Lipsey, Inc.Download PDFNational Labor Relations Board - Board DecisionsAug 15, 1968172 N.L.R.B. 1535 (N.L.R.B. 1968) Copy Citation LIPSEY, INC. 1535 Lipsey, Inc. and Pipeliners Local No. 798 of the United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada , AFL-CIO. Case 26-CA-2911 August 15, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On April 30, 1968, Trial Examiner William Sea- gle issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor prac- tices in violation of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent Com- pany had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel and the Charging Party filed cross-excep- tions to the Trial Examiner's Decision and support- ing briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case. As we find merit in certain of the cross-exceptions of the General Counsel and the Charging Party, we hereby adopt the Trial Examiner's findings,' conclu- sions,2 and recommendations3 to the extent con- sistent herewith. 1. The Trial Examiner found that Respondent refused to offer Reece employment because of his membership in Local 798. He concluded, however, that this denial of employment on September 22, 1967, did not constitute an 8(a)(3) violation because, in applying for employment, Reece sought to "entrap" Respondent. We do not agree. While it is true that prior to applying for work Reece had been informed by the Union's business agent that the Respondent's project (at some unspecified date) would be picketed, and was asked to "give them [the Union] some help down there" there is no evidence in the record to indicate Reece's appli- cation was not a legitimate request for employment and that he would not have accepted employment had it been tendered. The mere fact that an appli- cant would have supported the Union by honoring its picket line once one was established does not excuse Respondent's failure to consider his applica- tion in a nondiscriminatory manner. The right to honor a picket line is protected by Section 7 of the Act,4 and an employer may not lawfully dis- criminate against a prospective employee because it suspects the employee may in the future engage in activities protected by the Act. Nor will a prospec- tive employee's knowledge that an employer has a discriminatory hiring policy deprive such employee of the protection of the Act when the evidence shows, as it does here, that the work would have been accepted had it been tendered.5 We find that Reece was a bona fide applicant for work and that by refusing to test and hire him because he refused to destroy his union book, Respondent violated Section 8(a)(3) of the Act. As the record discloses, Respondent had work for Reece at the time he ap- plied, but since Respondent has not shown Reece would not have qualified had he been permitted to test, we shall order Respondent also to make Reece whole in the manner indicated infra, with respect to Parker, et al. 2. The Trial Examiner found, and we agree, that Respondent discriminated against Ralph Parker, Jack Ladner, Claude L. Byrd, Ted Poole, and George L. Burnett in violation of Section 8(a)(3) of the Act by refusing to hire or permit them to test i We do not adopt the Trial Examiner 's statement that Lipsey 's removal of Chastain from his supervisory position was a form of confession that Chastain had engaged in wrongdoing 2 We agree with the Trial Examiner that Respondent 's welders are not supervisors within the intent of Section 2(1 1) of the Act It appears that a welder and his helper frequently develop into a working team In recogni- tion of this fact, it has been the practice of the Respondent , whenever possible , to grant the request by a welder for a particular helper, and to honor a welder's request that a specific individual be hired for such assign- ment To the extent that this arrangement may be viewed as bestowing on welders authority to effectively recommend personnel action, it is basically a limited and personal authority exercised not "in the interest of the em- ployer " but, as the Trial Examiner found, in their own interest to suit their own particular needs and desires International Union of United Brewery Workers v NLRB , 298 F 2d 297 (C A D C ) ' Although the Trial Examiner found Charles H Wilson and Herman Eu- gene Wilson left Respondent 's employ voluntarily, he inadvertently in- cluded them in his Recommended Order and notice These are amended accordingly ' Overnite Transportation Company , 164 NLRB 72 See International Assoaanon of Bridge, Strut rural and Ornamental Iron workers, Local 600, 134 NLRB 301. 307 172 NLRB No. 171 1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for employment as welders because of their union activities or membership.6 To remedy these viola- tions, the Trial Examiner recommended that Respondent offer to test and employ them. Addi- tionally, he recommended that Ladner, Parker, and Byrd be made whole for losses of earnings because of the discrimination only if they test successfully. He excepted Poole and Burnett from the backpay provisions of his order because Respondent had begun its operations before they applied for work on September 25 and 26, 1967, and it does not af- firmatively appear that Respondent had welder vacancies on that date. We find merit in the cross- exceptions of the General Counsel and Charging Party to the Trial Examiner's recommendations, in- sofar as he conditions backpay on passing a test to be given at this time The fact that a welder may fail to pass a test at this time does not establish that he would have failed when he was discriminatorily denied an opportunity to test. As the evidence establishes that Respondent was still testing and hiring welders when Ladner, Parker, Reece, and Byrd applied for work and that but for their union activities they would have been permitted to test for these jobs, we believe Respon- dent's backpay liability should not be contingent on their passing a test given at this time.? Accordingly, we shall order that Respondent make Parker, Ladner, Reece, and Byrd whole for the loss in pay they may have suffered by reason of the discrimina- tion against them from the date of such discrimina- tion until Respondent offers to test and employ them or until the date on which the Benton to Sar- dis, Mississippi, pipeline job was or is completed, whichever occurs earlier. With respect to Poole and Burnett, we find that they too are entitled to backpay for loss of earnings suffered from the date of Respondent 's discrimination against them until they are permitted to test or until Respondent's project was or is completed, whichever occurs earlier, but only if and from such time as jobs were available for them The present record however is not sufficiently adequate to allow us to determine whether, despite having "kicked off," Respondent still had openings at that time or at a later date for which Poole and Burnett could have been tested and hired For this reason we leave the determina- tion of that issue, which will determine Respon- dent's backpay liability to Poole and Burnett, to the compliance stage of this proceeding." 3. Because the transitory nature of Respondent's business presented problems with respect to the posting of the notice of compliance, the Trial Ex- ' Parker , Ladner, and Byrd applied for employment on September 20 or 21, 1967 Poole and Burnett applied on September 25 or 26, 1967 aminer recommended that the notice be posted at Respondent's home office, warehouse office, and at the warehouse office of whatever project Respon- dent happens to be engaged in at the time Respon- dent is served with the Board's Order and that cop- ies of the notice be mailed to all the discharged strikers. General Counsel has excepted to this recommendation as insufficient. We agree. The record shows that employees in Respon- dent's business are employed only for the duration of a particular project and must move from location to location, qualifying anew at each new jobsite. Thus, it is likely that many employees may not be with Respondent wherever he happens to be at the time he is served with the Board's Order and will not know that relief has been granted those em- ployees who have been discriminated against. The unlawful conduct that Respondent has engaged in is of such a serious nature that it is likely to have coercive effects on the employees who were aware of it as well as those who were discriminated against . For this reason we believe that in order to remedy the effects of the unlawful conduct, Respondent should be required to send copies of the notice to all persons who were its employees on the Benton to Sardis, Mississippi, pipeline job between September 21, 1967, the day on which the first unfair labor practice was committed, and the day on which either the pipeline was or is completed or when Respondent complies with the Board's Order, whichever comes first. We shall amend the Trial Examiner's Recommended Order accordingly. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- monded Order of the Trial Examiner and hereby orders that Respondent, Lipsey, Inc., Lexington, Mississippi , its officers, agents , successors, and as- signs , shall take the action set forth in the Trial Ex- aminer's Recommended Order, as herein modified: 1. Delete paragraph 2(a) of the Trial Examiner's Recommended Order and insert in lieu thereof the following: "(a) Offer to test and employ Jerry W. Reece, Ralph Parker, Jack Ladner, Claude L. Byrd, Ted Poole, and George L. Burnett, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the section entitled "The ' See Yuba Consolidated Industries, Inc , 136 NLRB 683, 688 Yuba Consolidated Industries , Inc , supra LIPSEY, INC. 1537 Remedies ," as modified by the holding of this Deci- sion " 2. Delete the names Charles H. Wilson and Her- man Eugene Wilson from paragraph 2(b) of the Recommended Order. 3. In paragraph 2(d) of the Recommended Order, after the words "at the time of posting" in- sert the following phrase " and mail to all persons who have been or are in Respondent 's employ on the Benton to Sardis , Mississippi , pipeline since September 21, 1967." 4. Substitute the Appendix attached hereto for the one recommended by the Trial Examiner. IT IS FURTHER ORDERED that the complaint, in- sofar as it alleges discriminatory discharge of em- ployee George Price, be, and it hereby is, dismissed. APPENDIX NOTICE TO ALL EMPLOYEES WE WILL NOT fire you if you refuse to cross the Union's picket line. WE WILL NOT ask you to arm yourself against Local 798's members. WE WILL NOT ask anyone who seeks a job whether he is a union member or helps Local 798. WE WILL NOT refuse to hire anyone because he is a member of Local 798. WE WILL NOT threaten to harm anyone ask- ing for a job because he supports the Union WE WILL NOT threaten to harm your Union's leaders. The National Labor Relations Board found that we fired some employees for refusing to cross the Union's picket line and that we refused to allow other employees to take the tests necessary to get the job because of their union activity. The Board ruled that the discharges and our refusal to test for union reasons violated the National Labor Rela- tions Act. Pursuant to the Order of the National Labor Relations Board and in order to effectuate the poli- cies of the National Labor Relations Act, as amended, we hereby notify you that: After a trial at which all sides had the chance to give evidence, the National Labor Relations Board found that we, Lipsey, Incorporated, violated the National Labor Relations Act, and ordered us to post this notice and to keep our word about what we say in this notice. The Act gives you the right To form, join or help unions To choose a union to represent you in bargaining with us To act together for your common in- terest or protection To refuse to participate in any or all of these things. The Board has ordered us to promise you that: WE WILL NOT interfere with your rights. WE WILL NOT ask you whether you are a union member or are helping Local 798 of the United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting In- dustry of the United States and Canada, AFL-CIO, or any other union. WE WILL NOT ask you to withdraw from Local 798. WE WILL NOT fire you because you are a union member. WE WILL NOT demand that you cross Local 798's picket line. WE WILL NOT offer you favors for crossing the picket line. The names of the employees who were fired while they were on strike are: Charles Yates Teddy B. Edgar Homer Lamar Billy Calhoun Sanders Durwood Bingham Charles Max Holloway Charles H. Wilson Herman Eugene Wilson If they apply, we will give them jobs like they had wherever we are doing work on a pipeline. WE WILL offer tests to: Ralph Parker Jack Ladner Jerry W Reece Claude L. Byrd Ted Poole George L. Burnett If they pass, we will offer them jobs as welders wherever we are doing work on a pipeline. WE WILL pay Parker, Ladner, Byrd, Reece, Burnett, and Poole, with 6 percent interest, any money they lost because we did not give them tests and jobs when we had welder jobs open. WE WILL write a letter to any of the people named who are in the Armed Forces of the United States telling them that they can apply for tests and jobs after they are discharged. LIPSEY, INC. (Employer) Dated By (Representative ) (Title) 1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board' s Regional Office, 746 Federal Office Building , 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM SEAGLE, Trial Examiner: Upon a charge filed on October 13, 1967, an amended charge filed November 30, 1967; a complaint issued on November 30, 1967, by the Regional Director for Region 26, in which it was alleged that the Respon- dent had violated Section 8( a)(1) and (3) of the. Act, and the answer of the Respondent in which the commission of any unfair labor practices was de- nied, I, William Seagle , the duly designated Trial Examiner , heard this case at Memphis, Tennessee, on February 26, 27, and 28, 1967.' Subsequent to the hearing , counsel for all parties filed briefs with the Trial Examiner , who has duly considered the same. Upon the record so made , and in view of my ob- servation of the demeanor of the witnesses, I hereby make the following findings of fact: I THE RESPONDENT The Respondent, Lipsey, Inc. (hereinafter referred to as Lipsey), 2 is, and at all material times has been, a Texas corporation authorized to do business in the State of Mississippi Its place of business in Mississippi has been in the vicinity of Lexington, Holmes County, Mississippi, where it has been engaged in the construction of a pipeline, its business being the construction of pipelines for the transportation of petroleum and petroleum products. During the past 12 months, the Respondent, in the course and conduct of its business operations, purchased and received at its Lexington, Mississip- pi, place of business, materials and supplies valued in excess of $50,000 directly from points outside the State of Mississippi. II. THE LABOR ORGANIZATIONS INVOLVED Pipeliners Local No. 798 and Local No. 211 of the United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background In the months of August and September 1967, R. L. Lipsey, the president and chief stockholder of the Respondent, was engaged in marshalling his forces for the "kickoff" (as it is known in the trade) in the laying of part of a cap pipeline between Benton and Sardis, Mississippi, a distance of approximately 124 or 128 miles.3 The pipeline was to be constructed for eight oil companies, in- cluding Texas and Shell. Lipsey set up his headquarters in Lexington, Mississippi, where he maintained his warehouse and his office, which was, apparently, in a trailer in the warehouse yard. The construction of the pipeline was to involve a labor force of approximately 300, including welders and their helpers , laborers, operating engineers, pipefitters, mechanics, and other categories of em- ployees. Even under normal circumstances, the recruitment of the welders, who are the key figures in the construction of a pipeline, involves many dif- ficulties and considerable expense. Not all welders are omnicompetent in the practice of their trade, at least so far as pipelines are concerned. As Lipsey himself explained it: "Some welders are bead hands and some of them are hot pass hands, some of them are good cappers and some of them can't cap at all. Some of them can't even run a bead." No matter how many years of experience a welder had had, and irrespective even whether he had previously been employed by Lipsey, before a welder could be employed again by Lipsey he had to take a test given by one of three inspectors, two of whom were employed by Texas and one of whom was employed by Shell.4 The giving of the test was expensive because, apart from having to pay for the welder's time, a nipple had to be prepared for the taking of the test and these nipples cost $17.50 a piece.' In all it cost Lipsey $50 to $60 to test a welder. The welder who passed his test and was employed, how- ever, was privileged usually to select his own helper, although the helper had been hired and was paid, of course, by Lipsey. Welders were known either as "single hand " or as " rig" welders , but the distinction was based merely on the fact that the latter owned their own rig and equipment. ' A week before the hearing counsel for the Respondent made a motion for a change of venue from Memphis to Grenada , Mississippi, and the Re- gional Director denied the motion Upon renewal of the motion at the hear- ing, it was also denied The record indicates that Memphis was originally chosen as the place of hearing to suit the convenience of the Respondent A change of venue would have upset all the arrangements for the hearing that had already been made , including the subpenamg of the witnesses ' This will refer to both the corporation and Lipsey as an individual ' Later an extension of 6 miles was to be added 4 This seems to be the general practice in the pipeline industry but some companies issue "certified cards" to welders who may be accepted without testing ' The nipple is a piece of pipe which is cut off a line of pipe and which is bevelled for the test The welder who is testing runs a bead on it LIPSEY, INC. 1539 Lipsey brought with him to the Lexington job some 23 or 24 welders from a job which he had done in the Dallas , Texas, area and another 8 wel- ders from a job in the San Antonio, Texas, area. Not all of these welders were able, however, to pass the tests. Indeed, of 69 welders who were tested be- fore kickoff only 28 qualified, and it became neces- sary for Lipsey and his foremen to seek welders from other sources by making use of personal con- tacts. But the recruitment of welders and their helpers was impeded in the case of the Lexington job by the fact that Lipsey had practically cut himself off from the union labor market. He was operating in the territory of Local 798 but the relations between Lipsey and the Local could hardly be described as amicable. Lipsey had had contractual relations with Local 798 but the contract had expired early in 1967, and Lipsey had not renewed it, having become disenchanted, apparently, with some of the contractual arrangements. The chief represen- tatives of the Union with whom Lipsey had been dealing are named Charley Balch, who is its general organizer, and George Lambert, who is its business manager , and quite a feud had developed between them and Lipsey. The Union had picketed Lipsey's two previous jobs and Lipsey had vowed, ap- parently, that the Lexington job would be run as a nonunion or open shop job, while Balch and Lam- bert seem to have sworn that Lipsey would not suc- ceed in laying a single mile of the Lexington pipeline and that if he did that they would resign their jobs. The evidence would suggest, however, that neither side carried their principles to the point of refusing absolutely to have any dealings with the other. Lipsey seems to have been willing to tolerate at least some union welders whom he needed and who, he hoped, could be intimidated into foreswearing their union allegiance when the cru- cial test came. The union representatives had ap- parently resolved, on the other hand, on some Trojan horse tactics to prevent Lipsey from completing the Lexington job. In carrying out his plans for recruiting welders and preventing their defection in case of a strike, Lipsey relied principally on his welder foreman, J. T. Chastain, better known as Tommy Chastain, and, secondarily, on Delbert Shivel, his welder pipe foreman 6 The pipe crew ran the first welds on the pipe, and the welder crew, following behind them, usually at a distance of 1,000 to 2,500 feet, did the fine line welding on what was known as "the firing line." Shivel maintained that he and Chastain were coequals in status and authority, but actually there can be little doubt that Chastain occupied the more important position and that, among the foremen, he was at least primer inter pares. This is shown by the fact that it was the welder foreman alone who par- ticipated when the inspectors gave the tests to the welders. Chastain was welder foreman from September 15 to October 1, 1967, having been hired by Lipsey in Houston at the beginning of the month, and Shivel was pipe foreman from September 18 to October 1, 1967.' The pipeline kicked off on Saturday, Sep- tember 23, by which time all the welders had been tested, and work continued until Wednesday, Sep- tember 27, when Local 798 established a picket line on a blacktop road just out of Yazoo City, Mis- sissippi, where the pipeline crossed the road. Lipsey had advance notice, however, that the Lexington job would be picketed by Local 798. Shortly after the kickoff, Sam Kessler, a business agent for Local 798 who had driven all the way from Florida at such high speed that he almost killed himself when he blew a tire of his car, arrived on the job to tell Lipsey that he had come to shut it down. Lipsey had told Kessler that the job had kicked off and that he was too late. But Kessler had informed Lip- sey that he would be back on tomorrow, and, true to his word, he had shown up the next day, which was Sunday, with Balch and Lambert and another unidentified individual, and the union representa- tives had threatened "to tear up every damn thing out there" if Lipsey refused to sign a contract with the Union. The unfair labor practices charged against the Respondent consist principally of the acts of inter- rogation and intimidation practiced by Chastain during the period of his tenure and of the refusals of the Respondent to hire six applicants for employ- ment before the picketing began, as well as the discharges by the Respondent of nine of the wel- ders or their helpers for refusing to cross the picket line or otherwise supporting the Union. At first glance Chastain does not appear to have been particularly suited to play the role for which he was selected by Lipsey. While he did not take the stand as a witness at the hearing to deny the ac- cusations against him, and I thus had no opportuni- ty to observe him, the character and appearance of the man was sketched by some of the witnesses. He was a small man, weighing only about 140 pounds, and he was 57 or 58 years old. Indeed, Lipsey re- garded Chastain as "pretty aged" but at least when he hired him he must have regarded Chastain as particularly valuable for the job of antiunion Cerebrus that he had in mind. Chastain claimed to have been one of the original organizers of Local 798, but he was a revolte who had no use for the Union any longer and this undoubtedly enhanced his value in Lipsey's eyes. If Chastain himself had any fears for his own safety arising from his anti- 6 There were two other welder crews, the tie-in crew and the double joint crews appear to have played no role in the commission of any of the unfair crew The tie - in welders made the final tie - in on road crossings , creek labor practices crossings , and any weld that might be cut out for the final tie-in The double ' All dates hereinafter mentioned fall in 1967, unless otherwise in- joint crew did the welding on the double joints The foremen of these two dicated 1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activities, he sought to protect himself by hir- ing a bodyguard. This bodyguard turned out, how- ever, to be only another member of Local 798, as hereinafter related. B. The Refusals To Hire 1. The case of Reece Jerry W. Reece is a welder, and a member of Local 798, who applied to Chastain for employ- ment on or about September 20. Reece first telephoned Chastain from Pampa, Texas, on that day and inquired whether Chastain needed any wel- ders. Chastain told Reece "to come on down," and that he would put him to work if he passed his test, in which case he would also be paid his traveling expenses. Reece came down 2 days later to the warehouse in Lexington where he was told that Chastain was on the jobsite. He found Chastain there and the foreman remembered his telephone call. Reece asked Chastain whether he still needed welders and Chastain responded that he did but also asked Reece whether he was a member of Local 798. Reece replied by asking whether it would make any difference. Chastain then told Reece that the Union was getting ready to put a picket line up, and if he was a member of the Union there would be no point in his testing, since he would not cross the picket line. Apparently, Reece then admitted his membership in Local 798, and Chastain then told Reece that, if he tore up his union book and burned it, he would put him to work. Reece refused, however, to do so, and Chastain would not allow him to test. As Reece was getting ready to leave, Chastain remarked that neither Charley Balch nor George Lambert, nor Local 798, or anyone else, would be allowed to stand in the way of his laying the pipeline. Reece admitted on cross-examination that prior to applying for work at the Lexington job he had been told by Kessler, the business agent for Local 798, to go down and test, although the Union would picket the job The way Kessler put it Reece was to get himself hired in order to "give them some help down there." Kessler left open only the date when the picketing would commence. Reece also conceded that he would not work behind a picket line. 2. The cases of Parker, Ladner, and Byrd Ralph Parker, Jack Ladner, and Claude L. Byrd are welders and members of Local 798 who applied for employment to Chastain on Septcmber 20 or 21 Parker and Ladner had been told of the possi- bility of securing work on the Lipsey job by Tom Clark, a business agent for Local 798 who lived at Elk Grove, Louisiana Clark did not mention to Parker and Ladner, however, that there was also a possibility of labor trouble on the Lipsey job. Byrd learned about the possibility of work on the Lipsey job by reading a trade journal called Universal News and Pipeline Magazine. However, Parker, Ladner, and Byrd were together on the job when they were interviewed by Chastain They found the latter in the trailer office, and he was apparently talking to a welder on the telephone and telling the latter that he did not need anybody. When the three introduced themselves, Chastain asked them, however, whether they were members of Local 798, and, when they had replied affirmatively, Chastain went into his usual tirade about Local 798 but declared in effect that he was going to show George Lambert a new one by hiring them and run the job open shop. He told them that they could go ahead and test, but he warned them that he would shoot them right between the eyes if they caused him any trouble, and Chastain was not joking when he said this. As the three welders were walking off to get their gear for the tests, however, a "fella," who was identified to them as Lipsey, ran out of the trailer , threw his hands up to attract their attention, and told them: "Fellas, I don't need any welders, I got them running out of my ears." The testimony of Parker, Ladner, and Byrd is in agreement that Lip- sey made such a statement , and Lipsey himself ad- mitted making such a statement , although he did not connect it specifically with the visit of Parker, Ladner, and Byrd. Lipsey also explained to the three welders that his reason for not wanting to test any more welders at this time was that he already had 22 welders who had passed their tests and that he had 4 others who were scheduled for tests, in- cluding Charles H. ("Wine") Wilson, who was an exceptionally good welder and whose services he was anxious to obtain." 3. The case of Poole Ted Poole is a welder and a member of Local 798 who applied for employment to Chastain on September 25. Poole's interview with Chastain took place on the right-of-way about three-fourths of a mile north of Highway 16 out of Benton, Mississip- pi. After Poole had parked his welding rig off the right-of-way and introduced himself to Chastain, the latter told him that he could use him only if he was not a member of Local 798. He indicated, how- ever, that it would be all right if he was a member of another local. Poole did not tell Chastain during the interview, however, that he was a member of Local 798, and Chastain went on to expatiate on his feelings about the Local and its leaders. He declared that he intended "to lay the job nonunion and if they would give him a 10-day interval he would man the whole capline work." He also threatened that "he would personally get Charley "The case of Wilson is discussed , infra, in connection with the discharges of the welders who refused to cross the picket line LIPSEY, INC.. Balch" and that he had another man who would get George Lambert. In the end Chastain called his checker over and instructed the latter to take Poole's name and told Poole that he would be put on a preferred list. Poole heard no more, however, from Chastain. At the time of his application Poole did not know that the Lexington job would be picketed. There was also evidence offered by counsel for the General Counsel to corroborate Poole's testimony that he had applied to Chastain for a job and that Chastain had turned him down because of his membership in Local 798. Thus Charles Yates and his helper, Homer Lamar Sanders," testified that Chastain confided to them that he had just sent two more union welders down the road. Charles H. Wilson, the welder already mentioned, also testified that Chastain had confided to him one evening while they were both sitting on a log along the right-of-way that although he did not know Poole he thought that "798 had sent him in." There is no reason to doubt all this corroborative testimony since Poole's own testimony was never challenged, and Chastain never took the stand to deny any of the accusations against himself or any of the state- ments made by him. 4. The case of Burnett George L. Burnett, a welder and a member of Local 798, applied to Chastain for employment on or about September 25 or 26 He finally located the foreman at the door of the warehouse in Lexington and asked the latter how he was fixed for welders. Chastain asked Burnett: "You ever weld any big pipe?" and Burnett replied in the affirmative. Chastain then asked Burnett whether he belonged to a union and whether the union was Local 798 When Burnett admitted that he was a member of Local 798, Chastain began to harangue his appli- cant in his usual manner. "Well!" he declared, "I'm too tough and too smart and got too much money for anybody to fool with. In 1951, Charley Balch told me if I ever laid a pipeline in the United States, he would resign from organized labor." Burnett looked at Chastain-presumably in puzzlement or amazement-and Chastain added: "I'm going to drag Charley Balch and R. H. Fulton into Mickey wire,"10 and break them. Burnett diplomatically re- marked that he was just looking for a job, and Chastain finally told him that he would take him into the office and sign him up. When they entered the trailer office, Lipsey was there with the chief inspector, and Burnett was in- troduced to them. Chastain took him into the back room of the trailer and told the office manager who ° They, too, were subsequently discharged for refusing to cross the picket line and their cases are discussed infra 10 It was never made fully clear just what Chastain meant by this R H Fulton is a pipeline contractor of Lubbock, Texas, and Mickey wire is, ap- 1541 was there to put Burnett on the preferred hiring list. But Lipsey came into the back room and told his foreman: "Chastain, we can't use this man. He's a 798 job steward and the trouble makingest fucker you ever saw." Burnett insisted that Lipsey had the wrong man but Lipsey was equally insistent that he had the right man who had been down in Winnie, Texas. Burnett admitted that he had been a foreman on the job in Winnie, Texas, where Panama was laying a pipeline for Natural Gas of America but denied that he had been job steward there. He admitted, however, that he had been a job steward for Panama but this had been on another job the previous year for Tennessee Gas. Lipsey declared his intention of contacting Dan Carney, who had been in charge of the Natural Gas job for Panama, in order to get at the truth of the matter; and Chastain, although he made another threatening remark to Burnett, put him on the preferred list. But Burnett was never called. Lipsey, who was asked to explain his objection to Burnett, testified that his membership in Local 798 had nothing to do with it and that he called Burnett a troublemaker because he thought that he had been guilty of a slowdown on the job in Winnie, Texas. C. The Discharges 1. The Shivel contingent-Yates, Sanders, and Bingham Delbert Shivel was directly or indirectly responsi- ble for the recruitment of three of the hands who worked on the Lexington pipeline job. These were Charles Yates, a welder, Homer Lamar Sanders (generally known as Lamar Sanders), who was to be Yates' helper, and Durward Bingham, a pipefitter whose job was to be "to carry the line," i.e , to keep the pipe up high enough off the ground so that the welders could weld under it. Carrying the line sometimes required that Bingham give in- structions to the tractor operators as to where to put the pipe, and in this sense he would be a straw boss.tl Yates, Sanders, and Bingham all lived in Vaiden, Mississippi, which was also the home of Delbert Shivel, and the pipe foreman was, therefore, acquainted with them and undoubtedly knew that they were Local 798 men. Nevertheless, on or about September 14, Shivel took the initiative in contacting Yates by telephone in Longview, Texas, where he was then working, and asking the latter whether he would be interested in a job nearer to his home, i.e., the Lexington job Yates replied af- firmatively and Shivel told him to get on the road parently, a slang word for micro wire. which is a form of welding " It is clear, however that Hingham was not a supera.or within the meaning of the Act 1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yates took a number of days to get to the jobsite'12 where Shivel introduced him to Chastain and he took his welder 's test , which he passed with flying colors. 13 Sanders learned , apparently , about the Lipsey job from Yates , with whom he had worked previously as a helper . Sanders , too, appears to have been eager to work on a job close to his home . He went to the warehouse on Saturday , September 23, was interviewed by Chastain , hired as a helper , and as- signed to Yates at the latter 's request . Bingham, who was a friend of Shivel , first called the latter about coming to work for Lipsey and was told to come right in. Yates , Sanders , and Bingham all came in to work together and worked for Lipsey 4 days , except Bingham , who had back trouble on Tuesday, Sep- tember 26 , the day before the job was picketed, and stayed home that day. During the few days of their employment , Chastain kept telling them about the number of Local 798 men whom he was running off the job . On Wednesday , September 27, the day on which the picketing commenced , Yates, Sanders , and Bingham came to the jobsite as usual at 7 a.m. although they had advance knowledge from the union that the picketing of the job would commence that day. Instead of going to work, they stood at the side of the road. Chastain, who was on the other side of the road , called to them and told them that they could go and get their checks, which were ready . Yates remarked to Chastain that it was customary when a man was run off a job to bring him his check , but Chastain assured him that there would be no trouble at the warehouse if they went to get their checks . They delayed , however, in doing so until after the noon hour . When they saw Lipsey in the trailer office , he asked them what they were doing there and when they told him they were there to pick up their checks , Lipsey asked them why they were quitting . Yates spoke up and told Lipsey that they were not quitting but were being run off because they would not cross the picket line . 14 Lipsey then remarked that their checks were ready , and theywent and got them and left. " Yates testified that Shivel called him on September 14, which was a Wednesday , and that he tested on a Wednesday , which he thought was Sep- tember 19 Yates also testified that he went to work on Saturday Like al- most all the witnesses , Yates was mistaken in dating events September 14 was not a Wednesday but a Thursday and September 19 was a Tuesday The payroll, which is in evidence as G C Exh 3, shows that the day Yates tested was September 20, a Wednesday , and that the first day that he worked was Saturday , September 23 "Chastain told Shivel that Yates had made "a beautiful test " It is easy to see why Shovel would go out of his way to get Yates to work for Lipsey 14 At one point in his testimony, Yates speaking of Calhoun, Sanders, Bingham , Charles Edward Wilson, and Rodriguez, testified "These are the men that never did go across that never did have an opportunity to go across They was run off before they was even asked or anything whether they was or , was not going to cross " This testimony is contrary to Yates' prehearing statement in which he had deposed that these men would not 2. Edgar and his cousin Calhoun Teddy B. Edgar is a welder and a member of Local 211 of Houston, Texas. On the Wednesday of t)Ile week of September 18, Edgar telephoned Chastain at Lexington, Mississippi, and inquired whether he could use some welders Chastain told Edgar that he could, and the latter asked whether he could also bring his cousin, Billy Calhoun. The latter is also a welder and had made an application for membership in Local 798 and paid his initiation fee. Chastain told Edgar that he could come with his cousin, and the following Friday they both went to see Chastain at the warehouse in Lexington. In the ensuing conversation, Chastain asked them: "Are you all 798 goons?" They both denied it, however, and Chastain in typical fashion told them: "Well, you'd better not be because I've just run 798 goons off. It's a nonunion job and we're going to lay this pipeline without the help of 798. Charley Balch told me that if I laid this pipeline, he was going to turn in his resignation . I'm personally going to get a photostat copy of Charley Balch's resignation." Ap- parently, Chastain also asked the applicants where they had been working, and Calhoun spoke up and told Chastain that he had been overseas. Chastain then called to Lipsey and told the latter that he had two Brown and Root men.15 Lipsey gave his con- sent to testing Edgar and Calhoun but not before warning the applicants that if they had any affilia- tion with any union local to get in their trucks and get off the property. The next day Edgar and Cal- houn took their tests successfully and were put to work. Edgar and Calhoun worked on Sunday, Mon- day, and Tuesday, which was the day before the picketing commenced. About 2 p.m. on Monday,'s Chastain told Edgar -on the firing line that the men were "badmouthing" him and another welder, whose name was P. D. Rodriguez,17 but to pay no attention to them. He had been "badmouthed" himself, Chastain ex- plained. Edgar was puzzled by Chastain's remark and later in the day asked the foreman to explain what he had been talking about. Chastain would only say that the men knew that Rodriguez was a cross the picket line on September 26 (the reference on the date was er- roneous, however, for the picket line went up September 27) Shown his statement , Yates was forced to admit that he could only speak for himself, so far as not being asked to cross the picket line was concerned Indeed, Yates' own testimony also shows that , although he reported to work the morning of September 27, he had been told the day before by Kessler, the union business agent, that the job would be picketed the following day, and that he refused to cross the picket line that day is This referred to the Brown and Root Construction Company, one of the largest construction companies in the United States which also operates abroad 1° The actual sequence of events is such that Edgar must have been mistaken in testifying that this conversation took place on Tuesday 'r In the transcript this name is uniformly misspelled as "Rodriquez " It is correctly spelled, however , in the Respondent 's payrolls in evidence The misspellings are corrected accordingly LIPSEY, INC. member of Local 211. "Well, I am, too," Edgar told Chastain, and the latter's comment on this was: "Well, I've known that all the time." On Tuesday morning , Chastain told Calhoun alone, apparently, that the job would be picketed the following morning . "If you have any intention of honoring that picket line," Chastain added, "get off the job right now. Just roll up your leads and get off the job."18 On Tuesday afternoon, Edgar saw Chastain walking up the road talking to different welders, who included two welders, one of whom was Wilson and the other of whom was a welder by the name of Tipton, who proceeded to roll up their leads and drive away. Then Chastain came over to Edgar, and told the latter: "They're going to put a picket line on us in the morning, and I want to know if you're going to cross it." Edgar replied: "Well, if 798 puts a picket up IT come across, but if R. L. Daly, which is the business agent out of 211 comes up and pickets with 798, I won't be able to cross." Chastain then said: "Well, I'll guarantee you R. L. Daly won't be here. I can count on you to come out in the morning then?" Edgar's answer was "Yes." Edgar and Bingham did not work the whole day on Tuesday. They appear to have been disturbed by the conversations they had had with Chastain and by their inability to locate Rodriguez, who, they feared, might have been harmed. Con- sequently, they quit work about 3 p.m. on Tuesday and left the right-of-way. Nothing had happened to Rodriguez, however, for it was he who drove Calhoun to work the fol- lowing morning. They encountered the pickets on the blacktop road where the pipeline crossed the road and saw Chastain sitting across the road. Chastain told Calhoun: "Calhoun, your check is ready at the warehouse. You can pick it up any time you want to." Edgar's experience that morning was similar . He encountered Kessler when he came up to the site of the picketing, and Kessler asked Edgar to join the pickets, to which the latter agreed, and he picketed for a while. He was then taken to the main road where the firing line entered into the right-of-way, and, as he got out of the truck, Chastain, who was sitting on the right-of- way, called his name and said: "Edgar, you can pick your check up at the warehouse." Edgar and Calhoun picked up their checks at the warehouse either that same afternoon or during the next day.19 Neither Edgar nor Calhoun has ever been called to come back to work. 3. The case of Price George Price,20 a welder's helper and a member '" Calhoun thought that this conversation with Chastain took place Wed- nesday morning but since he testified that it was the day before the picket- ing, it must have been Tuesday 19 The testimony of Edgar and Calhoun is not in agreement in this respect Edgar testified that he and Calhoun picked up their checks at the warehouse about 3 30 that same afternoon Calhoun testified , however, that they did not do so until the next day 20 He appears on the payrolls in evidence as George R Price and is to be 1543 of Local 798, went to work for Lipsey on Sep- tember 23. Price specialized in bead grinding21 and did not, therefore, always work with a welder. He was in the pipe gang and worked under the super- vision of Shivel. In the employment interview that he had had about a week earlier with Chastain and Shivel, Price had claimed to be one of the top 10 bead grinders and boasted that he "could jump higher and dive deeper and come up dryer than any two so and so's out there." Apparently, the foremen were so impressed that they did not ask Price whether he was a member of Local 798. During a break on September 26, which was the last day worked by Price, Chastain walked over to a group of pipe gang employees who were standing between the bead tractor and the hot pass rig and remarked to them that 798 hands were not wel- come on the job and that they could go to town and get their checks. Price also saw Chastain go over and talk to another group of employees but no employees left the jobsite at that time. Price himself finished the remainder of the day. The night of the same day, while Price was eating near the jobsite in a cafe which adjoined the motel where he was stay- ing, he overheard a conversation between Chastain and "Red" Townsend, one of the welders. Chastain was telling Townsend that he should go prepared while he was out there on the jobsite and at all other times. As he made this remark, Chastain patted his chest and added: "I go prepared." Price also heard Chastain boasting that "They would get 798 on this job, and after they laid a line through St. Louis, they would get Lambert, the business manager of the local." The following morning Price drove to the Holiday Inn in Jackson, Mississippi , to find out what was in the offing. He spoke to someone there who told him that the Lipsey job would be picketed. Price did not report for work at the warehouse that morning but drove out from Jackson to the area of the jobsite. Price did not see Chastain anywhere that morning. He did see four pickets,22 and he joined them, carrying a picket sign himself. While he was on the picket line, he heard a rumor, apparently, that some men, who had gone to get their paychecks, had been arrested. Price never went to the warehouse, therefore, to pick up his paycheck. He called 2 weeks later and arranged to have his paycheck mailed to him. 4. The case of Wilson and his son Charles H. Wilson, also known as "Wine" Wil- son, and his son , Herman Eugene Wilson, generally distinguished from George A Price on the same payrolls 2' After the first pass on the pipe by the bead hands , high places remained , and, after the second or hot pass , there could be "wagon tracks" down the side of the pipe It was the job of the helper who worked as pipe grinder to knock the high places off and cut the wagon tracks down, so that the slag could be removed faster from the wagon tracks 22 Two of the pickets were Joe Walker and Ted Poole 1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD known as "Gene," were a father-and-son team, the former being the welder and the latter being his helper. Both were members of Local 798 and were well known to Lipsey, who regarded the father as "a real good bead hand." The father secured em- ployment, however, by telephoning Chastain from Alexandria, Louisiana, where he was working for another contractor. The elder Wilson asked Chastain whether he could come over with his son, and Chastain told Wilson to do so. They arrived in Lexington on September 20, and the elder Wilson testified that he took his test that same morning23 and was hired. A day or two before the picketing started the elder Wilson, who knew Lipsey well, talked to the latter about the desirability of his sig- ning a contract with Local 798, but Lipsey told the advocate of the local that his backers would not ap- prove such a step. Wilson and his son worked until the day before the picketing started, which would be Tuesday, September 26. About 10 o'clock in the morning of that day, Chastain approached the elder Wilson on the line where he was welding and told him that if he was not going to cross the picket line he might as well roll up his leads and go to town. Wilson declared that he would not cross the picket line, and Chastain told him that he and his son would be paid for 8 hours that day, although they had only worked 3 hours At this moment Lipsey drove up and attempted to persuade the elder Wilson not to honor the picket line and promised to pay any fine which the Union might impose. The elder Wilson declined this offer and left with his son, and, as Chastain had promised, they were both paid as if they had worked 8 hours that day. Wilson and his son did not engage in any of the picketing activity, apparently, and, about 2 weeks after they had left the job, Lipsey called the elder Wilson several times and asked him to come back to work. There was no picket line up then, and Wil- son returned to work with his son and worked for several days. He did so, however, not in response to Lipsey's entreaties but because J. W. Morris, a representative of Local 798, had talked to him and asked him to go back on the job and attempt to get some of the welders to buy union books, although this would necessitate, of course, their quitting their jobs After he had engaged in this activity for a number of days, one of the Lipsey welders, whose name was King , told Wilson that he had heard that there was talk among the Lipsey welders of "work- ing him over " Tal:mg alarm, Wilson and his son left the job 5. Chastain's bodyguard On Thursday , September 21, Charles Max Hol- loway, who had worked as a welder 's helper on an " Actually, Wilson was mistaken about this He tested on Thursday, Sep- tember 2I, which would be the day after his arrival 24 Holloway testified that he worked on Saturday , Sunday, and Monday and on Tuesday until about 2 p in , but for some unexplained reason he R. H. Fulton job at Amarillo, Texas, came to Lex- ington and spoke to Chastain about the possibility of a job for him as a welder's helper. Chastain told Holloway that he had some welders who were test- ing and that he might be able to use him if the wel ders passed the test Holloway went to town for lunch and when he returned to the jobsite some of the welders were still testing. While he was waiting for the welders to get through with their testing, Chastain came up to him and asked him whether he liked trouble. Holloway, who was 6 feet 2 inches tall and weighed about 230 pounds, replied: "No, sir, I don't like trouble but I'm not afraid of it " After they had further "shot the bull around," as Holloway put it, Chastain told him: "I'll tell you what I'll do. I can find you a welder but I'll just hire you here in the yard while I'm testing these welders, and you just tag along with me and try to keep an eye on me, because some of these union hands, they don't think much of me and they're trying to come in here and test, and I want you to just more or less be my bodyguard, and I'll pay you the regu- lar salary." During the next day, which was Friday, Holloway just hung around the yard all day with Chastain while he was testing more welders. Several welders were signed up that day, including P. D. Rodriguez, the welder already mentioned. On Saturday morning Holloway was assigned to Rodriguez as his helper. While Holloway was working as a helper to Rodriguez'24 the former overheard several conver- sations between the latter and Chastain, who re- peatedly boasted how he would get rid of the Union, as well as of Charley Balch and George Lambert, and lay the pipeline without their help. Holloway also overheard conversations between Chastain, Lipsey, and Rodriguez in which Chastain referred to the guns and the shells that he had in his car to take care of Balch and Lambert, and Lipsey would add that he, too, had plenty of shells in his car. Chastain also warned Rodriguez that if he did not stand by him and cross the picket line when it was put up that he would kill the latter. To this Lip- sey added that if Chastain did not kill him, he would do so, and, testified Holloway, "he wasn't joking when he said it." In fact, Chastain kept a gun and shells in the station wagon that he drove. On the last day that Holloway worked, just be- fore lunch, Chastain sent a group of welders and their helpers who included Rodriguez and Holloway to a road crossing but they found themselves blocked by the pipe gang who was waiting for some more pipe. Holloway had been driving the truck by which he and Rodriguez had come to this point, and, while they were waiting, Chastain came over to the truck window and told Rodriguez that he had heard that there would be a picket line put up the next morning and that if he did not intend to cross does not appear on the payroll for the week beginning on September 25 Holloway testified that when he received his check he did not get all that he was entitled to LIPSEY, INC. it, to save embarrassment to both of them, he should get off the right-of-way. Chastain also looked at Holloway and, pointing a finger at the latter, remarked: "I know you're a 798 member and you get your God Damn Ass off the right of way."25 Holloway was living at Yazoo City, where some 25 percent of the welders had their quarters, and Hol- loway turned to Rodriguez and asked the latter to drive him home . Rodriguez remarked: "Well, he meant me , too" and proceeded to drive Holloway to his motel. D. Concluding Findings 1. The independent violations of Section 8(a)(1) of the Act It is apparent that the Respondent independently violated Section 8(a)(1) of the Act in numerous respects through the activities of Chastain and Lip- sey himself. In the case of Chastain, these violations consisted of interrogating a considerable number of em- ployees and applicants for employment as to their membership in Local 798 and of intimating to them that members of the local were "goons" who were not welcome. Chastain also committed other viola- tions by threatening union members in various ways if they supported the Union or caused "trouble." Chastain specifically invited Reece to tear up his union book and burn it, and he even threatened to shoot Parker, Ladner, and Byrd between the eyes if they caused him any trouble. Chastain also en- couraged violence by telling Red Townsend "to go prepared" and by hinting at the guns and shells that he had in his own car. Chastain himself showed how aware he was of the dangerous situation that he was creating by telling Holloway that he would hire him as a bodyguard. By repeatedly boasting about the number of Local 798 men whom he had run off the job; by declaring repeatedly that he would "get" Balch and Lambert, the union leaders; and by constantly threatening union members; he engaged in further acts of intimidation that were violative of Section 8(a)(1) of the Act. When, finally, Chastain perceived that his program of in- timidation was failing and that the job would be picketed after all, he further violated Section 8(a)(1) of the Act by inviting various members of Local 798 who intended to honor the picket line to leave the job before the picketing had actually begun. Lipsey himself participated in these unfair Y5 Holloway was in fact a member of Local 798, while Rodriguez was a member of Local 211 26 Whatever evidence of such acts is contained in the record was ad- matted for motivational reasons, and , therefore , the truth of the acts com- plained of is not established Counsel for the Respondent also assert as gospel truth alleged acts of sabotage which they merely offered to prove, notwithstanding that these offers of proof were rejected Counsel for the Respondent failed to produce so much as a single witness who would have been competent to testify concerning the alleged acts of sabotage Lipsey 1545 labor practices of Chastain, moreover, in the cases of Edgar, Calhoun, Wilson, and Rodriguez. Lipsey warned Edgar and Calhoun that if they were af- filiated with any union local to get in their trucks and remove themselves from his property. He also attempted to persuade Wilson not to honor the picket line and even promised to pay his union fine if he did so. As for Rodriguez, Lipsey did not even refrain from echoing Chastain's threat to kill him if he did not cross the picket line. There can be no doubt that the antiunion activi- ties of Chastain were fully known to Lipsey and en- tirely approved by the latter, although at the hear- ing he sought to excuse Chastain's activities as those of an old man who did not know what he was doing. It is true that when work resumed on the pipeline on February 19 Lipsey removed Chastain from his job as welder foreman and that Chastain is now working for Lipsey only as a welder. This does not itself demonstrate, however, that Chastain's ac- tivities did not have Lipsey's approval at the time when they occurred. Indeed, the removal of Chastain from his supervisory position is in itself a form of confession that he had engaged in wrong- doing during the period of his tenure, and for this wrongdoing Lipsey was, of course, responsible. Moreover, the fact that Lipsey himself participated in some of the unfair labor practices in which Chastain engaged leaves no doubt of his complicity Lipsey also offered as a defense to his unfair labor practices various acts of alleged misconduct on the part of the Union or its individual members. Insofar as there is any competent proof of this al- leged misconduct, it seems to have consisted solely of the types of threats, such as picketing the job or the withholding of services, which are privileged as forms of concerted activity on the part of a union, or its members. Insofar as the acts of alleged misconduct, such as sabotage of equipment, go beyond this26 there is no competent proof of them in the record, and even if such proof existed it would not furnish the basis of a defense against the unfair labor practices actually committed by the Respondent. 2. The violations of Section 8(a)(3) and ( 1) of the Act a. The refusals to hire It has long been settled that it is a violation of Section 8 (a)(3) and (1) of the Act for an employer himself offered only rumor and hearsay He accused Holloway of sabotage on the basis of what others had told him but failed to produce his infor- mants No warrant was ever sworn out, however, against Holloway, and Holloway himself denied the accusation against him I have no alternative but to credit his denial Counsel for the Respondent also claims that on September 29, 1967, "1,000 pipeline welders invaded Mississippi en masse," although they offered to prove this only through a newspaper story that was rejected as evidence The "invasion " seems to have been no more than a meeting held by the welders in Jackson, Mississippi 354-126 O-LT - 73 - pt. 2 - 26 1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to refuse to hire an applicant for employment because he is a member of a labor organization or because he has previously engaged in union or other concerted activities.27 There is no doubt that Chastain who interviewed the six applicants for employment was aware that they were members of Local 798. Five of them, Reece, Parker, Ladner, Byrd, and Burnett, ad- mitted their membership in Local 798 to Chastain. Indeed one of them, Reece, was invited by Chastain to tear up his union book as a condition of employ- ment, and Burnett was explicitly denied employ- ment by Lipsey himself because the latter thought that he had been responsible, as a union steward, for a slowdown on a previous job. So far as Poole is concerned, he did not himself admit to Chastain that he was a member of Local 798 but the elder Wilson's testimony that Chastain had confided to him that "he thought 798 had sent him in" is suffi- cient to show that Chastain was aware of Poole's af- filiation with Local 798 There is equally no doubt that all six applicants were denied employment either because they were members of Local 798 or because of previous union activity. In the case of Reece, Chastain de- nied him employment as soon as Chastain learned of his union membership, although, in his previous telephone conversation with Reece, Chastain had promised him work if he passed his welder's test and even promised to pay Reece's traveling expen- ses if he passed the test. After Reece's arrival on the jobsite, Chastain explicitly gave as a reason for refusing to employ him that there would be no point in his testing, since he would not cross the ex- pected picket line In the case of Poole, it is equally evident that Chastain's refusal to hire him was based on his membership in Local 798, since he told Poole himself that he could use him only if he were not a member of Local 798 and confided to several witnesses, moreover, that Poole was one of two welders whom he had sent down the road because they were Local 798 men, the other one being Reece. So far as Burnett is concerned, Lipsey admitted that he overruled Chastain and denied Burnett employment because of his conviction that the latter had been responsible for a slowdown when he had been a union steward on a previous job. Lipsey's belief that Burnett had been guilty of this conduct could be a defense to his refusal to employ him only if his guilt could be regarded as established by competent evidence211 but Burnett denied that he had been responsible for any slow- down, and Lipsey offered no evidence to substan- tiate his belief in Burnett' s guilt . So far as Parker, Ladner, and Byrd are concerned, it is evident that if Chastain was willing to test them, although he knew that they were Local 798 men, he must have been sorely in need of welders and that he was not over- ruled because Lipsey had welders "running out of 27 Phelps Dodge Corp v N L R B , 313 U S 177, Tyler Pipe and Foundry Co , 132 NLRB 1187, 1192, and other authorities cited in in 8 his ears" but because of their membership in Local 798. The plethora of welders was simply a pretext In fact Lipsey was desperately in need of welders right down to the time of the kickoff on Saturday, September 23. If welders were really running out of Lipsey's ears, it is hard indeed to understand why Chastain, who was his welder foreman, and who as such was in charge of testing welders, should have been interviewing welders and getting them to test at the very time Lipsey claimed to have too many Why should Chastain be promising welders jobs when there were none? The testimony of Lipsey that he had welders running out of his ears cannot be true if the testimony concerning Chastain's hir- ing activities, which is undenied, is true. Lipsey's own testimony and his own payrolls con- tradict his contention, moreover, that he had weld- ers running out of his ears when Parker, Ladner, and Byrd applied for jobs. These three applicants, as well as Reece, applied to be tested either on Sep- tember 20 or 21, and Lipsey had far from a full welding complement even on September 21. The testing began about September 18 and continued at least until the day after the kickoff on September 23 Lipsey's payroll covering the period from Sep- tember 18 to 24, 1967, shows which welders suc- cessfully tested during this payroll period, and received 8 hours' pay on the date that they tested. This payroll shows that Charles H. Wilson tested on Thursday, September 21; that C. L. Brooks and P. D. Rodriguez tested on Friday, September 22; that Teddy B. Edgar, Billy K. Calhoun, and Jessie G. Thomas tested on Saturday, September 23, the very day of the kickoff; and that Robert E. Cleary tested on Sunday, September 24, the day after the kickoff. Lipsey testified, moreover, that he even retested five or six welders who had failed their first tests and that he tested P. D. Rodriguez no less than three times, although this was very unusual. Con- sidering how much each test cost Lipsey, he would hardly have tested a half dozen welders two or three times if he had welders running out of his ears. It is only in the cases of Poole and Burnett that the evidence as to the testing of the welders does not show positively that work was available for them but this is only because they applied as late as September 25 or 26, 2 days after the kickoff, by which time the welding crew seems to have been selected The unavailability of employment for Poole and Burnett does not render the denial of employment to them, however, any the less a violation of Sec- tion 8(a)(3) and (I) of the Act, although it does af- fect their right to be made whole for any loss of pay that they may have suffered as a result of the dis- crimination against them. As the Board declared in Shawnee Industries, Inc., etc., 140 NLRB 1451 at 1453: "Under the Act an Employer must consider a request for employment in a lawful, nondiscrimina- s" N L R B v Burnup & Simms, 379 U S 21 LIPSEY, INC. tory manner, and the question whether an applica- tion has been given such consideration does not de- pend on the availability of a job at the time an ap- plication for employment is made. Consequently, the Act is violated when an employer fails to con- sider an application for employment for reasons proscribed by the Act, and the question of job availability is relevant only with respect to the em- ployer's backpay obligation." Insofar as Reece is concerned, there must also be considered, however, the question whether he was a bona fide applicant for employment. If he was not, no violation of Section 8(a)(3) of the Act could be said to have occurred, notwithstanding the intention of the Respondent to discriminate against him. According to his own testimony, he applied for employment as a welder in order to help the Union which was planning to picket the job. It would seem, therefore, that he was seeking employ- ment only to entrap the Respondent.29 There is no evidence of entrapment in the cases of the other five welders who applied for employ- ment. The Respondent seems, however, to raise the broader question whether it was privileged to refuse to test welders who were members of Local 798 in view of the previous picketing of Lipsey jobs, the threat to picket the present one, and the considera- ble expense attached to testing a welder who might only work a few days. Presumably, such refusals to hire would be akin to a defensive lockout by an em- ployer. It would seem, however, that this theory could have no applicantion in the circumstances of the present case, for the Respondent did not pursue the policy of refusing to hire any welder who was a member of Local 798. It knowingly hired a con- siderable number of welders who were members of Local 798 either because these welders were re- garded as highly skilled or because it thought they could be successfully intimidated into crossing the picket line which it expected Local 798 to set up. It thus discriminated against the members of Local 798 either on the basis of their probable union or other concerted activity, which, in either case, would be violative of Section 8(a)(3) and (1) of the Act. b. The discharges of the strikers The law relating to the discharge of strikers and 29 That the doctrine of entrapment is applicable in these circumstances would seem to be suggested by the ill-starred case of Burns and Gillespie, 1 0 1 NLRB 1 I81, remanded 207 F 2d 434 (C A 8), 113 NLRB 434, en- forcement denied 238 F 2d 508 (C A 8), after 5 years of litigation While a divided Board in this case failed to find any evidence of entrapment on the facts in this case , it does not seem to have questioned the applicability of the doctrine of entrapment itself in proper circumstances The same seems to have been true in International Association of Bridge, Structural, etc Local 600, 134 NLRB 301, 307 30 In N L R B v Rockaway News Supply Co , 345 U S 71, the Court declared the distinction between discharge and replacement in certain con- texts to be unrealistic and unfounded in law and observed " Substantive rights and duties in the field of labor management do not depend on verbal 1547 their replacements is marked by many artificialities and subtle distinctions.30 It is sometimes difficult to determine whether an employer has discharged a striker or merely acted to replace him or attempted to intimidate him in an effort to deter him from striking .31 Neither the form of words used by an employer nor the timing of his action may be deci- sive, and, while an employer may replace a striker or an employee engaged in a protected concerted activity, such as a refusal to cross a picket line, whether it is that of his own employer or of another employer who is being picketed, he may not do so to give vent to his union animus. Counsel for the General Counsel, apparently aware of the difficulties involved in establishing a violation of Section 8(a)(3) of the Act in the case of strikers who have been discharged apparently after refusing to cross a picket line, strives to show that many of the members of Local 798 who honored the Union's picket line on the Lipsey job were actually discharged on Tuesday, September 26, the day before the picketing began. Except possibly in the case of the Wilsons, however, the record does not support any such contention. The record shows that Edgar, Calhoun, Wilson and his son, and Holloway were interrogated on Tuesday, September 26, about whether they intended to honor Local 798's picket line, or warned against honoring it, and that Price overheard such a warn- ing issued to a group of employees the same day. But the record does not go beyond these attempts at intimidation on the part of Chastain or Lipsey and does not show that any of these employees were actually discharged on Tuesday. The discharges of these employees, as well as the discharges of Yates, Sanders, and Bingham, did not occur until after they had declined to cross the picket line. In the case of Wilson, Lipsey made every effort to induce him to stay on the job, and, although both he and his son were finally invited to leave, they were both paid as if they had worked a full 8 hours that day. Although the Wilsons did not, apparently, engage in any of the actual picketing the next day, they did fail to report to work and thus joined the strikers, at least for the time being. As an employer who acts merely to keep his work going, and not out of union animus, may terminate the services of strikers even before he has actually ritual reminiscent of mediaeval real property law " 3i Examples of these dilemmas are to be found in United States Cold Storage Co , 96 NLRB 1108, enfd 203 F 2d 924 (C A 5). cert denied 346 U S 818, Kerrigan Iron Works, Inc , 108 NLRB 933, review denied 219 F 2d 874 (C A 6), cert denied 350 U S 835, L C Produc ts, Inc , 1 12 NLRB 872, Brookville Glove Co , 114 NLRB 213. Ford Radio & Mua Cor- poration , 115 NLRB 1046, Knight Morley Corporation, 116 NLRB 140. enfd 251 F 2d 753 (C A 6). rehearing denied 249 F 2d 959, cert denied 357 U S 927, Giustiana Bros Lumber Co , 116 NLRB 700, Ekco Produi is Co. 117 NLRB 137, Associated Wholesale Groters of Dallas . Inc , 119 NLRB 41, enforcement denied 262 F 2d 281 (C A 5), Editorial"El Impar- tial," Inc , 123 NLRB 1585, Sea View Industries , Inc . 127 NLRB 1402. Liberty Electronics Corp , etc , 138 NLRB 1074 1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replaced them ,32 it would not in any event be sig- nificant in itself that one or more of the Local 798 men had been replaced a day before the actual picketing began , especially in a case where the em- ployer had previously been informed that the job would be picketed . What is significant is that Lip- sey acted in order to punish the strikers and not to keep the work on the pipeline going . Indeed, the discharges of those members of Local 798 who honored the picket line simply constituted the climax of the campaign of intimidation against members of Local 798 that had been attempted but had failed . It is clear , moreover , that not only had these employees not been replaced but also that Lipsey had no chance to replace them with other employees for shortly after the picketing com- menced the job was shut down and operations were not resumed again until February 19. Counsel for the Respondent contends , to be sure, that whether " an employer has discharged strikers or has merely notified them that it intends to replace them depends on substance rather than on the form of words used by the employer" and that, when Chastain told the members of Local 798 on the day that the picketing started that they could pick up their checks at the warehouse , this instruc- tion did not constitute a discharge The general proposition for which counsel for the Respondent contends would seem to be sound , but I cannot agree that the particular application of the general proposition in the circumstances of the present case is sound . 33 When Chastain , after the dire warnings and interrogations of the previous day, told the members of Local 798 who failed to cross the picket line to pick up their paychecks, which were ready , they could hardly doubt that they were being discharged . A supervisor could hardly make his intentions plainer than by telling an employee who had crossed him to go to the office and pick up his paycheck in the middle of the working week. Chastain issued such an instruction in almost every case, moreover, without any preliminary palaver with the offending employee. As soon as he saw an employee who was not engaged in working, he asked for no explanation but told him to go and pick up his paycheck . Furthermore , when there were some preliminary conversations , as in the cases of Yates , Sanders , and Bingham , the in- terchanges made it even plainer that the employees in question were being discharged. When Yates re- marked to Chastain in the presence of the others that it was customary to bring a check to the man who was being run off a job , Chastain did not as- sure Yates that he was laboring under a misap- " As the Board said in Redwing Carriers , Inc and Rockana Carriers, Inc , 137 NLRB 1545 at 1547, "where it is clear from the record that the em- ployer acted only to preserve efficient operation of his business , and ter- minated the services of the employees only so it could immediately or within a short period thereafter replace them with others willing to perform the scheduled work, we can see no reason for reaching different results solely on the basis of the precise words, i e , replacement or discharge, used prehension . When Lipsey then accused Yates, San- ders , and Bingham of quitting , and they had denied it, he failed to tell them to go back to work . By pay- ing Wilson for a whole day, although they had worked only a few hours on the day before the picketing began , Lipsey could hardly have made it any plainer that they were being let go , however reluctantly . It is only in the case of Price, the phenomenal bead grinder , that it can be said that there is no positive or affirmative evidence that he was discharged by either Chastain or Lipsey. This may well have been an oversight on their part due to the fact that Price never appeared at the warehouse the morning that the picketing began. He may have been too frightened by the rumors or conversations that he had overheard to report for work but he was not too frightened , apparently, to join the pickets . In any event , it does not seem to me that a violation can be found on a speculative basis . I do not find , therefore , that Price was also a discriminatorily discharged striker. Counsel for the Respondent seems to submit also that Lipsey should be excused for discharging the strikers because his previous jobs had been picketed , his equipment had been sabotaged, and he had heard all sorts of rumors of violence on the part of the Union . I have already commented on the inadequate evidentiary basis for this defense, and it is no more valid as a defense to the allega- tions of violation of Section 8(a)(3) of the Act than it is a defense to the allegations of violation of Sec- tion 8(a)(1) of the Act. c. The alleged supervisory status of the welders Counsel for the Respondent also submits in an elaborate argument that the Respondent cannot be found guilty of violating Section 8(a)(3) and (1) of the Act because its welders were supervisory em- ployees . This argument is based on the contention that the evidence shows that welders had the power to hire and fire their own helpers. The evidence is, however, almost completely mistated in the brief of counsel for the Respondent . I have already inti- mated briefly that the true situation was that the Respondent hired and fired the welders but as- signed them to particular welders at the latter's request and as a rule respected the preferences of the welders for particular helpers . It remains only to set forth and analyze the evidence on which this conclusion is based. The evidence that seems to suggest that the wel- ders could hire their own helpers is the evidence of Lipsey himself and the evidence of Calhoun, one of by the employer, or the chronological order in which the employer ter- minated and replaced the employees in question " ( Emphasis supplied ) "Counsel for the Respondent rely on Gala-Mo Arts, Inc , 113 NLRB I, European Cars Ypsilanti, Inc , 136 NLRB 1595, enforcement denied 324 F 2d 606 ( C A 6), and Missoula Motel Association , etc , 148 NLRB 1477, but the circumstances in these cases seem to me to have been quite dif- ferent from those in the present case LIPSEY, INC. the welders who was called as a witness by counsel for the General Counsel. Lipsey testified as follows on direct examination: Q. What is the practice in your company with respect to hiring helpers? A. With us , a welder can hire his own helper , just like an operator can hire his own oiler . If a welder comes to us and says I don't want this helper any more , there is always somebody wanting to help a welder , 10 or 15 around the warehouse every morning and he can get him another one, or maybe we might have someone and says , well, try this boy here. Q. So you get them both ways? A. Yeah. 0. Now you mentioned frequently there is a helper sitting around the yard . Are these men on your payroll? A. No, sir, no, sir , they're just pipeliners that come by looking for work, or sometimes they are local people looking for work. Some of them are welder helpers and some of them are not . Sometimes your better welder helpers are ones that have never helped a welder. 0. Would you require a welder to work with a helper that he did not want? A. No, sir, I would not . [ Emphasis sup- plied. ] On cross -examination , Lipsey testified further with respect to the welders ' helpers: Q. Now if a welder helper would show up drunk, a foreman could fire him, couldn't he? A. Yes, sir. Q. And they do it? A. Yes, sir. 0. The Company frequently assigns helpers to welders, don't they? A. Most of your welders have their own help- ers. I don't think there is any-I don't know, since I can remember that anybody objected to a welder having his own helper regardless of what place he might work on the line. I don't never remember of anything like that . [ Empha- sis supplied ] There is not a word of Lipsey's testimony which even carries the implication that a welder could fire his own helper. On the contrary, the welder had to come " to us," i.e., Lipsey , to get his welder fired. In the only specific instance put to him, Lipsey testified that it was a foreman who fired the helper. As for the hiring of helpers, Lipsey's testimony reveals a curious ambivalence . Having begun by as- serting that a welder could hire his own helper, he kept shying away from the idea. The dissatisfied welder is pictured as coming to Lipsey and being told "try this boy here " It is Lipsey who is pictured as the one who would not require a welder to work with a helper that he did not want or object to a welder having his own helper. Calhoun, when asked whether his helper left with him on the day that the picketing started , testified rather unresponsively: "I hired him myself." Yet he 1549 had just indicated that he could not even remember the name of his helper whom he described as "an elderly fella" called "Pops." After his assertion that he had hired his helper the following colloquy took place: TRIAL EXAMINER : Was it the practice for the welder to hire his own helper? THE WITNESS:That's what they told us. They said to pick out- TRIAL EXAMINER ( interposing ): And the Company pays them? THE WITNESS: Yes, I hired him and he went in and signed up . [ Emphasis supplied.] On redirect examination , Calhoun testified further as follows: 0. Who paid the helper? A. He was on the payroll for Lipsey, Incor- porated. Q. Did these helpers apply to you for a job? A. Yes. 0. Did they ever, at any time, speak to Lip- sey prior to speaking to you? A. No, prior to that Mr. Chastain told us that any of these men standing around here that come to us and ask us for work, if we wanted to hire them , you know , to give them a job, to take them in the office as our helper and sign them up. Q. Who actually signed them up? A. The office manager. Q. And they were paid by Lipsey? A. By Lipsey, Incorporated. A realistic analysis of Calhoun 's testimony in- dicates that he was invited by Chastain to select a helper from the pool of welders in the warehouse yard and that the helper he had selected was then signed up; i.e., hired by the office manager. The testimony of the witnesses other than Lipsey and Calhoun suggests that these two converted the reality of the selection of the helper, by the welder into a hiring by indulging in semantics of their own-if this is not a too highfalutin concept in the circumstances of the case. The other witnesses who testified concerning the hiring of welders ' helpers were Yates , Shivel, San- ders, the elder Wilson , and Holloway, but the testimony of none of them can be reconciled with the idea that each welder hired his own helper. Yates, whose helper was Lamar Sanders, testified as follows: Q. Now when you were hired, did you bring Lamar Sanders with you? A. He helped me on that job. Q. Right . Did you bring him with you? A. Yes. Q. Did he hire in the same time you did? A. No, I hired in when I tested . Lamar hired in on Saturday. Q. Had you told the company that you wanted him? A. Yes, I did. 1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 0. And they told you to tell him to come on in and get on the payroll? A. Yes. It is apparent from Yates' testimony that, while he made it known to the Company that he wanted Lamar Sanders to be his helper , he had to get the permission of the Company to have him as his helper , and that it was the Company that hired his helper and did so , moreover , at a different time than Yates was hired This is also apparent from the testimony of Sanders himself who testified as fol- lows on direct examination. Q. Who hired you9 A. The welder foreman. Q. And what was his name? A. Tommy Chastain. Q. Would you describe the events surround- ing your application for employment with Lip- sey, Incorporated? A. Well, I just applied at the job as a welder helper , and he hired me. 0. What welder were you assigned to? A. Charles Yates.... Q Were you assigned to a welder or were you chosen by a welder? A Well, I actually wasn 't chosen when I hired in . Of course I knew Charles Yates, and when I hired in I asked if he had a helper and he said no , and I asked him possibly could I help him and he said, yes. TRIAL EXAMINER: Before that conversation you had already spoken to Chastain? THE WITNESS . Right . He had hired me as a welder helper TRIAL EXAMINER : He had told you that he was hiring you as a helper? THE WITNESS Right. TRIAL EXAMINER . But you weren 't assigned yet to anybody in particular? THE WITNESS: Nobody, no, at that time. On cross -examination , Sanders testified that when he talked to Yates about being his helper , the latter told him - " Go over to the warehouse Saturday morning and see if you can go to work, if you can hire out ," and on redirect examination, he further testified: Q On the Saturday morning when you went to the Lipsey warehouse to apply for a job, to whom did you speak? A Mr. Tommy Chastain. Q What , if anything , did Mr . Chastain do with reference to your application? Did he hire you or not? A He hired me. It is evident from Sanders' testimony that it was Chastain and not Yates who hired Sanders to be Yates' helper and then assigned him to the latter as his helper Although pressed on this point during recross-examination , Sanders insisted that he asked Chastain whether he could be Yates' helper after Chastain hired him "Yes," he testified , " but I still asked the man if he had somebody else he was going to put with Yates He's the one that hired me. He was my boss and I asked him." None other than Shivel himself, who, of course, was a witness for the Respondent, confirmed that it was he who had hired Sanders as Yates' helper. Thus, Shivel testified: Q. Did you have any conversation with Mr. Yates about a helper? A. No, sir. 0. Did he ever tell you who his helper was? A. Not until he hired out. Q. And what did he tell you on that occa- sion? A. He told me that he had a helper, and if he could use him, and I said he could. [Empha- sis supplied. ] If Yates did not hire Sanders, neither did Wilson hire his own son, Gene, as his helper. When he called Chastain from Alexandria, Louisiana, about employment on the Lexington job, he testified: "I asked him did he need a welder and a helper." Chastain told him to come on in, that "he needed welders and helpers." Wilson then told Chastain that he would bring his son Gene with him as his helper Asked to state what Chastain said to that, Wilson replied. "He said to bring him on, he wanted us both over there." Finally, Holloway, when asked why he had not talked to Rodriguez about being his helper, replied: "Why should I talk to Rodriguez9 A welder can't hire a helper, " and when asked further why he had not told the other welders who were testing that he was looking for work, replied: "No, why tell them, they couldn't hire me." [Emphasis supplied.] Quite apart from the testimony of the witnesses, however, the Respondent's own payrolls show that the welders were not regarded as supervisory em- ployees. On these payrolls, there is a job designa- tion for each employee who is listed, the most com- mon designations being " operator ," " oiler," "labor," "mechanic," "welder," and "welder/ helper." Whenever an employee is a super- visor, this is indicated on the payroll. The super- visory employees among the office or clerical em- ployees are listed under the general title "Supervi- sion." But the supervisory status of the other em- ployees is indicated by a designation below their names. Looking at the payroll for the week ending September 24, 1967, which covers a whole week of normal operation , one finds listed 13 " foremen," such as Tommy Chastain and Delbert Shivel, and three " straws ," such as Durward Bingham. But the welders, of whom 31 are listed, appear without any designation that would indicate that they were re- garded as supervisory employees; below the names of each appears merely the designation "welder." If the 31 welders were added to the 13 foremen and 3 straws as supervisors , the Respondent would cer- tainly be top heavy, so far as supervisors are con- cerned. Finally, even if it were to be conceded that in some sense the welders could be said to hire and LIPSEY , INC. 1551 fire their own helpers , this would not necessarily make them supervisory employees , since they do not do so "in the interest of the employer," as specified in Section 2(1 1) of the Act , but in their own interest , to suit their own particular needs and desires . International Union of United Brewery Workers v. N.L.R.B., 298 F .2d 297 (C.A.D.C.), the court applied the distinction in the case of driver- salesmen for a soft drink distributor who were held not to be supervisors , although they had authority to hire , layoff, and discharge their helpers . Counsel for the Respondent seeks to distinguish the Brewery Workers case on the ground that the welders' help- ers, unlike the helpers to the driver -salesmen, are highly paid and fill an important role in the Respon- dent 's operations. Actually , the hourly rate of pay of a welder 's helper was $ 2.55 (the hourly rate for common labor being $2), and his role was a very modest one indeed if one is to judge from the testimony of Lipsey himself . Lipsey's testimony on the subject of the role of the welders' helpers was as follows: Q. Now the welder helper is really there to assist the welder , isn't he? A. Yes, sir Q. I mean , that 's all he does, carries his rods for him , puts gas in his rig, or whatever it is? A. He moves his rig for him, and you know, brushes his weld . He's a welder helper. He's got a job to do. Q. But it's- A. (Interposing) It can vary. Q. It's not skilled work really? A. Well, it 's not common labor. Q. You mean you have to be able to drive a truck? A. Well, I wouldn 't say they have to be able to drive a truck , but they have to know how to clean a weld , and what rods to get for the welder , and know their job. Q. It takes a little bit of experience? A. Well, you take a man that never helped a welder . If a welder wants him, he can be a better welder helper than one that 's been help- ing him . I mean its not a job that 's hard to do. I think most anybody could help a welder if they get out there and put on a little effort , and if the welder liked him. [Emphasis supplied.] IV. THE REMEDIES In view of the serious nature of the infractions of the Act of which the Respondent has been guilty, I shall recommend a broad form cease-and-desist order designed to restrain the Respondent from in- fringing on any of the rights guaranteed to em- ployees in Section 7 of the Act. The scheme of affirmative relief which should be provided in the present case presents special problems. One of the problems arises from the fact that pipeline welders have to qualify for each par- ticular job and that they, like all other employees, are then employed only for the duration of that par- ticular job. The record does not show whether the Lexington job has been completed. If it is still un- completed, it is highly problematical that any work for welders will remain when the litigation in the present case has run its course. A further complica- tion arises from the fact that, whatever the location the Respondent's home office may be,34 its headquarters, consisting of office and warehouse, may change even during a particular job.35 This raises problems with respect to the posting of the notice of compliance. The recommendations for af- firmative relief must be made, therefore, so as to take care of the various contingencies. In the event that the Lexington project has not yet been completed, I recommend that the Respon- dent immediately offer welders' tests to Ralph Parker, Jack Ladner, Claude L. Byrd, Ted Poole, and George L. Burnett and offer them immediate employment as welders if they succeed in passing their tests. I also recommend that if Ralph Parker, Jack Ladner, and Claude L. Byrd pass their weld- ers' tests that the Respondent make them whole for any loss of pay which they may have suffered as a result of the Respondent's discriminatory refusal to hire them previously. Such backpay shall run from the date when they applied for employment to the date or dates that the Respondent offers them employment and shall be calculated in accordance with the Board's remedial policies, which include the calculation of backpay in accordance with the formula established in F. W. Woolworth, 90 NLRB 289, and the allowance of interest in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. 1 do not recommend backpay for Ted Poole and George L. Burnett, since no jobs were available for them at the time of their applications. In the event that the Lexington project has been completed, however, I recommend that the forego- ing recommendations shall be modified to require the Respondent only to notify the said Parker, Ladner, Byrd, Poole, and Burnett by letters ad- dressed to them, the letters being sent by certified mail, that it will offer to test and employ them on a nondiscriminatory basis on any pipeline project in which it may then or in the future be engaged, and make Ladner, Parker, and Byrd whole for any loss of pay they may have suffered from the date of their application for employment to the date of the completion of the Lexington project. So far as the discharged strikers are concerned, i.e., Charles Yates, Homer Lamar Sanders, Dur- 34 There are some indications in the record that the home office of the 3s During the pendency of the present case, the headquarters of the Respondent is in Houston , Texas Lipsey lives in Pasadena , Texas, which is Respondent were changed from Lexington to Grenada, Mississippi close to Houston 1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ward Bingham, Teddy B. Edgar, Billy Calhoun, Charles H. Wilson, Herman Eugene Wilson, and Charles Max Holloway, I shall not recommend backpay for them since it is not the practice of the Board to award backpay to such strikers until the strike has been terminated or until they have made unconditional requests for reinstatement. 36 If work is still in progress on the Lexington job, I recom- mend, however, that the Respondent shall offer to such of the discharged strikers as make uncondi- tional application for reinstatement immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their other rights and privileges. Backpay, to be deter- mined in the manner already specified, shall be awarded only to such of the discharged strikers who make unconditional applications for reinstatement but who are denied reinstatement, and the said backpay shall begin to run in such cases 5 days after the dates of their applications for reinstate- ment. Charles H. Wilson and his son, Herman Eu- gene Wilson, shall be excepted from the foregoing recommendations, since they were reemployed voluntarily by the Respondent and then quit of their own accord. If, on the other hand, the Lexing- ton job has been completed, the Respondent shall merely notify each of the discharged strikers, ex- cept the Wilsons, that, notwithstanding their discharges, they will be considered eligible for em- ployment at any of the Respondent's projects then in progress, or to be commenced in the future, if they should choose to apply for employment at any of them. So far as the notice of compliance to be recom- mended is concerned, it shall be posted at the Respondent's home office, if any, and its warehouse and offices at Grenada, Mississippi, if this project is still in progress. If this project has been completed, the notice shall be posted by the Respondent at its home office, if any, and at the warehouse and of- fices of whatever project in which the Respondent may then be engaged. Copies of the notice shall also be enclosed by the Respondent in the letters addressed to the applicants who were refused em- ployment and to the discharged strikers. CONCLUSIONS OF LAW I The Respondent, Lipsey, Inc., is an employer engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act 2. Pipeliners Local No. 798 and Local No. 211 of the United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By conducting a campaign of intimidation against Local No. 798 and its members in order to interfere with their concerted activities, as more fully set forth in this Decision, and as summarized in section III, D, 1, thereof, the Respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights set forth in Section 7 of the Act, and thereby committed unfair labor prac- tices affecting commerce, within the meaning of Section 8(a)(1) of the Act. 4. By rejecting the applications for employment of Ralph Parker, Jack Ladner, Claude L. Byrd, Ted Poole, and George L. Burnett, because they were members of Local 798 and because the Respondent feared that they would engage in concerted activi- ties on behalf of Local 798, the Respondent dis- criminated with respect to the hire and tenure of their employment and thereby committed unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (I) of the Act. 5. By discharging Charles Yates, Homer Lamar Sanders, Durward Bingham, Teddy B. Edgar, Billy Calhoun, Charles H. Wilson, Herman Eugene Wil- son, and Charles Max Holloway because these em- ployees were supporting Local 798 and were engag- ing in concerted activities in its behalf, the Respon- dent discriminated with respect to the hire and tenure of their employment and thereby committed unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (I) of the Act. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the Respon- dent, Lipsey, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees, or applicants for employment, concerning their union affiliations or their intentions concerning concerted activities; at- tempting to intimidate or threatening with violence employees who are members of Local 798, or who support the said Union; threatening the leaders and representatives of Local 798 with violence; at- tempting to induce employees who are members of Local 798 to withdraw therefrom; attempting to dissuade employees from honoring Local 798's picket lines by offering them inducements to do so or threatening them with loss of employment if they fail to do so; and encouraging employees to arm themselves against members and representatives of Local 798. (b) Discouraging membership in Local 798 of the United Association of Journeymen and Ap- prentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, or any 'See, for instance, Sea - Way Distributing , Inc , 143 NLRB 460, and earlier cases cited in in 2, The Celotex Corporation , 146 NLRB 48, 49, Gopher Avtaiton , Inc . 160 NLRB 1698, 1701 LIPSEY , INC. 1553 other labor organization of its employees, by refus- ing to hire any of its members or discharging any of its employees who are members thereof, or in any other manner discriminating against them with respect to the hire or tenure of their employment or any term or condition of their employment. (c) In any other manner interfering with, restraining , or coercing its employees in the exer- cise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action in order to effectuate the policies of the Act: (a) Offer to test and employ Ralph Parker, Jack Ladner, Claude L. Byrd, Ted Poole, and George L. Burnett , and make whole the said Ralph Parker, Jack Ladner, and Claude L. Byrd for any loss of pay they may have suffered by reason of the dis- crimination against them in the manner and to the extent set forth in section IV of this Decision enti- tled "The Remedies." (b) Notify Charles Yates, Homer Lamar San- ders, Durward Bingham, Teddy B. Edgar, Billy Cal- houn, Charles H. Wilson, Herman Eugene Wilson, and Charles Max Holloway of their right to rein- statement and of their right to backpay in the manner and to the extent set forth in section IV of this Decision entitled "The Remedies." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its home office and at its warehouse and offices at Grenada, Mississippi, or at any other pipeline project in which it may be engaged at the time of posting, copies of the attached notice marked "Appendix. "37 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by the Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.38 'r In the event that this Recommended Order is adopted by the Board, the words " a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 38 In the event that this Recommended Order is 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 Respondent has taken to comply herewith " Copy with citationCopy as parenthetical citation
