NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

T.E. Briggs Construction Company, Inc. and International Union of Operating Engineers, Local 302. Cases 19–CA–28619, 19–CA–28744, and 19–CA–28898

March 30, 2007

DECISION AND ORDER

By Chairman Battista and Members Schaumber
and Walsh

On April 8, 2004, Administrative Law Judge John J. McCarrick issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party each filed an answering brief. The Charging Party also filed cross-exceptions and a supporting brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[1] and conclusions as modified herein, and to adopt the recommended Order as modified and set forth in full below.

i. introduction

The judge found, among other things, that the Respondent, T.E. Briggs Construction Company, Inc., violated Section 8(a)(3) and (1) of the Act by failing to reinstate employee Steven Scheffer, whom the judge found was an unfair labor practice striker, after Scheffer made an unconditional offer to return to work. Specifically, the judge found that the Respondent should have offered Scheffer reinstatement to a laborer position and an equipment operator position, which the judge found were both substantially equivalent to Scheffer’s prestrike position as a pipelayer.[2]

We find it necessary to modify two aspects of these findings. First, although we affirm the judge’s finding that Scheffer engaged in a strike, we find it unnecessary to pass on the judge’s determination that he was an unfair labor practice striker as opposed to an economic striker. Second, although we affirm the judge’s finding that the Respondent unlawfully failed to offer Scheffer reinstatement to a laborer position, we reverse the judge’s finding that the Respondent was required to offer Scheffer an equipment operator position as well. Unlike the judge, we find that the equipment operator position was not substantially equivalent to Scheffer’s prestrike job as a pipelayer. In all other respects, we adopt the judge’s findings.[3]

ii. facts

A. The Respondent’s Operation

The Respondent excavated trenches and installed underground water and sewer pipes in residential subdivisions. To accomplish this work it employed pipelayers, laborers, and equipment operators. Pipelayers used laser levels to set the line and grade of the pipes in the trenches, installed the pipes, and then secured the pipes in the ground. They also performed general work, such as raking, shoveling, and cleaning.

The Respondent’s laborers performed raking, shoveling, and cleaning, and generally assisted the pipelayers. Indeed, pipelayers and laborers frequently worked closely together to install the underground pipes. A laborer often worked as a “top man,” meaning he positioned himself alongside the edge of a trench and provided the pipelayer with any supplies he needed. There is some evidence that pipelayers and laborers earned roughly the same wage rate, in the range of $28 to $29 per hour.

The Respondent’s equipment operators used heavy equipment—backhoes, for example—to dig trenches for the underground pipes, and then used similar equipment to fill the trenches after the pipes were installed. Equipment operators spent most of their working time in the cabs of their equipment; they typically did not work in the trenches. Because of the inherent danger in the equipment operators’ work, they were required to have extensive experience and skill in the smooth operation of the equipment. Equipment operators occasionally helped out with general work, but to a much lesser extent than pipelayers. The record indicates that operators earned a higher wage rate than pipelayers and laborers, in the range of $33 to $34 per hour.

B. Scheffer’s Employment and Strike

The Respondent hired Scheffer as a pipelayer, and he worked in this position from April 1 until September 10, 2002.[4] As was typical of pipelayers, Scheffer primarily performed pipelayer work, but he also performed laborer work. He worked for 2 days on a job in Mukilteo, Washington, performing laborer work exclusively, and was listed as a general laborer on the payroll record for that job. Scheffer occasionally operated equipment when an operator was unavailable, but there is no evidence that Scheffer ever worked solely as an operator on a job. Scheffer received some compliments on his ability to run equipment, but he was also admonished once for operating an excavator incorrectly. The Respondent’s owner, Tracy Briggs, testified that Scheffer lacked polish and experience as an operator.

At the time Scheffer was employed by the Respondent, he was also employed as an organizer for the International Union of Operating Engineers, Local 302 (Union). In July, Scheffer began engaging openly in organizing activities among the Respondent’s work force, and during August the Respondent began limiting Scheffer’s job responsibilities. On September 6, Foreman Ken Satterfield told Scheffer that there was no more work for him that day, even though the rest of the crew continued to work. On September 9, Satterfield again told Scheffer that there was no work for him but that the rest of the crew would be working. Satterfield told Scheffer to come back the next day.

After leaving the Respondent’s jobsite on September 9, Scheffer joined a picket line related to then-pending unfair labor practice charges against the Respondent.[5] Scheffer still reported to work the next day, September 10, as directed by Satterfield. Scheffer received a work assignment for the day, but told Satterfield that he was going on strike until the Respondent remedied its unfair labor practices.

Scheffer remained on strike until November 13. By letter of that date to the Respondent, he made an unconditional offer to return to work. To follow up, Scheffer faxed the same letter to the Respondent in November, and he had the Union place a phone call to the Respondent in December. In 2003, Scheffer made additional unconditional offers to return to work in July, August, September, and October. In late July 2003, the Respondent sent Scheffer a letter informing him that it had no pipe laying work available.

The Respondent, however, did have other work available. In May 2003, the Respondent hired an equipment operator. In June 2003, the Respondent hired a laborer. The Respondent did not offer either position to Scheffer.

iii. discussion

The record fully supports the judge’s finding that Scheffer commenced a strike against the Respondent on September 10. After Foreman Ken Satterfield told Scheffer on September 9 that there was no work for him, Scheffer joined picketers at the Respondent’s office who were protesting the Respondent’s alleged unfair labor practices. The next day, Scheffer appeared at the Respondent’s jobsite and, rather than commence working, he informed Satterfield that he was going on strike. And that is exactly what Scheffer did; he withheld his labor until making an unconditional offer to return to work on November 13. Thus, Scheffer was a striker. See M&M Backhoe Service, 345 NLRB No. 29, slip op. at 10 (2005).

In the circumstances, however, we find it unnecessary to pass on the judge’s finding that Scheffer was an unfair labor practice striker. The reinstatement rights of an unfair labor practice striker and an economic striker are the same if the employee has not been permanently replaced. See Allied Mechanical Services, 341 NLRB 1084, 1085 (2004) (citing Anaheim Plastics, Inc., 299 NLRB 79 fn. 3 (1990)). There is no evidence, or claim, that the Respondent permanently replaced Scheffer. Accordingly, once Scheffer made an unconditional offer to return to work on November 13, the Respondent was under a duty to timely reinstate him to his prestrike position or, if that position no longer existed, to a substantially equivalent position. See NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378 (1967); Zimmerman Plumbing & Heating Co., 339 NLRB 1302, 1304 (2003) (Zimmerman II).[6]

As there is no claim that Scheffer’s prestrike job as a pipelayer was available, the remaining issue is whether the Respondent was obliged to offer Scheffer the laborer and equipment operator jobs it filled in mid-2003. As indicated, we find that the Respondent’s obligation extended only to the laborer job, as it, unlike the equipment operator job, was substantially equivalent to Scheffer’s pipelayer position.

To determine whether a job is substantially equivalent to an employee’s prestrike job, “the Board considers, among other things, the level of responsibility, skill level, wages, hours, or working conditions of the positions in question.” L.B.&B. Associates, Inc., 346 NLRB No. 92 slip op. at 3 (2006); Rose Printing Co., supra at 1077–1078. The employee’s qualifications to perform the job may shed light on whether it is substantially equivalent to his prestrike job, but mere qualification to perform the job will not suffice. See Rose Printing Co., supra at 1078.

Applying these principles, we find that the laborer job was substantially equivalent to Scheffer’s prestrike job as a pipelayer. As described, the Respondent’s pipelayers and laborers worked closely together in and around the trenches installing underground pipes. Pipelayers, unlike laborers, used a laser level to set the line and grade of the pipe, but otherwise they often performed many of the same duties. Further, the record indicates that pipelayers and laborers received roughly the same wage rate. Finally, on at least one occasion the Respondent assigned Scheffer to work exclusively as a laborer, indicating that it considered him qualified to perform such work. All of these facts lead us to conclude that the laborer job was substantially equivalent to Scheffer’s prestrike job as a pipelayer. See, e.g., Zimmerman Plumbing & Heating Co., 334 NLRB 586, 588–589 (2001) (finding substantial equivalency between prestrike and poststrike jobs based on evidence that the jobs were located in the same area, had most of the same duties, involved working with the same materials and tools, and paid approximately the same wage rate).

In contrast, the evidence demonstrates that the equipment operator position was significantly different from Scheffer’s pipelayer position. The equipment operator position involved significantly more responsibility and required greater skill than the pipelayer position. Equipment operators used dangerous heavy equipment to dig and fill trenches. The operators spent most of their working time in the cabs of the equipment; they did not work directly with the underground pipes or in the trenches. Equipment operators were also paid at a higher wage rate than pipelayers, further indicating that the operator job was a more skilled position. Last, although Scheffer occasionally filled in for an equipment operator, there is no evidence that this was a significant part of his job duties. Indeed, the evidence shows that the Respondent did not believe that Scheffer had the requisite experience and skill to operate equipment on a regular basis. For these reasons, we conclude that the equipment operator position was not substantially equivalent to Scheffer’s prestrike pipelayer position. See, e.g., Diamond Walnut Growers, 340 NLRB 1129, 1131 (2003) (finding that a mechanic position was not substantially equivalent to a lead mechanic position where the latter involved significantly more responsibility and required more skills).

Thus, we affirm the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by failing to offer Scheffer reinstatement to the laborer position, but we reverse the judge’s finding as to the equipment operator position.[7]

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, T.E. Briggs Construction Company, Inc., Edmonds, Washington, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Failing and refusing to reinstate strikers, who have unconditionally offered to return to work, to available substantially equivalent positions, where their former positions no longer exist.

(b) Threatening not to rehire employees because of their union activities.

(c) Threatening employees with physical harm because of their union activities.

(d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer former striker Steven Scheffer full reinstatement to the laborer position that became available in June 2003, without prejudice to his seniority or any other rights or privileges previously enjoyed.

(b) Make Steven Scheffer whole for any loss of earnings and other benefits suffered as a result of the Respondent’s refusal to reinstate him to the laborer position that became available in June 2003, with backpay and interest thereon to be computed in the manner set forth in the remedy section of the judge’s decision.

(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful refusal to reinstate Steven Scheffer and, within 3 days thereafter, notify him in writing that this has been done and that the refusal to reinstate him will not be used against him in any way.

(d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and papers, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.

(e) Within 14 days after service by the Region, post at its facility in Edmonds, Washington, copies of the attached notice marked “Appendix.”[8] Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately on receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since June 1, 2003.

(f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.

It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.

Dated, Washington, D.C. March 30, 2007

Robert J. Battista,	Chairman
Peter C. Schaumber,	Member
Dennis P. Walsh,	Member

(Seal) National Labor Relations Board

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

federal law gives you the right to

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

We will not fail and refuse to reinstate strikers, who have unconditionally offered to return to work, to available substantially equivalent positions, where their former positions no longer exist.

We will not threaten not to rehire employees because of their union activities.

We will not threaten employees with physical harm because of their union activities.

We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

We will, within 14 days from the date of the Board’s Order, offer former striker Steven Scheffer full reinstatement to the laborer position that became available in June 2003, without prejudice to his seniority or any other rights or privileges previously enjoyed.

We will make Steven Scheffer whole for any loss of earnings and other benefits suffered as a result of our refusal to reinstate him to the laborer position that became available in June 2003, with interest.

We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful refusal to reinstate Steven Scheffer and we will, within 3 days thereafter, notify him in writing that this has been done and that the refusal to reinstate him will not be used against him in any way.

T.E. Briggs Construction Company, Inc.

Martin M. Eskenazi, Esq., for the General Counsel.

Aaron A. Roblan, Esq. (Jackson Lewis, LLP), of Seattle, Washington, for the Respondent.

David Hannah, Esq. (Cedar River Law Professionals, PLLC), of Covington, Washington, for the Charging Party.

DECISION

Statement of the Case

John J. McCarrick, Administrative Law Judge. This case was tried in Seattle, Washington, on December 16–18, 2003, upon General Counsel’s amended consolidated complaint1 that alleged T.E. Briggs Construction Company, Inc. (Respondent) violated Section 8(a)(1) and (3) of the Act by telling an employee that he would not be rehired because he was Union, by threatening an employee by lifting a rock and appearing to throw it at him because of the employee’s union activity, by refusing to offer reinstatement to Steve Scheffer, by disparately treating union job applicants, and by failing to hire or consider for hire Tom Stuart, Tom Kennedy, Mark Sandy, Henry Arnoux, Ron Dahl, Dan Taylor, and Daren Konopaski because of their union activity. Respondent timely denied any wrongdoing. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the parties, I make the following

Findings of Fact

i. jurisdiction

Respondent, a Washington State corporation with an office and place of business in Edmonds, Washington, has been engaged in the construction business. During the past 12 months, Respondent, in conducting its business operations, purchased and caused to be transferred to its facilities within the State of Washington goods and materials valued in excess of $50,000 directly from sources outside the State of Washington, or from suppliers within Washington State which in turn obtained such goods and materials from sources outside the State of Washington. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the International Union of Operating Engineers, Local 302 (Union) is a labor organization within the meaning of Section 2(5) of the Act.

ii. the issues

1. Did Respondent violate Section 8(a)(1) of the Act by:

a. Telling an employee that he would not be rehired because he was union?

b. Threatening an employee by lifting a rock and appearing to throw it at him because of the employee’s union activity?

2. Did Respondent violate Section 8(a)(1) and (3) of the Act by refusing to offer reinstatement to Steve Scheffer, by disparately treating union job applicants and by failing to hire or consider for hire Tom Stuart, Tom Kennedy, Mark Sandy, Henry Arnoux, Ron Dahl, Dan Taylor, and Daren Konopaski because of their union activity?

iii. alleged unfair labor practices

A. The Facts

1. Introduction

Respondent is an underground utility contractor. In the course of its business, Respondent excavates trenches and installs main line pipe, storm and water pipe, and sewers into trenches in residential subdivisions. Respondent employs pipe-layers, operators and laborers. Pipelayers set the line and grade for pipe that is put into trenches. Operators run the equipment that dig trenches. Laborers perform a multitude of functions, including cleaning catch basins, raking and shoveling, picking up garbage, and supporting the pipe laying operation. The record reflects that there is much cross over among the job duties of pipelayers, operators, and laborers. Tracy Briggs (Briggs) is the owner and president of Respondent. Ronald Smith (Smith) is Respondent’s superintendent of construction. Douglas Ross (Ross) is Respondent’s project manager. Cody Walker (Walker) is Respondent’s estimator. Ken Satterfield (Satterfield), William Leady (Leady), and Kelly Daniels (Daniels) are Respondent’s foremen.2

2. The refusal to rehire Steven Scheffer

Steven Scheffer (Scheffer) was employed by Respondent as a pipelayer, equipment operator, and laborer from April 1 through September 10, 2002.3 Scheffer was also an organizer for the Union at the time of his employment with Respondent. In the course of his employment with Respondent Scheffer performed pipe laying duties, laborer’s work, and operated various types of equipment, including excavators, hole packers, loaders, dozers, and backhoes for 35 of the 118 days he worked for Respondent. Between April 1 and July 18, Scheffer received numerous compliments from his supervisors concerning the quality of his work. During this period of time Scheffer’s supervisor, Leedy, said Scheffer was a good excavator operator and should be running equipment full time for Respondent. When Scheffer admitted he made a mistake laying some pipe, Briggs told Scheffer he appreciated guys like him and that Scheffer was the type of guy they would like to keep around. On June 25 Briggs wrote Scheffer a letter of recommendation and gave him a $1.50-an hour raise.

On April 25, Scheffer was working at Respondent’s Madalyne Lane project with employees, Jim Nicholson, Sean Ryan, and Joe Primacio. Foremen Leady and Ken Tannehill (Tannehill) were also present. Around noon two business agents from the Union came to the jobsite and spoke to Jim Nicholson (Nicholson), a member of the Union. After the conversation with the union agents, Nicholson left the job. Later Leady was asked by Sean Ryan what happened to Nicholson. Leady replied that the union agents asked Nicholson to leave the job since Respondent was nonunion. Leady said that Briggs was going to be upset because he paid Jim [Nicholson] to leave the Union when he hired him.4 Later that day Briggs and Smith came to the jobsite. Briggs asked Tannehill if he was union. Tannehill replied, no. Briggs turned to Scheffer and asked if he was union or if he had been a member of a union. Scheffer said, no. Briggs then said, “Good, then I won’t have to worry about losing you.”5

On July 18, Scheffer was working at Respondent’s Vineyard jobsite. At about 6:45 a.m., Amir Gadiwalla (Gadiwalla), a person of East Indian descent and the director of organizing for the Union, spoke to Respondent’s employees about the Union. Gadiwalla handed out union literature and stickers to the employees. Scheffer put a union sticker on the center of his hard hat that said, “United We Bargain, Divided We Beg, Local 302.” After Gadiwalla left the jobsite, Respondent’s foreman, Satterfield, told Scheffer and other employees that he had been a member of the Union and nearly starved to death waiting on the out of work list. He said the Union was a rip off and the only reason that “f—king sand nigger was out there telling us union wise was because he had a full-time union job and basically he was just out there telling us lies and bullshit.” Later that day Satterfield told Scheffer and Jake Ford that, “if we wanted to be union and work union, we should go work for a union company because T.E. Briggs Construction would never be union.” Satterfield also told Scheffer and Ford that he was trained in the Army to kill people like Amir. Later that day Satterfield asked Scheffer what the sticker on his hard hat meant. Scheffer thereafter openly engaged in union organizing activities while working for Respondent including, speaking to employees about the Union, passing out union literature on the jobsites and wearing union insignia on his clothing while at work.

On August 9, during the 10 a.m. coffeebreak on Respondent’s Sunlit jobsite, Scheffer was talking to Respondent’s employees Ford and Ryan about wages and working conditions under the union contract. Satterfield came up and told Scheffer he was not allowed to talk about the Union on the job, that he was not allowed to possess union literature on the job and that he would have to get the union contract off the site. Satterfield said he was operating under Brigg’s authority. Later that day, Satterfield told Scheffer that Scheffer could no longer run equipment for Respondent. When Scheffer asked why, Satterfield replied that’s what Tracy wanted. When Scheffer asked if this had anything to do with the Union and his union activities, Satterfield said, yes it did. Later that day when Scheffer saw a laborer, Ryan, operating equipment, Scheffer asked Satterfield why Ryan was allowed to run equipment when he could not, Satterfield replied, “[Y]ou stirred the pot.”

On August 13 at the Sunlit project near the end of the day, Satterfield told Scheffer that he could no longer drive the company truck to and from the jobsite. Scheffer had been driving the company truck on a daily basis prior to this time. When Scheffer asked if this had anything to do with his union activities, Satterfield responded, “You stirred the pot, Steve. You and I both know what it’s about.”

On September 6 at about 1:30 p.m. on the Sunlit jobsite, Satterfield told Scheffer that there was no more work for him on the job that day but the rest of the crew would be working. Scheffer watched the crew work for over an hour doing curb grade, work that Scheffer had done in the past.

On September 9, Scheffer went to the Sunlit jobsite but was told by Satterfield that there was no work for him although the rest of the crew would be working. Scheffer was told to report to the Sunlit jobsite on September 10. Scheffer left the Sunlit jobsite and went to Respondent’s office where he participated in an unfair labor practice strike and walked a picket line. The picket signs stated that Respondent violated Federal law and had committed unfair labor practices.6

On September 10, Scheffer reported to the Sunlit job at 7 a.m. and told Satterfield he was going out on strike until the unfair labor practices had been remedied.

Scheffer remained on strike until November 13 when he made an unconditional offer to return to work in a letter of November 13.7 On November 22, a copy of the November 13 letter was faxed to Respondent.8 On December 3, Gadiwalla called Respondent’s office and advised a clerk to bring to Brigg’s attention that Scheffer had made an unconditional offer to return to work. Scheffer made additional offers to return to work on July 18, August 4, September 4, and October 15, 2003. On July 21, 2003, Scheffer received a letter from Respondent that advised there was no pipe laying work available.[9]

In late May or early June 2003, Respondent hired Jim Miller (Miller) as a laborer and Charles McJunkin (McJunkin) as an operator. In January or February 2003, Briggs first spoke to McJunkin at a jobsite. Respondent had previously worked at this jobsite and there were issues about Respondent’s placement of fill. McJunkin was the operator at that site, working for another employer. In resolving the issue of Respondent’s placement of the fill, Briggs observed McJunkin operating equipment at the site. McJunkin asked Briggs if he was hiring and Briggs said no. Later in March or April, McJunkin again approached Briggs and gave him his phone number. Briggs first considered McJunkin for hire in May 2003. Miller was hired in June 2003 after he approached Respondent’s superintendent, Ron Smith about a job.

3. The February 11 and March 14, 2003 refusal to allow Scheffer and Tom Stuart to apply for work

On February 11, 2003, Scheffer and union member Tom Stuart (Stuart) went to Respondent’s Edmonds, Washington office. Stuart was wearing a hat with Local 302 insignia on the front. As Scheffer and Stuart approached the office door, Jeremy Ball, Respondent’s estimator, ran to the front door and locked it. There was a no hiring/not accepting applications sign in the office window. Scheffer had gone to Respondent’s office to unconditionally offer to return to work and Stuart had gone to apply for work as an operator.

On March 14, 2003, Todd Werner (Werner), an unemployed union member, went with Scheffer and Stuart to Respondent’s office in Lynnwood, Washington. When Werner approached Respondent’s office, both Scheffer and Stuart were out of sight. Werner was wearing no union insignia. Werner was allowed to walk into the office without difficulty and asked for a job application. A person advised that Respondent was not hiring and provided Werner with a business card.

On March 14, 2003, after Werner’s visit, Scheffer and Stuart went to Respondent’s Lynnwood, Washington office to apply for work. Stuart was again wearing his union hat. Respondent’s estimator, Walker, met Scheffer and Stuart at the office door. Walker said that the office was closed, that Respondent was not hiring and that Scheffer and Stuart were not welcome there.

4. The June 6, 2003 refusal to hire or consider for hire Tom Kennedy, Mark Sande, Henry Arnoux, Ron Dahl,
Dan Taylor, and Daren Konopaski

On June 6, 2003, Union Organizer Todd Hassing (Hassing) went to Respondent’s Ash Way jobsite and spoke with Respondent’s foreman, Kelly. Hassing said that he was an equipment operator looking for work. Kelly said that Respondent was going to hire a crew within the month since they had just picked up a new job. Kelly told Hassing he had to go through Respondent’s office as all hiring was done at the office. Kelly then gave Hassing Respondent’s general superintendent, Ron Smith’s business card, and told Hassing to call the office. Hassing immediately called Respondent’s office and spoke to an individual who identified herself as Kerry. Hassing told Kerry he had spoken to Kelly who said Respondent was going to hire a pipe crew but that all hiring was done at the office. Kerry said that Briggs did all of the hiring. Hassing asked if he could come in and fill out an application. Kerry said he could and gave Hassing driving directions. When Hassing got to Respondent’s office, he observed a sign in the window that said Respondent was not hiring or taking applications. Hassing went into the office where Cody Walker was present. Hassing spoke to Walker and said he was there to fill out an application. Walker handed him an application and said, “You can either take it with you or you can fill it out here. Hassing filled out the application in the office and had the clerk make a copy.[10] While Hassing was filling out the application, Walker asked him what he did. Later Hassing called Briggs and Briggs told him Respondent was not hiring.

Meanwhile, on June 6, 2003, Scheffer, Tom Kennedy (Kennedy), Mark Sande (Sande), Henry Arnoux (Arnoux), Ron Dahl (Dahl), Dan Taylor (Taylor), and Daren Konopaski (Konopaski)[11] went to Respondent’s Lynnwood, Washington office to apply for work as operators. As the men approached the office door, Walker met the first applicant, Sande, at the front door and blocked his entry into the building. Walker said Respondent was not hiring or accepting applications. After some discussion about whether Respondent operated out of this building, Walker added that they were not welcome there and asked them all to leave.

On June 12, 2003, Janet McKinney (McKinney) went to Respondent’s Lynnwood, Washington office to apply for work. She was wearing no union insignia. McKinney walked into Respondent’s office without difficulty and was told that the person doing applications was gone until the next week. When McKinney asked if she could back, she was told yes. When McKinney came back on June 24, 2003, she entered Respondent’s office without difficulty and was told Respondent was not hiring.

5. The July 7, 2003 statement that Scheffer would
not be rehired because he was union and
the threat to throw a rock at Scheffer

On July 7, 2003, Scheffer went to Respondent’s Ash Way jobsite. Scheffer parked his car on a public road and watched the work. Respondent’s foreman, Leady, approached Scheffer and said there wasn’t much happening there that day. After Scheffer’s conversation with Leady, Hassing, an organizer for the Union, arrived at the jobsite and both men sat on the hood of Scheffer’s car. At that point Respondent’s superintendent, Ross, came up to Scheffer and Hassing. Ross told Scheffer and Hassing that they were on private property. Scheffer replied that they were on a public road with no “no parking” signs or construction cones. Ross then surrounded Scheffer’s car with construction cones and said, “Now, you’re in my work area. Get out of here or I’m calling the cops.” Scheffer then asked Ross why Respondent had hired a new guy[12] and had not brought Scheffer back to work. Ross replied, “Because I was a union member and I was an operator.” When Scheffer said he would have been happy to do laborer’s work, Ross said, “There’s no f—king way we’re going to hire you back. You’re Union.” After exchanging a few epithets, Ross walked away from Scheffer’s car, bent over and picked up a rock and made a throwing motion in Scheffer’s direction but did not release the rock. As Ross walked away he said, “You’re f—king lucky. Get the hell out of here.”[13]

B. The Discussion

1. The alleged 8(a)(1) conduct[14]

General Counsel has alleged that Respondent violated Section 8(a)(1) of the Act by threatening not to rehire Scheffer because of his union activity and by threatening him with physical violence because of his union sympathy.

It is well established that an employer who threatens not to hire or rehire an employee due to union activity violates the Act. Structural Finishing, Inc., 284 NLRB 981, 982 (1987); Starco, Inc., 323 NLRB 977 (1997); and Industrial Construction Services, 323 NLRB 1037, 1039 (1997). Here, on July 7, 2003, Respondent, through Superintendent Ross, told Scheffer he would not be rehired because he was union. This statement violated Section 8(a)(1) of the Act.

It is also the case that an employer who threatens employees with physical violence violates the Act. The Board found an employer who threatened to throw rocks at a union organizer violated Section 8(a)(1) of the Act. Zarcon, Inc., 340 NLRB 1222, 1228 (2003). On July 7, 2003, at the same jobsite where Ross told Scheffer he would never be rehired because he was union, Ross picked up a rock and made a throwing motion in Scheffer’s direction. Like the threat to throw rocks in Zarcon, Ross’ feigning to throw a rock at Scheffer was a threat of physical violence and came on the heels of his statement that Respondent would not rehire Scheffer because he was union. Ross’ action violated Section 8(a)(1) of the Act.

2. The refusal to offer reinstatement to Scheffer

Counsel for the General Counsel contends that Respondent violated Section 8(a)(1) and (3) of the Act by refusing to offer Scheffer reinstatement after he made an unconditional offer to return to work from an unfair labor practice strike. Respondent counters that Scheffer was not an unfair labor practice striker since he gave no reasons to indicate he was an unfair labor practice striker, that Scheffer abandoned his employment with Respondent by accepting regular and substantial equivalent employment elsewhere, and that there was no available work for Scheffer to perform upon his offer to return to work.

It is settled that both economic strikers and unfair labor practice strikers retain their status as “employees” under Section 2(3) of the Act. See NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345 (1938). As a result, an employer violates Section 8(a)(3) and (1) of the Act by failing to immediately reinstate strikers upon their unconditional offer to return to work, unless the employer establishes a legitimate and substantial business justification for failing to do so. See NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378 (1967); Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278 (1956); Marchese Metal Industies, 313 NLRB 1022, 1032 (1994); Laidlaw Corp., 171 NLRB 1366, 1368 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970).

In Zimmerman Plumbing & Heating Co., 339 NLRB 1302, 1304 (2003), the Board held that a former striker who makes an unconditional offer to return to work must be reinstated to substantially equivalent positions and to any non-equivalent positions requested for which he may be qualified.

Scheffer made unconditional offers to return to work on November 13 and 22 and December 3, 2002, as well as on July 18, August 4, September 4, and October 15, 2003.

The record reflects that Scheffer was hired by Respondent as a pipelayer. During the course of his employment with Respondent, however, Scheffer performed other duties including equipment operation and laborer’s work. Concerning Scheffer’s duties working on pipe laying crews, Superintendant Ross said Scheffer was a pipelayer/laborer. Ross said a laborer and pipelayer, “basically have the same multiple tasks. Labor work could be-a Laborer and a Pipe layer do a lot of the same things. A Laborer may use a shovel and a broom. A Pipe layer will use a shovel and a broom with other tasks, too, to go with it.”[15] Respondent asserts that Scheffer said he considered laborer’s work below him. However, there is no evidence he ever refused to perform such work or that he indicated he would not perform such work upon reinstatement.

There is also evidence that Scheffer frequently operated equipment.^[16] The record is replete with evidence of Scheffer’s operation of many types of heavy machines. Other than one occasion when Briggs told Scheffer not to strike the ground so hard with the bucket of the backhoe,[17] Scheffer regularly received compliments from his supervisors for the quality of his operator work. Scheffer was told by Supervisor Leedy he should be operating equipment full time for Respondent. Briggs assertion that Scheffer was not qualified to operate machinery is without support in the record.

Respondent filled the positions of operator and laborer in late May 2003 after Scheffer made an unconditional offer to return to work. These are substantially equivalent positions for which Scheffer was qualified.

Moreover, there is considerable evidence that antiunion animus motivated Respondent’s failure to offer Scheffer reinstatement. Briggs interrogated employees about their union membership, Satterfield told employees if they wanted to be union they should work for a union company, Satterfield said he was trained to kill people like Union Director of Organizing Gaddiwalla, Satterfield told Scheffer he could not have union literature on the jobsite, Satterfield told Scheffer he could not operate Respondent’s equipment because of his union activity ,and Ross told Scheffer he would not be rehired because he was Union and threatened Scheffer with a rock.

Unless Respondent can establish a legitimate and substantial business justification for failing to reinstate Scheffer after November 13, 2002, to an available job for which he was qualified, General Counsel has established Respondent has violated Section 8(a)(1) and (3) of the Act.

In its defense, Respondent argues that 3D Enterprises Contracting Corp., 334 NLRB 57 (2001), provides guidance for the proposition that Scheffer was not an unfair labor practice striker since he did not give reasons for going on strike. I note initially that the judge in 3D Enterprises Contracting found that there were no underlying unfair labor practices to give rise to an unfair labor practice strike. Thus, the remainder of his decision regarding intent is dicta. The judge found further that there was no evidence of employees’ intent concerning the purpose of the strike, as expressed at the time it occurred:

The requirement that the General Counsel introduce evidence of employees’ expressions “at the time of the relevant events” is a minimal one, especially since employer representatives are seldom present when such expressions are made. Except for the testimonies of Montoney and Huff about what happened before and after the June 2 union meeting, however, the General Counsel offered only the type of evidence that the Board rejected in [Thorpe]—the employees’ “subjective reasons for striking, as asserted for the first time at the hearing.”[18]

Respondent’s reliance on 3D Enterprises Contracting is misplaced. Here, there is evidence of Scheffer’s intent as expressed at the time of the relevant events. On September 10, Scheffer reported to the Sunlit job at 7 a.m. and told his supervisor, Satterfield, he was going out on strike until the unfair labor practices had been remedied. The previous day, Scheffer had walked a picket line in front of Respondent’s office where picket signs were displayed stating that Respondent violated Federal law and had committed unfair labor practices. Scheffer need not provide a reasoned explanation for actions. The only requirement is evidence of employees’ expressions at the time of the relevant events. Here, Scheffer put Respondent on notice that he was going on strike to protest unfair labor practices. I find that Scheffer was an unfair labor practice striker as of September 10, 2002.

Respondent takes the position that Scheffer abandoned his right to reinstatement by Respondent.[19] The Board has held in Zimmerman Plumbing & Heating Co., 334 NLRB 586, 588 (2001) (Zimmerman I) that:

A former striker awaiting reinstatement may accept interim employment elsewhere. Indeed, the Board has recognized that the right to seek interim employment is a vital adjunct to the exercise of the right to strike and is itself protected activity. See Christie Electric Corp., 284 NLRB 740, 759 (1987). Accepting interim employment normally will have no effect on a former striker’s reinstatement rights. One exception is that if a former striker accepts other “regular and substantially equivalent employment,” within the meaning of Section 2(3), then he forgoes his reinstatement rights with the employer. See Marchese Metal Industries, 313 NLRB at 1028–1031 (1994); Little Rock Airmotive, Inc., 182 NLRB 666, 667 (1970), enfd. in pertinent part 455 F.2d 163 (8th Cir. 1972).

….

Determining whether a former striker’s interim employment constitutes “regular and substantially equivalent employment” cannot be answered by a “mechanistic application of the literal language of the statute.” Little Rock Air Motive, 182 NLRBat 666–667. Thus, while the Board compares the terms and conditions of the striker’s interim job to his prestrike job, the Board ultimately gives controlling weight to whether the “striker intended to abandon his employment with the employer by accepting interim employment with another employer.” Marchese Metal, 313 NLRB at 1030. See also Rose Printing Co., 304 NLRB at 1076 fn. 3. Accord: Alaska Pulp Corp., 326 NLRB 522, 524 (1998), enfd. in part and remanded in part sub nom. Sever v. NLRB, 231 F. 3d 1156 (9th Cir. 2000). The Board presumes that the striker did not intend to forfeit his reinstatement rights; the burden is on the employer to prove otherwise. See Marchese Metal, 313 NLRB at fn. 1 and 1031.

After remanding the case to the judge, in Zimmerman Plumbing & Heating Co., 339 NLRB 1302 (2003) (Zimmerman II), the Board affirmed the judge who found that employee O’Brien had not abandoned his employment by taking interim employment elsewhere, noting that O’Brien, despite his higher paying and substantially equivalent interim employment, had continued to express interest in his employment with the respondent.

Finally, Respondent contends that after November 13 there was no available work for which Scheffer was qualified. While Respondent admits that in late May or early June 2003, it hired Miller as a laborer and McJunkin as an operator, it argues that Scheffer was underqualifed to be an operator and had expressed no desire to work as a laborer. As noted above, I have found Scheffer was qualified to perform work as both an operator and laborer.

I find Respondent’s failure to reinstate Scheffer was motivated by his union activity and violated Section 8(a)(1) and (3) of the Act.

3. The failure to hire or consider for hire the union applicants

Counsel for the General Counsel argues that Respondent discriminatorily failed to hire and failed to consider union applicants for hire on February 11, March 14, and June 6, 2003. Respondent takes the position that it did not violate the Act since the union applicants’ conduct removed them from the protection of the Act, there is no evidence that they were qualified to fill available positions, Respondent was not hiring at the time they applied, there is no evidence antiunion animus motivated Respondent and its nondiscriminatory hiring policy would have precluded the union applicants from being considered for hire.

In FES, 331 NLRB 9 (2000), the Board promulgated a test to establish a discriminatory refusal to hire. General Counsel must show:

(1) [T]hat the respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) that the applicants had experience or training relevant to the announced or generally known requirements of the positions for hire, or in the alternative, that the employer has not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the applicants. Once this is established, the burden will shift to the respondent to show that it would not have hired the applicants even in the absence of their union activity or affiliation. [Id. at 12.]

The employer has the burden of proof to show that the applicant did not meet its criteria for the position, was unqualified for the position or was not as qualified as others who were hired. FES, supra.

In refusal to consider for hire cases the Board in FES established the following test:

To establish a discriminatory refusal to consider, pursuant to Wright Line, supra, the General Counsel bears the burden of showing the following at the hearing on the merits: (1) that the respondent excluded applicants from a hiring process; and (2) that antiunion animus contributed to the decision not to consider the applicants for employment. Once this is established, the burden will shift to the respondent to show that it would not have considered the applicants even in the absence of their union activity or affiliation. [Id. at 15.]

a. Tom Stuart

Counsel for the General Counsel argues that Respondent both failed to hire and failed to consider Stuart for hire. On February 11 and March 14, 2003, Stuart attempted to apply with Respondent for a position as an operator. While there is no doubt that Stuart was a qualified operator, there is insufficient evidence that Respondent was hiring or had concrete plans to hire any operators in February or March 2003. Counsel for the General Counsel argues that Respondent was considering McJunkin for hire during the January to March 2003 period. However, the record reflects that it was McJunkin who was lobbying for a job with Respondent and until mid-May Briggs consistently told McJunkin Respondent was not hiring. I find that General Counsel has failed to establish a prima facie case that Respondent discriminatorily refused to hire Stuart since there is no evidence Respondent was hiring or had concrete plans to hire on February 11 or March 14, 2003. FES, supra.

With respect to the allegation that Respondent failed to consider Stuart for hire, there is some evidence that Respondent gave nonunion applicants greater access to Respondent’s office than union applicants. Counsel for the General Counsel argues nonunion identified applicants Werner, Hassing, and McKinney were each given access to Respondent’s office and Hassing was allowed to fill out an application. There is no evidence Respondent was aware that Werner, Hassing, or McKinney were union members at the time they went to Respondent’s office or at the time they were told Respondent was not hiring.

When Stuart and Scheffer approached Respondent’s office on February 11, 2003, wearing union insignia, the door was locked. When Stuart and Scheffer went to Respondent’s office on March 14, 2003, wearing union insignia they were told by