Lewis Mechanical And Metal Works, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1987

285 N.L.R.B. 514 (N.L.R.B. 1987)

514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lewis Mechanical and Metal Works, Inc. and Sheet
Metal Workers International Union, AFL-CIO,
Local No. 60. Cases 19-CA-18534, 19-CA-
18683, and 18-CA-18700
31 August 1987
DECISION AND ORDER
BY MEMBERS BABSON, STEPHENS, AND
CRACRAFT
On 28 April 1987 Administrative Law Judge
William J. Pannier III issued the attached 'decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings , findings, I and
conclusions , to modify the remedy,2 and to adopt
the recommended Order as modified and set forth
below.3
In agreeing with the judge that the Respondent
violated Section 8(a)(3) and (1) of the Act by refus-
ing to hire Michael Pettaway, we apply the analy-
sis set forth in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), approved in NLRB v. Transporta-
tion Management Corp., 462 U.S. 393 (1983). We
find that the General Counsel established a prima
facie case by showing that Pettaway's union mem-
bership was a motivating factor in the Respond-
ent's decision not to hire him. The General Coun-
sel presented evidence that Pettaway, a union
member, applied for employment with the Re-
spondent, that the Respondent knew of his union
membership, and that the Respondent expressed
opposition to hiring union members. In a letter to
the Idaho Human Rights Commission, the Re-
spondent stated that if the union members were
willing to accept the consequences of withdrawal
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
Interest will be computed in accordance with our decision in New
Horizons for the Retarded, 283 NLRB 1173 (1987) Interest on amounts
accrued prior to 1 January 1987 (the effective date of the 1986 amend-
ment to 26 U S C § 6621) shall be computed in accordance with Florida
Steel Corp, 231 NLRB 651 (1977)
3 Because this case involves 8(a)(1) and (3) violations directed against
applicants for employment, we shall modify the judge's recommended
Order to include the word "applicants" in addition to the word "employ-
ees" already included
We shall also issue a new notice to include this change as well as to
add a word the judge inadvertently omitted from his notice
from the Union, and if the Respondent had the
work, it would hire them. In the letter, the Re-
spondent also stated that Pettaway had never indi-
cated that he would accept those conditions.
The burden then shifted to the Respondent to
show that it would not have hired Pettaway even
in the absence of his union activities. When called
by the General Counsel, Respondent President
Leland Lewis testified that neither in his letter to
the Commission nor in his prehearing affidavit had
he said that he had not hired Pettaway because of
the lack of work. He also stated that he was not
contending that the lack of work was the reason
for not hiring Pettaway. However, during the ex-
amination later by the Respondent's counsel,
Leland Lewis stated that the reason he had not
hired Pettaway was that the Respondent's work-
load had not developed to the point where they
needed Pettaway's expertise. The judge found that
the answers were internally contradictory and not
susceptible of belief. In discrediting this testimony,
the judge found that the Respondent had given no
credible evidence that Pettaway would not have
been offered employment even if he had with-
drawn from the Union. Because the Respondent
failed to meet its burden of rebutting the General
Counsel's prima facie case and also failed to estab-
lish an affirmative defense under Wright Line, its
refusal to hire Pettaway violated Section 8(a)(3)
and (1) of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Lewis Mechanical and Metal
Works, Inc., Idaho Falls, Idaho, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Telling applicants or employees that it is
futile to support Sheet Metal Workers International
Union, AFL-CIO, Local No. 60, or any other
labor organization, by saying that it will never be a
union shop.
(b) Telling applicants or employees, expressly or
by implication, that they must withdraw from
union membership to obtain employment.
(c) Interrogating applicants or employees con-
cerning their union membership and sympathies.
(d) Refusing to hire applicants or employees until
they have withdrawn from union membership.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
285 NLRB No. 54
LEWIS MECHANICAL WORKS 515
(a) Make whole Michael Pettaway for any loss
of pay he may have suffered as a result of the un-
lawful refusal to offer him employment prior to
August 1986 in the manner set forth in the remedy
section of the judge's decision as modified above in
fn. 2.
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its facility in Idaho Falls, Idaho,
copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Re-
gional Director for Region 19, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted By Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT tell applicants or employees that
it is futile to support Sheet Metal Workers Interna-
tional Union, AFL-CIO, Local No. 60, or any
other labor organization, by saying that we will
never be a union shop.
WE WILL NOT tell applicants or employees, ex-
pressly or by implication, that they must withdraw
from union membership to obtain employment.
WE WILL NOT interrogate applicants or employ-
ees concerning their union membership and sympa-
thies.
WE WILL NOT refuse to hire applicants or em-
ployees until they have withdrawn from union
membership.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make whole Michael Pettaway for any
loss of pay he may have suffered as a result of our
unlawful refusal to offer him employment prior to
August 1986, with interest on the amount owing.
LEWIS MECHANICAL AND METAL
WORKS, INC.
Max D. Hochanadel, for the General Counsel
Steven A. Gardner (Gardner & Higgins), of Idaho Falls,
Idaho, for the Respondent.
Paul F. Masi, of Sepulveda, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Pocatello, Idaho, on 12 February 1987.
On 28 November 19861 the Regional Director for
Region 19 of the National Labor Relations Board issued
an order consolidating cases, consolidated complaint, and
notice of hearing-based on the unfair labor practice
charges filed on 11 August in Case 19-CA-18534, on 20
October in Case 19-CA-18683, and on 27 October,
amended on 29 October, in Case 19-CA-18700- alleging
violations of Section 8(a)(1) and (3) of the National
Labor Relations Act, 29 U.S.C. § 151 et seq. All parties
have been afforded full opportunity to appear, to intro-
duce evidence, to examine and cross-examine witnesses,
and to file briefs. Based on the entire record, on the
memorandum brief filed on behalf of the General Coun-
sel and the posttrial brief filed on behalf of Respondent,
and on my observation of the demeanor of the witnesses,
I make the following
FINDINGS OF FACT
1. JURISDICTION
Lewis Mechanical and Metal Works, Inc. (Respond-
ent) is a State of Idaho corporation with office and place
of business in Idaho Falls, Idaho, where it engages in the
business of mechanical, heating, air conditioning, ventila-
tion, refrigeration, and sheet metal contracting. During
the 12-month period prior to issuance of the consolidated
complaint, a representative period, Respondent, in the
course and conduct of its business operations, had gross
sales valued in excess of $500,000. During that same
period, in the course and conduct of its business oper-
ations, Respondent purchased and caused to be trans-
ferred and delivered to its Idaho facilities goods and ma-
' Unless stated otherwise, all dates occurred in 1986
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
terials valued in excess of $50,000 either directly from
sources located outside that State or from Idaho suppli-
ers which, in turn, obtained those goods and materials di-
rectly from sources outside the State of Idaho. There-
fore, I conclude, as admitted in the answer, that at all
times material, Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
fectuate that conduct." (Citations omitted.) Advanced In-
stallations, 257 NLRB 845, 854 (1981), enfd. 698 F.2d
1231 (9th Cir. 1982). Given the absence of a credible le-
gitimate reason, indeed the absence of any reason, for
not hiring Pettaway and the presence of evidence dem-
onstrating all elements of an unlawfully motivated refusal
to hire, it follows that Respondent violated the Act by
failing to hire him between May and August.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, Sheet Metal Workers Interna-
tional Union, AFL-CIO, Local No. 60 (the Union) has
been a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal allegation in this case is that Respondent
refused to hire Michael Pettaway between May and
August. Because it is undisputed that Respondent ulti-
mately did offer him employment and inasmuch as, in
this respect, the only remedy sought by counsel for the
General Counsel, in his memorandum brief, is "to make
whole Michael Pettaway for any loss of wages he may
have incurred by Respondent's actions," there is no issue
concerning the propriety of, or need for, a reinstatement
order.
In addition, the complaint alleges that Respondent vio-
lated Section 8(a)(1) of the Act by various statements
made to applicants for employment by Respondent's
president and vice president during the months of April,
May, June, and August. Most of these statements alleg-
edly were questions concerning the applicants' union
membership status and the problems they might encoun-
ter if they failed to withdraw from union membership
before coming to work for Respondent. The remaining
alleged statements pertain to a remark that Respondent
did not intend to have a union shop and, further, a state-
ment that Respondent got into trouble every time that it
"hired union " Most of the alleged unlawful statements
attributed to Respondent's president and vice president
are either conceded or uncontroverted. As discussed
post, all of them are statements that "interfere with, re-
strain or coerce employees in the exercise of the rights
guaranteed in section 7" within the meaning of Section
8(a)(1) of the Act.
Concerning to the failure to hire Pettaway, a prepon-
derance of the evidence establishes all elements of an un-
lawful refusal to hire: application, refusal, expected union
support or sympathy, knowledge, animus, and motiva-
tion. Big E's Foodland, 242 NLRB 963, 968 (1978); Hobo-
ken Shipyards, 275 NLRB 1507, 1514 (1985). In the final
analysis, Respondent advanced no reason for its refusal
to offer employment to Pettaway from May to August.
The only witness who testified concerning the subject
was not generally reliable and he advanced reasons that,
at other points in his testimony, he expressly conceded
were not reasons for not offering a job to Pettaway. Of
course, in assessing allegations of unlawfully motivated
conduct, "the crucial inquiry must be directed to the
state of mind of the official who made the decision to ef-
B. The Evidence
Respondent is a closely held corporation, with all its
shares owned by members of the Lewis family. Similar-
ly, all its officers are members of that family, with
Leland L. Lewis serving as its president and with his
brother, T. Lamont Lewis, serving as its vice president.2
After Respondent came into existence during August
1985, it was not an immediate success. For the first 3
months it garnered no business and during the winter of
1985-1986 its shareholders all accepted employment with
other firms, for the most part with Ivie's, Inc. at its East-
ern Idaho Regional Medical Center (EIRMC) project.
However, by March and April Respondent had success-
fully bid on some projects, one of which was the
ShopKo Department Store in Pocatello, Idaho. Conse-
quently, the shareholders began leaving their other em-
ployment so that they could commence working for Re-
spondent. Further, Leland Lewis testified that by April,
"we were optimistic about the future, yes, to the point
where we were maybe worried about being able to find
people."
Although both Leland and Lamont Lewis had been
longstanding union members, Respondent has been non-
union since its formation. During this period, Respondent
has been paying its employees approximately $5 less per
hour than union scale. Leland Lewis testified that he had
been contacted on approximately five occasions by the
Union concerning a collective-bargaining contract and
"always felt that at sometime we would sign a union
agreement . . . that some day when the economy and
the budget and everything will turn around, we'll belong
to the [U]nion." Similarly, in the course of replying to an
internal union charge against him, Lamont Lewis stated,
"As we [Respondent] develop it may come to a time in
the short future that it will be to our advantage to sign a
labor contract."
Nevertheless, it is clear that there came a point in time
when Lewis' attitude toward the Union began to sour.
Respondent had been the subject of a state investigation
concerning possible noncompliance with Idaho employ-
ment law. At first, Leland Lewis testified that he "had
no idea" if the Union had been responsible for initiating
that investigation. But pressed further regarding the
topic, he admitted that he had suspected that "somebody
in the [U]nion was siccing the unemployment division on
[R]espondent " Furthermore, in a handwritten letter to
the Idaho Human Rights Commission (the Commission),
Leland Lewis stated directly that "the Union has been
2 It is admitted that at all times material, Leland and Lamont Lewis
had been supervisors within the meaning of Sec 2(11) of the Act and
agents of Respondent within the meaning of Sec 2(13) of the Act
LEWIS MECHANICAL WORKS
harrassing [sic] our Company and we cannot afford a
confrontation with the Union "
Against this background unfurled the incidents at issue
in this proceeding. On 16 April Pettaway and Andy
Hall, both then members of the Union, approached
Lamont Lewis regarding the possibility of employment
Lewis testified that they discussed Respondent's pay rate
and the applicants' personal and employment status, as
well as their status as union members Lewis agreed that
the subject of withdrawal from union membership had
been discussed and, at one point, he had "just told them
that they would have to make up their mind how they
wanted to do it, because when you withdraw from a
union, you have the possibility of fine and penalty, you
lose your benefits, and you even lose your friendship."'
Initially, Lamont Lewis admitted that, on 16 April, he
also had asked whether Hall and Pettaway would have
any problems with the Union if they were to come to
work for Respondent because it was a nonunion compa-
ny. But later he denied specifically having put that ques-
tion to the two applicants during this conversation
When asked, once more, if he had asked the question
that he initially admitted and then denied having directed
to Hall and Pettaway, Lewis answered, "That's hard to
put in yes or no." He then was confronted with his pre-
hearing affidavit, containing the statement- "At this point
I asked Pettaway and Hall if they would have any prob-
lems with the [U]nion if they were to come to work for
[Respondent], as we were nonunion." Faced with his af-
fidavit, Lewis conceded, "That's probably the way it
was worded, yes, sir."
Approximately 2 weeks later, Hall and Pettaway again
talked about employment with Lamont Lewis, this time
at the ShopKo site in Pocatello. Lewis testified, and
Pettaway agreed, that the job had not been too far ad-
vanced at that time and Lewis pointed out to the appli-
cants that work was progressing more slowly than Re-
spondent had anticipated It is undisputed that Pettaway
pointed out specifically that he "had just completed
working at ShopKo in Idaho Falls, which was a mirror
image of that same building " Moreover, during this con-
versation, Lewis admittedly "could very possibly [have]
talked about" whether Hall and Pettaway had taken care
of things with the Union.
On 14 or 15 May Leland Lewis telephoned and of-
fered employment to Hall. During this conversation,
Lewis said that Hall might have a problem working for
Respondent if he "didn't get things squared away with
the [U]nion" before starting work. Hall replied that he
would talk to the Union to ensure that he did not en-
counter problems On 19 May, when Hall reported for
work, Leland Lewis admittedly asked if Hall "had
gotten things squared away with the [U]nion" and Hall
answered that he had gotten a withdrawal card. Lewis
then put Hall to work However, after working for Re-
spondent for approximately 3 weeks, Hall quit.
Periodically Pettaway telephoned Respondent to in-
quire about employment During one such call, in June,
Pettaway was told by Leland Lewis that work was slow
8 Lewis testified that he made these remarks because "I knew Andy
and Pettaway, and I was concerned for their welfare "
517
and, according to Pettaway, Lewis asked if Pettaway
"had got a withdrawal yet, and I said no." When initially
asked if he had "asked Pettaway if he would have any
trouble with the [U]nion if he came to work for [Re-
spondent] or if he would be able to work things out with
the [U]nion with regard to coming to work with [Re-
spondent]," Leland Lewis responded- "I don't recall
saying that, no " However, after having been shown his
prehearing affidavit, Lewis conceded that he had put
those questions to Pettaway and, further, that Pettaway
had not replied that he would work things out with the
Union, but instead had said only "to hell with the
[U]nion[ ]" Indeed, Leland Lewis acknowledged that
from April to August Pettaway never had said either
that he had withdrawn from the Union or that he would
withdraw from the Union as a condition of coming to
work for Respondent
Leland Lewis admitted that he had asked Pettaway
about withdrawal from the Union on so many occasions
that Lewis could not recall the exact number It is not
disputed that one such occasion had occurred during a
telephone conversation on 4 August. According to
Pettaway, when he asked about an opening, Lewis had
"replied things were still pretty slow, and he asked me
had I got a withdrawal yet, and I said no." Following an
exchange of small talk, testified Pettaway, Lewis had
said that "every time I hire union, I get in trouble."
Asked about this portion of the conversation, Leland
Lewis testified. "Well, it's hard for me to believe that I
said it that way because I didn't know of any problems
that we have had with hiring union people, we haven't
had any problems hiring union people "
Hall and Pettaway were not the only applicants with
whom union membership status was discussed. It is un-
contradicted that on 11 August unemployed sheet metal
worker Carl Jorgensen applied for employment and, in
the course of his discussion with Leland Lewis that day,
the latter asked if Jorgensen belonged to the Union
When Jorgensen answered that he had not belonged to
the Union since 1982, it is not denied that Lewis "said
that they weren't a union shop and that they never
would be "
As stated above, in August Pettaway was offered em-
ployment by Respondent. Leland Lewis testified that this
occurred on advice of counsel rendered in response to a
racial discrimination charge filed by Pettaway with, the
Commission As noted above, during the course of the
investigation of that charge, Leland Lewis submitted a
handwritten letter to the Commission. In that letter, he
made the following pertinent statements-
1) When Mr Pettaway applied for employment,
as he indicated he was a union member in good
standing, still drawing union Fringe benefits, we are
open shop. We informed Mr Pettaway That He
would have To Take out a withdrawal from the
Union To minimize any adverse affect to his union
membership or to us. The consequences for Mr.
Pettaway Leaving The Union could be quite Severe
as he has only been a Journeyman for a short Time.
518 DECISIONS OF THE NATIONAL LABOR -RELATIONS BOARD
As we were also Union Members in good stand-
ing, we are experiencing some of these conditions.
3) During May some of our work began to break
and we hired 6 Employees from May 5 Thru May
19. Two of The Employees were College students
That had worked for us in 1985 and were promised
a Job in 1986 if we had the work. Three of the Em-
ployees we worked with at EIRMC from January-
April & were promised jobs once our work started
and Ivey Inc. could release Them. They were hired
before Mr. Pettaway ever Talked To us. We had a
few applications, some of which dated back to 1985.
Mr. Pettaway Never responded as To what his situ-
ation was with the Union, whether he could with-
draw without jepordizing his Union membership
and benefits.
The only thing we ever heard was that he
wanted a job, and because the Economy being as it
was we had several applicants who needed work
and didn't have the benefits which were available to
Mr. Pettaway. However, we did hire a Full blood-
ed Indian who was a union member in good stand-
ing but had taken out a withdrawal from the union.
4) In April we did not have 14 employees as Mr.
Pettaway Indicated. We had only built up to 6 Em-
ployees by the End of May one of which was a mi-
nority....-The Total work which we had was not
breaking for us As we had hoped. -
Because of the Economy conditions our jobs had
to be matched with The right Labor rates and we
could not afford To [sic] many at the higher rates.
5) Mr. Pettaway is a union member and The
Union in The past has provided some Employment
even if the members have to Travel out of town of
which I heard of some that done just that.
The Union shops were hireing [sic] off & on
Thru-out The year and I don't know why Mr.
Pettaway did not apply at a union shop or Travel
to work available out of state.
We never felt it was our responsibility to provide
Employment for Union members in as much as we
are open shop, however if the Union members were
willing to accept the consequences of withdrawal
from the Union and Lower wage rates if we had
the work we would hire them. Mr. Pettaway never
indicated to us that he would accept those condi-
tions or the condition that we could not guarantee
how long the work would be available.
6) The Union has been harrassing our Company
and we cannot afford a confrontation with the
Union. We have tried hiring a union member who
withdrew from the Union. He worked for Three
Weeks and was hassled so much by the union and
union members he quit and then tried to draw un-
employment. He worked approximately three weeks
before going back to the union. The union is trying
to persuade our employees to quit by offering Them
Employment over the members on the bench.
We were associated with Mr. Pettaway working
for another Contractor. at That Time he was an ap-
prentice and still had much Too learn. Our involve-
ment with him was limited. We have never seen his
work or ability since completing his Apprenticeship.
Leland Lewis was the sole witness who testified re-
garding Respondent's reason(s) for not having hired
Pettaway until August. During his testimony-when
called as an adverse witness by the General Counsel and,
again , when called by Respondent-Lewis was interro-
gated repeatedly about the subject of availability of work
from May to August. In the end, his own inconsistent
testimony on that subject leaves Respondent in the posi-
tion of having advanced no credible legitimate reason for
not having offered employment to Pettaway sooner.
Thus, when called by the General Counsel, Lewis testi-
fied that Respondent had employed several people
during the summer. Further, he conceded that neither in
his letter to the Commission nor in his prehearing affida-
vit had he said that Respondent had not hired Pettaway
because there had been no work for him. This then led
to the following exchange:
Q. And you are not contending today that that's
the reason that you didn't hire Mr. Pettaway?
A. No, not that we didn't have any work.
Q. Pardon?
A. No, not because we didn't have any work. We
were anticipating a lot of work, yes.
However, during the examination by Respondent's
counsel that followed, Leland Lewis changed direction:
Q. Now, with regard to Pettaway, can you detail
what the reasons were why you did not hire him at
that time?
A. Well, the reason that we didn't hire Mike at
that time was our work load had not developed to
the point where we needed the expertise that we
felt he had to offer to us. . . . [H]ad our work load
been sufficient to the point where we could have
used Mike Pettaway, we would have hired
him... .
A. In May or June or July or at any time. Our
work load had not developed as we had hoped that
it would. We had a couple of jobs that normally
you would have thought that we should have had
five or six people on it. It never did turn out that
way.... So our work load has just not normally
developed like it should.
Of course, Lewis' assertion concerning Respondent's per-
ception of Pettaway's "expertise that we felt he had to
offer" is not exactly consistent with the acknowledge-
ment in his letter to the Commission that, "Our involve-
ment with him was limited. We have never seen his
work or ability since completing his Apprenticeship."
Moreover, during redirect, Lewis acknowledged that
neither in that letter nor in his prehearing affidavit had
he claimed that Pettaway had not been offered employ-
ment because Respondent did not have the type of work
that he could do. And he then conceded that that reason
LEWIS MECHANICAL WORKS
had nothing to do with Pettaway's not being offered em-
ployment until August.
Nevertheless, when called as a witness during Re-
spondent's case-in-chief and when asked why Pettaway
had not been hired sooner, Leland Lewis disregarded his
own earlier admissions by'testifying:
The only reason I can think of that I didn't hire
him at this point in time was that we just didn't
need him at that point in time, and during our proc-
ess of hiring, we hired according to the budget that
we had into the jobs, so we had hired some pretty
good people prior to-when we first hired, we had
to balance our jobs with the manpower available
and the manpower we felt that we had to have-
C. Analysis
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) of the Act by: interrogating job applicants
concerning their union membership status, telling appli-
cants that if they worked for Respondent they should
withdraw from the Union, telling an applicant that Re-
spondent got into trouble whenever it hired union per-
sonnel , and stating to an applicant that Respondent
would not have a union shop. With respect to the last
allegation , Leland Lewis did not deny having said that
Respondent would never be a union shop to applicant
Jorgensen in August and I credit the latter's account of
what had been said that day. That statement to Jorgen-
sen constituted "a bald assertion that the Respondent
would never recognize [a] [u]nion." Saint Luke's Hospi-
tal, 258 NLRB 321, 322 (1981) Furthermore, the com-
ment was made by Respondent's president during the
course of a job interview after questioning about the ap-
plicant 's union membership status. An employment inter-
view " is a session of serious import at which the employ-
er deals with matters, and propounds corresponding in-
quiries, designed to determine the suitability for employ-
ment , in the employer's eyes, of the applicant being
interviewed." Singer Co., 158 NLRB 677, 689 (1966). In
the circumstances, Leland Lewis' remark to Jorgensen
was a coercive one, cf. Marian Lewis, Inc, 270 NLRB
432, 432 (1984), that, "clearly conveyed the message that
. . . employees' support of [a] [u]nion would be futile,"
Saint Luke's Hospital, supra and, consequently, violated
Section 8(a)(1) of the Act. See, e.g., Kay Motors, 264
NLRB 1030, 1030 (1982)
In paragraphs 1 and 5 of his letter to the Commission,
Leland Lewis admitted having told Pettaway that he
would have to withdraw from the Union to gain employ-
ment with Respondent Section 8(a)(1) of the Act is vio-
lated whenever prospective employees are told, "that
nonmembership in [a] union [is] a condition of employ-
ment ." Time-O-Matic v. NLRB, 264 F.2d 96, 99 (7th Cir.
1954). Accord: Daily Transit Mix Corp., 238 NLRB 879
fn. 1 (1978), enfd. 614 F 2d 777 (9th Cir. 1980).
Similarly, Pettaway testified that during their August
telephone conversation Leland Lewis had said that
"every time I hire union, I get in trouble." At no point
did Lewis actually deny having made that remark. In-
stead , as set forth in section III,B, supra, he testified only
that it was "hard for me to believe that I said it that
519
way," claiming that, "we haven't had any problems
hiring union people " But a statement of belief concern-
ing the occurrence or nonoccurrence of an event or
statement "hardly qualifies as a refutation of positive
testimony and unquestionably [is] not enough to create
an issue of fact" Roadway Express v. NLRB, 647 F 2d
415, 425-426 (4th Cir 1981). Moreover, paragraph 6 of
Leland Lewis' own letter to the Commission-in which
he complains about a union member who had gone to
work for Respondent after having withdrawn from the
Union and who then had been "hassled so much" that he
resumed his membership and quit working for Respond-
ent-shows that on one occasion Lewis at least felt that
problems had arisen when Respondent had "hire[d]
union " Accordingly, I credit Pettaway's testimony con-
cerning that remark. Because the remark had been made
after Pettaway had responded negatively to Leland
Lewis's question about Pettaway's union membership
status, and inasmuch as Lewis admittedly had told
Pettaway earlier that withdrawal from union membership
would be the price of employment with Respondent, this
statement was effectively an implied threat that Respond-
ent would not be hiring union members, in this instance
so that Lewis could avoid "trouble."
Concerning to the interrogation allegations, "interro-
gation of prospective employees [about their union senti-
ments] by a high company official is definitely coercive
and interferes with an employee's rights" NLRB v.
Tesoro Petroleum Corp, 431 F.2d 95, 96 (9th Cir 1970)
For, in an employment interview, "[t]he interviewee [can
be] expected to take seriously what [is] said," Eastern
Maine Medical Center v. NLRB, 658 F.2d 1 (1st Cir
1981), and when an applicant is asked about union mat-
ters, "he has ample reason to know from such question-
ing itself . . . that the employer has a significant aversion
to the employment of prounion applicants " Singer Co.,
supra.
Here it is not disputed that from April into August
both Lamont and Leland Lewis, Respondent's highest
officers, inquired-sometimes subtly and on other occa-
sions directly-if Hall and Pettaway were continuing to
maintain membership in the Union. Moreover, as Leland
Lewis admitted, Pettaway had been told that he would
not be hired so long as he remained a union member Re-
spondent argues that the questioning had been motivated
by concern for the welfare of Hall and Pettaway But
even if true, that would not excuse or nullify the coer-
cive effect of the questioning For, "the test of interfer-
ence, restraint, and coercion under Sec. [a](1) of the Act
does not turn on the employer's motive." NLRB v. Illi-
nois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946).
"Rather, the test is whether the employer's conduct and
words reasonably tend to interfere with the exercise of
employee rights " American Lumber Sales, 229 NLRB
414, 416 (1977). Furthermore, the fact that Jorgensen-
so far as the record discloses a stranger to Leland Lewis
prior to 11 August-also was questioned about his union
membership when he applied for employment with Re-
spondent, the fact that Leland Lewis expressed con-
cern-in his letter to the Commission and in his August
telephone conversation with Pettaway-about the ad-
520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
verse effect on Respondent of hiring union members, and
the further fact that the Lewises have stated that Re-
spondent intends to remain nonunion-at least until it be-
comes more viable economically-all tend to refute any
altruistic motive advanced by Respondent for this ques-
tioning and to show, instead, that Respondent's question-
ing was part of an overall plan to avoid hiring union
members. Therefore, I conclude that by questioning pro-
spective employees about their union membership status,
Respondent's officials violated Section 8(a)(1) of the Act.
Remaining for consideration is the allegation that the
refusal to offer employment to Pettaway prior to August
was unlawfully motivated. This is an issue that, given the
state of the record, does not warrant prolonged analysis.
As set forth in section III,A, supra, "the crucial inquiry
must be directed to the state of mind of the official who
made the decision [not to offer employment to Pettaway
earlier]." Advanced Installations, supra. The specific iden-
tity of that person is not disclosed by the record. Pre-
sumably it had been Leland Lewis inasmuch as he was
the only official of Respondent who testified concerning
the reason(s) for not having offered employment to
Pettaway sooner. As the recitation of his conflicting tes-
timony on this point in section III,B , supra, shows, his
explanation of Respondent's motive is internally contra-
dictory, and, given his demeanor and testimony in other
areas, is not susceptible of belief. Indeed, under the Gen-
eral Counsel's examination he disavowed every reason
for not having offered Pettaway employment before
August that he identified under examination by Respond-
ent's counsel. As a result, Respondent has advanced no
reason at all for not having offered Pettaway employ-
ment sooner. Moreover, aside from the fact that none of
the reasons identified by Leland Lewis at the hearing ap-
peared in his pretrial affidavit or in his letter to the Com-
mission, the latter contained the outright admission that
Pettaway had not been hired because he had not with-
drawn from union membership. That admission elimi-
nates any further question concerning the unlawfulness
of Respondent's motivation. Advanced Installations, supra,
257 NLRB at 848, and cases cited therein.
It really matters little whether, in trying to persuade
Pettaway to withdraw from the Union, Respondent's
concern was for Pettaway's welfare or, alternatively, Re-
spondent's concern' was for its own economic welfare.
Whatever the underlying reason, Respondent refused to
hire Pettaway before August because he would not with-
draw from union membership and the Act expressly pro-
hibits employment-related action intended to discourage
membership in labor organizations. In any event, I do
not credit the assertions that Respondent's officials were
motivated by concern for Pettaway's welfare. Rather,
the evidence shows that Respondent was concerned
about avoiding the possibility of what it regarded as pre-
mature unionization of its employees-a possibility that
might arise if members of the Union were hired.
Therefore, a preponderance of the evidence shows
that Pettaway applied for employment with Respondent,
that he was a member of the Union and remained one
throughout the spring and summer, that Respondent
would not hire active union members, and-as Leland
Lewis expressly admitted in his letter to the Commission
and as the other evidence in this matter shows-that Re-
spondent refused to offer employment to Pettaway prior
to August because he did not withdraw from union
membership. In the absence of credible evidence that
Pettaway would not have been offered employment had
he withdrawn from the Union, that refusal violated Sec-
tion 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
Lewis Mechanical and Metal Works, Inc. committed
unfair labor practices 'affecting commerce, within the
meaning of Section 2(6) and (7) of the Act, by expressing
futility of union support by stating that it would never be
a union shop; by telling applicants for employment, ex-
pressly and by implication, that they must withdraw
from union membership to obtain employment; and by
interrogating applicants for employment concerning their
union membership and sympathies, in violation of Sec-
tion 8(a)(1) of the Act, and, further, by refusing to hire
Michael Pettaway because he would not withdraw his
membership in Sheet Metal Workers International Union,
AFL-CIO, Local No. 60, in violation of Section 8(a)(3)
and (1) of the Act.
REMEDY
Having found that Lewis Mechanical and Metal
Works, Inc. engaged in certain unfair labor practices, I
shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirmative action to ef-
fectuate the policies of the Act. Concerning to the latter,
it shall be ordered to make whole Michael Pettaway for
any loss of pay he may have suffered as a result of the
unlawful refusal to offer him employment prior to
August 1987. Backpay will be computed on a quarterly
basis, making deductions for interim earnings, F. W.
Woolworth Co., 90 NLRB 289 (1950), and with interest to
be paid on the amounts owing and to be computed in the
manner prescribed in Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 139 NLRB 716
(1962), enf. denied on different grounds 322 F.2d 913
(9th Cir. 1963).4
[Recommended Order omitted from publication.]
4 The General Counsel also seeks inclusion of a visitatorial provision in
the remedial order. However, the Board has not ordinarily provided for
inclusion of such a provision as a remedy nor has it formulated any
guidelines for inclusion of such provisions in remedial orders Moreover,
nothing in this case appears to give rise to the concerns that would war-
rant inclusion of such a provision. Accordingly , I deny the General
Counsel's request for its inclusion as part of the remedial order