Meat Cutters, Local 576

National Labor Relations Board - Board Decisions

Feb 20, 1973

201 N.L.R.B. 922 (N.L.R.B. 1973)

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amalgamated Meat Cutters and Butcher Workmen of
North America , Local No. 576 (Westfield Thrift-
way Supermarket) and Judy Connell.' Case
17-CB-953
February 20, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On August 23, 1972, Administrative Law Judge*
Thomas F. Maher issued the attached Decision in
this proceeding. Thereafter, counsel for General
Counsel and counsel for Respondent filed exceptions
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge. However, we substitute our own Order for
that proposed by the Administrative Law Judge.
Although he found that Respondent violated
Section 8(b)(1)(A) and (2) of the Act by its refusal to
refer the Charging Party for employment at the
Westfield Thriftway Supermarket for reasons that
included her lack of membership in Respondent, the
Administrative Law Judge omitted certain of the
remedial relief that counsel for General Counsel
sought. We find merit in counsel for General
Counsel's exceptions to the Administrative Law
Judge's failure to provide provisions requiring that
Respondent (1) cease and desist from causing or
attempting to cause Westfield Thriftway or any other
employer to discriminate against Judy Connell in
violation of Section 8(a)(3) of the Act because of her
lack of membership in Respondent; (2) notify
Westfield Thriftway and Judy Connell, in writing,
that it has no objection to her hire or employment
and (3) make her whole for any loss of earnings
suffered by her as a result of the discrimination
practiced against her. Accordingly, we substitute the
* The title "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
1 The Charging Party's last name has been changed by reason of her
marriage subsequent to the time of the hearing herein . In order to avoid
confusion , however, she is referred to in this Decision and in the Order by
her previous name which appeared on the complaint and throughout the
Administrative Law Judge' s Decision.
2 In agreeing with the Administrative Law Judge's finding that
Respondent violated the Act in the manner he determined, we rely solely on
the fact that Judy Connell, the Charging Party, gave credited undenied
testimony that substantiates this finding. Unlike the Administrative Law
Judge, we do not find that Connell's account of her meeting with
Nothnagel, Respondent 's official , was corroborated by Luther Pickell since,
Order and Notice set out, infra, for that proposed by
the Administrative Law Judge.
We note, with respect to any backpay to which
Judy Connell is entitled, that the Administrative Law
Judge found that there were some 12 to 14 meat
wrappers in a category above her who were contrac-
tually entitled to be referred out before her on
November 2, 1971, the date on which she was
discriminatorily refused referral to Westfield Thrift-
way. It is thus not clear whether, absent this
discrimination, she still would have been referred out
to that job at Westfield Thriftway. But, Respondent's
official by his statement made it clear that not only
would Connell not be referred out to the job she
sought on that date at Westfield Thriftway but that
she would not be referred out to any subsequent job
at Westfield Thriftway even if she qualified for it in
priority and experience. Further, under Board law,
Respondent's liability for backpay continues until 5
days after Respondent notifies the Employer it has
no objection to Judy Connell's employment in
accord with the terms of the contract. Since it is not
clear from the record whether Judy Connell would
have been referred out to Westfield Thriftway absent
the discriminatory conduct here involved during this
period, we will order the Respondent to make her
whole for any loss of earnings she incurred as a result
of the discrimination caused against her with the
amounts of backpay, if any, to be determined in the
compliance stage of these proceedings.3 Loss of
earnings, if any, shall be computed in the manner set
forth by the Board in F. W. Woolworth Co., 90 NLRB
289, with interest to be accorded in the manner set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Amalgamated Meat Cutters and Butcher Workmen
of North America, Local No. 576, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Westfield
Thriftway Supermarket, or any other employer, to
refuse to hire Judy Connell by discriminatorily
by his own account, Pickell only heard a portion of that part of the
conversation upon which the Administrative Law Judge predicated his
finding that Respondent violated the Act. We note also that the correct
name of the Westfield Thriftway Supermarket's meat department manager
is James F. Palmer.
3 In this connection we note that Respondent has a requirement that
applicants for employment renew their availability card every 15 days.
Connell did so on October 12 and 27, 1971, but after the November 2
incident, she returned to Respondent's hall and renewed her card only one
more time , on January 17, 1972 . However, her failure to continually renew
her availability card is no bar to her eligibility for backpay since, in her
conversation with Nothnagel on November 2, it was amply demonstrated to
her that to continue to do so was a futile gesture.
201 NLRB No. 132
MEAT CUTTERS, LOCAL 576 923
refusing to refer or clear her for employment for
reasons that include her lack of membership in the
Union.
(b) In any like or related manner restraining or
coercing employees or applicants for employment in
the exercise of rights guaranteed by Section 7 of the
Act.
2. Take the following affirmative action which
the Board finds will effectuate the purposes of the
Act:
(a) Make whole Judy Connell for any loss of pay
she may have suffered by reason of the discrimina-
tion practiced against her in the manner set forth
above in this Decision.
(b) Preserve and, upon request, make available to
the Board or its agents for examination and copying
all such records, reports, work lists, and other
documents, as may be in its possession, custody, or
control, which are necessary or appropriate to
analyze the amount of backpay that may be due
under the terms of this Order.
(c) Notify Westfield Thriftway Supermarket, in
writing, that it has no objection to the hiring or
employment of Judy Connell without regard to her
membership or nonmembership in the Respondent
Union and that it will not discriminate against her in
referral for employment pursuant to its hiring hall
procedures, and mail a copy of such notice to Judy
Connell.
(d) Post at its business office, hiring hall, and
meeting hall, copies of the attached notice marked
"Appendix."4 Copies of said notice, on forms
provided by the Regional Director for Region 17,
after being duly signed by the Union's authorized
representative shall be posted by the Union immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter in conspicuous
places, including all places where notices to job
applicants are customarily posted. Reasonable steps
shall be taken by the Union to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Sign and mail a sufficient number of copies of
said notice to the Regional Director for Region 17
for posting by Westfield Thriftway Supermarket and
every employer signatory to a collective agreement
with the Respondent that provides for the participa-
tion of such employer in the Respondent's exclusive
hiring facility, if they be willing, in places where
notices to their employees are customarily posted.
(f) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this
Decision, what steps the Respondent has taken to
comply herewith.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To Applicants for Employment at Westfield Thrift-
way Supermarket and Members of Amalgamated
Meat Cutters and Butcher Workmen of North
America, Local No. 576.
After a -trial in which both sides had the oppor-
tunity to present their evidence, the National La-
bor Relations Board has found that we violated the
National Labor Relations Act and ordered us to post
this notice and abide by its terms.
WE WILL NOT cause or attempt to cause
Westfield Thriftway Supermarket, or any other
employer, to discriminate against Judy Connell
by refusing to refer or clear her for employment
in violation of the Act for reasons that include her
lack of membership in the Union.
WE WILL NOT in any like or related manner
restrain or coerce employees or applicants for
employment in the exercise of rights guaranteed
in Section 7 of the Act.
WE WILL make whole Judy Connell for any loss
of pay suffered by her by reason of the discrimi-
nation practiced against her.
WE WILL notify Westfield Thriftway Supermar-
ket, in writing, that we have no objection to the
hiring and employment of Judy Connell without
regard to her membership or lack of membership
in our Union and that we will not discriminate
against her in referral for employment pursuant
to our hiring hall procedures and we will mail a
copy of such notice to her.
AMALGAMATED MEAT
CUTTERS AND BUTCHER
WORKMEN OF NORTH
AMERICA, LOCAL No.
576
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance with its provisions may be directed to the
Board's Office , 610 Federal Building, 601 East 12th
Street , Kansas City , Missouri 64106 , Telephone
816-374-5181.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
THOMAS F . MAHER , Trial Examiner : Upon a charge filed
on November 2, 1971, by Judy Connell , an individual,
against Amalgamated Meat Cutters and Butcher Workmen
of North America , Local No. 576 , Respondent herein, the
Regional Director for Region 17 of the National Labor
Relations Board , herein called the Board , issued a
complaint on May 17, 1972, on behalf of the General
Counsel of the Board , alleging violations of Section
8(b)(I)(A) and (2) of the National Labor Relations Act (29
U.S.C., Sec . 151, et seq.), as amended . In its duly filed
answer Respondent , while admitting certain allegations of
the complaint , denied the commission of any unfair labor
practices.
Pursuant to notice a trial was held before me in Kansas
City, Missouri , where all parties were present , represented,
and provided full opportunity to call , examine, and cross-
examine witnesses , present oral argument , and file briefs
with me. Briefs were filed by the parties on July 18, 1972.
Upon the entire record , including the briefs filed with me,
and specifically upon my observation of the witnesses
appearing before me,' I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE NATURE OF THE EMPLOYER' S BUSINESS
Westfield Thriftway Supermarket , the employer herein,
is a partnership engaged in the retail sale of groceries and
related goods and merchandise from its store in Kansas
City, Kansas . In the course and conduct of its business
operations the gross volume of its business exceeds
$500,000 per annum , and it annually purchases and
receives goods and supplies valued in excess of $50,000
directly from enterprises located in States other than the
State of Kansas . Upon the foregoing admitted facts I
conclude and find the employer to be engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE STATUS OF THE RESPONDENT
It is admitted and I accordingly conclude and find that
Amalgamated Meat Cutters and Butcher Workmen of
North America , Local No . 576, to be a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Judy Connell , an applicant on November 1, 1971, for
employment at Westfield Thriftway Supermarket, had
worked previously at Brewer's Thriftway, Bonner Springs,
Kansas, where, she testified she was employed "for about a
year and a half as a meat wrapper," from which job she
resigned on October 9, 1971. Having decided to seek
employment in Kansas City, Mrs. Connell registered with
Respondent on October 12, filling out an availability card
on which she stated she had 1 year of experience as a
meatwrapper . Although Mrs . Connell testified that when
she registered she had a year and a half as a meatwrapper
and Luther Pickell , her supervisor at her previous place of
employment, stated she had a year and 4 months of
experience , the registration card filled out in Mrs.
Connell 's own handwriting clearly states that her experi-
ence was 1 year . Because this card was the only established
source of Respondent 's knowledge of the extent of
Connell 's experience and the extent of her experience is
significant, I conclude and find the card to conclusively
establish for all purposes herein that she had 1 year of
experience as a meatwrapper , testimony in the record to
the contrary notwithstanding.
On the occasion of this first visit to the union hall Mrs.
Connell and Pickell spoke at some length with Ralph E.
Angle , Respondent 's president, concerning the possibility
of organizing Brewer's Thriftway where both had been
employed . They then inquired about the current job
market and Angle told them there was an excess of
manpower among meat cutters and wrappers . Angle then
informed Mrs. Connell that once having registered that she
could then go out and locate her own job , report to the
Union, and if requested by an employer she would be
referred to it . After again stressing the shortage of jobs
Angle showed Connell and Pickell a list saying that this
represented "a list of union members that are out of jobs.
We have to place these people first." s
Connell next visited the union hall on October 27, again
in the company of Pickell , for the purpose of renewing her
availability card , as required every 15 days . Here she met
Business Representative James B. Carter and she and
Pickell discussed job prospects with him . Carter told Mrs.
Connell that the prospects were not good and held up a
list, presumably the out -of-work list on which she and
Pickell were already included , saying, according to
Connell , "I've got all these people laid off today." In
answer to further questioning , Connell corrected herself
and quoted Carter as saying, "We've got all these members
laid off today ." Pickell likewise quoted Carter as referring
to the list as a "list of Union meat cutters and wrappers."
Carter confirms the testimony that he showed Connell the
out-of-work list and stated that it contained union
members as well as nonunion applicants , including
I Bishop and Malco, Inc, 159 NLRB 1159, 1161 equal basis I do not accept Angle 's denial of the use of such a specific word
2 The testimony of Pickell, corroborating Mrs Connell. Angle denied on a specific occasion because the substance of this entire testimony
having used the term "members" or " union members," stating that indicated that his recollection of the occasion , 9 months previous , was based
nonmembers were on the out-of-work list and all were referred out on an on card file information and was not a subject of specific recall.
MEAT CUTTERS, LOCAL 576
Connell and Pickell. He denied, however, that he referred
to the document as a list of union members . In this state of
the record I reject Carter's denial. Although Mrs. Connell
adverted to the membership character of the list only after
she had an opportunity to reflect on a previous answer and
to correct it Pickell was more positive both on direct and
cross-examination that the words "Union members" were
used "most of the time" when Carter referred to people out
of work. I cannot let this matter close, however, without
observing that this and the other testimony relating to
people out of work and to the out-of-work list related to a
discussion in the context of a union hiring hall being
described by union officials whose primary occupation
involved servicing the needs of a group of individuals the
majority of whom were union members. In this context the
significance of referring to these people as "members" is
dulled by habit and repeated usage.
Meanwhile, in her quest for employment Connell visited
the Westfield Thriftway Supermarket and spoke to James
F. Palmer , the meat department manager . Palmer, inform-
ing her that he obtained his employees only through the
Respondent's referral system, asked if she had been to the
Union to register. Connell told him that she was not a
union member but that she had registered and that her
availability card was current. Palmer then told her that
while he did not then have a vacancy he would let her
know if one occurred.
2. Thriftway's request for Connell
On November 1 the job of meatwrapper became
available at Thriftway as a result of an accident to the
incumbent. Palmer called the Respondent and spoke to
Carter, stating that he wanted to request the services of
Judy .Connell as replacement for the meatwrapper job.
Carter located Connell's name on the out-of-work list and
told Palmer that she was available but inasmuch as she was
not a member of the Union would have to pay $6 for a
work permit. Palmer asked Carter to have Connell report
to the market at 8 a.m. on the following morning,
November 2. Carter agreed and told Palmer, according to
Palmer's best recollection of the call, that Mrs. Connell
would have to come to the union office to get a work
permit. Palmer immediately called Mrs. Connell's home
and in her absence informed her husband that she was to
report to work in the morning but in the meantime was to
get a work permit. Mrs. Connell shortly thereafter returned
Palmer's call. Palmer told her what he had already told her
husband and he emphasized that she must have a union
permit before he could put her to work and that she should
go to the union hall and get one. Mrs . Connell then called
Carter at the union hall. Carter repeated Palmer's request
for her to go to work on the following morning. Connell
then asked her how she could go about obtaining a work
permit.
3. The determination of Connell's seniority status
What transpired from this point in the saga of Connell's
effort to obtain a referral appears in the record in three
different versions : Connell's, Palmer's, and Carter's.
925
Because the issue here is the reason why Mrs. Connell was
eventually refused referral I feel compelled to set forth
each of the three versions and from an analysis of the
various points of diversion among them arrive at a basis
for assessing the true reason for the failure to refer:
Connell's version : When Connell learned that Palmer as
well as Carter had called her home in her absence she first
called Palmer as noted above and then called Carter. When
she asked Carter how she would go about getting a work
permit "he told me I was to come down there and buy a $6
permit." She did as directed, arriving at the hall with
Luther Pickell a little before 5 p.m. Carter was not there
and the receptionist informed her that Carter would be at
the supermarket the next morning and would sell her a
permit there.3 Upon returning home there were messages
to call both Carter and Palmer . Connell did not relate
whether she called Carter, but she did call Palmer at the
supermarket. Palmer first asked her if she had gotten the
permit. When she said she had not and had been directed
to get it from Carter at the store the next morning, Palmer
told her of a call he had received earlier from Carter. He
quoted Carter as telling him that if they put her to work
Respondent would picket the supermarket . Therefore,
Parker told her he could not put her to work without the
permit and she should be at the union office when it
opened the next morning and get the permit before
reporting to work.
Parker's version: After his conversation with Carter
requesting Mrs. Connell' s referral Parker then called Mrs.
Connell. She was not at home so Parker asked that she
return the call. When Connell did so Parker told her that
she would have to go and get a work permit . Shortly
thereafter, between 3 and 4 p.m. Carter called Parker back
and told him that Carl Nothnagel, Respondent 's secretary-
treasurer and business representative , said , "We were not
going to let this girl go to work. We have too many of our
members out of work." When Palmer protested Nothnagel,
who appears to have been listening on an extension phone,
broke into the conversation and stated , "You put that girl
to work, and there will be a picket line on your front door."
The conversation continued at a higher temperature and
abruptly ended with Palmer vowing to put Connell to work
the next day. After consulting with his employer Palmer
then called Mrs. Connell but she was not at home (she was
no doubt enroute to the union hall in her abortive effort to
get the permit). When Connell returned home and returned
Palmer's call she first told him that Carter was not at the
union hall when she got there and that she was directed to
go to the market and get the permit from Carter in the
morning. Palmer then directed her "to go to the Union
directly and get it herself before she came to work."
Significantly he did not testify, as Mrs . Connell had, that
he had told her he had received a call from Carter
informing him that the Union would picket the store if they
put her to work.
Carter's version: When Mrs. Connell called Carter at the
union hall , after learning she had been requested for work,
she asked how she should go about obtaining a permit
(supra). Carter told Mrs . Connell it was getting late in the
day and because she lived so far from the office it would be
3 This incident is corroborated by Pickell.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
better if he met her at the store the following morning and
settle the permit business then . Earlier, when Carter took
Mrs. Connell's availability card out of the file he noted that
she only had 1 year 's experience noted on it (supra). This,
he determined , placed her in a lower assignment category
than the bulk of his assignable meatwrappers on the out-
of-work list. The category referred to by Carter was one of
several set forth in the collective agreement between
Respondent and the employers . Specifically the agreement
provides in this respect as follows:
ARTICLE II
(b) The Union or its agent will furnish each such
required competent workmen entered on said list or
register to the Employer by use of a written referral and
will furnish such workmen from the Union's open
register in the manner and order following:
Wrappers
Group No. 1: The specifically named workers who
have been recently laid off or terminated by an
Employer now desiring to re-employ the same workers
provided they are available for employment.
Group No. 2: All applicants for employment who have
two (2) or more years of qualified experience , who are
residents of the geographical area, constituting the
normal labor market and who have been employed for
a period of at least one (1) year in the last three (3)
years under a collective bargaining agreement between
the parties to this agreement.
Group No. 3: All applicants for employment who have
two (2) or more years of qualified experience, who are
residents of the geographical area , constituting the
normal labor market.
Group No. 4: All applicants for employment who have
one (1) or more years of qualified experience, who are
residents of the geographical area , constituting the
normal labor market and who have been employed for
a period of at least three (3) months in the last two (2)
years.
Group No. 5: All applicants for employment as
Wrappers who have one ( 1) or more years qualified
experience.
Group No. 6: All applicants for employment as
Wrappers with less than one (1) year experience, or no
experience at the trade.
(c) Reasonable advance notice for full time employ-
ees (but not less than 24 hours) will be given by
Employer to the Union or its agent upon ordering such
workmen , and in the event that within ninety-six (96)
hours after such notice, the Union or its agent shall not
furnish such workmen, the Employer may procure
workmen from any other source or sources.
4 Respondent did not submit in evidence this list or a copy of it to
support the testimony relating to it.
5 Carter explained without contradiction , and I conclude and find that
whereas an employer may request any qualified worker on the out-of-work
list he is limited to those in the higher category and may not effectively
request an individual in a lower category until the higher one has been
Upon determining that Mrs. Connell, with only 1 year of
experience , properly belonged in Group 4, and not in
Group 2 as she appears to have been erroneously placed on
the weekly out-of-work list,4 Carter immediately consulted
with his superior, Carl Nothnagel , and told him that he had
made the mistake of telling Connell that she would be sent
out to a job when , in fact, she was in a less priority
category.5 There were actually 14 other available wrappers
in Group 2, and Connell properly belonged in Group 4
based on the information she herself had supplied.
Nothnagel told Carter that if he had wrappers in a
classification prior to Connell's they would have to go out
first . Whereupon Carter called Palmer at Thriftway about
4 p.m. and told him that he could not send Mrs. Connell to
the job because there were people on the hiring hall list
ahead of her. Palmer persisted in his demand that Connell
be sent and finally asked to speak to Nothnagel . Palmer
then spoke to Nothnagel who repeated what Carter had
already said, namely that there were wrappers above
Connell on the hiring hall list and that she would have to
wait her turn to be sent out.
The conversation between Nothnagel and Palmer be-
came quite heated and extended beyond the Connell
matter to include an incident that had occurred at the
Thriftway Supermarket earlier in the day, and just before
Palmer requested Connell. It appears that Palmer's
superior had discharged a journeyman meatcutter that
morning and the Union was called in. As a consequence of
Carter's intervention Westfield Thriftway was required to
pay the discharged meatcutter, one Howe, a week's wages.
Consequently, in the Palmer-Nothnagel conversation this
event was given prime consideration after Nothnagel had
ruled out Connell's referral . The conversation ended by
Palmer saying that this time the Union was in trouble, and
hung up .6 Carter did not appear at the supermarket on the
following morning.
4. Respondent 's failure to refer Connell
Following Palmer's instructions that she procure a
permit at the union hall before coming to work Mrs.
Connell appeared at the hall at 9 a.m. on November 2,
again in the company of her friend Luther Pickell . Asking
for Carter she was told by the receptionist that he would
not be in until noon . Instead she was referred to
Nothnagel . Mrs. Connell's undeniedT account of this
meeting, corroborated by Pickell follows:
When I walked into the room he was very friendly.
He greeted me with, hi doll , hi sweetie , what's your
problems, something courteous and to the point. I
explained to him I was here to buy a permit and I
needed to go to work , that I needed the permit to go to
work and I was very interested in getting this permit
and going to work.
Q. Did you tell him you wanted to go to work?
A. Yes. He got very angry with me. He says, "Now,
exhausted In this respect art. III (eX3) of the contract provides for such an
exception stating it to be "an exception in the foregoing referred groups."
9 Carter testified as to this conversation, having listened to it on an
extension of the Union's telephone.
r Respondent did not call Nothnagel in refutation of the statements
attributed to him.
MEAT CUTTERS, LOCAL 576
look, you have never bothered to join the union; you
are not going to join it now; you are not going to work
in that store." He said. "You are not going to go to
work." He says, "Get your ass out of this office and get
your ass out of that store." I got a little shook and I
somehow got the guts to ask him why. He said that they
had union members out of work and they were going to
put them to work and they wasn't going to send me out
on a job. [Tr. 87-88]
Connell did not report to work but she did phone Palmer.
Palmer told her that he could not put her to work but that
he would hold the job open long enough for her to get the
required permit.
Several days later Mrs. Connell called Carter again. This
time her husband was on one extension and Pickell on the
other. When she asked Carter how she would go about
obtaining a work permit he turned her over to Nothnagel
who continued the conversation. When she repeated her
inquiry to Nothnagel he told her that Palmer and Westfield
Thriftway did not follow the contract in requesting her,
and then he hung up.8 Connell then called Palmer at the
market and told him what Nothnagel had said. Palmer
replied that he too had called the Union and had been told
that they had not followed the contract in that they had
not given the Union 24 hours notice on its request for
Connell. He further stated that the Union would need a
letter from Connell's former employer stating her experi-
ence and qualifications, a procedure which, according to
Carter, the Union does not normally follow. Thus, Carter
testified: "We take people on face value and what they
state on their referral."
Mrs. Connell did not thereafter obtain her work permit
and as a consequence she was not hired by Westfield.
B. Analysis and Conclusions
The complaint alleges that on October 12 and 22, 1971,
Respondent, by its president, Ralph E. Angle, and an
unidentified agent later identified as Business Agent James
F. Carter, by certain statements and conduct "failed and
refused to refer Judy Connell to a position of employment
as a meat wrapper with the Employer (Westfield)." There
is nothing in the record, however, to suggest that
employment was available at or that Connell was requested
for employment by Westfield or any other employer at any
time before November 1, 1971. 1 accordingly recommend
that so much of the complaint as alleges statements and
conduct prior to that date to constitute refusals to refer and
violative of the Act be dismissed.
This is not to say, however, that the findings made herein
concerning Mrs. Connell's first two visits at Respondent's
headquarters may not be considered as a background to
what I find to be a violation of the Act on November 1 and
2. But in assessing this background attention must be given
to the context in which certain words and phrases are used,
and their usage sought to establish unlawful conduct. I
refer to the words "members" and "Union members" as
used by Respondent's officials. As I have already com-
8 The undisputed testimony of Mrs . Connell. Nothnagel did not appear
as a witness . Carter was not questioned concerning the call.
9 "An employer may discharge an employee for a good reason, a poor
reason or no reason at all so long as the provisions of the National Labor
927
mented (supra) these words intended to describe individu-
als using the hiring hall, seeking employment, and being
placed on out-of-work lists are terms used in a context of
an open hiring hall operated by individuals whose primary
and habitual associations are with their own members. In
such a context it would seem highly probable that they
would confuse "members" with "persons" in routine
conversations and explanations. I am not disposed, then, to
view such understandable confusion of terminology as
evidence of an attempt to discriminate or to prefer one
class of job applicant over another.
Essentially the issue in this case devolves about the
undisputed account of Respondent's financial secretary-
treasurer and business agent, Carl Nothnagel's statement
to Judy Connell on the morning of November 2 that she
never bothered to join the Union, that she was not going to
join it then, that she was not going to work "in that store,"
and that they had union members out of work and were
going to put them to work and not send her out on a job.
All other statements, actions, and explanations which I
have found above as facts, or which otherwise appear in
the record, are subsidiary to this one statement of a
responsible union official to an admitted applicant for
referral to a job for which she had been requested. Because
Respondent, in defense of the allegations against it, has not
seen fit to procure either a denial or explanation by
Nothnagel of this statement credibly attributed to him I
have no alternative but to accept it as true.
Having thus established that Respondent has refused to
refer Judy Connell to a job for which she was requested for
the stated reason that she was not a union member it
remains to be seen whether, in context of Mrs. Connell's
qualifications, Respondent is relieved of liability under the
Act.
At the outset it must be recognized here, as it is in cases
involving instances of employer discharges of employees
for cause, that it is not enough that cause be established,
but that discriminatory motivation for the action be
rebutted as well .9 True, cause does exist for the failure to
refer Mrs. Connell. For the credited testimony does show
that in the category of meatwrappers from which referrals
must first be made, Group 2, there were 12 or 14 qualified
wrappers. And because Connell's own stated experience
placed her, not in this category, but in a lower one, Group
4, she could not, under the rules governing the hall's
operation, be assigned ahead of the others. This reason, by
itself, would have absolved Respondent of wrongdoing.
But it is not the sole reason for its failure to refer here. On
the contrary, Respondent's official, Carl Nothnagel, made
it clear that Judy Connell's nonmembership in the Union
was a dominant reason for his action. Thus when asked by
her for a work permit he stated: "Now look, you have
never bothered to join the Union; you are not going to join
it now; you are not going to work in that store." Regardless
of such justification as Nothnagel may have had for
refusing to refer Judy Connell to Westfield Thriftway he
Relations Act are not violated ." N.LR.B. v. Condenser Corp., 128 F.2d 62,
75 (C.A. 3). See also: Edward G. Budd Mfg. Co. v. N.LR.B., 138 F.2d 86,
90-91 (C.A. 3), cert. denied 321 U.S. 778; N.LR.B. v. Whitin Machine
Works, 204 F.2d 883, 885 (C.A. 1).
928 DECISIONS OF NATIONAL
certainly made one reason emphatic-that she had not
joined the Union.
Upon such an uncontradicted statement by a responsible
union official it is clear that union membership had been a
prerequisite to referral to a job in Respondent's hiring hall,
insofar as Judy Connell was concerned . Citation of
authority is hardly necessary at this juncture in the
administration of the Act to conclude and find , as I do,
that by such conduct Respondent restrains and coerces
employees in the exercise of rights guaranteed them by the
Act, thereby violating Section 8(bXIXA) and that by
refusing to make an employee available to an employer
who is obligated by contract to use exclusively the
Respondent's hiring facilities for reasons which include the
one given by Nothnagel to Connell Respondent thereby
causes such an employer to unlawfully discriminate against
her, thereby violating Section 8(b)(2).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent are set forth in section
LABOR RELATIONS BOARD
III, above, occurring in connection with its business
operations described in section 1, above , have a close,
intimate , and substantial relation to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that an Order
issue requiring it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the
policies of the Act, including the posting of an appropriate
notice of compliance with such Order as is issued at its own
facility and at the place of business of every employer
signatory to a collective-bargaining agreement in which
there is provision for the participation of such employer in
the Respondent 's exclusive hiring facility.
[Recommended Order omitted from publication.]