's plants.
5. Personnel Manager Varner's talk with newly hired employees on October 10, 1960
After replacing the strikers during the strike, the Respondent did its first hiring
of regular (i.e. nontemporary) production employees in October 1960. Personnel
Manager Varner spoke with a group of five who reported on October 10, 1960, in
the conference room of the new plant. After telling the employees about various
plant rules, including safety regulations, and explaining the operation of the Respond-
ent's insurance and profit-sharing programs, one of the employees raised a question
about the strike. This led to a discussion about the Union. Varner told these new
employees that President Albritton had previously told the employees that he
"wanted everybody to be one big family" and that he was not going to have a union
in the plant. Varner mentioned that 94 employees had gone out on strike, that these
striking employees, after having been invited to return to work, had refused, that
their places were taken by 54 new employees, and that as a result all 54 strikers had'
lost their jobs.4
B. The Respondent's refusal to rehire the strikers
1. Introductory statement
The principal theory of the General Counsel in this case is that the Respondent,
when it filled vacancies by hiring new and inexperienced employees instead of the
strikers, who had previously applied to it to return to work, was motivated by
antiunion considerations, and that as to the filling of any vacancies occurring in
the 6-month period prior to the filing of the charges, such bypassing of the strikers
constituted interference with the strikers' right to strike, in violation of Section
8(a)(1) and discrimination against the strikers in violation of Section 8(a)(3).
Although the General Counsel relies mainly on the personal applications for em-
ployment which almost all of the strikers made directly to officials of the Respond-
ent, he also takes the position that registration for employment with the Texas
Employment Commission, under the circumstances of this case, constitutes an ap-
6 The foregoing findings are based almost entirely on the testimony of Jack White, a
witness for the General Counsel. The Respondent called to the stand two of its em-
ployees, Ball and Holloman, who were hired at the same time White was and questioned
them concerning Personnel Manager Varner's remarks on this occasion Except for being
able to remember Varner saying that they were being hired to replace strikers, they were
unable to recall Varner having made the statements attributed to him by White. Varner
himself was called to the witness stand after White testified. However, Varner was not
questioned about his remarks on the occasion in question. Under all the circumstances,
I cannot accept the vague recollections of Ball and Holloman in preference to the detailed
testimony of White, which is not denied by Varner himself. In one respect, however,
I believe White overstated matters when he testified that Varner had stated that Albritton
had said he would close the plant before he would let a union come in. I conclude that
White, like the witnesses who attributed to Albritton the making of a similar statement
in the course of his June 3 speech, was perhaps placing greater emphasis on Albritton's
statement that he was not going to have a union in the plant, than was warranted by the
actual words used by Varner in reporting Albritton's position
ALBRITTON ENGINEERING CORPORATION 945
plication for employment with the Respondent. The Respondent contends that in
refusing to rehire the strikers, it was not motivated by union animus, but was merely
following the policy to which it had uniformly adhered since the end of 1958 of
refusing to rehire former employees. The Respondent strenuously objects to the
General Counsel's reliance on registration with the Texas Employment Commission
as being the equivalent of a personal application for employment to the Respondent.
2. Respondent's policy of not rehiring former employees
At President Albritton's direction, a study was commenced in the fall of 1958 by
Production Manager Standard and George Kilgore, who at that time was Standard's
assistant, of changes which could be made which would result in a more efficient
operation. Among the matters studied was employee turnover. The Respondent's
records revealed that of the employees whom it had hired a second time, none was
still in its employ. Concluding that such employees were "job hoppers" and afforded
a potential for excessive training costs, Kilgore recommended to Standard the
adoption of the policy of not rehiring former employees. According to Kilgore,
the policy was to be applied "regardless of the reason the [employees] left the com-
pany." This policy was put into effect at the direction of President Albritton about
December 1, 1958. The policy was not published or otherwise generally com-
municated to the employees, however.
Adolph Slovacek, an employment interviewer for the Texas Employment Com-
mission, testified that "a long time ago ," and he indicated that it might have been
,as far back as 1958, the Respondent had informed the Commission that "they had
a policy of not rehiring old or exemployees."
The Respondent cited, as further evidencing its policy of not rehiring former em-
ployees, specific instances in which the policy was actually applied. Kilgore gave
the names of 12 former employees who applied for reemployment and were refused
because of the policy. Two of the employees whose names Kilgore gave had been
discharged .5 Of the remaining 10 named by Kilgore 6 only 3 were refused re-
employment before the strike. The remaining seven applied for reemployment in
March 1961 or later, after the Respondent was confronted with the problem of
passing upon the strikers' application for reemployment. Refusals at this late date,
of course , lack the significance of refusals before the end of the strike, before the
Respondent was called upon to justify its refusal to take back strikers.7
Varner named an additional eight employees who applied for employment with
the Respondent a second time and whom he turned down on the basis of the policy.8
Of these only two (Cloud and Grundman) were turned down before the strike.9
The General Counsel adduced evidence of a number of instances where the policy
was not followed and employees were rehired a second time after December 1958.
Varner admitted that he had rehired seven former employees at various times,1° but
asserted that they fitted into an exception which was a part of the policy itself.
According to Varner, the Respondent might make an exception, depending upon
its overall need for employees at the time and the availability of an opening, if an
exceptionally able or above average former employee was applying for reemploy-
ment. Varner testified that all seven of these former employees whom the Respond-
ent rehired fitted into this category. Two other former employees who were hired
a second time during the period the policy was in effect were Viola McCollom and
Gerald Nichols, who were rehired in March 1959. The Respondent offers no expla-
s The policy , having been adopted to avoid rehiring "job hoppers ," has no application
to employees who were involuntarily terminated.
0 These 10 were: Lucy Brown, Maxine Vaughn, Virginia Ruffino, Milton Snow, William
Moye, Shirley Cookley, Betty Evans, Alma Webb, Melvin Harris, and Johnny Fazzino.
7 One of the seven named by Kilgore as an example of the application of the Respond-
ent's policy , Webb, had the policy applied to her only after it had first made an exception
in her case and hired her a second time shortly after July or August 1959. Webb quit
a second time in September or October 1959. When Webb applied for employment a
third time in March or April 1961 , Kilgore , according to Varner ' s testimony , informed
her of the Company's policy of not hiring former employees
"These were: Dan Gough , Richard Batten, Howard Bullard, Robert Cloud , Rachel
Earnest , Edward Grundman , Roy Rice , and Ralph Vaquera.
9 Gough, who was turned down by Varner in the summer of 1960, had previously been
refused reemployment because of the policy by President Albritton in 1959
ii These were Devore Odstrcil, Richard Stang, Alma Webb, Doris NeSmith, Walter
Stang, Wanda Conway, and Richard Tuck
'946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation for its failure to observe the policy in their cases. David Madura worked
for the Respondent from September 1958 until October 1959 and left, apparently
to go to school. He was rehired in May 1960. The Respondent asserts that the
policy was not applied to temporary or part-time employees.
During the strike the Respondent did not apply the policy to two of the strikers,
Wallin and Sylvester, who abandoned the strike on July 6, 1960, and sought to
return to work, even though by the time they applied they had already been replaced.
3. Respondent's relations with the Texas Employment Commission
Before establishing its first plant in Bryan in 1957, the Respondent consulted
the Texas Employment Commission about recruiting employees with which to
staff the plant. The Commission cooperated fully with the Respondent, and at one
time permitted the Respondent to use one of its offices on a Saturday morning on
which the Commission was closed. On this occasion, officials of the Company
interviewed applicants which the Commission referred to it.
Subsequently, the relation between the Respondent and the Commission has been
the usual one between an employer and a governmental employment service. Not
infrequently, the Respondent, when in need of additional employees, has placed
requests for the referral of suitable employees with the Commission. The Com-
mission, after going through its files, has complied with the Respondent's requests
for referrals. To assist it in meeting the Respondent's needs, the Commission at
one time went out to the plants and made a study of the operations performed
there, and prepared a set of job descriptions, setting forth the duties of the various
jobs in the plant and the Respondent's requirements for filling these jobs.
The Respondent continued to utilize the services of the Commission throughout
the period involved in this case. A tabulation was received in evidence which was
compiled from the Commission's records showing, among other things, the dates
of the Respondent's various requests to the Commission for the referral of appli-
cants after the strike, the titles of the various jobs to be filled, description of duties,
number of vacancies, and the names of persons referred by the Commission. The
Commission, however, was by no means the sole source of employees hired by the
Respondent. The record shows that the Respondent hired numerous employees
who were not referred by the Commission.
As stated above, the Respondent informed the Commission of the adoption of
its policy of not rehiring former employees not long after its adoption. As a result,
the Commission ceased referring former employees to the Respondent, even though
they were registered with the Commission for employment. While the Commission
had known for some time of the Respondent's policy of not hiring former employees,
it does not appear that the Respondent specifically instructed the Commission to
apply its policy of not rehiring former employees to strikers until April 1961. Per-
sonnel Manager Varner, the only management official who gave testimony about
such instructions, was vague in his recollection of this matter. When asked whether
he had ever informed the Commission that the Respondent regarded replaced
strikers as coming within the scope of the Respondent's policy against rehiring former
employees, Varner at first answered, "I am sure that I have." Then he quickly
added, "I can't say that I have or that I haven't; I don't recall." When asked about
this matter later on in the hearing, Varner replied that "[he did not] recall specific
conversations along those lines now."
It appears that no such instructions were issued by the Respondent to the Com-
mission immediately after the strike. It further appears that Commission representa-
tives did not on their own responsibility at first deem the Respondent's policy as
automatically applying to the strikers. This is seen in the action of Pasquale Vil-
larreal, one of the Commission's employment interviewers, in referring Pete Ramirez,
one of the strikers, to Personnel Manager Varner on August 1, 1960, for a discussion
of Ramirez' prospects for employment. This incident is discussed more fully below
in connection with Ramirez' application for employment. Subsequently, appar-
ently without any specific instructions to this effect from the Respondent, the Com-
mission commenced applying the Respondent's old policy to strikers and during
the latter part of 1960 and all of 1961 Commission representatives did not refer to
the Respondent any persons who they were aware were strikers. Adolph Slovacek,
one of the employment interviewers at the Commission, testified to this effect
On April 10, 1961, three of the strikers, Clara Stabler, Eleanor Currie, and Vivian
Gossett, spoke with Slovacek about employment at the Respondent's plant. Accord-
ing to Gossett's credited testimony the following conversation took place- "I asked
him, `Adolph, I heard they was hiring out at the plant' and he said, `Yes, they are
ALBRITTON ENGINEERING CORPORATION 947
hiring out there. I believe they hired eleven last week.' it I said, `Adolph why
won't they hire us back there?' He said, `Girls, you know as well as I do why
they won't hire you out there. It's on account of that strike: " Clara Stabler
asked him who told him that. He said, "Billy Varner." 12 Later that day Slovacek
called the Respondent to discuss the matter. He talked to George Kilgore, who
in the meantime had been named personnel manager. Varner left the Respondent's
employ at the end of 1960 and moved to North Carolina. Slovacek told Kilgore
that some of the strikers had been in the office and were interested in going back to
work for the Respondent. Slovacek asked Kilgore if "he would consider taking them
back." According to Slovacek's credited testimony, Kilgore "never gave [him] an
answer . He just said , `Well, you know our policy towards exemployees ,' so I let it go
at that."
4. The strikers' applications for reemployment
With the exception of Victor Espinoza and Manuel Ruiz, all of the strikers here
involved had made a personal application for employment directly to the Respondent
before unfair labor practice charges were filed in their behalf. For reasons set
forth below, I conclude that these applications were deemed by all concerned to be
continuing applications, effective not only on the date on which they were made
but continuously thereafter. As to Espinoza and Ruiz, for reasons more fully set
forth below, 1 hold that the Respondent is estopped from relying on their failure
to apply after April 10, 1961, when the Respondent informed the Texas Employment
Commission, in effect, that the Respondent's old policy of not rehiring former
employees was applicable to strikers. The individual strikers' applications are
treated below in the approximate order in which they made their first application for
reemployment.13
Albert Faust: On July 25, 1960, Faust asked Personnel Manager Varner if there
was any chance of getting his job back. Varner replied that he had been replaced
and that there were no openings then, but that he would accept an application.
Varner then said that instead of filling out a new application he would keep Faust's
original application open, would consider it and let him know.
Hiram Brewster: Brewster, upon being advised by Carroll on July 26, that Per-
sonnel Manager Varner had agreed to take him back to work, called Varner and
told him that the Union had "pulled out" and that he "would like to know if [he]
could go back to work." Varner's reply, according to Brewster's credited testimony,
was, "Well, you have already been replaced, but as soon as there is an opening, I
will call you."
As indicated above, Varner left the Respondent's employ in December 1960. In
the latter part of April 1961 the Respondent rehired Varner, and early in May 1961
Varner resumed his former duties as personnel manager. Not long after Varner's
return, Brewster went to the plant and asked Varner whether he could go back to
work for the Respondent. Varner replied in the negative, and explained, "We
have a policy here that once you leave here you cannot come back." Varner also
added that he thought that Morgan, Brewster's foreman, was glad that he was gone.14
"Records furnished by the Respondent show that 11 new employees reported for work
on April 3. This helps place the date of this conversation Slovacek testified that he
had a conversation with the three women shortly after March 29, 1961.
12 Slovacek testified that he thought he recalled questioning Varner at some unspecified
time in the past as to whether or not the Respondent 's policy was going to be applied
to strikers. The reply, in effect, was in the affirmative.
"While the term "application for reemployment" is used in this report, it is not used
in the sense of applications for reinstatement . Having formerly been employed by the
Respondent , the strikers in applying were seeking reemployment , but they were not seek-
ing anything more than to be hired a second time They were not claiming any rights
as former employees of the Respondent.
"Varner testified that Brewster called him about the end of August 1960 and that he
had told Brewster that his chances of coming back were not very good "due strictly to
the past performance." I find that Varner was confusing Brewster's two applications
and that it was only on the occasion of Brewster's second application that Varner men-
tioned his past performance . Brewster impressed me as a credible witness who was not
apt to overstate matters and I credit his testimony.
At the close of Brewster's testimony as a witness for the General Counsel, the Respond-
ent moved to strike Brewster's entire testimony upon the grounds that he had violated
the Trial Examiner's instructions not to discuss the case with other witnesses. I with-
held ruling Upon consideration of the record as a whole, I do not feel such action to
662353-63--vol 138 61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pete Ramirez: On August 1, 1960, Ramirez went to the office of the Texas Em-
ployment Commission in Bryan and asked one of the interviewers there, Pasquale
Villarreal, whether he could find out for him whether he could go back to work for
the Company. In Ramirez ' presence, Villarreal called Personnel Manager Varner on
the telephone and mentioned that Ramirez was in seeking employment with the
Company. At the end of this conversation, Villarreal sent Ramirez to the plant
to see Varner. Ramirez explained that Villarreal had sent him over. Varner stated
that he did not have an opening, but as soon as he had an opening he would let
Ramirez know. That night Ramirez went to Varner's home where he again dis-
cussed his job prospects Varner said for Ramirez not worry, "that as soon as he
could he would put [Ramirez] back to work." Ramirez called Varner several times
in the evening for 2 or 3 weeks about a job, but each time he was told that Respond-
ent did not have any openings i5
Elmer Chambers: Unlike the other applicants here involved, who were production
workers, Chambers was a porter at the plant. According to a stipulation of the
parties, Chambers' was the only job which was not interchangeable with those of the
others. According to Varner's credited testimony, about the first of August 1960,
Chambers called Varner and inquired whether he could get his job back. Varner
said, "[No], that he did not think so."
Having heard that the Respondent was hiring, Chambers called Varner again on
May 13, 1961, and asked if he could come in and fill out an application. Varner
said, "Yes." Chambers went to Varner's office that day and obtained an applica-
tion form. He took it home and filled it out with the assistance of his wife, and
mailed it back to the Respondent early the following week.
Lola Burhn: Early in August 1960, Burlin and Velma Hines called Varner, and
in the course of a telephone call in which they spoke to Varner in succession, both
inquired about their chances of going back to work for the Respondent. To both
Burlin and Hines. Varner said that there were no openings, that Respondent had
a full crew. To Burlin. Varner added that "he tried to tell us what we were getting
into before we went into it, he tried to keep us out of it." When Burlin urged that
she was badly in need of work, Varner told her that he would call her if he had
any openings.
In duly 1961, Builin again contacted Varner about the possibility of an opening
at the Respondent's plants. Varner said that he had been away and asked her to
call the next Friday. When Burlin finally reached Varner a week or 10 days later,
he told her that he did not have a thing at the time but if he had an opening he
would be sure to let her know.
Velma Hines In addition to calling Varner early in August 1960, Hines again
called Varner in October 1960 and inquired whether the Respondent had any
openings. Varner's response was "No, we do not" 16
About the last of March 1961, having heard that the Respondent was hiring, Hines
called George Kilgore, the then personnel manager, and mentioned this fact to
him. His reply was as follows: "Well, Velma, you know our policy. . . . Once you
quit. we can't hire you back ... I'm sorry I can't help you but it's just that way."
be warranted and deny the Respondent 's motion It may be noted that in the Respond-
ent's brief it relies in part upon Brewster 's testimony which is subject to the motion
to strike.
'5 Varner testified that Ramirez came by his home about August 1 and said he would
like to co back to work According to Varner he replied , "Well, Pete, I 'm sorry. I don't
have any openings, plus the fact we have a policy regarding former employees " Ramirez
was specifically questioned concerning whether anything was said to him by Varner "about
a policy, not being able to take you back " Ramirez ' reply was , "No, sir " The record
as a whole furnishes ample support for the finding that Varner made no mention to any
striker of the Respondent 's policy of not rehiring former employees until after his return
to the Respondent 's employ about May 1 , 1961 . Under the circumstances , I do not credit
Varner's testimony that he mentioned Respondent 's policy to Ramirez , and find the facts
to be as stated in the text above.
is This Is Varner 's testimony According to Hines, she went to the plant in October
1960 and filled out a written application for employment and Varner told her at that time
that the Respondent was "full up " The Respondent was unable to find Hines ' application
in its files. I find it unnecessary to determine whether Hines also filed a written applica-
tion since Varner's testimony establishes that Hines at least made an oral application at
this time, and since Hines , as Varner admits, subsequently filed a written application
for employment with the Respondent on May 15, 1961.
ALBRITTON ENGINEERING CORPORATION 949
Hines responded , "I didn 't know anything about a policy ." 17 Hines filed a written
application for employment with Varner on May 15, 1961.
Joe Alvarado: About August 15, 1960, Alvarado called the Respondent's office and
asked to speak to Varner but was told he was not there. Three or four days later
he called again, and upon being informed that Varner was on vacation, asked to
speak to William Arnold, who had been Alvarado's foreman, and who at the time
worked in the office in the position of production scheduling supervisor. Alvarado
asked Arnold "what was the chance of going back to work." Arnold answered,
according to Alvarado's credited testimony, that "he didn't have any openings then.
And ... if they ever hired [him] back that [he] would lose all [his] seniority,.. .
[he] would go back as a new employee."
I find that Arnold, who purported to speak for the Respondent with regard to
the availability of work for Alvarado, had sufficient authority to bind the Respond-
ent with respect to Alvarado's application, even though it does not appear that Arnold
had done any hiring. As stated below, Arnold also purported to speak with authority
in connection with the rejection of Currie's application in April 1961. Under all
the circumstances, I conclude that the Respondent is responsible for Production
Scheduling Supervisor Arnold's rejection of Alvarado's application on August 15,
1960.
George Hurt: Hurt wrote a letter to the Respondent on August 19, 1960, request-
ing that he be considered in the next group of men the Respondent hired. On
May 26, 1961, Hurt went to the plant and filled out an application for employ-
ment. After completing his application Hurt handed it to Personnel Manager
Varner. Varner stated that if any jobs came open he would notify Hurt.
Roy Clanton, Jr : On August 25, 1960, Clanton wrote a letter to Varner asking
that Varner let him know if any opening with the Respondent was available.
On May 15, Clanton having heard that the Respondent was doing some hiring,
went to the plant with Bernard Pivonka and filled out one of the Respondent's
application forms. The Respondent was unable to locate Clanton's application in
its files. I do not regard this as too significant, as there were other written applica-
tions which I am convinced were filed, which were mislaid also See the case of
Munoz below. Under all the circumstances. I credit Clanton's testimony that he
filed a written application for employment with the Respondent on this occasion.
Johnny Munoz: About the middle of October 1960 Munoz went to the plant and
asked Varner "if [he] could have [his] job back." Varner said "[No], . the
best he could do was to let [him] fill out an application." When Munoz handed
Varner the completed application, Varner stated that he would let Munoz know as
soon as he had an opening.18
Clara Stabler: On April 3, 1961, Stabler called George Kilgore, who was then
acting as personnel manager, to inquire about going back to work. Kilgore was not
in his office, but when he returned her call, Stabler told him that she had heard that
the Respondent was hiring. He replied, according to Stabler's credited testimony,
"Yeah, they hired seven." Stabler continued, "What about me? I am a trained
hand and I would like to go back to work out there if I could." Kilgore's reply
was as follows: "Well, you see, I can't hire you back because we have a policy if
you leave us you can't come back." Stabler explained that she had been "out on
strike at the time. . . . I didn't realize what I was getting into when I joined that
union ... I had never worked in a union plant before." Kilgore rejoined, "You
can't rightfully say you didn't know what you were getting into because that is why
we made the speech, for the benefit of those who didn't know. And you knew per-
fectly well what you were getting into, you can't rightfully tell me you didn't because
17As stated above, Kilgore took over Varner's position as personnel manager when
Varner left the Respondent 's employ In December 1960. Varner was rehired by the
Respondent as personnel - manager the latter part of April 1961 , and reported back for
work early in May.
18 The foregoing finding is based on the credited testimony of Munoz , who impressed me
as a sincere witness. Varner testified that he did not recall talking to Munoz at any
time after the strike . The Respondent could not locate Munoz' application either Munoz
was the only witness who was examined thoroughly about the application form which he
filled out and the circumstances under which he submitted It to the Respondent. Munoz
testified in such detail concerning the Respondent 's form, its arrangement , and the
nature of some of the questions asked , that I am convinced that his account of his making
a written application to Varner is truthful.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you were told plain enough." Stabler then asked, "in other words, you don't intend
hiring me back?" Kilgore said "No, I'm sorry." 19
Stabler made a further written application for work on May 8, 1961, when she
accompanied Eleanor Currie, Vivian Gossett, and Rita Johnson to the plant. This
application is discussed below in connection with the application of Johnson.
Eleanor Currie: On April 15, Currie called William Arnold, the Respondent's
production scheduling supervisor, and asked whether the Respondent "was going
to hire any of the strikers back." Arnold replied, "No, that, `Once you quit, they
don't hire you back.'" When Currie denied that she had quit, Arnold declared,
"Once you leave . . . they didn't hire you back." In response to her query con-
cerning a recommendation, Arnold told her that he would give her a good one,
that she was a good worker. As in the case of Alvarado, I find the Respondent
responsible for Supervisor Arnold's rejection of Currie's application.
That afternoon, Currie called President Albritton at the plant, and being unable
to reach him there, called at his home. After identifying herself, Currie told Albritton
that she would like to go back to work for him, and added that she had a high
regard for him and had enjoyed working for him in the past. According to Currie's
testimony, Albritton stated that "he was sorry but he was not hiring any of those
that went out on strike.. . `Eleanor, you remember that last meeting we had I
told you all if you walked out that door on strike that I would replace each and
every one of you, and I would never take you back, .and I am a man of my word."'
Currie went on to say that she still thought well of him, and that he did not know
what went on in the shop, how the foreman pushed the employees around and refused
to permit the employees to come to him with their grievances. Currie concluded by
asking what kind of a recommendation he would give her. Albritton stated that he
did not handle such matters, but that as far as he knew she did good work and he
would give her a recommendation2e
As set forth more fully below, in connection with the application of Rita Johnson,
Currie submitted a written application for employment to Personnel Manager Varner
on May 8, 1961.
Vivian Gossett: On May 5, 1961, both Gossett and Eleanor Currie talked to George
Kilgore over the telephone about jobs at the plant. Currie spoke first. She told
Kilgore she knew that the Company was doing some hiring and said that she would
like to go back to work. Kilgore stated that the Respondent "had a policy that
once you quit that they didn't hire you back." Currie said, "George what are you
trying to tell me, that you are not going to hire me back?" Kilgore replied, "Some-
thing like that." Currie then stated that Vivian Gossett was there and wanted to talk
to him. Gossett said , "George, how about putting me back to work?" Kilgore
11 Stabler testified that this conversation occurred "sometime along In April " Kilgore
placed this conversation around the middle of April 1961. The Respondent's records dis-
close that it hired seven production employees in the period beginning March 20 and end-
ing March 27. This was the first time in 5 months the Respondent hired that many
employees in such a short period of time. In the week beginning April 3, the Respondent
hired 14 production employees, including 11 on April 3. Stabler, it will he recalled,
mentioned Kilgore's having referred to the Respondent's hiring of seven employees Under
all the circumstances, I conclude that this conversation occurred on or before April 3, 1961.
20 Albritton's version of this conversation accords in part with that of Currie, related
above. However, Albritton inferentially denied that Currie had asked for employment,
stating as follows: "I do not to this day recall the purpose of Mrs. Currie 's call."
Albritton's version omits any reference to the statement attributed to him by Currie to
the effect that he had reminded her of his prior warning that he would replace strikers
and would not take them back, and to her further statement that Albritton had empha-
sized that he was a man of his word While Albritton was specifically questioned con-
cerning whether he had told her that he was a man of his word, which he denied,
Albritton was not questioned concerning his having made the first part of the statement,
relating to replacing and not rehiring strikers . Under all the circumsances , I credit
Currie. As stated above, Albritton's recollection of other events in the case has proven
faulty. It is consistent with the logic of the situation for Albritton to have made such
a statement . Before the strike commenced Albritton had warned that replaced strikers
would not be taken back . This was what was actually happening at the time of the
telephone conversation in question occurred As found below , not one of the full-term
replaced strikers was rehired prior to the filing of the charges herein, although the
Respondent had numerous vacancies each month commencing in March 1961 and con-
tinuing through its busy season ending in September . For these reasons I find the facts
to be as stated in the text above.
ALBRITTON ENGINEERING CORPORATION 951
answered, "Vivian, the same thing goes for you it did for Eleanor. We have a policy
out here that once you leave you can't come back."
As set forth more fully below, in connection with Rita Johnson's application,
Gossett filled out one of the Respondent's application forms and gave it to Varner
on May 8, 1961.
Rita Johnson. Johnson, together with Stabler, Currie, and Gossett looked up Varner
on May 8, 1961,21 for the purpose of submitting written applications for em-
ployment to the Respondent. After some initial difficulty in getting in to see him, they
finally located him and inquired whether the Respondent was doing any hiring.
Varner answered that lie believed the Company had hired seven employees the week
before. When they asked whether they could go back to work, Varner announced,
"We have a policy out here if you leave us you can't come back." Gossett mentioned
that Dick Stang had left and returned to work. Varner replied, "That is our privilege.
We can hire back anybody we want to." Gossett then asked if they could put in
their applications Varner acquiesced, and all four women filled out the Respondent's
employment application forms. After Varner briefly checked the forms, Currie
asked whether there was any chance of their being put to work or was he "just
taking our application for the fun of it?" Varner answered, "Well, I wouldn't say
there wasn't any chance" and, pulling out a filing cabinet drawer, added, "Of course,
all these applications are ahead of you." When the women suggested that they were
"trained hands" and "ought to be first," Varner replied, "I can take any hand and
train them in two weeks to do what you all did."
M. S. Copeland: Copeland went out to the plant and filled out an application blank
on May 10, 1961. On this occasion Copeland mentioned that he was expecting a
call from Houston, but said that he would like to work for the Company. So he
asked Varner what his chances were of coming back to work. Varner stated that it
might be 6 weeks to 2 months before he would be able to call Copeland, and suggested
that he not turn down any job in Houston.22
Bernard Pivonka: As stated above, on May 15, 1961, Pivonka and Clanton went
to the plant and asked Varner "if [they] could get a job there." Varner suggested
that they fill out application blanks. When they had done so, they handed the blanks
to Varner, who told them that "if anything comes up he would let [them] know."
Manuel Ruiz- Having recently heard that the Respondent was doing some hiring,
on May 13, 1961, Ruiz called Personnel Manager Varner and told him he was looking
for a job and asked whether he had any openings. Varner said, "[No], that he had
hired some people the day before " Ruiz then inquired if he could come in and fill
out an application. Varner said that he might.
The following Monday, May 15, Ruiz' friend, Fred Alanis, came by his home and
also called Varner about getting a job at the plant. Shortly thereafter, the two
men went to the personnel office. They told Varner that they were "looking for a
job" and wanted to fill out applications. Varner handed them some forms. After
completing the forms the two men gave them back to Varner who stated that "he
would let [them] know if anything came up " 23
Fred Alanis: As stated above, on May 15, 1961, Alanis called Varner on the
telephone from the home of Ruiz and asked if it was possible for him to get a job at
the plant. Varner said, "If you qualify, you possibly can." Alanis reminded
Varner that he had been one of the strikers and asked whether this could cause
any difficulty. Varner replied, "No, as long as [he] qualified." Varner then inquired
whether Alanis was working any place else. When Alanis said he was working for
the International Shoe Company, Varner queried him as to why he wanted to come
back to the Company Alanis' response was that he did not want to work nights
any longer. Varner told him "to come on over and make out an application " Alanis
mentioned to Varner that he would bring his friend Ruiz. Alanis and Ruiz went to
21 As stated above, by this time Varner was back in his old job as personnel manager
for the Respondent
22 This is Copeland's credited testimony . According to Varner , he told Copeland that
his chances of being reemployed were very slim.
2' Varner testified that he did not say anything to Ruiz on May 15, because he had
just received a charge with respect to Ruiz which he believed falsely stated that Ruiz had
previously applied for reemployment to the Respondent Varner failed to recall any
conversation with Alanis on May 15, 1961, and denied that Alanis was with Ruiz on that
occasion The testimony of Alanis , whom I find below to be a credible witness, fully
corroborates that of Ruiz quoted in the text above. Varner admitted that the Respond-
ent's files contained applications from both Ruiz and Alanis dated May 15 , 1961 Under
all the circumstances , I do not credit Varner 's testimony regarding Ruiz' application
'952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Varner's office where they filled out application forms, as stated in the foregoing
paragraph.24
Henry Charanza and Albert Kacer: Charanza and Kacer went to the personnel
office on May 15, 1961. Finding some application forms in an outer office, they
each filled one out. Shortly thereafter, when Personnel Manager Varner became
available, they handed the completed forms to him. Varner told them he would
let them know when he had any openings.
Victor Espinoza: Espinoza made a telephone call to the plant in January 1961.
When he asked for Varner, the operator informed him that Varner was not there
and asked what Espinoza's name was. Espinoza gave his name and said that he
would like to come down and make an application for employment. The operator
stated that the Respondent had a lot of applications and would not take any more.
Admittedly Espinoza did not ask to have his call returned. About March 1961,
Espinoza again placed a call to Varner at the plant. Upon being informed that
Varner was not there, Espinoza dropped the matter. He did not ask the operator
to have Varner call him. Espinoza called the plant a third time in May 1961. This
time he asked for Kilgore. The operator said Kilgore was not there and asked who
was calling. Espinoza gave his name but did not ask that Kilgore call him.
5. The Respondent's hiring of new employees to fill vacancies which the strikers
were qualified to fill
As indicated above, with the exception of Chambers, who was a porter, all of
the strikers here involved were production workers in the Respondent's plants. As
such, they performed various operations such as the making of the numerous window
parts and the assembling of the various parts into completed windows. Among
the job classifications at the Respondent's plants are parts processors, frame pre-
parers, sash assemblers, glaziers, sash fitters, meeting rail installers, weatherstrippers,
balance adjusters, screeners, and various others. Employees are normally hired
to perform the more simple operations and, as they acquire experience in the plant,
they are promoted from within to the more difficult operations. In actual practice,
employees are transferred from one operation to another to such an extent that
they acquire some experience on a number of different operations. In recognition
of this practice, the parties stipulated that all of the strikers here involved, except
Chambers, were qualified to perform any of the Respondent's production jobs.
Section 10(b) of the Act precludes the issuance of any unfair labor practice
complaint based upon conduct occurring more than 6 months prior to the service
of the charge upon the person charged. This places a limitation upon the instances
of the Respondent's hiring of new employees in preference to strikers which may
,be taken into consideration. In the cases of Faust, Brewster, Ramirez, Chambers,
Burlin, Hines, Alvarado, Hurt, Clanton, and Munoz, a number of vacancies in jobs
which they were qualified to fill arose more than 6 months prior to the service upon
the Respondent of the charges filed in their behalf. The filling of these vacancies
with new employees is not alleged to be an unfair labor practice because of Section
10(b). However, a number of vacancies subsequently arose which these and the
remaining strikers here involved were qualified to fill. It is the Respondent's bypass-
ing of strikers in the filling of these vacancies, which became available within the
6-month period immediately preceding the service of charge in each case, which is
alleged to be violative of Section 8(a)(3) and (1) of the Act in this case.
A tabulation prepared by the Respondent of all of the jobs filled by it from August
1960 to the date of the hearing in this case was received in evidence as General
Counsel's Exhibit No. 5 (hereinafter called G.C. 5). This exhibit shows that in
the 6-month period between November 14, 1960, and May 13, 1961, when the
first charge was served, the Respondent hired some 46 employees for jobs which
the strikers were qualified to perform. During the remainder of 1961, the Re-
spondent hired an additional 40 employees. Of the 54 employees who went out on
strike on June 13, 1960, the Respondent replaced 52 of them before they sought
to be rehired. This proceedine involves the cases of 21 of these replaced strikers.
all of whom stayed out on strike until the end. i.e., were full-term strikers. Not t
of the 21 strikers here involved was rehired With the exception of Doris NeSmith,
whom the Respondent agreed to rehire on the day the Respondent was served with
copies of the first charges filed in this case, not 1 of the remaining 31 full-term
24 The foregoing findings are based on the testimony of Alanis which is corroborated, in
part, by that of Ruiz Alanis' testimony concerning his telephone conversation with
Varner is specific and detailed, and is consistent with the logic of the situation. In the
face of this convincing testimony , I cannot accept Varner's denial that he had any con-
versation with Alanis on May 15, 1961.
ALBRITTON ENGINEERING CORPORATION 953
replaced strikers was rehired by the Respondent.25 In the "Recapitulation," part C,
4, below, findings are made as to the dates on which the individual strikers here
involved are to be deemed to have been bypassed by the Respondent in the hiring
of new employees.
C. Conclusions concerning the Respondent's unfair labor practices in refusing to
rehire the strikers here involved
1. The issues involved
As stated above, the complaint, as further amended at the hearing, raises two
main issues herein. The first is whether the Respondent by refusing to reemploy
the strikers here involved was motivated by resentment against them because of
their union and strike activities, and therefore the Respondent's conduct was viola-
tive of Section 8(a)(3) and (1) of the Act. The second question is whether the
Respondent's refusal to reemploy the strikers was violative of the Act, regardless
of the Respondent's actual motives, because the necessary effect of the Respondent's
conduct was to impair the strikers' right to strike and to discourage union membership.
In order for the General Counsel to prevail herein on the first question, he must
establish that, at a time when a striker had a valid application for reemployment
pending with it, the Respondent, in filling a vacancy which a striker was qualified
to fill, hired a new employee in preference to a striker, and that the Respondent in
doing so was motivated by animus against the striker because of his union or
strike activities.
The second raises a question of law, namely, whether the policy against rehiring
former employees adopted by an employer for good and sufficient business reasons
and uniformly applied prior to a strike, can properly be applied to strikers so as
to constitute a valid basis for refusing their requests to be placed in vacancies
subsequently arising.
For reasons set forth below, I find that the General Counsel's position is well
taken on both issues.
2. Summary of the ultimate facts in the case
There can be no question in this case, in view of the stipulation that the strikers,
except Chambers, were qualified to perform any of the production jobs in its two
plants, as to the ability of the strikers satisfactorily to perform all production jobs
at the Respondent's plants. In fact the group of strikers here involved included
some of the Respondent's oldest and most experienced hands. In contrast, many
of the new employees whom the Respondent hired in preference to strikers were
without factory experience.
The record in this case establishes that, with the exception of Espinoza and Ruiz
whose cases are discussed hereinafter, all of the strikers here involved made timely
applications for employment directly to the Respondent. The General Counsel
contends, as he stated his position at the outset of this case, that the Respondent
regarded the strikers' attempts to regain employment as continuing applications for
employment During the course of the hearing, the Respondent's counsel, although
highly articulate in expressing the Respondent's position on all the issues in the case,
did not seriously challenge the General Counsel's position with respect to the
strikers' applications being regarded by the Respondent as continuing ones. However,
in the Respondent's brief to the Trial Examiner, in connection with its "Third Point"
dealing with the cases of Alvarado, Ramirez, and Faust who made oral applications
for reemployment more than 6 months before the filing of the first charges in the
case, the Respondent's argument, although the Respondent does not specifically say
so, may be construed as being based on the premise that the applications of these
strikers at least were not to be regarded as continuing ones. Hence, it is not clear
that the Respondent is acquiescing in the General Counsel's position that all of the
strikers' applications were regarded by the Respondent as continuing ones.
Be that as it may, upon all of the facts of the case, I find that the applications
for employment of all the strikers were intended by the strikers and were regarded
by the Respondent, as being continuing applications. The Respondent's practice
was to keep employment application in its files for use in filling vacancies. In his
speech to all the employees before the strike, President Albritton referred to the
Two of the men, Wallin and Sylvester, who had originally joined the strike, abandoned
it on July 6, 1960, although the strike did not end until July 22. Although they had been
replaced , the Respondent, because of its "tremendous" need for workers at that time,
rehired them both.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
numerous applications in the Company's files. The credited testimony herein shows
that up until March 1961, when the Respondent commenced using the policy as an
excuse for not rehiring strikers, the Respondent's practice, when strikers inquired
about employment, was to tell them that the Respondent would call them when a
vacancy arose. Typical is Burlin's undenied testimony that when she called Varner
he told her that "he didn't have a thing at the time but if he had an opening he would
be sure to let [her] know." This was Varner's response, regardless of whether
the striker had a new written application on file or not. Even after Respondent
commenced telling some of the strikers about the policy in March 1961, the Respond-
ent accepted written applications from them, and to some of these Varner's response
was that he would let them know when an opening came up. Under all the circum-
stances, I conclude that the Respondent's practice was to treat the strikers' applica-
tions for reemployment, whether oral or written, as continuing applications.
In any event, in view of the Respondent's uniform exclusion of full-term replaced
strikers from employment (up until the service of the charges), I find that it would be
futile for the strikers to apply, and that in these circumstances the kind of application
is not significant; all that is necessary is that the strikers shall, in one way or another,
have communicated to the Respondent his request to go to work for it.
The facts respecting the Respondent's filling of vacancies, above set forth, disclose
that after all the strikers, excepting Espinoza and Ruiz, had made timely continuing
applications for reemployment directly to the Respondent, the Respondent uniformly
bypassed the strikers and hired, in lieu of the strikers, new employees who had never
worked for the Respondent before.26 As shown in connection with the discussion
of the Respondent's defenses, the Respondent, in thus bypassing the strikers, was
motivated by animus against the strikers for engaging in union and strike activities.
Accordingly, the Respondent's conduct in this regard was violative of Section (a) (3)
and (1) of the Act. N.L.R.B. v. East Texas Steel Castings Company, Inc., 211 F.
2d 813, 818 (C.A. 5); N.L.R.B. v. Textile Machine Works, 214 F. 2d 929, 933-934.
footnote 4 (C.A. 3); N.L.R.B. v. San Angelo Standard Inc., 228 F. 2d 504, 507-508
(C.A. 5). And, as further shown below, the Respondent's bypassing of the strikers
constituted an act of intereference, restraint, and coercion, in violation of Section
8(a)(1) of the Act, regardless of the Respondent's motives. The Act forbids all
such inroads upon the rights of employees to strike.
3. Respondent's defenses
a. The Respondent's defense based upon its policy of not rehiring former employees
As stated above, the Respondent' s principal defense to the unfair labor practice
charges herein is that it merely applied to the strikers its longstanding policy of not
rehiring former employees and was not motivated by antiunion motives in refusing to
rehire the strikers. It is true that Varner stated in conclusionary terms that he applied
the policy to various strikers the first time they applied for reemployment after
the strike. There is other evidence, however, which raises serious doubts that this
policy was ever considered by the Respondent in connection with the strikers until
many months after the strike was over. The credited testimony herein clearly
establishes that the first time this policy was ever mentioned to a striker by a
supervisory official of the Respondent as a reason for refusing to rehire him was
in March of 1961 when Stabler and Hines talked to Personnel Manager George
Kilgore over the telephone.27 Varner made no mention of any such policy to any
of the strikers who applied to him for reemployment prior to the time he left Re-
spondent's employ in December 1960. On the contrary, Varner treated these strikers
as though the Respondent would rehire them, telling them that he would let them
know if a vacancy came up. As Burlin stated when she was asked whether Varner
had made any mention of the policy, "He talked like he would hire me. He talked
real nice about it" Had the policy been a factor at this time in the Respondent's
decision not to rehire the strikers. it is logical to infer that Varner would have men-
tioned it. His failure to do so, in my opinion, is significant in appraising the Re-
0 As stated above, the one case in which the Respondent agreed to rehire a full-term
replaced striker-the one exception to the Respondent's 100-percent exclusion of full-term
replaced strikers from its employment-did not occur until the day the Respondent was
served with copies of the first of the charges filed in this case
Tr With the exception of Varner's testimony concerning his mentioning of the policy to
Ramirez in August 1960, which I have not credited, there is no testimony by anyone that
the policy was ever mentioned to any strikers as a reason for denying reemployment prior
to March 1961.
ALBRITTON ENGINEERING CORPORATION 955
spondent 's sincerity in relying on the policy as asserted grounds for not rehiring
the strikers , and raises serious question about the Respondent 's real motives in
refusing to hire the strikers . Also significant in this regard is the fact that the Re-
spondent continued to accept written applications from the strikers although, if its
position before me is accepted , this was a futile thing to do and a waste of time for all
concerned.
The evidence as to the Respondent 's application of the policy convinces me that
it was not nearly as rigidly enforced as the Respondent urges. From the evidence
adduced by both parties it appears that in the period beginning with the adoption
of the policy at the end of 1958 and ending in March 1961 , the Respondent failed
to follow its policy about as many times as it observed the policy. Varner testified
that seven former employees whom the Respondent hired a second time were excep-
tionally able employees , and thus fitted into an exception which was part of the policy
itself. However, there is little evidence , aside from Varner's bare statement to this
effect, that these seven were exceptionally able employees . Despite the fact that
neither Wallin nor Sylvester were exceptional employees , the policy was not applied
in their cases . The fact that they abandoned the strike over 2 weeks before the rest
of the strikers furnishes a reasonable explanation for the special treatment accorded
them.
From the foregoing facts I conclude that while Respondent did have a policy of
not rehiring former employees , the policy was applied prior to the strike with a high
degree of flexibility and would not have been applied so sweepingly to the strikers,
had not the Respondent had an ulterior motive therefor.
In reaching this conclusion I am influenced also by the fact that the reason for
the adoption of the policy had no application to strikers . As President Albritton
testified, the policy was adopted to avoid the possibility of rehiring unstable "job-
hoppers" who frequently change from job to job. The strikers here involved included
five of the Respondent's oldest employees , having worked almost steadily from the
latter part of 1957 until the strike in June 1960 . Nine others had worked for the
Respondent since sometime in 1958. Only 2 of the 21 strikers here involved had
worked for the Respondent less than a year. The strikers were not "job-hoppers."
They were regular employees who had worked steadily for the Respondent. In
these circumstances , particularly , there is reason to question the Respondent's
reliance on the policy as grounds for not rehiring them.
Upon consideration of all of the facts of the case I conclude that the Respondent,
when it commenced hiring substantial numbers of employees in March 1961 (when
it was confronted for the first time with the necessity of explaining its refusal to
rehire strikers ), decided to utilize the policy as an excuse for not taking back strikers,
but that its real reason was to avoid any revival of the union movement in its plants
and to demonstrate to the employees then working the risks inherent in engaging in
union activity.
Albritton 's hostile attitude toward the Union and strikers is established in the
record. Two or three weeks before the strike he assembled all of the employees
and, after stating that he was not going to have a union come in and tell him what
to do, warned that employees participating in a strike would be replaced and would
not be rehired . The events in this case establish that this was not an empty threat.
Personnel Manager Varner echoed these sentiments to the newly hired employees
on October 10, 1960, informing them that Albritton had said he was not going to
have a union in the plant , and Varner also pointed to the loss of jobs by the 54
strikers. Albritton 's subsequent action , when Currie asked to go back to work the
following March, in reminding her of his previous warning as to the consequences
of going out on strike and again remarking that "he was a man of his word," indi-
cates that Albritton held a continuing grudge against the strikers because of their
participation in the strike . In April 1961 Personnel Manager Kilgore similarly re-
minded Stabler of Albritton's earlier warning that strikers would not be rehired,
telling her "you can 't rightfully say you didn 't know what you were getting into
because that is why we made the speech ." This occurred on the occasion on which
Kilgore refused Stabler's request that she be put back to work.
The foregoing evidence shows that the Respondent entertained a strong feeling
of animus against the strikers for having disregarded his warning as to the conse-
quences of going out on strike and , in my opinion, reveals the essential pretextual
character of the Respondent's claim that it was merely applying its longstanding
policy of not rehiring former employees in refusing to reemploy the strikers.
In any event , absent any animus against the strikers because of their having par-
ticipated in the strike , and regardless of the Respondent's reasons for adopting
the policy in the first instance , the Respondent 's application to strikers of its policy
of not rehiring former employees nevertheless violated the Act. In applying the
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
policy to strikers, the Respondent, in effect, penalized the strikers for having engaged
in the strike. Such action falls within the ban of Section 8(a)(1) which prohibits
employer interference with the rights of employees 28 under Section 7 of the Act.
The right "to form, join, or assist labor organizations" and "to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or
protection" are fundamental rights protected by Section 7. A strike, of course, is
one of the most common forms of concerted and union activities.
Moreover, the Respondent's enforcement of the policy against strikers consti-
tuted an act of discrimination against them, as well. The Respondent, in consider-
ing applications for employment when hiring employees after the strike, denied the
strikers the opportunity to compete on even terms with new applicants for the
available jobs. As a result of the Respondent's application of the policy to them,
the strikers were made worse off in regard to obtaining new employment than new
applicants. The effect of the Respondent's action in this regard was to discourage
membership in the Union. It constituted a continuing object lesson not only to the
strikers themselves, but to the Respondents' employees as a whole, as to the adverse
consequences of engaging in union activities.29 Here, as in Radio Officers Union v.
N.L.R.B., 347 U.S. 17, 44-45, the inherent effect of the Respondent's conduct was
to discourage union membership regardless of the Respondent's motives in applying
the policy to strikers. Accordingly, the Respondent's conduct also violated Section
8(a)(3) of the Act. See also Republic Aviation Corporation v. N.L.R.B., 324 U.S.
793, 805.
It is true that not every act of interference with the right to strike is to be held a
violation of Section 8(a)(1), and not every discriminatory act which discourages
union membership is to be regarded as a violation of Section 8(a)(3). It is well
settled that the Act, in an effort to reach an accommodation between the conflicting
rights of the employer, on the one hand, to carry on his business , and the rights of
the strikers, on the other hand, to strike, sanctions the permanent replacement of
the strikers. N.L.R.B. v. Mackay Radio d Telegraph Co., 304 U.S. 333, 345. Such
interference with the rights of employees to engage in concerted activities, and
such discouragement of union membership as results from an employer's replace-
ment of striking employees is permissible under the Act. However, the Act does
not permit an employer to go further, after he had replaced the strikers, and
exclude the strikers' applications for jobs from consideration in filling future
vacancies. Cf. General Electric Company, 80 NLRB 510, 513. In effect, this is
what the Respondent had done in applying the policy for the applications for em-
ployment of the strikers here involved. In doing so, the Respondent, in my opinion,
has violated Section 8(a)(1) and (3) of the Act. Cf. General Electric Co., supra;
Community shops, Inc., 130 NLRB 1522, 1524-1525, 1536.
b. The Respondent's defense based on the alleged failure of certain of the strikers
to make unqualified applications for reemployment
With respect to Currie, Stabler, Ruiz, Gossett, Alanis, Johnson, and Hurt, the
Respondent asserts that the allegations of the complaint as amended, as to them
should be dismissed because they failed to make unqualified applications for any
available job in the Respondent's plants. This contention is based entirely on the
answers which these individuals gave to one of the questions contained on the
Respondent's employment application forms, namely the question "What kind of
work are you applying for."
Hurt in his application dated 'May 26, 1961, had stated on the form that he was
applying for work as a saw operator at an expected salary of $1.20. However, Hurt
had in August 1960 written the Respondent a letter unqualifiedly seeking reemploy-
ment, his letter stating, "I hope you will consider me in the next men you hire."
As found above, this constituted a valid continuing application for employment.
Hurt had been unlawfully bypassed (within the 6-month period preceding the
service of the charge) in the filling of vacancies over a month before he filed his
May 26, 1961. application. Hence in Hurt's case his May 26, 1961, application
may be disregarded in determining whether he was unlawfully discriminated against.
28 It is well settled that the strikers, as applicants for employment, are in the general
class of "employees" as defined in Section 2(3) of the Act. Phelps Dodge Corp v.
N.L R.B., 313 U S. 177, 189-192.
28 Under the circumstances of this case, the Respondent's application of the policy to
strikers could not escape the attention of the Respondent's employees as a whole Some
of the strikers still had friends and relatives working at the plants
ALBRITTON ENGINEERING CORPORATION 957
Stabler's application dated May 8, 1961 , states that she is applying for the position
of vinyl cutter at the same salary as before . However, as in the case of Hurt,
Stabler 's application on May 8, 1961 , need not be considered in this case because she
had previously applied for work to Personnel Manager Kilgore on April 3, 1961,
and was refused by him at that time upon grounds of the policy . I find the discrimi-
nation as to her occurred at the time of her application to Kilgore , as the Respondent
hired many new employees the week commencing April 3.
As found above, before going to the plant on May 15, 1961, both Ruiz and
Alanis had called Varner and inquired whether they could obtain "a job." In
Varner's office they told him that they were "looking for a job" and wanted to fill out
applications. After filling out the applications, Ruiz stated that he was applying
for work as a "glasscutter" and in answer to the question , "What salary do you
expect," stated "Will accept any offer"; Alanis stated that he was applying for work
as a "saw operator" and specified that he expected a salary of at least $1 .25 per hour.
As found above, Currie, Gossett, and Johnson, together with Stabler, went out
to the plant together on May 8, 1961 . When they asked Personnel Manager
Varner whether they could go back to work, he mentioned the Respondent's policy
of not rehiring former employees. However, Varner agreed to accept their written
applications.
Currie and Gossett both listed welding as the type of work they were applying
for. With respect to salary, Currie specified "open." Gossett answered the salary
question as follows: "Will accept whatever you offer." Although Varner glanced at
the applications as they were handed to him, he did not make any comment about
the fact that they were apparently applying for specific jobs. Johnson stated, in answer
to the question concerning the type of work for which she was applying, as follows:
"Threader & asem." Her application states, with regard to salary, that she would
accept "what ever you offer me." Johnson explained that doing threading and
assembly work was her trade and that there were "all kinds of assembly work at
Albritton." Johnson, who was employed at a restaurant at the time of the hearing,
credibly testified that she told Varner when she applied that she "would like to go back
to the plant, [she] liked factory work. When asked whether she wanted her job
back, Johnson replied, "No, I would take any job. I like factory work."
Regarding Johnson, in view of her statements to Varner at the time she submitted
her written application and in view of all the other facts hereinabove recited, I
find that Johnson intended, and that the Respondent had reason to treat, her applica-
tion as being one for general assembly work, and accordingly I reject the Respond-
ent's contention in respect to Johnson 's application for employment.
Ruiz, Currie , and Gossett , as glasscutter and welders , respectively , had held some
of the highest paid production jobs in the plant. In their applications they never-
theless specified, in effect, that they would be willing to accept whatever salary the
Respondent was willing to offer. In view of this seeming ambiguity in their appli-
cations, I am inclined to the view that the Respondent reasonably could have treated
these applications as applications for lower paying jobs, as well -as the jobs stated
in their applications , which were the positions they last filled at the plant.
However, 1 am not placing my rejection of the Respondent's contention as to
them on this ground. Rather I find with respect to Ruiz, Currie, and Gossett, and
as to Alanis as well , that the Respondent is estopped from questioning the character
of the applications made by them in view of the Respondent's application to them
of its illegal policy of not rehiring former employees. This policy, as found above,
is illegal not only in that it was applied to them for prohibited motives , i.e , in retalia-
tion against them for going out on strike , but also because the application of such
a policy to strikers is illegal as a matter of law. As a result of the application of
this policy to the strikers, the Respondent did not seriously consider the strikers'
applications, although at the time they applied the Respondent was actively seeking
to recruit employees (the Respondent hired 20 production employees in the month
of May 1961). The strikers applying at this time included some of the Respondent's
oldest and most experienced employees. Ruiz, as Varner in effect admitted, was an
exceptionally good worker. Had the Respondent considered the applications of the
strikers on an equal footing with the applications of the new employees which it was
then engaged in hiring, at the very least it would have inquired of these strikers whether
they were willine to accept the jobs which were available at that time and at the
wages then being offered. By summarily setting to one side the applications of
the strikers on the grounds of the policy, the Respondent eliminated the possibility
of the employees clarifying their intentions in applying as they did. To sustain the
Respondent 's contention regarding the alleged inadequacy of these employees ' appli-
cations would be to permit the Respondent to profit by its own wrongdoing Par-
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ticularly, in view of the ambiguity of the applications in question, 30 it would be
inconsistent with the effectuation of the policies of the Act to resolve these ambiguities
against the strikers when it was the Respondent's unlawful conduct which prevented
these ambiguities from being clarified in the normal course of events.
Respondent makes the further contention with respect to these seven employees
that their written applications show that they were applying for reinstatement to
their old jobs rather than any jobs which might be available at the time. The record
clearly establishes that all of the strikers knew that they had been replaced during
the strike and that they had no legal claim on their old jobs whatever. The Re-
spondent's representatives, Personnel Managers Varner and Kilgore, and Production
Scheduling Supervisor William Arnold, all treated the strikers' applications as
applications of new employees. Regardless of the terminology used, there was never
any misunderstanding on this score on anyone's part. In any event, the reasoning
by which I have disposed of the Respondent's principal defense as to these seven
employees is equally applicable to this additional contention.
Accordingly, the Respondent's contentions based upon the nature of written
applications for employment filed by Hurt, Ruiz, Alams, Stabler, Currie, Gossett,
and Johnson are rejected.
c. The Respondent's defense based on the alleged failure of Espinoza and Ruiz to
make timely applications for reemployment
The facts hereinabove set forth with respect to Espinoza's attempts to regain
employment with the Respondent establish, in accordance with the Respondent's
contention in this regard, that he failed to make an effective application for em-
ployment to anyone in the Respondent's employ having sufficient authority to act
upon his application. The record shows, however, that Espinoza was registered
for employment with the Texas Employment Commission for most of the time
from the end of the strike up until May 26, 1961, including the period from April 24,
1961, to May 26, 1961.
The Respondent's defense with respect to Ruiz is based on the fact that the charge
in his case antedated his written application to Respondent dated May 15, 1961.
The charge signed by Ruiz was dated May 12, 1961, and was received by the Re-
spondent on May 13, 1961. This charge alleged that the Respondent, since on or
about March 1, 1961, had refused to hire Ruiz because of his former activities on
behalf of the Union. Ruiz was registered for employment with the Texas Employ-
ment Commission from August 5, 1960, to May 26, 1961.
It is in connection with the cases of Espinoza and Ruiz that the General Counsel's
alternative theory based upon the Respondent's relations with the Texas Employ-
ment Commission comes into play. Upon consideration of all the facts, I conclude
that the General Counsel has failed to sustain his broad contention that the Texas
Employment Commission was an agent of the Respondent, and that the Respondent
was bound by the Commission's failure, through the period following the strike,
to refer the strikers to the plant, pursuant to the Respondent's requests for referrals.
However, I do find that the Respondent is estopped from disavowing responsibility
for the Texas Employment Commission's refusal to refer registered strikers to it
after Personnel Manager Kilgore, in his conversation with Slovacek of the Com-
mission on April 10, 1961, confirmed to Slovacek that the Respondent's old policy
of not rehiring former employees was applicable to strikers, as well as employees
who left its employ for other reasons Slovacek's testimony makes it clear that but
for his knowledge of the Respondent's policy, which was clarified as being applica-
ble to strikers on April 10, 1961, the strikers would have been referred to the Respond-
ent for employment pursuant to the Respondent's requests for such referrals.
The Respondent's first request for the referral of applicants for employment after
April 10, 1961, was listed with the Texas Employment Commission on May 2, 1961.
It was a request for three trainees for assembly work. The Commission actually
referred seven applicants, but did not refer Espinoza or Ruiz, or any other of the
strikers. As stated above, Espinoza and Ruiz were registered with the Commission
and eligible for such referrals at that time, as were many of the other strikers
here involved 31 The Respondent actually hired three or four of those referred
pursuant to its May 2, 1961, request to the Commission.
30T do not find Alanis' application ambiguous since he specified that he expected a
salary of at least $1 25 per hour, and at that time had a job at International Shoe The
remedy as to him will he adjusted accordingly.
s' While the principle here apnlied is equally applicable to other strikers here involved,
it is unnecessary to rely on this principle in connection with the others because they
ALBRITTON ENGINEERING CORPORATION 959
While the Respondent's request for referrals to the Texas Employment Commission
was for trainees, and Espinoza and Ruiz were experienced employees, I find that
these vacancies at the bottom of the ladder, so to speak, were made available because
of promotions made from within to vacancies higher up the ladder, pursuant to
the Respondent's policy in this regard, and that had the Respondent not excluded
strikers from consideration pursuant to its illegal application to strikers of its policy
of not hiring former employees, the Respondent would have considered these strikers
for openngs higher up the ladder for which their experience and skills qualified
them. This is especially true in the cases of Espinoza and Ruiz, who Varner in
effect admitted were exceptionally able employees.
While it may be that the Respondent communicated to the Texas Employment
Commission its position that strikers came within the scope of its policy of not
rehiring former employees at some earlier date, the record does not definitely show
any communication between the Respondent and the Commission on this subject
before April 10, 1961. In the absence of definite proof of such instructions it would
be unfair to impute to the Respondent responsibility for the Commission's failure
to refer strikers, for such action might have been taken by the Commission upon
its own initiative, and for all the Commission knew, contrary to the Respondent's
position in the matter. However, since the record does furnish proof that such
instructions were given on April 10, 1961, I conclude that after that date the Re-
spondent is responsible for the Commission's failure to refer strikers to it for
employment. As indicated above, the first such occasion occurred on and after
May 2, 1961, when the Commission, in filling the Respondent's request for referrals,
failed to include Espinoza and Ruiz in the referrals made at that time. The dis-
crimination against Espinoza and Ruiz took place when they were bypassed in the
hiring which was done shortly thereafter. As indicated above, after listing its order
with the Commission for three trainees on May 2, 1961, the Respondent hired some
16 new production employees in May 1961, but did not rehire Espinoza and Ruiz.
d. The Respondent's defense based on Section 10(b) of the Act
As to Alvarado, Ramirez, Faust, and Munoz, all of whom applied for employ-
ment more than 6 months prior to the filing and service of the charges in their
behalf, the Respondent contends that no finding of unfair labor practices can be
made in their cases because of Section 10(b) of the Act which precludes the issuance
of complaints based on unfair labor practices occurring more than 6 months prior
to the filing and service of the charge. The Respondent asserts that vacancies which
these four men were qualified to fill occurred and were filled by the hiring of new
employees more than 6 months prior to the service of the charges in their case.
As stated above, with respect to the filling of such vacancies I agree that Section
10(b) applies and is controlling. No unfair labor practice finding can be based
upon the Respondent's filling of such vacancies.
However, vacancies which these four strikers were qualified to fill continued to
occur within the 6-month period preceding the service of the charges filed on behalf
of these men. Thus, in the case of Alvarado, whose, charge was served by May 13,
1961, the Respondent filled 38 production jobs in the preceding 6-month period.
In the cases of the other three strikers the Respondent filled almost as many vacancies
in the 6-month period preceding the service of charges in their cases. It is the filling
of these vacancies with new employees, in preference to rehiring these Charging,
Parties, which the amended complaint alleges to be an unfair labor practice.
In its brief to the Trial Examiner the Respondent does not address itself to this
question, namely, the effect of Section 10(b), if any, on the cases of those strikers
who were first passed over the Respondent in filling vacancies more than 6 months
before the service of charges, but who, because their applications were continuing
ones, were again bypassed by the Respondent in filling subsequent vacancies within
the 6-month period preceding the service of charges.
Upon consideration of the matter I conclude that Section 10(b) is not applicable-
to the Respondent's subsequent filling of vacancies within the 6-month period pre-
ceding the service of the charges. The offense, in the case of an applicant who has
a continuing application for employment on file, is committed when the employer
hires another applicant instead of the applicant discriminated against. As the Court
of Apneals for the Third Circuit indicated in N.L.R.B. v. Textile Machine Works,
Inc, 214 F. 2d 929, 932, the employer commits a "separate and distinct unfair
labor practice" each time a new applicant is hired in preference to the victim of
made written applications for employment directly to the Respondent at about the same
time as the Respondent placed its May 2, 1961, order for referrals with the Texas Employ-
ment Commission.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the discrimination . Cf. N.L.R.B. v. Plumbers & Pipe Fitters Local Union 214, 298
F. 2d 427 (C.A. 7). Accordingly, I find that the Respondent 's unfair labor practices
with respect to Alvarado, Ramirez, Faust, and Munoz were committed whenever
in the 6-month period preceding the service of charges in their cases , the Respondent
hired new employees in preference to these four men for production jobs. As to
these subsequent acts of discrimination , as indicated above, Section 10(b) is not a
bar.32
4. Recapitulation
I have found that the Respondent by hiring new applicants and bypassing the
strikers has discriminated against the strikers in violation of Section 8(a)(3) of the
Act and has interfered with the strikers' rights under Section 7 of the Act, in violation
of Section 8(a)(1). There remains to be determined the dates on which such
violations of the Act occurred. Under the circumstances of this case, such a deter-
mination is at best an approximation, for there is no telling exactly how the Respond-
ent would have exercised its managerial authority in picking and choosing among
applicants had it given the strikers' applications the same consideration as it did
the applications of persons who had never been employed by it before. In my
opinion, in view of all the facts of the case, the most reasonable solution of this
problem with respect to each striker, excepting Espinoza and Ruiz, is to take the
date-after each striker first applied to the Respondent for reemployment either
orally and in writing-on which the Respondent first hired a new employee for a
regular full-time job which the striker was qualified to perform, and to treat this
as the date on which the Respondent's violation of Section 8(a)(3) and (1) of the
Act as to the striker in question first occurred. In the event the date of any striker's
first application is more than 6 months before the service of the charge in his case,
the date of the discrimination as to him would be the first date within the 6-month
period preceding the service of the charge on which the Respondent hired a new
employee to fill a job which the striker was qualified to do.
The dates on which each of the strikers first applied for reemployment has been
given in the discussion of the applications of each of the individual strikers. As
indicated above, G.C. 5, which was prepared by the Respondent, gives the names
of all persons hired by it during the period from August 1, 19'60, to January 5, 1962,
the dates on which they were hired, and the job classification for which they were
hired. From the evidence as to the strikers' applications for reemployment and the
information contained in G.C. 5, I find the dates of the Respondent's initial unlawful
discrimination against the strikers (with the names of each of the new employees
hired in preference to the strikers) to be as follows:
Name of Date of Name of New
Striker Discrimination Employee Hired
Hiram Brewster________________ 11-15-60 ------ Jerry Norman
Pete Ramirez__________________ 11-15-60 ------ Roy Worsham
Velma Hines___________________ 1-23-61 --------- Richard Stang
Joe Alvarado ------------------- 3-10-61 ------- Robert Green
Roy Clanton___________________ 3-20-61 ------- Wilson Daggs
sa In Its brief, the Respondent again urges, as It did at the hearing, that the amended
complaint should be dismissed on the ground that a statement made by the General Counsel
in an opposition to the granting of interrogatories to the Regional Director constituted a
judicial admission against interest which, in effect, eliminated one of the crucial allega-
tions of the amended complaint from consideration The General Counsel's statement in
question related to paragraph 6 of the amended complaint which dealt with the subject
of the applications for reemployment of the strikers here involved. Whatever may have
been the intended effect of the General Counsel's statement that "nothing contained In
paragraph 6 of the Amended Complaint is Intended as an allegation of the commission
of any unfair labor practices," the matter was clarified at the outset of the hearing
when I ruled that the Respondent was entitled to the information sought in Its first
interrogatory. Pursuant to my ruling, the General Counsel read into the record the
specific dates upon which each of the strikers applied for reemployment and elaborated
further upon the theory of the complaint. Good pleading practice sanctions the making
of clarifying amendments to pleadings. The matter of the applications was fully litigated
at the hearing and no claim of surprise was made at the close of the hearing. Under all
the circumstances, and particularly since no prejudice to the Respondent has been shown,
I adhere to my ruling at the hearing that the Respondent's highly technical contention
is without merit See Morgan v. U.S, 304 U.S 1, 18; Federal Comniunications Com-
mission v. WJR, The Goodwill Station, Inc, 337 U.S. '*01 275, footnote 9; Charles Fay v.
Douds, 172 F. 2d 720, 725 (C.A. 2).
ALBRITTON ENGINEERING CORPORATION 961
Name of Date of Name of New
Striker Desorarnanataon Employee Hared
Clara Stabler__________________ 4-3-61 Mae Daniel
George Hurt__ _________________ 4-14-61 ------- Lupe Ostiguin
Eleanor Currie_________________ 4-17-61 ------- Robert Dillard, Jr.
Albert Faust__________t________ 5-1-61 -------- Roy Franklin
Lola Burhn___ _________________ 5-8-61 -------- Roy Phelps
M. S. Copeland----------------- 5-12-61 ------- Barney Santana
Vivian Gossett_________________ 5-12-61 ------- Harry Lowenthal
Rita Johnson___________________ 5-15-61 ------- Barbara Nichols
Bernard Plvonka_______________ 5-15-61 ------- Leo Chavarria
Henry Charanza______,__________ 5-15-61 ------- Henry Engleman
Fred Alams____________________ 5-16-61 Ruth Leonard
Albert Kacer___________________ 5-17-61 ------- Crescencio Gongora
Manuel Ruiz------------------- 5-23-61 ------- Othor Clark
Victor Espinoza________________ 5-23-61 ------- Burnice Rodgers
Johnny Munoz_________________ 6-8-61 Joe Cordenas,Jr.
Elmer Chambers____,___________ 8-28-61 ------- Clarence Paul
Included in the above list are Espinoza and Ruiz, who failed to make timely appli-
cations for employment directly to the Respondent . As indicated above, Espinoza
and Ruiz were registered for employment with the Texas Employment Commission
from April 10, 1961, when Personnel Manager Kilgore advised the Commission that
its old policy of not rehiring former employees applied to strikers , until after May 2,
1961. It was on May 2, 1961 , it will be recalled , that the Respondent requested the
Commission to refer three trainees to it for work in its production department. None
of the strikers were referred by the Commission to the Respondent pursuant to this
request because of the advice which the Commission had received that the Respond-
ent was applying its old policy to strikers . After April 10, 1961, as found above, the
Respondent is responsible for the Commission 's failure to include strikers among the
referrals made by it pursuant to the Respondent 's requests therefor. The date May 23,
1961 , given in the above list for Espinoza and Ruiz, reflects the date on which
Espinoza and Ruiz would normally have been reached in the rush of applications
which the Respondent received from the strikers in the first half of May 1961, had
not the Respondent by its advice to the Commission in effect prevented the Commis-
sion from referring Espinoza and Ruiz for employment.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, my
recommended order will direct it to cease and desist from the unfair labor practices
herein found , and to take certain affirmative action designed to effectuate the
policies of the Act.
My recommended order will provide that the Respondent offer immediate em-
ployment to the striking employees listed in part III , C, 4 hereof , headed "Recapitu-
lation," discharging , if necessary to make room for the strikers , employees hired
for the first time on and after the dates of discrimination set opposite the names
of the striking employees listed in part III, C, 4 hereof. With the exception of
Chambers , who is to be offered employment as a porter , all of the other striking
employees are to be offered production jobs in the Respondent 's plants. In the
case of Alanis , who had other employment at the time of his application for reem-
ployment and who specified in his application that he expected a salary of "at least
$1 25 Per Hour ," my decision herein assumes that the job which the Respondent
filled on May 16, 1961, paid at least $1.25 per hour . If not, my decision herein con-
templates that Alanis be reinstated to the first regular full -time production job there-
after becoming open at the Respondent 's plant paying $ 1.25 per hour. It will also
be provided that the Respondent make the aforesaid striking employees whole for
any losses they may have suffered 'as a result of the Respondent 's discrimination
against them by payment to them of a sum of money equal to that which each
normally would have earned as compensation from the date of the discrimination
to the date of the offer of employment , less net earnings , computed upon the calendar
quarterly basis provided for in F. W. Woolworth Co., 90 NLRB 289.
The General Counsel requests that interest at the rate of 6 percent per annum
be added to the quarterly amounts of net backpay due to the striking employees
here involved , such interest to be computed initially on the amount of net backpay
due each striking employee at the end of the calendar quarter in which the dis-
crimination against him occurred . For the reasons given by Trial Examiner James
F. Foley in Viroqua Sales, Inc., IR-105-62, decided by him on March 23, 1962, I
find that the allowance of interest is within the Board 's powers under Section 10(c)
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act, and that it is a desirable remedial measure to compensate the striking
employees, as fully as possible, for their losses resulting from the Respondent's dis-
crimination against them. Accordingly, my recommended order will include a pro-
vision requiring the payment of 6 percent interest on backpay (not compounded),
as requested by the General Counsel.33
My recommended order will also direct that Respondent preserve and, upon
request, make available to the Board, all payroll and other records which have a
bearing upon Respondent's backpay obligations under the terms of my recommended
order.
The unfair labor practices herein found are such as to indicate an attitude of
opposition to the purposes of the Act generally, and accordingly, the commission
of these and other unfair labor practices in the future is reasonably to be anticipated
from such past conduct. In these circumstances, the preventive purposes of the
Act may be thwarted unless the remedy is coextensive with the threat. To effec-
tuate the policies of the Act, therefore, it will be provided that Respondent cease
and desist from infringing in any manner upon the statutory rights of its employees.
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the Act, the Trial Examiner hereby issues the following:
CONCLUSIONS OF LAW
1. By refusing to reemploy the striking employees listed in part III, C, 4 hereof,
headed "Recapitulation," on the dates set opposite their names, the Respondent has
discriminated in regard to their hire, thereby discouraging membership in Local 458,
International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers
and Helpers, AFL-CIO, in violation of Section 8(a)(3) of the Act, and has inter-
fered with, restrained, and coerced said striking employees in the exercise of the
rights guaranteed in Section 7 of the Act, thereby violating Section 8(a)( I) of the
Act.
2 The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent, Albritton
Engineering Corporation, its officers, agents, successors, and assigns , shall:
1. Cease and desist from.
(a) Discouraging membership in Local 458, International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, or in any
other labor organization, by refusing to employ or in any other manner discriminat-
ing against any employee or applicant for employment in regard to his hire, tenure
of employment, or any term of condition of employment.
(b) In any manner interfering with, restraining, or coercing employees or appli-
cants for employment in the exercise of their right to self-organization, to form,
join, or assist any labor organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or all such
activities.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Offer the employees listed in the attached appendix, "Notice to All Employees,"
immediate employment, in the manner provided in the section hereof entitled "The
Remedy," and make each of said employees whole for losses suffered as a result of
the Respondent's discrimination against him, together with interest thereon at 6
percent per annum, as provided in "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary and useful to
determine the amount of backpay due under the terms of this recommended order.
(c) Post in conspicuous places at its plants in Bryan, Texas, including all places
"'In addition to the cases cited by Trial Examiner Foley In the Viroqua case, I rely
also on Texas Co of Mexico v Ross, 43 F. 2d 1, 4, 14 (C A 5), cert. denied 282 U.S 902;
DuPont v. Lyles & Gang, 219 F. 2d 328, 341, 343 (CA. 4), cert denied 349 US 956;
Blankenship v. Rownt,ee, 238 U S. 500, 504-505 (C.A. 10). The full citation of Billings
v. US, appearing in the text of Trial Examiner Foley's Intermediate Report in the
Vuoqua case, Is 232 U.S 261, 285-286.
ALBRITTON ENGINEERING CORPORATION 963
where notices to employees and applicants for employment are customarily posted,
copies of the notice attached hereto marked "Appendix." 34 Copies of said notice,
to be furnished by the Regional Director for the Twenty-third Region, shall, after
being duly signed by the Respondent's representatives, be posted by it immediately
upon receipt thereof, and maintained by it for at least 60 consecutive days thereafter.
Reasonable steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify said Regional Director, in writing, within 20 days from receipt of
this report, what steps Respondent has taken to comply herewith.35
ai In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by
a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals. Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
ae In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees and applicants for employment that:
WE WILL NOT discourage membership in Local 458, International Brotherhood
of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-
CIO, or in any other labor organization, by refusing to hire applicants for
employment, or in any other manner discriminating against employees in regard
to their hire or tenure of employment or any term or condition of employment,
because of their union affiliation or activities.
WE WILL NOT in any manner interfere with, restrain, or coerce employees in
the exercise of their right to self-organization, to form, join, or assist the above-
named Local 458, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in strikes and other con-
certed activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities.
WE WILL offer the striking employees named below immediate employment at
our plants, in the manner provided in the Trial Examiner's Intermediate Report.
Hiram Brewster Eleanor Currie Henry Charanza
Pete Ramirez Albert Faust Fred Alanis
Velma Hines Lola Burlin Albert Kacer
Joe Alvarado M. S. Copeland Manuel Ruiz
Roy Clanton Vivian Gossett Victor Espinoza
Clara Stabler Rita Johnson Johnny Munoz
George Hurt Bernard Pivonka Elmer Chambers
WE WILL make whole the striking employees named above for any loss of
pay they may have suffered by reason of our refusal to reemploy them.
ALBRITTON ENGINEERING CORPORATION,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, 650 M & M
Building, 1 Main Street, Houston, Texas, Telephone Number, Capitol 2-7201,
Extension 041, if they have any question concerning this notice or compliance with
its provisions.
662353-63-vol 138-62