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,
Shisler Electrical Contractors, Inc. and International Brotherhood of
Electrical Workers, AFL–CIO, Local 241. Case 3–CA–22768
April 27, 2007
DECISION AND ORDER
By Chairman Battista and Members Schaumber
and Walsh
On January 7, 2002, Administrative Law Judge Paul Buxbaum issued the attached decision. The Respondent and the General Counsel filed exceptions and supporting briefs, and the General Counsel filed an answering 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 only to the extent consistent with this Decision and Order.
The judge found that the Respondent violated Section 8(a)(3) and (1) by refusing to consider and hire applicants Gary Kirton and Gary Fulcher because of their union activities. For the reasons stated below, we adopt the judge’s finding that the Respondent unlawfully refused to consider and hire Kirton, but reverse his findings as to Fulcher. We also defer the General Counsel’s request for a tax reimbursement remedy to the compliance stage of this proceeding.
Background
The Respondent, a small, informally operated electrical
contractor located in
Journeyman electrician Gary Kirton is an organizer for the
International Brotherhood of Electrical Workers, AFL–CIO, Local 241. Kirton repeatedly, since 1996, sought to
persuade Shisler to enter into a collective-bargaining relationship with the
On July 24, 2000, journeyman electrician Gary Fulcher, at
Kirton’s suggestion, applied for a position with the Respondent. The next day, Shisler met with Fulcher to
discuss Fulcher’s experience and qualifications. Shisler testified that he told Fulcher that
he “might have some other things in the fire or something.” Shisler then asked Fulcher about the
reference to “Local 25, IBEW” on his resume, and Fulcher explained that it referred
to the
On August 23, 2000, Kirton gave Shisler another copy of his resume. Shisler stated that “if he gave [Kirton] a job, the only thing [Kirton] would do would be to organize his people.” Kirton was not hired.
The next day, applicant Mark Snyder telephoned Shisler and asked if he had any work. Shisler arranged for an interview, which was held on August 26, 2000. On August 29, Shisler hired Snyder as an electrician.2
In May 2001, Kirton made another unsuccessful attempt to obtain employment. No other electricians were hired until sometime between late June and mid-July 2001, when the Respondent hired Jim Duncan. In addition, on July 26, 2001, during a hiatus in the hearing in this case, the Respondent sent a letter to Fulcher offering him an electrician position. Fulcher never responded to the offer.
Analysis
Refusal to Consider Gary Kirton
To establish a refusal to consider violation, the General
Counsel must show that the employer excluded applicants from the hiring
process, and that antiunion animus contributed to the decision not to consider
the applicants for employment. Once this
is established, the burden shifts to the respondent to show that it would not
have considered the applicants even in the absence of their union activity.
We find that the General Counsel met his burden of proof with respect to the refusal to consider Kirton. Kirton was excluded from the hiring process because, although Shisler accepted Kirton’s resume, he did not review the resume, interview Kirton, or otherwise consider Kirton’s qualifications for employment. Rather, he stated merely that “if he gave [Kirton] a job, the only thing [Kirton] would do would be to organize his people.” Although “[a]n employer’s acceptance of applications generally supports a finding that the employer considered the applications,”3 a refusal-to-consider violation can be established where an employer accepts a union adherent’s application but also makes comments showing it was excluding him from the hiring process because of his union affiliation. See Wayne Erecting, Inc., 333 NLRB 1212 (2001) (comment that respondent would not hire applicant because applicant would “tell us all to join the union” shows that applicant was excluded from the hiring process because of his union activity and affiliation). Shisler’s comment to Kirton similarly shows that Kirton was not considered for employment because of his organizing activities and establishes that antiunion animus contributed to Shisler’s decision not to consider Kirton for employment.4
The Respondent has offered no evidence to show that it would not have considered Kirton even in the absence of his organizing activity. Shisler’s comment to Kirton indicates that the Respondent’s unwillingness to consider Kirton was based solely on his organizer status. Therefore, we find that on August 23, 2000, the Respondent unlawfully refused to consider Kirton in violation of Section 8(a)(3) and (1).5 See Brown & Root USA, Inc., 319 NLRB 1009 (1995) (unlawful refusal to consider applicants because of union organizer status).
Refusal to Hire Gary Kirton
The judge found, and we agree, that the General Counsel
has shown a discriminatory refusal to hire Kirton under
For the following reasons, we find that the Respondent violated Section 8(a)(3) and (1) by refusing to hire Kirton. First, the General Counsel has shown that the Respondent was hiring or had concrete plans to hire at the time Kirton applied for employment. Kirton submitted his resume on August 23, 2000. The next day, applicant Snyder telephoned Shisler and asked if he had any work. Shisler interviewed Snyder on August 26. On August 29, Shisler hired Snyder to fill an electrician position. Thus, Kirton’s application was just days old at the time Snyder was interviewed and hired.
Second, the General Counsel has shown that Kirton “had
experience or training relevant to the announced or generally known
requirements of the positions for hire.”
Third, as discussed above, the General Counsel has shown that the Respondent harbored animus toward Kirton’s union activities. Shisler feared that “if he gave [Kirton] a job, the only thing [Kirton] would do would be to organize his people.” See Sommer Awning Co., 332 NLRB 1318, 1318–1319 (2000) (animus established by employer stipulation that it refused to hire applicants because of their participation in union’s organizing program).
Contrary to our colleague, we find that Shisler’s statement adequately establishes that antiunion animus was a motivating factor in the Respondent’s refusal to consider or hire Kirton. The statement, on its face, expresses the notion that, if Shisler hired Kirton, Kirton would unionize the Respondent’s work force. The statement itself therefore clearly indicates that this was the reason why he would not give Kirton a job, and therefore demonstrates antiunion animus.
We agree that the context of a remark is relevant. But here the context only adds to the
antiunion animus of the remark. Kirton
had sought for a long time to obtain recognition for the
Our colleague also suggests that Kirton was not really seeking a job at all. The facts are to the contrary. Kirton expressly said that he would take any job, just to be hired. Indeed, as discussed above, becoming an employee was to be a part of his organizational effort.6
Because the General Counsel has established all the elements of a refusal to hire violation as to Kirton, the burden then shifts to the Respondent to show that it would not have hired Kirton even in the absence of his union activity. The Respondent has not met its burden of showing that it would not have hired Kirton even in the absence of his organizing activities. Shisler’s comment to Kirton indicates that Kirton’s organizing activity was the reason he was not hired. Accordingly, we find that on August 29, 2000, the Respondent violated Section 8(a)(3) and (1) when it refused to hire Kirton for the position offered to Snyder.7
Refusal to Consider Gary Fulcher8
We find that the General Counsel has not satisfied the
first prong of the
Refusal to Hire Gary Fulcher
Contrary to the judge, we find that the General Counsel has not established all the elements of a discriminatory refusal to hire Gary Fulcher. Specifically, we find that the General Counsel failed to satisfy his burden of showing that the Respondent was hiring or had concrete plans to hire at a time when Fulcher’s application was active.11
Fulcher’s application was submitted on July 24, 2000. There is no evidence that there were any job openings for electricians as of that date. Shisler merely indicated to Fulcher that there “might” be “some other things in the fire or something.” Further, as the judge found, Shisler “hired employees on an ad hoc basis, hiring “whomever he wished whenever he wished to do so.” Therefore, the record does not support a finding that the Respondent had a “concrete” plan to hire electricians at the time that Fulcher submitted his July application.
The General Counsel did, however, show that the Respondent was hiring 5 weeks later on August 29, when the Respondent hired Snyder. But in order to establish a discriminatory refusal to hire Fulcher for that August 29 position, the General Counsel would have to show that Fulcher’s application was still active as of that date. That would entail proving that the Respondent had an application retention policy under which applications remain viable for at least 5 weeks, the period of time between Fulcher’s application and Snyder’s hiring.12 For the following reasons, we find that the General Counsel did not show that the Respondent had such an application retention policy.
Shisler testified that he generally kept applications for 1–2 weeks, but the judge found that “in keeping with its informal hiring processes, there was no evidence that the Company had any specified time limits for continuing to consider applications to be current.”13 However, the burden is on the General Counsel to show a retention policy. The judge inferred an indefinite application retention policy from the Respondent’s July 26, 2001 job offer to Fulcher, made during the course of this litigation and 1 year after Fulcher’s application. ALJD fn. 21.14 Contrary to the judge, we do not believe that it is appropriate to infer a general indefinite application retention policy from a single employment offer to an alleged discriminatee during the course of litigation. An offer can be made for many reasons (e.g., effort to toll backpay or as part of litigation strategy). Such an offer is not necessarily probative of the Respondent’s normal business practices. Moreover, the judge’s inference that the Respondent routinely kept applications active indefinitely is inconsistent with his finding that the Respondent had no “customary method of hiring at all.” Shisler’s hiring process was informal, unconstrained by any written policies or procedures, and an inference that applications were generally retained for as long as a year (or even 5 weeks) is not warranted. For these reasons, we find that the General Counsel has not shown an application retention policy that would establish that Fulcher’s application was still active 5 weeks after it was filed. Because the General Counsel has not shown that there was an active application on file at the time hiring took place (either in 2000 when Snyder was hired or in 2001 when Duncan was hired), or that there was a concrete plan to hire when Fulcher’s application was still fresh, we find that the General Counsel has not established a prima facie case as to Fulcher.
Our dissenting colleague acknowledges the principle that the General Counsel must show that an application “would” still be regarded as active when a subsequent opening occurred. However, our colleague then goes on to find that the application was active here because there was no reason why the Respondent “could” not have considered it at the time of the subsequent opening. We believe that our colleague was correct at the outset.
Accordingly, we shall dismiss the allegation that the Respondent violated Section 8(a)(3) and (1) of the Act by refusing to hire Fulcher either in 2000 or in 2001.15
ORDER
The National Labor Relations Board orders that the
Respondent, Shisler Electrical Contractors, Inc.,
1. Cease and desist from
(a) Refusing to consider for employment or refusing to hire job applicants because of their membership in or activities on behalf of the International Brotherhood of Electrical Workers, AFL–CIO, Local 241, or any other labor organization.
(b) 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 Gary Kirton instatement to the position for which he applied or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges to which he would have been entitled absent the discrimination against him.
(b) Make Gary Kirton whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful refusal to consider and hire Gary Kirton, and within 3 days thereafter, notify him in writing that this has been done and that the discriminatory action 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 reports, 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
(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 not found.
Dated,
______________________________________
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
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 refuse to consider for employment or refuse to hire job applicants because of their membership in or activities on behalf of the International Brotherhood of Electrical Workers, AFL–CIO, Local 241, or any other labor organization.
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 Gary Kirton instatement to the position for which he applied or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges to which he would have been entitled absent the discrimination against him.
We will make Gary Kirton whole for any loss of earnings and other benefits he may have suffered by reason of the discrimination against him.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful refusal to consider and hire Gary Kirton, and we will, within 3 days thereafter, notify him in writing that this has been done and that the unlawful action will not be used against him in any way.
Shisler Electrical Contractors, Inc.
Nicole Roberts, Esq. and Ron Scott, Esq., for the General Counsel.
Joseph J. Steflik Jr., Esq., of
Gary Kirton, of
DECISION
Paul Buxbaum,
Administrative Law Judge. The original
charge in this matter was filed October 26, 2000, with first and second amended
charges filed December 27, 2000, and January 9, 2001, respectively. The complaint was issued January 16, 2001. The case was tried in
The complaint alleges that since July 25, 2000, the Company has refused to consider for employment and, since August 26, 2000, has refused to hire Gary Fulcher. It also alleges that since August 23, 2000, the Company has refused to consider for employment and, since August 26, 2000, has refused to hire Gary Kirton. It is further alleged that the Company’s refusals to consider for employment and hire the named employee-applicants occurred because these individuals were union members and engaged in protected concerted activities. The Respondent’s conduct is alleged to be in violation of Section 8(a)(1) and (3) of the Act. Respondent’s answer denies the material allegations of the complaint and raises affirmative defenses.2
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Company, I make the following
Findings of Fact
i.
jurisdiction
Shisler Electrical Contractors, Inc., a corporation,
maintains an office in
ii. alleged
unfair labor practices
A. The Facts
In December 1990, Lloyd Shisler Sr., formed Shisler Electrical Contractors, Incorporated. He is the president and sole owner of the corporation. During the year 2000, the Company employed a total of nine persons at varying times, including Shisler and his son, Lloyd Shisler Jr. Catherine Allen, a salaried employee, served as the office manager and bookkeeper. The remaining employees were paid at different hourly wage rates. Harold Russell was paid $15 per hour. James Bovard received $14 per hour, while Gabriel Goodman’s hourly rate of pay was $13. Randy Smith and Mark Snyder received $12 per hour. Finally, James Traphagen’s compensation was $8 an hour.
For approximately 6 years, representatives of Local 241 of the International Brotherhood of Electrical Workers have held numerous meetings with Shisler in an effort to persuade him to enter into a collective-bargaining relationship with Local 241. Gary Kirton, Local 241’s union organizer, conducted many of these efforts.3
Almost 5 years ago, Kirton introduced himself to Shisler
and began a series of numerous contacts designed to persuade Shisler to enter
into a collective-bargaining relationship with Local 241. One such meeting was held in January 2000. At that time Shisler agreed to a further
meeting with Kirton and Dave Carr, the
On May 17, 2000, Kirton and Shisler met again. Shisler declined to enter into a relationship
with the
In addition to the efforts to obtain a
collective-bargaining agreement with Shisler, the
The record contains a resume prepared by Kirton. It does not list any past employers except his own electrical contracting company. It does report past work as a journeyman electrician and experience in “estimating, payroll, collections, running jobs, hiring, safety meetings, purchasing and driving truck[s].” (GC Exh. 2.) When asked if this resume was identical to the one given to Shisler, Kirton stated that he “believe[d]” it was. (Tr. 94.) Kirton did not testify that he sought a Shisler job application form and such a form was not completed.
Kirton met with Shisler alone on August 23, 2000. He gave Shisler another copy of the resume he had provided in May. Kirton testified that Shisler told him that if he gave Kirton employment, the only thing Kirton would do “would be to organize [Shisler’s] people.” (Tr. 103.) Shisler denied that he made any such statement. Kirton also testified that he made another effort to obtain employment from Shisler in May 2001.
Shisler and Kirton agree that Kirton gave Shisler at least one resume. Shisler testified that Kirton never submitted a job application form. Kirton’s testimony on this question is difficult to quantify as he persistently confused his submission of resumes with the issue of whether he completed a company application form.6
Aside from making an effort to obtain
employment from Shisler, Kirton also recommended that Gary Fulcher seek employment
with the Company. Fulcher is a
journeyman electrician with 19 years’ experience. He is a member of Local 25 of the
International Brotherhood of Electrical Workers. This Local serves the
On July 24, 2000, Fulcher went to the office of Shisler Electrical Contractors and spoke with Catherine Allen. She gave him a company application form that he completed and returned to her. She also asked if he had a resume and he stated that he could provide one on the following day. Fulcher testified that on the next day he returned with a resume. Allen was not present, but Shisler accepted the resume. Shisler and Fulcher spoke for approximately 10 minutes, during which Shisler scanned Fulcher’s application and resume. They discussed Fulcher’s experience and qualifications as well as Shisler’s inability to pay wages at rates comparable to Fulcher’s past employment. Fulcher testified that Shisler stated that he was just awarded a job commencing on the following Wednesday and asked if Fulcher could begin work at that time. Fulcher indicated that he was available. Fulcher further testified that Shisler then asked what the abbreviation “Local #25, IBEW” meant on Fulcher’s application and resume.7 Shisler then concluded the meeting and stated that Fulcher would be hearing from him. Shisler disputed this version of events, testifying that he had a brief conversation with Fulcher but did not obtain a resume or application and did not tell Fulcher about a specific job, but merely that, “I might have some other things in the fire or something.” (Tr. 276.)
In the days following the July 25 meeting, Shisler did not contact Fulcher. Fulcher did not make any further inquiries with Shisler. Two weeks after their meeting, Fulcher obtained employment with another employer.
On July 26, 2001, Shisler wrote to Fulcher, making him an “unconditional offer of employment” as an electrician commencing August 1, 2001. The offer did not specify a precise wage rate but referred to “the same wages . . . as enjoyed by other employees.” (R. Exh. 15.) Fulcher did not respond to this letter.
The General Counsel alleges a refusal to consider Fulcher for employment since July 25, 2000, and a similar refusal to consider Kirton since August 23, 2000. The evidence reveals that on August 29, 2000, the Company hired one new employee, Mark Snyder. The parties are in sharp disagreement as to whether Snyder was hired as a laborer/helper or as an electrician. They point to evidence regarding both Snyder’s background and the work that he actually performed for the Company.
Snyder testified regarding his work history prior to his employment by the Company. When asked what sort of work he performed, he responded that he did “[p]lumbing, electrical, equipment operator, truck driver.” (Tr. 197.) He reported that he has been doing electrical work for the past 20 years, but has not had any formal training in this field. He has performed a variety of electrical work, including pulling wire and installing light fixtures.
Snyder also submitted a resume. (GC Exh. 30.) This resume sheds no light on what transpired between Snyder and Shisler at the time that Snyder was hired since the resume was clearly prepared after Snyder’s hiring. This is demonstrated by the fact that the resume references Snyder’s work for Sonia Thayler, a job he performed while employed by Shisler.
Although Shisler could not have considered the resume in the hiring process, the document does illuminate Snyder’s subjective view of his experience and qualifications. Snyder characterizes his past occupations as laborer, hoist operator, maintenance worker, and supervisor. He does not describe any of his past work history as having been as an electrician. While he notes past employment with New York State Electric & Gas, he lists his position as a “laborer.” He does, however, list specific tasks in the electrical field that he has performed, including installation of panel and junction boxes, rewiring an entire house, installing fixtures, and troubleshooting.
While the record does not include the particular resume that Snyder testified he provided to Shisler, it does contain the Company’s job application form as completed by Snyder. (R. Exh. 3.) Snyder did not respond to the portion of the application that asks the applicant to list the type of position being sought. When asked to describe any areas of special study or job-related skills, he only listed his possession of a commercial driver’s license. When asked to list his last four employers, he chose to list only his most recent employment and he characterized this occupation as “laborer.”
Snyder testified regarding the manner in which he came to be employed by the Company. He found the Company by looking in the yellow pages and telephoned to ask about work. Shisler then interviewed him in person. Discussion centered on Snyder’s work experience and prospective wage. As to the wage issue, Snyder testified that “I was trying to get $15 and he was trying to get $12.”8 (Tr. 215.) Snyder also testified that he and Shisler did not discuss a precise job title or classification for his employment with the Company.
In addition to this evidence regarding Snyder’s past work experience and qualifications, both Kirton and Shisler expressed opinions regarding this issue. Shisler testified that Snyder was hired for the position of “[h]elper.” (Tr. 263.) Kirton testified that he was acquainted with Snyder because Snyder came to his office after leaving Shisler’s employ. Kirton opined that Snyder was not a journeyman electrician, but did electrical service repair work on his own.
There is also evidence regarding the type of work that Snyder actually performed during his period of employment for the Company. This evidence is limited by the fact that Snyder was only employed from August 29 to September 26, 2000. The most probative evidence in this regard consists of the Company’s own records for each job. The General Counsel admitted 10 of these documents. (GC Exhs. 16 through 25.) The Company admitted 11.9 (R. Exhs. 4 through 14.) Taken together, these documents describe the vast majority of the jobs performed by Snyder during his brief tenure with the Company. In addition, testimony was received that further explained some of the jobs described in the reports.
The evidence includes a total of 21 jobs performed by Snyder while employed by the Company. He performed nine of those jobs alongside other company employees. Shisler testified that the other employees were the lead workers on those jobs. Snyder’s testimony tended to minimize the extent that the companion workers supervised his work and to emphasize the complexity of the tasks he performed on the jobs. These work assignments included installing and disconnecting wiring and replacing a meter. Snyder’s remaining 12 jobs were performed alone with job instructions being provided by Shisler. These jobs consisted of installing light fixtures, doorbells, and a bathroom fan, changing ballasts and light bulbs, and replacing outlets. The overall impression presented by evidence is that Snyder was assigned routine service tasks on his own.10 He was only assigned more complex electrical work when the job assignments involved more than one employee.
Snyder testified that he quit his employment with Shisler
in September 2000 due to his belief that Shisler had failed to keep certain
promises made at the time of his hiring. Specifically, Shisler failed to give him a
raise and reimburse him for transportation expenses. He also expressed dissatisfaction with his
next proposed job assignment as it was some distance away in
After Snyder left his employ, Shisler did not hire another
employee until the summer of 2001. At
that time he hired Jim Duncan as an electrician.
The General Counsel also introduced evidence in an effort to establish that the Company intended to hire other workers but did not implement such plans out of a desire to avoid hiring Fulcher and Kirton. This evidence was of two basic types.11 First, there was testimony offered to prove that the Company’s workload was so large that it mandated additional hiring. The primary witness in this regard was Bovard. Bovard testified that the Company’s employees frequently urged Shisler to hire more employees due to workload pressures. Upon cross-examination, Bovard conceded that the workload pressure was seasonal as employees were required to work on school projects at night so as to avoid disrupting the educational process during daytime hours. Thus, Bovard agreed that by July 2000, “we were pretty much back to eight hour days.” (Tr. 38.) Bovard’s testimony was unclear as to why workload pressure compelled a management decision to engage in new hiring. Upon direct examination he asserted that the employees were working 16-hour days and “we were getting worked really hard.” (Tr. 34.) Yet, on cross-examination, he agreed that there were not large amounts of overtime, but he complained that the employees “were getting moved around quite a bit and not being able to finish things.” (Tr. 42.) On redirect examination, he reverted to the claim that he was working 14- to 16-hour shifts as often as 3 days out of every 5. (Tr. 44.) However, on recross-examination he again conceded that “[w]e didn’t work overtime year round.” (Tr. 46.) In fact, the Company bookkeeper’s testimony, derived from the corporate payroll records, showed very modest amounts of overtime. For example, the amount of overtime paid during the quarter ending in June 2000 was $1082.25, and during the quarter ending in September 2000 was a mere $78.
The second type of evidence regarding the Company’s intent to engage in additional hiring is testimony from Victor Powers, an employee of the New York State Department of Labor. Powers testified and provided written documentation to show that on December 4, 2000, Shisler placed a job order with the Department of Labor. The order was for an “experienced journeyman electrician—able to work alone, reading blueprints.” (GC Exh. 9.) The order was for a full-time position with a salary range of $8.50 to $12 per hour. Powers testified that no referrals were made to the Company and the job order lapsed. Shisler testified that his purpose in placing the job order was to conduct a survey to determine worker availability for a prospective project with Kasonic Builders that would involve construction of as many as 50 or 60 houses. He reported that the project never materialized. He further testified that he framed the inquiry as a job order rather than a survey so that he could use the free services of the Department of Labor for this purpose. Powers testified that such use of the department to conduct a sub-rosa labor survey was known to him, although he noted that employers would never admit to this practice when contacting the department.
B. Analysis
The General Counsel alleges that the Company engaged in
discriminatory refusals to consider for employment and to hire Kirton and
Fulcher. The Board established the
analytical framework for assessment of such allegations in
The holding in
Analysis of the alleged refusals to hire Fulcher and
Kirton begins with the question of whether the Company was hiring or had
concrete plans to hire. The period under
consideration commences “on or about August 26, 2000” and extends to “all times
thereafter.”12 It is undisputed that during the period from
August 26, 2000, through the concluding date of the hearing on September 27,
2001, the Company extended job offers on three occasions. On August 29, 2000, Mark Snyder was hired. The next job offer made by the Company was to
Jim Duncan. Shisler could not provide
the precise date of
It is also undisputed that
The Company is a small business, owned and operated by one individual. There is no evidence that the Company had any written hiring policies or procedures. In fact, there is no evidence that the Company had any customary method of hiring at all. Shisler made all hiring decisions on an ad hoc basis. Snyder testified that he was looking for work in the yellow pages and called the Company to ask about prospective employment. He did not respond to a job advertisement or notice, so there is no written documentation regarding the type of work that was available. Snyder testified that during his interview with Shisler there was no discussion of a precise job classification and during his period of employment he was never provided with a designated job title. Given these informalities, other evidence must be considered in deciding whether the job filled by Snyder was for a laborer/helper or an electrician.
There is evidence that supports the Company’s position that Snyder was hired as a laborer. For example, he did not have any formal training as an electrician. While his past work history included electrical work, it also included plumbing, equipment operation, and truckdriving. Snyder characterized his most recent job for New York State Electric & Gas as a laborer. After his hiring, he performed 9 of his 21 jobs for the Company alongside a lead worker. Many of his work assignments were unsophisticated, involving such tasks as changing light bulbs and replacing ballasts and outlets.
Considerable evidence was introduced to cast Snyder’s position in a more professional light. Snyder testified that he had 20 years of experience in performing electrical work. His prior work history included tasks that were indicative of a residential electrician’s level of skill, such as wiring an entire house and installing electrical panels, junction boxes, and light fixtures. More than half of his work assignments for the Company were performed by himself, although performed in accordance with instructions from Shisler. Some of these solitary jobs went beyond simple tasks and included installation of fixtures and electrical appliances such as fans and doorbells.
Resolution of the nature of the job for which Snyder was hired poses some difficulty based on this evidence. However, there is a clear item of objective evidence that strongly supports a conclusion that Snyder was hired as an electrician. Snyder testified that he sought a pay rate of $15 per hour but settled on Shisler’s proposed pay rate of $12 per hour with a promise of a future increase to $13 per hour. Comparison of Snyder’s pay rate with that of the other employees of the Company is striking. The Company’s electricians (Russell, Bovard, Goodman, and Smith) were paid from $12 to $15 per hour. The Company’s laborer (Traphagen) was paid at the rate of $8 per hour. It is readily apparent that Snyder was compensated at a rate comparable to the lowest rate for company electricians and 33 percent higher than the rate paid to the laborer. I find this rate of pay at the lowest level of electrician’s compensation to be entirely consistent with the overall evidence regarding his past work experience and the types of job tasks he was assigned while with the Company. There was no evidence of any special circumstance affecting Snyder’s rate of pay. It will be recalled that he located the Company in the yellow pages and certainly did not appear to have any insider connections that could account for his rate of pay.14 I find this objective evidence to be highly probative in resolving the issue and conclude that Snyder was hired as an electrician. It follows that the Company had a job opening for an electrician at the time of Snyder’s hiring.
In addition to the three job openings for electricians
established in the record, the General Counsel presented circumstantial
evidence to suggest that the Company had intentions of hiring additional
employees. As stated by the Board in
The General Counsel contends that the Company “had intentions
of hiring” on July 25, 2000 when Shisler interviewed Fulcher.17
In support, the
General Counsel alleges that Shisler told Fulcher that he had a job commencing
on the following Wednesday. While
recognizing that the Company did not hire anyone at that time, General Counsel
urges that it be inferred that the decision not to hire was made in order to
avoid hiring union applicants. I cannot
agree with this view of the evidence. The
primary difficulty with this version of events is that it ignores the manner in
which Fulcher came to be interviewed. Fulcher
sought Kirton’s assistance in locating work in the
For these reasons, I conclude that the evidence fails to establish that the Company had any “concrete” plans to hire at the time of Fulcher’s interview. In so doing, I note that when the Board established the requirement in FES that the General Counsel show “concrete” plans to hire, it cited V.R.D. Decorating, 322 NLRB 546 (1996), as the illustrative example of this concept. In V.R.D. Decorating, the evidence showed that the six union job applicants responded to a company advertisement published on the same day on which they contacted the company to seek work. The company deferred hiring despite having only a minimal work force available during its busiest season and later hired applicants “with minimum or absolute lack of experience or skills” despite the availability of highly qualified union applicants.18 By contrast, Shisler was not advertising for new employees and the one employee hired during the following month contacted the Company through the yellow pages to seek employment. The record does not support an inference that the Company had concrete plans to hire at the time Fulcher contacted it to seek work.
The General Counsel presented testimony from Bovard for purposes of advancing a theory that the Company used the device of requiring excessive overtime from existing employees in order to avoid hiring union workers. However, I found this testimony to be particularly unpersuasive. Bovard was unclear about the time period during which he contended that excessive overtime was being worked. On direct examination, he reported that it was in the first half of 2000. On cross-examination, he indicated that it might have been in the autumn of 1999. Either account establishes that it was prior to the dates on which the General Counsel alleges the failure to consider and failure to hire Fulcher and Kirton. Additionally, the evidence shows that overtime was assigned on school projects while school was in session, as the work had to be performed outside of school hours. This was a temporary condition that ceased prior to the period alleged in the complaint. Bovard testified that, by July 2000, the employees had returned to working 8-hour days. Most importantly, the testimony and documentary evidence show that the actual amounts of overtime earned by the existing employees were quite small. There is simply insufficient evidence to allow any inference that overtime was employed as a stratagem to avoid hiring union applicants.
Finally, the General Counsel presented evidence showing that the Company placed a job announcement with the New York State Department of Labor, Job Service Division, on December 4, 2000. Shisler testified that he placed the announcement as a preparatory step in anticipation of obtaining a very large contract from Kasonic Builders. He further testified that the job fell through. It is clear that no employees were interviewed or hired as a result of this announcement. Shisler’s testimony that the prospective contract never materialized is uncontradicted.19 Victor Powers, the witness from the Department of Labor, testified that employers sometimes use their free job announcement services to conduct a labor survey rather than to advertise actual existing openings. On this record, I do not find that the Company’s job announcement on December 4, 2000, represented a “concrete” plan to hire.
In rejecting any attempt to show that the Company had concrete plans to hire and deferred such hiring as a means to avoid hiring union applicants, I have not only considered events in isolation, but have conducted an overview of the Company’s conduct regarding hiring throughout the period at issue. Viewed in this manner, I conclude that Shisler did not engage in any sophisticated scheme to avoid hiring union adherents. Rather, he hired employees on an ad hoc basis, hiring whomever he wished whenever he wished to do so. The evidence is insufficient to conclude that he altered his hiring plans and decisions by deferring any planned hiring. This small, informally operated Company’s hiring during the period at issue demonstrates that the actual and concrete hiring plans consisted only of the three job offers made to Snyder, Duncan, and Fulcher.20 The analysis must now proceed to consider whether the General Counsel met its burden regarding discriminatory refusal to hire Kirton and Fulcher for these vacancies.
Having found that the Company had job openings for electricians, it is necessary to determine whether Kirton and Fulcher were qualified to perform these jobs.21 In keeping with the informal nature of the Company’s hiring process, there is no evidence that the Company set forth any specific prerequisites for these positions. The only issue then is whether the applicants possessed experience and training relevant to the generally known requirements for electricians.22 The evidence shows that Fulcher served in an apprenticeship program from 1982 to 1986, and has had extensive work experience as an electrician since that time. There is absolutely no evidence to suggest that he was not a qualified applicant and, by the act of extending him an offer of employment as an electrician on July 26, 2001, the Company essentially has conceded the point.
The evidence regarding Kirton’s job qualifications is a bit more complex. For the past 4 years, Kirton has been employed as a union organizer.23 For 25 years, Kirton was the owner-operator of an electrical contracting company. As such, he performed a wide variety of tasks necessarily related to the type of work under consideration. Nevertheless, there is no need to determine whether such work experience alone would render him qualified for employment as an electrician since the record shows that after he ceased working as an electrical contractor, he was employed as a journeyman electrician for several years during the mid-1990s. Based on this work experience, he possesses relatively recent and significant experience directly related to the positions for which the Company was hiring. I find that he was a qualified applicant for the three job openings at issue.
Having found that three job openings existed and that Kirton and Fulcher were qualified to perform the work and were not hired, it is now necessary to determine whether the General Counsel met its burden of showing that antiunion animus contributed to the decision not to hire the applicants. The evidence clearly shows that Shisler was aware of Kirton’s union membership and activities. Indeed, Kirton and Shisler had been involved in extensive negotiations regarding a possible collective-bargaining relationship. It is also established that Shisler became aware of Fulcher’s union membership during his job interview. Fulcher’s membership status was plainly set forth on his resume as “Local #25, I.B.E.W.” (GC Exh. 8.) While there was some testimony indicating that Shisler appeared to ask what this meant, I find that he knew this referred to union membership. It will be recalled that Shisler himself had sought membership in the same union earlier in his career and had been involved in multiple negotiations with Kirton in his capacity as an IBEW organizer.24
The record reveals three indicia of
antiunion animus on the part of Shisler. Kirton testified that when he asked Shisler
why he would not enter into a collective-bargaining relationship with the
Union, Shisler stated that he did not like the way in which union members
treated him at the supply house and that he had been
denied entry into the
Kirton testified that Shisler told him that he would not hire Kirton because the only thing Kirton would do “would be to organize his people.” (Tr. 103.) Shisler disputed this. Upon review of the entire record, I credit Kirton. When the Company’s counsel asked Shisler whether he would have considered hiring Kirton if he had a job opening, Shisler’s initial response was a tepid, “[m]aybe.” (Tr. 275.) When his counsel pressed him further, he hesitated for a noticeable period before finally responding in the affirmative. Given Shisler’s obvious understanding of the importance of his attorney’s questions on this crucial issue, I find that Shisler’s verbal and nonverbal responses provide telling corroboration of Kirton’s testimony that Shisler was unwilling to hire him due to his organizational activity.
In addition to the direct evidence of antiunion animus, there is probative circumstantial evidence. The Company has taken the position that it did not consider Kirton or Fulcher for employment in the position offered to Snyder since this was a helper/laborer position. For reasons discussed earlier, I have rejected this claim. In particular, I have found the evidence regarding Snyder’s rate of pay to be highly probative in establishing that the position that was filled was for an electrician. In reaching this conclusion, I further find that the Company’s assertion that Snyder was a mere helper/laborer is simply a pretext advanced to justify the refusal to consider the union applicants for the position offered to Snyder.
In concluding that evidence of pretext is appropriately considered
in addressing the issue of antiunion animus in this matter, I have applied the
doctrine set forth in Shattuck Denn
Mining Corp. v. NLRB, 362
F.2d 466 (9th Cir. 1966). This
doctrine permits the trier of fact to draw an inference of unlawful motivation
where the stated motivation is found to be pretextual, at least where “the
surrounding facts tend to reinforce that inference.” 362
F.2d 466, 470. The Board has endorsed this principle and has
gone so far as to cite such evidence as being the most significant evidence of
illegal motivation in a particular factual situation. Active Transportation, 296 NLRB 431 (1989), enf. mem. 924 F.2d 1057 (6th Cir. 1991). The Second Circuit, in Holo-Krome Co. v. NLRB, 954 F.2d 108, 113 (2d Cir. 1992), has
essentially approved the Board’s “consistent rule in practice,” noting that the
Board’s practice was “understood” by the Supreme Court during that Court’s
consideration of the Wright Line doctrine25
in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). This portion of Holo-Krome has also been cited with
approval by the D.C. Circuit in Laro Maintenance Corp. v. NLRB, 56 F.3d
224, 230 (D.C. Cir. 1995). Applying this
analysis to the circumstances of this case, I find that the evidence of pretext, considered in combination with the other evidence of
antiunion animus discussed earlier, establishes that Shisler’s antiunion animus
contributed to his decision to refuse to consider or hire Kirton and Fulcher.
The General Counsel
has met its burden of showing that the Company had concrete hiring plans, that
Kirton and Fulcher were qualified applicants, and that antiunion animus contributed
to the decision not to hire them. The burden
now shifts to the Company to show that it would not have hired these applicants
even in the absence of their union affiliation or activities.
In sum, the
evidence reveals that during the period under consideration, the Company had
three concrete job openings. It failed
to hire or consider Kirton for any of these openings. It failed to consider or hire Fulcher for two
of these openings. The failure to
consider or hire these applicants was not due to any lack of qualifications and
was motivated by antiunion animus. There
is no evidence showing that the Company would have refused to hire the applicants
for any reason apart from such animus. As
a result, the General Counsel has established discriminatory refusals to consider
and hire the applicants within the analytical framework established by the
Board in
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. By refusing to hire, and consider for hire, employment applicants Gary D. Fulcher and Gary S. Kirton, the Company has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I recommend that it be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
The Board has held that the appropriate remedy for unfair
labor practices such as the refusals to hire Fulcher and Kirton is an order to
offer them immediate instatement to the positions to which they applied or, if
those positions no longer exist, to substantially equivalent positions, and to
make them whole for losses sustained by reason of the discrimination against
them. Casino Ready Mix, Inc., 335
NLRB 463, 466 (2001), citing
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended26
ORDER
The Respondent, Shisler Electrical Contractors, Inc. of
1. Cease and desist from refusing to hire or consider for hire Gary D. Fulcher and Gary S. Kirton, or any other employee applicant, because of their union membership or activities.
2. Take the following affirmative action to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Gary D. Fulcher and Gary S. Kirton immediate instatement to the positions for which they applied, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges.
(b) Make Gary D. Fulcher and Gary S. Kirton whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, computed on a quarterly basis, less any interim net earnings, as further prescribed in the remedy section of this Decision.
(c) Within 14 days from the date of this Order, remove from its files any reference to its unlawful refusal to hire Gary D. Fulcher and Gary S. Kirton, and, within 3 days thereafter, notify these employee applicants in writing that this has been done and that they will be hired in a nondiscriminatory manner.
(d) Preserve and, within 14 days of a 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, including an electronic copy of the 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
(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.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
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,