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.
R.J. Corman Railroad Construction, L.L.C., f/k/a
and successor-in-interest to R.J. Corman Railroad Company, L.L.C. and
International Union of Operating Engineers Local 150, AFL–CIO. Case 13–CA–38807–1
May 2, 2007
DECISION AND ORDER
By Members Liebman, Kirsanow, and Walsh
On August 22, 2001, Administrative Law Judge William
G. Kocol issued the attached decision. The Respondent and the General
Counsel each filed exceptions and a supporting
brief. The Respondent, General Counsel,
and Charging Party each filed answering briefs and the Respondent and the
General Counsel each filed a reply 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, and conclusions as modified and to adopt the
recommended Order as modified and set forth in full below.
The judge found
that the Respondent committed several unfair labor practices following an
attempt by 15 Union applicants to apply for work with the Respondent on May 4,
2000. For the
reasons stated by the judge, we find that the Respondent violated Section
8(a)(1) by interrogating employee Scott Bell, conveying to Bell that union
activity would be futile, and threatening employees that the Respondent would
close its facility in Bedford Park and take away their benefits if the
employees selected the Union as their collective-bargaining representative. We also adopt the judge’s finding that the Respondent
violated Section 8(a)(3) and (1) by refusing to consider the Union applicants
for hire.
For the reasons stated below, we further find that the
Respondent violated Section 8(a)(3) and (1) by refusing to hire the 15 union
applicants. However, because the judge’s analysis of that allegation does not
fully conform with the framework set forth in FES, supra, we analyze it below under
the FES standard.
Facts
The Respondent, a railroad construction contractor with a
main office in Nicholasville, Kentucky,
has performed track and switch repair work at various sites, including, since
1996, Belt Railroad’s Bedford Park,
Illinois, facility. At that facility, the Respondent employs
laborers, operators and drivers. In
general, the Respondent hires its employees at its Nicholasville office. However, in 2000, it hired three employees in
Ohio to work at a project in Ohio
and one employee in Pennsylvania to work at a
jobsite in Pennsylvania.
In March and April, the Respondent also hired locally at Bedford Park after the amount of work at that
location had increased by 30 percent.
Bedford Park Superintendent Jeffrey Howell hired Bedford Park
applicant Daryl Surles in March to assist him as foreman. In April, Howell hired Bedford Park
applicant Scott Bell as a driver/operator.
After Surles and Bell were hired, however, the Respondent still needed
workers at Bedford Park, so, on about May 1, Howell asked Bell if he had any
friends who might be interested in applying for work, and he gave Bell an
application so that Bell could distribute it.
Howell told Bell that he wanted to form a
crew of local people because the employees from Kentucky
did not like traveling to Bedford
Park. Also in late April or early May, Howell gave
application forms to Surles and to a Belt Railroad official for distribution to
prospective applicants. During the same
time period, Howell offered laborer positions to four individuals who returned
completed applications, but these individuals declined the offers.
On May 1, Bell
told Union organizer David Fagan that Howell was looking for workers. Based on this information, Fagan instructed Mike
Aprile, a Union task force organizer, to apply for work at Bedford Park,
but to not wear any clothing that identified him as a union organizer or
supporter. On May 2, Aprile arrived at
the Bedford Park location to apply as a covert
salt. He spoke with Surles, who asked
him if he could operate equipment in the yard; Aprile replied that he
could. Surles then told Aprile that the
Respondent was definitely hiring and that Aprile could speak with Howell the
next day. Aprile returned the next day
and asked Howell if the Respondent was hiring.
Howell replied that the Respondent was doing some hiring and asked
Aprile if he had a commercial driver’s license.
When Aprile said that he did, Howell gave him an application.
Aprile then informed Fagan that the Respondent was hiring,
at which point Fagan advised union task force organizers Delbert Watson and Tom
Geffert and others to organize a group of people on the Union’s
out-of-work list and have them apply for work with the Respondent. Fagan told these individuals to be ready to
work and to wear union clothing.
On May 4, 15 Union members wearing union clothing
approached the Bedford
Park facility in five
groups of three. The first group consisted
of Union Business Agent Angel
Del Rivero and two other union members.
Del Rivero approached Howell and told him that he was looking for work
and that he could perform the work needed; Del Rivero also began to recount his
work experience. Howell, who knew of Del
Rivero from previous encounters with the Union,
interrupted Del Rivero to say that he knew who Del Rivero was. Del Rivero then repeated that he and the
other men were looking for work, to which Howell replied that the Respondent
was not hiring. Del Rivero said that he
and the others were willing to do any kind of work from laborer to driving a truck,
but Howell repeated that the Respondent was not hiring. The applicants then left. At no time during this encounter did Howell
inquire as to the qualifications of the applicants. Howell responded to the next
four groups of applicants in a similar manner.
Following the union members’ attempts to apply for work
with the Respondent, Howell asked Bell
if he was a union member. Howell also
told Bell that
he would not stand for any “union bullshit,” and he threatened to “close the
doors” before the operation went union.
In addition, in late May, Howell repeated the threat of plant closure
and threatened a loss of benefits at a meeting with 20–30 employees.
By June, the Respondent needed additional employees at Bedford Park, despite the fact that Howell had
previously told the union applicants that the Respondent was not hiring. Thus, between June 11 and November, when the
project ended, the Respondent hired three laborers and one operator at its
Nicholasville location and assigned them directly to Bedford Park. In addition, the Respondent transferred nine
other employees from other worksites to Bedford Park. These 13 employees made up almost half of the
33 employees that the Respondent hired in total from June to November.
On June 27, task force organizer Donald Todd Vandermyde sent
e-mails to the Respondent inquiring about work opportunities.
He later received an e-mail from “Tom Carter at R.J. Corman” stating
that the Respondent was “always in the market for good people,” and providing
Vandermyde with addresses for submitting cover letters. Vandermyde, however, never submitted an application
to the Respondent.
Analysis
A. Refusal to Hire
In order to
establish a refusal-to-hire violation pursuant to Wright Line, the General Counsel has the burden of
establishing (1) that the Respondent was hiring or had concrete
plans to hire at the time of the alleged unlawful conduct; (2) that the
applicants had experience and training relevant to the announced or generally
known requirements of the positions for which the Respondent was hiring, or in
the alternative, that the Respondent had 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. FES, supra at
12. Once this has been established, the
burden shifts to the Respondent to show that it would not have hired the
applicants even in the absence of their union activity or affiliation. Id.
For the reasons stated in the judge’s decision, we adopt
the judge’s finding that the Respondent was hiring and had concrete plans to
hire drivers, operators, and laborers at Bedford Park
at the time of the alleged unlawful conduct.
We further
adopt the judge’s finding that all 15 applicants at least had experience and
training relevant to the generally known requirements of the laborer position;
that all of the applicants, with the exception of Matt Candela, met the
generally known requirements of the operator position; and that applicants Del
Rivero, Daniel Patrick Regan, Tom Geffert, Stanley Simrayh, and David Pessmeg,
who each held commercial driver’s licenses, met the generally known requirements of the driver position.
Finally, we agree
with the judge that antiunion animus contributed to the Respondent’s refusal to
hire the Union applicants. In this regard,
the Respondent’s Section 8(a)(1) violations—consisting of an unlawful interrogation,
statements that union activity would be futile, and threats of plant closure
and loss of benefits—provide compelling evidence of the Respondent’s antiunion
animus. See Dynasteel Corp., 346 NLRB No. 12, slip
op. at 4 (2005) (respondent’s threats of plant closure and job loss, statements
that unionization would be futile, surveillance and interrogation of employees,
and instruction to commit unfair labor practices demonstrated that antiunion
animus contributed to decision not to hire applicants). Significantly, these violations closely
followed the union members’ attempted application for employment, and they were
clearly based on the Union’s attempt to organize the Respondent’s employees at Bedford Park.
Further evidence of the Respondent’s antiunion animus was Howell’s act
of supplying an application to covert union applicant Aprile and telling him
that the Respondent was hiring, and then the next day refusing to supply
applications to the overt union applicants and informing them that the Respondent
was not hiring. See V.R.D. Decorating, 322 NLRB 546, 552 (1999) (union animus was a motivating
factor in refusal to hire where employer advertised for experienced painters,
received applications from experienced painters who were also union members,
and then delayed filling positions to avoid making job offers to union applicants).
In sum, for the above reasons, we find that the General
Counsel has met his initial burden under FES, supra.
The burden therefore shifts to the Respondent to prove
that it would not have hired the applicants even in the absence of their union
activity or affiliation. In order to
establish this affirmative defense, “[a]n employer cannot simply present a
legitimate reason for its action but must persuade by a preponderance of the
evidence that the same action would have taken place even in the absence of the
protected activity.” W.F. Bolin Co., 311 NLRB 1118, 1119
(1993), petition for review denied 70 F.3d 863 (6th Cir. 1995), enfd. mem. 99
F.3d 1139 (6th Cir. 1996).
To this end, the Respondent contends that it would not have
hired the Union applicants because it had a policy of only hiring from its
Nicholasville office, and the Union applicants in this case applied at its Bedford Park worksite. However, in agreement with the judge, we find
no merit to this contention given the evidence in the record that the
Respondent departed from its policy of hiring only at Nicholasville when it
needed to staff projects in other locations.
For example, as noted above, the Respondent hired individuals in Ohio
and Pennsylvania to work on projects in those respective states; and more
importantly, it also hired locally at Bedford Park, as evidenced by its hiring
of Surles and Bell, its offer of employment to four other Bedford Park
applicants, and its solicitation of applications in Bedford Park immediately
prior to the Union applicants’ attempted application. See Nelcorp,
332 NLRB 179, 180 (2000) (finding that respondent failed to show it would have
transferred current employees instead of hiring applicants where it repeatedly
departed from asserted transfer policy), enfd. 51 Fed. Appx. 33 (2d Cir. 2002). The Respondent’s
efforts to hire locally at Bedford Park are consistent with the special status of the Bedford Park project in 2000 as one of the
Respondent’s largest and fastest growing worksites. Indeed, 13 of the 33 individuals hired between
June and November by the Respondent nationwide were assigned to work at Bedford Park at some point during the relevant
time period. Accordingly, in these circumstances, we find
that the Respondent has failed to show that it would not have hired the Union
applicants even in the absence of their union activities.
B. Job
Openings
If the General Counsel seeks an affirmative remedy of
backpay and instatement for a refusal-to-hire violation, he must allege and
prove at a hearing on the merits the existence of openings that he knows or
should have known to have arisen prior to the hearing. FES, supra, 331 NLRB at 14.
Here, the General Counsel alleged the existence of 33 openings because
the Respondent had hired a total of 33 individuals during the relevant time
period, from May 4 to November. Included
in this number are the 13 positions at Bedford
Park filled by individuals who were
hired at Nicholasville but then transferred to Bedford Park. The judge, however, found that only the 13 positions
at Bedford Park were available to the Union
applicants. Because it appears that the
individuals hired into the other 20 positions were hired to work projects in
other locations, we find, in agreement with the judge, that only the 13
positions at Bedford Park were “openings for the applicants” within the meaning
of FES. See Tri-County
Paving, Inc., 342 NLRB 1213, 1220 (2004) (vacant lowboy driver position
filled by transferred employee was an available position that would have been
filled by a union applicant were it not for the respondent’s antiunion
motivation and intent).
Amended Remedy
In the proposed remedy and Order sections of his decision,
the judge instructed the Respondent to offer instatement and other make-whole
remedies to 14 discriminatees, even though the existence of only 13 openings
was established at the hearing. This remedy does not conform to current Board
law, and we therefore modify the judge’s remedy, Order, and notice.
As the Board held in FES, supra, 331 NLRB at 14,
“Where the number of applicants exceeds the number of available jobs, the
compliance proceeding may be used to determine which of the applicants would
have been hired for the openings.” Thus,
we shall leave to compliance the determination of which discriminatees would
have been hired into the 13 relevant openings but for the Respondent’s unlawful
discrimination.
Any discriminatees who it is determined would not have
been hired into one of the open positions are due the following remedy:
A cease and desist order; an order to place the discriminatees
in the position they would have been in, absent discrimination, for consideration
for future openings and to consider them for the openings in accordance with
nondiscriminatory criteria; and an order to notify the discriminatees, the
charging party, and the Regional Director of future openings in positions for
which the discriminatees applied or substantially equivalent positions.
Id.
at 15; see also CNP Mechanical Inc.,
347 NLRB No. 14, slip op. at 14 (2006).
ORDER
The National Labor Relations Board orders that the
Respondent, R.J. Corman Railroad Construction, L.L.C., Nicholasville, Kentucky, its officers, agents,
successors, and assigns, shall
1.
Cease and desist from
(a)
Coercively interrogating employees concerning their union activity.
(b)
Threatening employees that their union activity would be futile.
(c)
Threatening employees that it would close its facility in Bedfrrd
Park if the employees selected the Union as their collective-bargaining representative.
(d)
Threatening employees that they will lose benefits if they selected the Union as their collective-bargaining representative.
(e)
Refusing to hire, consider for hire, or otherwise discriminating against
employees because they support International Union of Operating Engineers,
Local 150, AFL–CIO, or any other union.
(f)
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) Offer instatement to the appropriate discriminatees
from the following list, as determined in the compliance stage of the this
proceeding should have been hired, to the available positions for which they
attempted to apply, or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any other rights
or privileges: Angel Del Rivero, Donald Todd Vandermyde, Thomas Zlamal, Daniel
Patrick Regan, Nicholas Zasiebida, Kevin Colin Burke, Tom Geffert, Lindell
Viou, Sean Flanagin, Delbert Watson, Stanley Simrayh, James Ward, Donald Ban,
David Pessmeg, and Matt Candela.
(b)
Make whole any of the discriminatees identified in the compliance
stage of the proceeding as being entitled to instatement into the 13 available
positions for any loss of earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in the remedy section of
the judge’s decision , as amended by the remedy section of this decision.
(c)
Consider, in accord with nondiscriminatory criteria, the remaining applicants
for future job openings that arise, and notify the applicants, the Charging
Party, and the Regional Director of such openings in positions for which the
applicants attempted to apply, or substantially equivalent positions.
(d)
Within 14 days from the date of the Board’s Order, remove from
its files any reference to the unlawful refusal to hire or refusal to consider
for hire Angel Del Rivero, Donald Todd Vandermyde, Thomas Zlamal, Daniel Patrick
Regan, Nicholas Zasiebida, Kevin Colin Burke, Tom Geffert, Lindell Viou, Sean
Flanagin, Delbert Watson, Stanley Simrayh, James Ward, Donald Ban, Matt Candela,
and David Pessmeg, and within 3 days thereafter, notify them in writing that
this has been done and that the refusal to hire or consider them for hire will
not be used against them in any way.
(e)
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.
(f)
Within 14 days after service by the Region, post at its facility in Bedford Park, Illinois,
copies of the attached notice marked “Appendix.” Copies of the notice, on forms provided by
the Regional Director for Region 13, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent 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 May 4, 2000.
(g)
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, Washington,
D.C. May 2, 2007
Wilma B. Liebman, Member
Peter M. Kirsanow, 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 coercively
interrogate employees about their union activity.
We will not threaten
employees that their union activity would be futile.
We will not
threaten employees that we will close our facility in Bedford
Park if employees selected the Union as their collective-bargaining representative.
We will not
threaten employees that they will lose benefits if they selected the Union as their collective-bargaining representative.
We will not refuse
to hire, or consider for hire, or otherwise discriminate against employees
because they support International Union of Operating Engineers, Local 150, AFL–CIO,
or any other union.
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 offer
instatement to the appropriate discriminatees from the following list, as
determined in the compliance stage of the Board’s proceeding should have been
hired, to the available positions for which they attempted to apply, or, if
those positions no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges: Angel Del
Rivero, Donald Todd Vandermyde, Thomas Zlamal, Daniel Patrick Regan, Nicholas
Zasiebida, Kevin Colin Burke, Tom Geffert, Lindell Viou, Sean Flanagin, Delbert
Watson, Stanley Simrayh, James Ward, Donald Ban, Matt Candela, and David
Pessmeg.
We will make
whole any of the discriminatees identified in the compliance stage of this
proceeding as being entitled to instatement for any loss of earnings and other
benefits resulting from the discrimination against them, less any net interim
earnings, plus interest.
We will notify
in writing the Regional Director, the Charging Party, and any of the above discriminatees
not offered instatement when openings arise, and consider them in a
nondiscriminatory manner for these positions.
We will,
within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful refusal to hire or refusal to consider for hire Angel
Del Rivero, Donald Todd Vandermyde, Thomas Zlamal, Daniel Patrick Regan,
Nicholas Zasiebida, Kevin Colin Burke, Tom Geffert, Lindell Viou, Sean
Flanagin, Delbert Watson, Stanley Simrayh, James Ward, Donald Ban, Matt Candela,
and David Pessmeg, and we will,
within 3 days thereafter, notify them in writing that this has been done and
that the refusal to hire or consider them for hire will not be used against
them in any way.
R.J. Corman Railroad Construction, L.L.C.,
f/k/a
and successor-in-interest to.
R.J Corman Railroad Company, L.L.C.
Richard S. Andrews and Brigid M. Barnicle, Esqs., for
the General Counsel.
Richard
A. Lane, Esq. (Fletcher & Sippel, L.L.C.), of Chicago, Illinois,
for the Respondent.
Louis E. Sigman
and Carol O’Shana, Esqs. (Sigman, Auerbach, Pierson, Neuman &
Katsaros, Ltd.), of Chicago, Illinois,
for the Union.
DECISION
Statement of the Case
William G. Kocol,
Administrative Law Judge. This case was tried in Chicago, Illinois,
on May 29-31, 2001. The charge and
amended charges were filed September 7, 2000, November 13 and May 4, 2001, respectively, by International Union of
Operating Engineers, Local 150, AFL-CIO (the Union).
The amended complaint (the complaint) was issued May 21, 2001. The complaint alleges that R.J. Corman
Railroad Construction, L.L.C., f/k/a and successor-in-interest to R.J. Corman
Railroad Company, L.L.C.(Respondent) violated Section 8(a)(1) when it
interrogated employees about their union activities, informed employees that
any attempts to organize a union would be futile, threatened employees with
plant closure if they were successful in their union activities, and impliedly
threatened employees with loss of benefits if they selected the Union as their
collective bargaining representative.
The complaint also alleges that Respondent violated Section 8(a)(3) by
excluding 15 named individuals from its hiring process, refusing to consider
those persons for hire into available positions, and refusing to hire
them. R.J. Corman Railroad Company,
L.L.C., filed a timely answer that admitted the allegations of the complaint
concerning the filing and service of the charge and amended charges, labor
organization status, and agency status.
The answer admitted that R.J. Corman Railroad, L.L.C. conducted a
railroad construction business through its Construction Division, that the
Construction Division maintained an office and place of business in
Nicholasville, Kentucky, and that it operated a construction project in Bedford
Park, Illinois. The answer also admitted
that on January 1, 2001, the railroad construction operations of R.J. Corman
Railroad, L.L.C were transferred to R.J. Corman Railroad Construction, L.L.C.,
and that it is the successor to R.J. Corman Railroad L.L.C., Construction
Division.
On the entire record, including my observation of the demeanor
of the witnesses, and after considering the briefs filed by the General
Counsel, Respondent, and the Union, I make the
following
Findings of Fact
i.
jurisdiction
Respondent, a corporation, is engaged in the railroad construction
business with an office and place of business facility in Nicholasville,
Kentucky, and a work site located in Bedford Park, Illinois,
where it purchased and received goods valued in excess of $50,000 directly from
points located outside the State of Illinois. 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 Union is a labor
organization within the meaning of Section 2(5) of the Act.
ii. alleged
unfair labor practices
A. Background
Respondent operates out of Nicholasville,
Kentucky, and provides services on a number of
railroad construction sites located in the eastern United States. It lays rail, does tie insertions and change
outs, switch renewals and new track construction. Gerald Gupton is Respondent’s chief
engineer. He oversees 80 to 100
construction employees and the 7 to 8 superintendents who work at a jobsite and
oversee a specific project. Each
superintendent has a crew that typically remains with the superintendent as
they work on different projects.
Respondent generally hires employees as needed from the eastern Kentucky area and, in
fact, most of Respondent’s employees live in that area. Most newly hired employees are friends,
relatives, and acquaintances of current employees. Respondent’s employees travel from their home
area in eastern Kentucky
in groups to the work on out-of-state projects.
Respondent owns vans and provides the transportation for these
trips. Typically, Respondent picks these
employees up at their homes on Sunday afternoon and drives them to a hotel near
the project location. Respondent also transports the employees to and from the
hotel and project site. Respondent pays
for their lodging and provides them a meal allowance. Respondent then provides their transportation
back home. Respondent has employed about
60 to 70 percent of the employees for 1 year or more. The remainder are employed for shorter
periods. Gupton testified that Respondent
had never laid off any of its employees.
Respondent provides services for the Belt Railroad at the
railroad’s location in Bedford Park,
Illinois, where it works on
removing, rebuilding, and replacing railroad tracks and switches. It first provided services there in 1996 and
that project lasted 6 to 7 months. It
has returned there every year since and worked there beginning in about March
or April and working until about October. Respondent’s employees work in a fenced in compound
at that location; Respondent also keeps its equipment in that compound. It employs operators, laborers, and drivers
at this site who use a mobile crane, a loader, backhoes, dump trucks, Prentice
trucks, an excavator, and a dozer.
Jeffery Howell is Respondent’s superintendent at this location. He has worked on this project each year with
the same core crew of about 11 employees.
During 2000 the size of the projects assigned to Respondent by the Belt
Railroad grew by about 30 percent over the previous year. Howell found it necessary to ask Gupton for
approval to hire a foreman to assist him.
Respondent decided to hire a local person for that position. Daryl Surles, who was hired to fill that position,
received the same meal allowance that the other employees received, but he did
not receive payment for hotel costs because he lived in the area. He was hired with the understanding that when
the project at Bedford
Park ended he would be
assigned to other projects but that he would have to provide his own transportation
to and from those projects. However,
when the project ended in about October, Surles decided not to accept work at
other locations. As more fully described
below, Respondent also replaced one employee working on this project and added
on one additional employee for a core crew of 13 employees. When Howell needed additional help he called
Gupton who sent additional employees if they were available. By June, work had backed up and Respondent
found it necessary to supply additional employees to the Bedford Park
location. Howell also kept application
forms in his truck and gave them to interested applicants. He retained the completed applications and
considered them when Respondent had the need to hire additional employees. For this project, Respondent picked up the
crew from eastern Kentucky
on Sunday afternoon and returned them home on Thursday afternoon. These employees thus sometimes worked 12
hours a day or longer. The employees
there wore either a blue hat, which indicated that were an operator or driver,
or a red hat, which signaled that they were laborers. In 2000 work on this project continued until
early November. Respondent did not
recognize the Union at the Bedford
Park location or
elsewhere.
In about 1990 R.J. Corman Derailment Services, LLC, an affiliate
of Respondent, purchased a business with a facility in Gary, Indiana. That employer recognized the Union as the collective-bargaining representative for
employees in that facility and the parties negotiated a contract covering those
employees. Sometime in about April or
May contract negotiations for the Gary facility
between that employer and the Union broke down and the Union
went on strike. The strike continued as
of the time of the hearing in this case.
By about June 12, the Union had begun picketing Respondent at the Bedford Park location as part of that labor
dispute.
The Union employs task
force organizers. These are fulltime
employees of the Union whose job includes applying
for and obtaining work as salts. If a
task force organizer or other union employees are hired as a salt they continue
to receive their full salary and benefits from the Union
as well whatever he or she earned working for the employer.
B.
The Applicants Apply for Work
In April, David Fagan, union organizer, advised Scott Bell
to seek employment at the Gary
facility. Bell went to that facility and spoke with
Phil Emerson, a superintendent. Bell asked if they were hiring and Emerson said that they
were. Emerson asked if the union hall
had sent him and Bell said no, that he was not a
member of the Union. Emerson said that was good because they were
trying to weed out the Union at the Gary
facility and that there might be a position for Bell
in Bedford Park.
He arranged for Bell to meet with Howell
at the Gary
facility the next day. However, while Bell
appeared the next day at the scheduled time Howell did not. Instead, Bell spoke to Howell by telephone. They arranged to meet the next day at Bedford Park.
Bell
went there the next day. Howell reviewed
Bell’s application, gave him an explanation of
the company history, and hired him as a driver/operator subject to Bell passing a drug test
and completing a portion of the application pertaining to drivers. Bell
was hired at $9.50 per hour with an increase to $10 after 30 days. Howell told Bell
that he could continue to work for Respondent after the Bedford
Park project ended that year, but that
while Respondent would pay his hotel costs and give him the meal allowance Bell would have to provide
his own transportation to and from the projects. While employed there Bell operated a number of different pieces of
equipment, including driving a truck. On
occasion Howell told him to operate a piece of equipment that he had no previous
experience operating. Bell
told this to Howell, who replied that Bell
should just get on the machine and learn to operate it. Bell
did so.
On about May 1, Howell gave Bell
another application form and asked if Bell
had any friends who might be interested in applying for work. Howell said that he wanted to get a crew of
local people started because the employees from Kentucky
did not like coming to the Bedford
Park location. The envelope from which Howell took the application
form appeared full. Howell had also
given application forms to Surles and to a Belt Railroad official for distribution
by them. Howell obtained completed
application forms from several potential employees. He contacted them to see if they were interested
in working as laborers, but the applicants declined the offers.
Bell
reported to Fagan that Howell had given him an employment application and that
Howell had asked if he had any friends looking for work. As a result of this information Fagan
instructed Mike Aprile, a task force organizer for the Union, to apply for work
at Bedford Park.
Fagan told Aprile not to wear any clothing that identified him as a
union organizer or supporter.
On May 2, Aprile did so.
He arrived at the Bedford
Park facility about 6:30
to 7 a.m. He was dressed in work clothes
and wore nothing identifying himself as being from the Union. Aprile announced that he was looking for work
and asked for an employment application.
He spoke with Surles, Respondent’s yard foreman and in charge of the
yard. Surles said that Aprile would have to talk with Howell. Surles then asked Aprile questions about his
work experience and pointed out some pieces of equipment that were in the yard
and asked if he could operate them; Aprile said that he could. Surles also told him that they operated out
of Kentucky
and asked if Aprile was willing to travel; Aprile said that he was. Surles said that they had just hired a truck
driver but that two of his laborers were leaving that week. Aprile asked if they would be hiring and
Surles answered yes, they definitely were hiring. Surles said that Howell was
the supervisor and would be there the next day.
Aprile returned the next day, dressed the same way, and
asked Howell if they were hiring. Howell
said that they were doing some hiring and asked Aprile if he had a commercial
driver’s license. Aprile said that he
did. Howell said that he had to gather
the application, that it was about 20 pages.
Howell gathered the application pages from a folder he kept in his truck
and gave them to Aprile. The folder
appeared to be full. Howell said that
Aprile could bring back the application and give it to Surles if he was not
around.
Aprile then informed Fagan that Respondent was hiring. Fagan then advised Delbert Watson, Tom
Geffert, and others to organize a group of people on the Union’s
out-of-work list and have them apply for work.
Fagan told them to be ready to go to work if they were hired, but to
wear their union jackets, buttons, hats, and T-shirts.
On May 4, a number of people gathered at a parking lot
near Respondent’s facility in Bedford
Park and later 15 of them
applied for work with Respondent. All
visibly wore clothing such as jackets, hats, and T-shirts that identified them
as union supporters. Some also wore
union buttons on their clothing. They
divided up into groups of three and then drove onto Respondent’s premises using
the Union’s distinctive gray 1999 Crown Victoria. All were dressed in work apparel.
Angel Del Rivero, Todd Vandermyde, and Matt Candela were
the first group to drive onto the premises.
Del Rivero and Vandermyde got out of the car and approached Howell. Del Rivero said that he was looking for work,
that he could do the work; he started to give his work experience. Howell interrupted and said that he knew who
Del Rivero was; Howell started to walk
away. Del Rivero continued to say that
they were looking for work and Howell said that Respondent was not hiring. Del Rivero said that they were willing to do any
kind of work from laborer to driving a truck.
Howell said that they were not hiring.
The applicants then left. At no
time did Howell inquire as to the qualifications of the applicants.
Stanley Simrayh, Donald Ban, and Nick Zasiebida were the
second group to drive into Respondent’s yard.
Simrayh asked Howell if he was Jeff (Howell). Howell replied that his name was Tim. Simrayh laughed and said that he knew he was
talking to Jeff (Howell). Simrayh asked
if they were hiring and Howell said no. Simrayh
asked if they could fill out applications and Howell again said no. Simrayh asked if Howell knew when they would
be hiring and whether they could get an interview; Howell said no. When Simrayh asked when they could fill out
applications, Howell said that they would have to contact their office in
Nicholasville. One of the other
applicants asked whom they should talk to in Nicholasville and Howell answered
that he did not know. Simrayh then drove
away.
Daniel Regan, Kevin Burke, and Tom Zlamal were in the
third group. After they arrived in Respondent’s
yard, Regan got out of the car and asked Howell if he was accepting applications
and Howell said no. Regan asked if they
would be accepting applications in the future and Howell again said no. Burke asked if Howell was sure he was not
hiring; Burke said that he was looking for work too. Howell said no. Regan said thank you, the applicants got back
in the car, and they drove away.
Tom Geffert, Lindell Viou, and Sean Flanagin were the next
group to drive to Respondent’s yard.
Geffert approached Howell and introduced himself as Tom Geffert from the
Union.
He asked Howell if he was “Jeff” (Howell), but Howell answered that his
name was “Tim.” Geffert said that he was
there to apply for a position. Howell
replied that they were not taking applications and they were not hiring
anyone. Geffert asked if Howell could
tell him when they would be hiring. Howell
said that he could not answer that and Geffert would have to contact their
Nicholasville office to get that information.
The applicants then left.
Delbert Watson, James Ward, and David Pessmeg were in the
last group to drive into Respondent’s yard.
Howell drove his truck to the car used by the applicants, threw his
hands up in the air, and told the applicants that they were not hiring. Howell then drove away. Watson got out of the car and handed out
about seven authorization cards to nearby employees. He then got back in the car and drove away.
Within 10 to 15 minutes after the last group of applicants
left, Howell said that he would like to talk to Bell.
He and Bell
took a ride in Howell’s truck. As they
rode Howell asked Bell if he was from the Union;
Bell answered
no. Howell said that was good, that they
were not going to stand for any union bullshit going on around there. Howell said that they did not want any part
of the Union, that they would close the doors
before they went union. Howell also said
that he told the union applicants that his name was Tom Fitzgerald and gave them
a fictitious number to call. Howell told
Bell that he
had called the police to have the applicants escorted off the property because
they were trespassing. On several
unspecified occasions thereafter, Howell repeated to Bell his remarks about the
Company closing its doors if it went union.
In late May, Howell held a meeting with about 20 to 30 employees. Howell told them that he had been in a union
and it never did a damn thing for him; that it took his money and never gave
anything in return. He said that if the Union got in the Company would close its doors, shut down
the team that it has there, and move on.
Howell also said that if the Union got in the employees would lose their
transportation to and from Kentucky,
their meal and lodging expenses, and their uniforms.
These foregoing facts are based on Bell’s testimony. I recognize that Respondent had terminated Bell before he testified
in this case. Bell filed an unfair labor practice charge
but the Regional Director concluded that the charge lacked merit. But I also have considered the fact that Bell was not a task force organizer and thus did not get
paid by the Union while working for
Respondent. Howell denied that he asked Bell about his union
activities. He admitted that he held a
meeting of employees in late May during which he discussed the Union, but he
claimed that the subject of the meeting was the establishment of a reserve gate
to deal with the picketing by the Union that
was occurring then. Howell did not specifically
deny the remarks attributed to him by Bell
in the late May meeting. But Howell’s
testimony does not withstand scrutiny.
He admitted on cross-examination that the picketing did not begin until
about June 12. It follows that the
mention of the Union at the May meeting was
not in the context of setting up a reserve gate—at least not without further explanation. Moreover, in the affidavit that Howell gave
to the Board during the investigation of this case, Howell stated that the May
meeting that he held with employees pertained to safety matters and not a
reserve gate issue. He further admitted
in that affidavit that he may have told the assembled employees that he had
once belonged to a union and it did not help him. Based on the foregoing and on my observation
of the relative demeanor of the witness, I conclude that Bell’s testimony is more credible.
On June 27, Vandermyde located Respondent’s website and
sent am e-mail stating:
I saw your posting on your webpage about work opportunities. I am a heavy equipment operator and wondering
what positions you might have and where they are located? What is required and how do I get an application?
The next day Vandermyde received an e-mail response from
“Tom Carter at RJ Corman” that stated:
Todd- as I’m only a company contact, I don’t know specifics
of our job opportunities at the moment, though we have rail gangs that are
almost always on the road (Chicago, New England and other points), and we are
always in the market for good people for our derailment crews, and you can see
from our web site map where these are located.
If you’d send me an address I’ll forward you a job application that
might get the ball rolling.
Vandermyde then sent his address to Carter and added that
he was not afraid to travel and would consider relocating. Vandermyde thereafter received an
application. He e-mailed Carter saying
that he had received the application and that he noticed that it said RJ Corman
Company. Vandermyde asked if the
application would work for Respondent’s derailment division, and whether he had
to submit a separate application to be considered for Respondent’s construction
division. Carter replied that the
application was considered “universal” for the Company. He suggested that Vandermyde submit cover letters
with his application and provided the information concerning whom the cover
letters should be addressed to.
Vandermyde never completed the application.
C.
Positions Available
From May 4 until the work at the Bedford Park
facility ended on about November 1 Respondent hired 33 employees
nationwide. This included 25 laborers, 2
drivers, and 1 operator, mechanic, driver/operator, driver/laborer,
driver/mechanic, and “farm.” During this
relevant time period, 13 employees were assigned to the Respondent’s Bedford Park location. Four persons were newly hired from the
eastern Kentucky area and began work directly
at the Bedford Park location; three worked as laborers,
one worked as an operator. Two started
on June 12, one on June 14, and the last on July 19. Nine other employees initially worked at
projects other than Bedford
Park, but were assigned
to work there during the relevant period.
Eight of these employees worked as laborers, one as a driver. They worked at Bedford Park
for periods ranging from 2 to about 6 weeks from June 11 to October 14.
D.
Qualifications and Availability of Applicants
Angel Del Rivero is a business agent for the Union. He has
worked for the Union for over 10 years and his
yearly salary is about $88,000. Before
working for the Union he worked as an
equipment operator for about 18 years doing construction, road, and underground
sewer work. Del Rivero also operated
heavy equipment while serving in the military.
He has experience operating a wide variety of heavy construction equipment. Del Rivero also had about 2 years' experience
working as a driver and has a commercial driver’s license. Del Rivero is a college graduate and
completed one year of law school. Del
Rivero was prepared to start work immediately if hired; he would have accepted
out-of-state work if offered. However, Del Rivero had not worked as a
laborer for about 11 to 12 years. Del
Rivero was available for work and would have accepted employment with
Respondent if offered after May 4.
Donald Todd Vandermyde has worked for the Union for 2 years as a task force organizer. He earns a salary of about $78,000 per
year. Before working for the Union
Vandermyde worked as a heavy equipment operator. He completed the Union’s
apprenticeship program and has been a journeyman for about 6 or 7 years. He has experience working on mass dirt crews,
road crews, sewer crews, and asphalt crews.
He is able to operate a wide variety of heavy equipment. Vandermyde also worked as a laborer before
becoming an apprentice. Vandermyde drove
heavy trucks while serving in the military, but he does not have a commercial
driver’s license. Vandermyde was
prepared to start work that day if offered; he had his safety vest, hardhat,
and steel-toed boots in the trunk of his car.
Vandermyde would have accepted out-of-state work also. He last worked as a laborer in 1988. Vandermyde was available for work and would
have accepted employment with Respondent if offered after May 4.
Thomas Zlamal has worked as a laborer and operator off and
on for 18 years. Zlamal is not an employee
of the Union but he is a union member and
journeyman operator. He has at least 5
years of experience operating a full range of heavy equipment. He was prepared to start work on May 4 if he
had been offered a job. Zlamal also
would have accepted out-of-state work.
Three or four weeks after Zlamal applied for work with Respondent he
found work with another employer; he worked there a month or two. When that job ended he let the Union’s hiring hall know that he was seeking work. After a few weeks Zlamal found work with another
employer, where he worked again for a period of time. All of his work during the relevant time
period was at union scale, the lowest of which was $16 per hour. Zlamal would not have accepted an offer of
employment from Respondent during those times after May 4 when he was working
for other employers; he would have accepted an offer from Respondent during the
times after May 4 when he was unemployed.
Daniel Patrick Regan has employed by the Union
as a business representative for about 5 years.
He receives a yearly salary of about $88,000. Regan has been a union member for almost 35
years. He has almost 30 years of
experience working as a laborer and operating a wide range of heavy equipment. Regan also has experience as a driver and has
a commercial driver’s license. Regan was
prepared to start work on May 4 if Respondent had offered him employment,
including out-of-state work. Regan also
was available and would have accepted employment with Respondent if it was
offered to him during the relevant time period after May 4.
Nicholas Zasiebida is a journeyman operator with over 5
years of experience operating a wide range of heavy equipment. He also worked for 6 years as a laborer. He has been a union member for over 3 years,
but he is not an employee of the Union. He
would have begun working on May 4 if an offer had been made, including an offer
for out-of-state work. On about June 15,
Zasiebida began working for Stanley Rebose Trucking operating a rubber tire
loader at the union rate of about $29.50 per hour. He worked there for about 2-½ weeks. Without losing any time off, Zasiebida began
working for Marina Trucking doing the same work at the same rate. He worked at Marina until about Christmas. I conclude that Zasiebida would not have
accepted employment with Respondent if it were offered to him after he began
working for Stanley Rebose.
Kevin Colin Burke has worked as a business representative
for the Union for 5 years. He earns a yearly salary of about
$88,000. Before that Burke had 14 years
of experience operating a full range of heavy equipment. He also has experience working as a laborer
and had a commercial driver’s license, but he allowed it to lapse at some
undisclosed time. Burke was prepared to
start work on May 4 if Respondent had offered him employment, including
out-of-state work. Burke also was
available and would have accepted employment with Respondent if it were offered
to him during the relevant time period after May 4.
Tom Geffert has been employed by the Union
as a task force organizer since October 1997.
He earns a yearly salary of about $78,000. Before that he worked as a laborer, truck
driver, and a heavy equipment operator.
He is a journeyman operator and has experience operating a wide range of
heavy equipment. He also has a class A
commercial driver’s license. Geffert was
prepared to start work on May 4 if Respondent had offered him employment, including
out-of-state work. Geffert also was
available and would have accepted employment with Respondent if it were offered
to him during the relevant time period after May 4. Geffert last did laborers’ work in 1996.
Lindell Viou has been a union member for 7 years; he is
not employed by the Union. He is a journeyman operator and has 7 years'
of experience operating a full range of heavy equipment. Viou also has 15 years experience working as
a laborer. Viou would have started work
on May 4 if offered, including out-of-state work. Viou worked for Material Services as an
operator for about 60 days beginning late May.
He also worked for Sheehan Pipeline for about a month during the critical
time period after May 4. He also worked
at other union jobs during this time period.
Viou would not have accepted an offer of employment from Respondent during
the times after May 4 when he was employed elsewhere at union scale.
Sean Flanagin is a union member and a journeyman operator;
he is not employed by the Union. He has 5 years of experience operating a wide
range of heavy equipment and has worked as a laborer for about 1 year. Flanagin
would have started work on May 4 if offered, including out-of-state work. On about June 15, Flanagin began working at
union scale at Golf Construction as an operator. He continued working there up to the date of
the hearing. Flanagin would not have accepted
an offer of employment from Respondent during the times after May 4 when he was
employed elsewhere at union scale.
Delbert Watson is a task force organizer for the Union, a position he has occupied for 4 years. His yearly salary is about $78,000. Before that he was a business agent for 4
years and a dispatcher for the Union for 3
years. He has been a union member for
about 31 years. Before he became an
employee of the Union, Watson was a journeyman
operator. He has experience operating a
full range of heavy equipment. Watson
also worked as a laborer for about 6 years.
Watson was prepared to start work on May 4 if Respondent had offered him
employment, including out-of-state work.
Watson also was available and would have accepted employment with
Respondent if it were offered to him during the relevant time period after May
4. Watson last did laborers’ work in
1973. Watson was hired once by a
nonunion employer after he applied as an overt task force organizer. After working there 2 or 3 days Watson asked
the foreman if he could receive the same pay as the others on the site. When the foreman said no Watson and the other
task force organizers who had been hired went on strike. None of the other employees joined the strike
and it does not appear that Watson ever made an offer to return to work. Watson candidly admitted that if he were
hired by Respondent and felt that the working conditions there were not appropriate
he would have considered going on strike there too.
Stanley Simrayh has worked as an organizer for the Union for about 5 years; he has been a union member for
12 years. His yearly salary is about
$88,000. Before becoming an organizer
Simrayh worked was a journeyman operator; he has experience operating a full
range of heavy equipment. He also has
worked as a laborer. He has driven
trucks and has a commercial driver’s license.
Simrayh was prepared to start work on May 4 if Respondent had offered
him employment, including out-of-state work.
He also was available and would have accepted employment with Respondent
if it were offered to him during the relevant time period after May 4. Simrayh was hired once by a nonunion employer
after he applied as an overt task force organizer. He worked 3 days and went on strike to protest
alleged unfair labor practices. There is
no evidence that the Union filed unfair labor
practice charges with the Board over this matter. No other employees joined the strike.
James Ward has been
