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,
Fluor Daniel, Inc. and International Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers, and Helpers, AFL–CIO. Case 26–CA–13842
August 13, 2007
SUPPLEMENTAL DECISION AND ORDER
By members Liebman, Schaumber, and Kirsanow
On May 28, 1993, the National Labor Relations Board issued a Decision and Order in this case, adopting the administrative law judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act by discriminatorily refusing to hire 53 voluntary union organizers (“salts”), and by effectively discharging employee David Scott Bolen for refusing to cross a picket line. Fluor Daniel, Inc., 311 NLRB 498 (1993). The Board reversed the judge’s finding that the Respondent discriminated against salt-applicant Edward DeWitt, finding that he had failed to submit an adequate job application. The Board petitioned the United States Court of Appeals for the Sixth Circuit to enforce its Order.
On November 16, 1998, the court issued its decision
enforcing the Board’s Order in part and remanding to the Board. NLRB v.
Fluor Daniel, Inc., 161 F.3d 953 (6th Cir. 1998). The court enforced the Board’s finding of
8(a)(3) and (1) violations as to the effective discharge of Bolen, as well as
the failure to hire salts John and Steven Coons.1 However, the court found that, as to the
remaining salts, the Board had failed to address whether the General Counsel
sufficiently matched each salt with a vacant position for which the salt was
qualified. Accordingly, the court
remanded the case to the Board for appropriate action consistent with its
opinion. In doing so, the court stated
that the Board “may also want to reconsider” the finding that salt Richard
Bowlds wrote “voluntary union organizer” on his application, as well as the
“logically subsequent finding” that the Respondent had a discriminatory
motivation in refusing to hire him.2
By unpublished Order dated January 18, 2000, the Board remanded this proceeding to Administrative Law Judge Martin J. Linsky for consideration of the issues raised by the court’s remand.
On May 11, 2001, the judge issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief, the Charging Party filed an opposition, and the Respondent filed a reply to the Charging Party’s opposition.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the judge’s supplemental decision, the parties’ briefs, and the record in light of the court’s opinion, which we accept as the law of the case.3 For the reasons that follow, we reverse the judge and dismiss the complaint as to salts Bowlds and George Saltsman, and find, contrary to the judge, that the General Counsel failed to match the following salt-applicants with positions that were available in the spring of 1990: Thomas Turner, Russell Bell, Hubert Crabtree, Anthony Taylor, Bobby Crabtree, Willis Beasley, Ricky Brown, and George Hayes.4 We affirm the judge’s remaining rulings, findings, and conclusions only to the extent consistent with this Supplemental Decision and Order.5
i. the judge’s supplemental decision
The judge found that Bowlds did not write “voluntary union organizer” or similar wording on his application. However, the judge determined that his application sufficiently reflected his union affiliation because he listed the business agent and assistant business agent of Iron Workers Local 103 as personal references. The judge also noted that Bowlds had submitted his application along with other applicants who had “voluntary union organizer” or similar wording on their applications.
The judge determined that the General Counsel matched the applicants
with available positions for which they were qualified. The judge noted that at the original hearing,
Respondent’s superintendent, Andrew Warner, testified that, in selecting
applicants for hire, the Respondent relied primarily on the information
contained in job applications.
The judge rejected the Respondent’s assertion that some selectees may have appeared at the gate just when people with their skills were needed, and that they were hired on the spot. In this connection, the judge found that there was no testimony that any specific hirings actually occurred under those circumstances. The judge also found that the Respondent’s own staffing plan called for retaining applications filed in the spring to be used for hiring in the fall, and that the Respondent easily could have contacted the salts who applied in the spring of 1990 and offered them employment in the fall, but that it did not do so because they had expressed a desire to organize. The judge also rejected the Respondent’s claim that union picketing made it impractical to hire the salt-applicants, pointing out that it was the Respondent’s failure to hire the salts that prompted the picketing in the first place.
The judge again concluded that the Respondent violated Section 8(a)(3) and (1) by failing to hire the salt-applicants.
ii.
respondent’s exceptions
The Respondent argues that the judge erred by finding a violation as to Bowlds because Bowlds’ application did not contain the words “voluntary union organizer” or similar wording. The Respondent acknowledges that Bowlds’ application indicated that he was affiliated with a union, but argues that the application is indistinguishable from applications of other union-affiliated individuals who were hired.
The Respondent also argues that the judge erred in finding that positions were available for certain salts because the judge matched those salts to positions that already had been offered to, or vacated by, other employees by the time the salts applied. The Respondent also claims that the judge’s comparison of applicants by education and experience as listed on their respective job applications is of little relevance as the Respondent did not hire based on careful comparisons of individual resumés, and that the judge erred in certain assessments he made of the selectees’ qualifications relative to those of the salts. Further, the Respondent contends that, in the construction industry, all journeymen are considered equally qualified, and the judge therefore erred by finding some journeymen more qualified than others. The Respondent additionally claims that some of the employees hired did not perform the traditional duties assigned to their respective crafts, and thus that the judge erred in comparing them to salts who had skills in those crafts. Moreover, according to the Respondent, the judge erred by comparing some journeyman salts to employees who were hired into lower-level positions because the Respondent would not have considered them for, and the salts would not have accepted, those positions.
The Respondent also raises several affirmative defenses. First, the Respondent asserts that it was
justified in not hiring the salts in the fall because their applications, which
were filed in the spring, were “stale” by the time the Respondent began its
fall hiring. Second, with respect to
salt-applicant Saltsman, the Respondent contends that its failure to hire him
was justified because he failed to submit an adequate application. Third, the Respondent argues that it had
several hiring preferences that justified its hiring decisions, specifically
preferences for hiring (1) former employees; (2) applicants who applied at the
gate where work was to be performed; and (3) people who had connections to employees
already on the job. Finally, the
Respondent argues that it reasonably declined to hire the salts while picketing
was occurring in the spring as it reasonably believed that the salts would not
be willing to cross the picket lines to come to work.
iii. analysis
To prove a violation of Section 8(a)(3) of the Act, the General Counsel must prove, by a preponderance of the evidence, that an individual’s protected activity was a motivating factor in the employer’s adverse employment action. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). To sustain this burden, the General Counsel must show that the individual engaged in protected activity, that the employer was aware of that activity, and that the activity was a substantial or motivating reason for the employer’s action. Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999). Once the General Counsel makes this showing, the burden of persuasion then “shift[s] to the employer to demonstrate that the same action would have taken place even in the absence of protected conduct.” Wright Line, supra.6
A. The General Counsel’s Case
There are two elements of the General Counsel’s case at issue here. First, there is an issue as to whether the General Counsel showed that the Respondent knew that Bowlds was a salt. Second, there is an issue as to whether anti-salt animus motivated the Respondent’s failure to hire the salts. We address these issues separately below.
1. Knowledge
It is undisputed that the Respondent hired individuals whose applications showed general union affiliation. The issue here, however, is whether the Respondent discriminatorily refused to hire individuals whose applications indicated that they were salts.
Bowlds’ application did not state that he was a “voluntary
union organizer” or contain similar wording.
Rather, as the judge found, his application listed the business agent
and assistant business agent of Iron Workers Local 103 as his references. Thus, the application shows at most Bowlds’
general union affiliation. Although his
application was submitted along with 11 other Iron Workers’ applications, all
of which displayed the phrase “voluntary union organizer” or similar wording,
the applications were not submitted directly to the Respondent. Rather, they were submitted to a job service
in
2. Animus and job matching
In its original decision in this case, the Board found that the General Counsel demonstrated the Respondent’s antiunion animus by, inter alia, the Respondent’s discharge of Bolen and its treatment of Steven and John Coons. The court affirmed the Board’s findings regarding Bolen and Steven and John Coons, and left undisturbed the finding that the Respondent possessed antiunion animus.7 However, the court found that, with respect to the alleged discriminatory failure to hire the remaining salts, the General Counsel was required to match up the remaining salts with “available jobs” and to show a link between the Respondent’s animus and “identifiable employment decisions.” Fluor Daniels, supra, 161 F.3d at 968, 969.
The Respondent argues that the judge erred by matching
some of the salts with employees who had received offers, and others with employees
who had vacated positions (absent evidence that those positions were subsequently
filled), before the Respondent received the salts’ applications from the
Applying these principles to the facts here, the record supports the Respondent’s claim that it offered positions to certain selectees before March 26. Specifically, Boyd maintained a job log that he authenticated at the original hearing, and that was admitted into evidence without objection. As Boyd testified, the job log includes the dates on which offers were made to the listed individuals. The judge did not discredit this evidence, which shows that the following employees were offered positions before March 26: Thomas Eubanks, Douglas Hammond, Kyle Johnson, Robert Owen, Christopher Ratliff, Doyle Matthew Hust,8 J.D. Everman, David McDonald, Ronnie Glen Fulkerson,9 James Eaton, Larry Hardison, Michael Little, and Billy Archer. There is no claim and no evidence that any of these employees turned down these offers and were given additional offers on or after March 26. In these circumstances, we find that the positions filled by these individuals were not “available” to the salts when they applied. Thus, we find that the General Counsel failed to match up the following salts with positions that were available in the spring: Thomas Turner, who was compared only with Fulkerson; Russell Bell, who was compared only with Hust; Hubert Crabtree, who was compared only with Johnson; Anthony Taylor, who was compared only with Little; Bobby Crabtree, who was compared only with Eubanks; Willis Beasley, who was compared only with Owen; and Ricky Brown, who was compared only with Ratliff.
By contrast, although the judge compared salt-applicant G. Dennis Kulmer with two employees (Eubanks and Hammond) who had received offers before March 26, the judge also compared Kulmer with selectees who had not received pre-March 26 offers. At least one of those selectees (e.g., Johnny Beasley) was not compared with any other salts, and thus has not already been counted in determining available jobs for other salts. In these circumstances, the General Counsel has satisfied his burden of matching Kulmer with at least one available job for which he was qualified. With one exception, discussed below, there is no record evidence that any additional employees involved in the judge’s comparisons received offers prior to March 26, and we reject the Respondent’s claims to the contrary.10
With respect to selectees who already had vacated their positions before the salts applied on March 26, the evidence shows that selectee Patrick Lumb was terminated on March 23, and there is no claim or evidence that this vacancy was later filled. Accordingly, there is no evidence that the Respondent made an identifiable employment decision with respect to this vacancy after the salts applied, and we thus find that the judge erred by considering Lumb’s position in identifying available positions in the spring. As salt George Hayes was compared only with Lumb for the spring, we find that the General Counsel has failed to establish that there was a position available for Hayes in the spring.11
For the foregoing reasons, we find that the General Counsel failed to establish that there were positions available in the spring for Thomas Turner, Russell Bell, Hubert Crabtree, Anthony Taylor, Bobby Crabtree, Willis Beasley, Ricky Brown, and George Hayes. Thus, the General Counsel has failed to establish that the Respondent discriminatorily failed to hire these individuals in the spring. However, the General Counsel did match up these individuals with positions that were available in the fall. Consequently, the Respondent unlawfully failed to hire them in the fall, and any remedy for that unlawful conduct will be determined accordingly.
As summarized above, the Respondent challenges the judge’s job-matching findings on several additional grounds. For the reasons that follow, we reject the Respondent’s contentions.
With respect to the Respondent’s claim that the judge erred in comparing applicants’ education and experience listed on their job applications, the judge relied on Warner’s testimony from the original hearing that the Respondent relied primarily on the information contained in job applications when making its selections. The Respondent provides no basis for reversing the judge on this point.12 In addition, the record supports the judge’s findings that, based on their applications, the salts were more qualified than the selectees.13
With respect to the Respondent’s claim that all journeymen
are considered equally qualified, the Respondent’s witnesses testified that individuals
with more experience, particularly in construction, are generally preferred
over those who lack such experience.
Accordingly, we reject the Respondent’s claim.
With respect to the Respondent’s argument that some of the selectees did not ultimately perform the usual duties of their respective crafts, there is no evidence that, at the time of hiring, the Respondent knew that any of the selectees would not be performing the duties of the positions for which they were hired. Thus, what duties a selectee ultimately performed is irrelevant to determining whether the Respondent, because of antiunion animus, failed to hire the more qualified individual for that position at the time it made the hiring decision. Accordingly, we reject the Respondent’s argument.
Finally, we reject the Respondent’s claim that the judge erred by comparing some journeymen salts to selectees hired into lower-level positions. In this regard, the record evidence cited by the Respondent is neutral, at best, with respect to whether the Respondent would not consider journeyman applicants for lower-level positions.14 Further, other record evidence indicates that the Respondent does not automatically decline to consider higher-level applicants for lower-level positions,15 and still other evidence indicates that the journeymen salts would have been willing to accept such positions.16 In these circumstances, the Respondent provides no basis for finding that the judge erred by comparing journeymen salt applicants with selectees who were hired into lower-level positions.
For the foregoing reasons, we find that the General Counsel has established an initial case of discrimination, except as to Bowlds, with respect to whom we dismiss the relevant portion of the complaint.
B.
Respondent’s Affirmative Defenses
The Respondent claims that it had several legitimate justifications for its hiring decisions.
With regard to the Respondent’s claim that the salts’ applications were “stale” by the time the Respondent began its hiring for the fall, the Board rejected this argument in its original decision, and the court did not disagree. The Respondent advances no reason for the Board to revisit this issue. Thus, we reject the Respondent’s argument. We do, however, agree with the Respondent that salt-applicant Saltsman failed to submit an adequate application. Saltsman’s application lists training in the pipefitter apprentice program but does not list any work experience. Thus, his application is not materially different from that of applicant DeWitt, which the Board previously found to be inadequate because it did not list his previous work experience. Accordingly, for the same reasons discussed in the Board’s original decision with respect to DeWitt, we dismiss the complaint as to Saltsman.
With respect to the Respondent’s (undisputed) preference for hiring former employees, there is no record evidence that the Respondent has a practice of hiring a less qualified over a more qualified applicant merely because he or she was a prior employee. On the contrary, the record demonstrates that, even for prior employees, the Respondent considers the individual’s application, interview, prior termination codes and skill levels, and references.17 This evidence indicates that an individual with poor work skills or a prior disciplinary record would not necessarily be hired simply because he or she previously had been employed by the Respondent. Accordingly, we find that the Respondent failed to show that it would have hired any of the selectees over the salt-applicants based on its preference for hiring former employees and even in the absence of the salts’ protected activity.
With respect to the Respondent’s claim of having a
gate-hiring preference, there was general testimony that the Respondent will
hire people who apply at the plant gate.
However, as with the former-employee preference, there is no evidence
that the Respondent will hire a less qualified over a more qualified applicant
because the former applied at the gate.18 To support its claimed gate-hiring preference,
the Respondent also relies on evidence that many selectees’ applications are
dated on or shortly before their hire dates.
Other evidence, however, shows that selectees did not simply show up at
the gate and apply; instead, individuals sometimes were contacted by the
Respondent beforehand and asked to come to the gate and fill out applications.19
Further, there is evidence that the Respondent developed a staffing plan
with the goal of lining up workers prior to the beginning of the spring
outages,20 which further undercuts
the Respondent’s claim of a gate-hiring preference. For the foregoing reasons, we reject the
Respondent’s reliance on its unproven gate-hiring preference.
With regard to the Respondent’s claimed preference for hiring people with connections to incumbent employees, there was testimony that the Respondent will hire individuals who are referred by other employees, and that some of the selectees were contacted or came to the job because they knew people already working for the Company. However, there is no record evidence that the Respondent will hire a less qualified over a more qualified applicant merely because the former knows or receives a referral from an incumbent employee. Accordingly, the Respondent has not established that, absent antiunion animus, it would have hired any of the selectees because of their connections to incumbent employees.
Finally, with regard to the Respondent’s claim that the spring picketing justified its failure to hire the salt-applicants, the judge found that the purpose of the picketing was to protest that very failure to hire, and that some picketers informed the Respondent that they were looking for jobs. Thus, it would have been reasonable for the Respondent to conclude that, had it offered jobs to the salts, the picketing would end. In these circumstances, we find that the picketing did not provide a legitimate justification for the Respondent to refuse to hire the salts.21
ORDER
The National Labor Relations Board orders that the
Respondent, Fluor Daniel, Inc.,
1. Cease and desist from
(a) Discouraging employees from engaging in activities on behalf of a labor organization by refusing to hire job applicants because they are members or supporters of unions, or because they indicate on their employment applications that they are voluntary union organizers.
(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 to the following individuals instatement in the positions for which they applied or, if those positions no longer exist, in substantially equivalent positions, without prejudice to their seniority and any other rights and privileges they would have enjoyed.
Pipefitters Local 633
Russell W. Bell
Jeffrey Campbell
Ernest Carter, Jr.
Donald S. Cole
Wallace H. Cook, Jr.
Bobby D. Crabtree
Hubert L. Crabtree
George E. Hayes
Jerry L. Hurm
Joseph B. Hobbs
Patrick R. O’Bryan
James G. Phillips
Roger D. Sims
Anthony O. Taylor
James L. Trainer
Thomas G. Turner
Mark Wagner
Richard A. Wall
Charles H. Yeiser
John C. Zaremba
Iron Workers Local 103
Ralph S. Angel
Herschel L.
Bowlds, Jr.
Willis G.
Beasley
Willis C. Dean,
Jr.
Mark A. Farmer
Donald L. Hurst
Laborers Local 1392
Thomas R. Ball
Ronnie E. Burk, Sr.
James M. Jones
Boilermakers Local 40
Thomas Armstrong
Jimmy D. Blandford
Steve Boggess
James Cauley
Ernest T. Coons
Martin W. Drake
Jeffrey Everly
Russell Gregory
Michael Hardin
David K. James
G. Dennis Kulmer
Brett A. Maupin
James D. Pierce
Todd Robinson
Frank Trovato
(b) Make the individuals named in paragraph 2(a), as well as Larry Elliot, Don Gower, Ricky Brown, Jimmy Gentry, and the estate of Greg Parks, whole for any loss of earnings and other benefits suffered as a result of the discrimination against them. Backpay shall be computed in accordance with F.W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful refusal to hire the individuals named above, and within 3 days thereafter notify them in writing that this has been done and that the unlawful refusal to hire them will not be used against them 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
all of its jobsites within a 75-mile radius of
(e) 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,
Wilma
B. Liebman,
Member
Peter C. Schaumber, Member
Peter N. Kirsnaow, 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 discourage employees from engaging in activities on behalf of a labor organization by refusing to hire job applicants because they are members or supporters of unions, or because they indicate on their employment applications that they are voluntary union organizers.
We will not in any like or related manner interfere with, restrain, or coerce youin the exercise of the rights set forth above.
We will, within 14 days from the date of the Board’s Order, offer to the following individuals employment in the positions for which they applied or, if those positions no longer exist, in substantially equivalent positions, without prejudice to their seniority or any other rights or privileges they would have enjoyed:
Pipefitters Local 633
Russell W. Bell
Jeffrey Campbell
Ernest Carter, Jr.
Donald S. Cole
Wallace H. Cook, Jr.
Bobby D. Crabtree
Hubert L. Crabtree
George E. Hayes
Jerry L. Hurm
Joseph B. Hobbs
Patrick R. O’Bryan
James G. Phillips
Roger D. Sims
Anthony O. Taylor
James L. Trainer
Thomas G. Turner
Mark Wagner
Richard A. Wall
Charles H. Yeiser
John C. Zaremba
Iron Workers Local 103
Ralph S. Angel
Herschel L.
Bowlds, Jr.
Willis G.
Beasley
Willis C. Dean,
Jr.
Mark A. Farmer
Donald L. Hurst
Laborers Local 1392
Thomas R. Ball
Ronnie E. Burk, Sr.
James M. Jones
Boilermakers Local 40
Thomas Armstrong
Jimmy D. Blandford
Steve Boggess
James Cauley
Ernest T. Coons
Martin W. Drake
Jeffrey Everly
Russell Gregory
Michael Hardin
David K. James
G. Dennis Kulmer
Brett A. Maupin
James D. Pierce
Todd Robinson
Frank Trovato
We will make the above-named individuals, as well as Larry Elliot, Don Gower, Ricky Brown, Jimmy Gentry, and the estate of Greg Parks, whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, less any net interim earnings, plus interest.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful refusal to hire the individuals named above, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that our unlawful refusal to hire them will not be used against them in any way.
Fluor Daniel, Inc.
Susan B. Greenberg, Esq. for the General Counsel.
Melvin Hutson and
Lynn R. Hudson, Esq of
Michael J. Stapp, Esq., of
SUPPLEMENTAL
DECISION
i. statement of the case
Martin J. Linsky, Administrative Law Judge: On November 29, 1991, following a 12-day
hearing in May and June 1991 and the receipt of briefs, I issued my decision in
the instant case.
The
Board on May 28, 1993 affirmed for the most part my decision of November 29,
1991. The Board’s decision and my
decision are reported at Fluor Daniel,
Inc., 311 NLRB 498 (1993).
Thereafter
the Board petitioned for enforcement and litigation before the U.S. Court of
Appeals for the 6th Circuit commenced.
On November 16, 1998, the Court issued its decision which superseded its
earlier decision in the case reported at 102 F.3d 818 (6th Cir. 1996), and
granted the Board’s enforcement petition in part and remanded in part. The Court’s decision is reported at NLRB v. Fluor Daniel, Inc., 161 F.3d 953
(6th Cir. 1998).
The
Court held, in pertinent part, as follows:
“We GRANT the
The
Board on January 18, 2000 issued an order remanding the case to me. In its order the Board stated:
“On November 16, 1998 . . . the court enforced
in part and denied in part the Board’s petition for enforcement. The court found that the Board had erred in
ordering the Respondent to offer employment to 52 of the named alleged
discriminatees, with backpay. The court
remanded the case to the Board on the issue of whether the General Counsel can
prove the elements, as the court defined them, of a prima facie case of unfair
labor practices against the voluntary union organizers. The court held that, in order to show a
discriminatory refusal to hire job applicants because of their union activity,
the General Counsel must show, as part of its prima facie case, not only that
the Respondent harbored antiunion animus toward the applicants, but that it
failed to offer the individual applicants available job openings for which the
applicants were qualified.
The Board has
accepted the remand as the law of the case.
We have reviewed the statements of position of the Charging Party and
the Respondent. We find that it is appropriate
to remand the proceeding to the administrative law judge for him to reopen the
hearing and to accept evidence on the issues as defined by the court’s
remand. Thus, the General Counsel will
be allowed to present any relevant evidence to show that the Respondent, at
relevant times, had job openings in particular job classifications for which
the applicants were qualified, and failed to offer such jobs to individual
applicants in those classifications. The
Respondent will, likewise, be allowed to adduce any relevant rebuttal
evidence. We therefore will remand this
proceeding to the administrative law judge for the purpose of conducting such
hearing and admitting this evidence, consistent with the court’s remand.”
Thereafter
11 days of hearings were held before me between
July 10, 2000 and November 8, 2000. The
first 8days of the hearing were held in
ii. issues
This
case was a “salting” case. Indeed one of
three “salting” cases in which Respondent was found guilty of unfair labor
practices in failing and refusing to hire union affiliated applicants for
employment.2 “Salting” occurs when a union sends union
affiliated applicants for employment to a non union employer in the hope that
the union affiliated applicants for employment will be hired and can organize
the employer.
The
law is crystal clear that union affiliated applicants for employment can not
lawfully be discriminated against in employment.
In
the instant case we have 51 and not 52, as the Board’s remand order stated,
union affiliated applicants for employment who were denied employment by
Respondent when they applied in 1990.
Fifty
(50) of the 51 applicants wrote on their application for employment with
Respondent that they were “voluntary union organizers” or words to that
effect. One (1) of the 51, i.e., Iron
Worker Richard B. Bowlds did not write that he was a “voluntary union
organizer” or words to that effect on his application but did list Iron Workers
Local 103 Business Agent William Curtis and Assistant Business Agent Bill
Garrett as personal references. He
listed them in such a way that it was obvious he was union affiliated, i.e.,
“Billy Curtis” “BA” and “Billy Garrett” “ASS BA” [sic]. In addition his application was submitted
along with the other Ironworker applications which contained the language
“voluntary union organizer” or words to that effect.
The
alleged discriminatees in this case came from four different unions, i.e.,
Boilermakers Local 40, Pipefitters Local 633, Iron Workers Local 103 and
Laborers Local 1392.
For
purposes of background the following portion from my November 29, 1991,
decision, which was left undisturbed by the Board and Court, reads as follows:
“Respondent is a
In 1990 Respondent
entered into a 3-year contract with Big Rivers Electric Company to do service
and maintenance work on various power generating facilities operated by Big
Rivers. The service and maintenance work
would be done during what the parties to this litigation referred to as ‘outages.’ An ‘outage’ refers to the complete shutting
down of a power generating facility so that the service and maintenance work
can be done. It is generally done in the
spring and fall of the year when the need for power is somewhat less.
Big Rivers had
power generating facilities in and around Sebree, Hawesville, and
In spring of 1990,
Respondent worked on six separate outages between February and June 1990. They were as follows:
Plant Location Dates
Coleman I Hawesville 3/11-3/31
Green II Sebree 4/23-5/19
Coleman III Hawesville 5/20-6/02
Coleman II Hawesville 6/02-6/30
In the fall of
1990, Respondent worked on two outages.
They were as follows:
Plant Location Dates
Green II Sebree 3 weeks in 9/90
In the fall of
1990, Big Rivers terminated its contract with Respondent after less than 1 year
allegedly because of poor job performance by Respondent.” Fluor
Daniel, Inc., 311 NLRB at 501.
They
were eight separate outages during the Big Rivers project and in the litigation
they were referred to as the Spring outages (six outages) and the Fall outages
(two outages). The record is clear that
individuals who worked in the Spring outages were offered employment in the
Fall outages.
Forty
(40) discriminatees were denied employment during the spring outages. They fall into four separate crafts and are
as follows:
21 Pipefitters
from Pipefitters Local 633
1. Russell W.
2. Jeffrey Campbell
3. Ernest Carter, Jr.
4. Donald S. Cole
5. Wallace H. Cook, Jr.
6. Bobby Crabtree
7. Hubert Crabtree
8. George Hayes
9. Jerry L. Hurn
10.
Joseph B. Hobbs
11.
Patrick R. O’Bryan
12.
James G. Phillips
13.
George T. Saltzman
14.
Roger D. Sims
15.
Anthony O. Taylor
16.
James L. Trainer
17.
Thomas G. Turner
18.
Mark G. Wagner
19.
Richard A. Wall
20.
21.
John C. Zaremba
Four
Boilermakers from Boilermaker Local 40
1. James Cauley
2. Ernest T. Coons
3. G. Dennis Kulmer
4. James D. Pierce
12 Ironworkers
from Ironworkers Local 103
1. Ralph Angel
2. Herchel L. Bowlds, Jr.
3. Richard B. Bowlds
4. Willis G. Beasley
5. Ricky Brown
6. Willis C. Dean, Jr.
7. Larry Elliott
8. Mark A. Farmer
9.
James C. Gentry
10.
Ronald K. Gower
11.
Donald L. Hurst
12.
Gregory Parks
Three Laborers
from Laborers Local 1392
1. Thomas R. Ball
2. Ronnie E. Burk, Sr.
3. James M. Jones
Eleven
(11) discriminatees applied for positions with Respondent only during the Fall
outages. They are as follows:
Eleven
Boilermakers from Boilermaker Local 40
1. Thomas Armstrong
2. Jimmy Blandford
3. Steve Boggess
4. Martin W. Drake
5. Russell Gregory
6. Frank Trovato
7. David K. James
8. Brett A. Maupin
9. Todd Robinson
10.
Jeffrey Everly
11.
Michael Hardin
The
issues in the remand I believe are two in number. Number one is where there jobs available for
those union affiliated applicants for which these union affiliated applicants
were qualified and the General Counsel, if it can, should match up each discriminatee
with a specific job. And number two even
if the union affiliated applicants were qualified for available jobs did
Respondent hire others in their place for legitimate nondiscriminatory reasons.
Two
witnesses testified as to job qualifications and job availability for
Boilermakers Local 40 members. They were
Pat Smith and Joseph Meredith I found
both Smith and Meredith to be exceedingly competent and credible. One witness testified to job qualifications
and job availability for Ironworkers Local 103 members. The witness was Vince Hill. I found Hill also to be exceedingly competent
and credible. One witness testified as
to job qualifications and job availability for the Pipefitter Local 633
members. The witness was Charles Ashley. Again, I found Ashley to be exceedingly
competent and credible.
A
comparison was made between the discriminatees and persons actually hired by
Respondent into jobs for which the witnesses testified the discriminatees were
qualified. It became apparent that each
of the discriminatees was qualified and should have been hired over the people
who were hired.
No
witness testified as to a comparison between the Laborers Local 1392 member
discriminatees and those hired but documentary evidence proves that they were
at least as qualified for available jobs into which other persons were hired.
I
will address each group of craftsmen separately.
iii. boilermaker members of
local 40
Boilermakers
are trained in fitting material together for bolting or welding. Boilermakers are trained in rigging materials
into place. Boilermakers are trained in
laying out material for cutting and fitting items together. Boilermakers are trained in a variety of
welding skills including tube welding.
Boilermakers are also trained to perform sand blasting and painting in
the boiler. The Boilermakers’
Apprenticeship Program requires four years of classroom and on-the-job
training.
The
materials boilermakers rig, fit and weld can weigh tons. Many of these materials must be lifted
hundreds of feet in the air for the boilermaker to fit and weld the material in
place. This work is performed in a
variety of industries, including coal fired power generation plants, such as
those on the various Big Rivers Projects.
Respondent
challenges the expert testimony offered pursuant to Federal Rule of Evidence
702, of Joseph Meredith, concerning the relative qualifications of the
discriminatees versus that of certain people hired in their stead. Meredith is a 1968 graduate of the
Boilermakers Apprenticeship Program. Meredith
was chosen as the outstanding Boilermaker Apprentice in the Southeast
Area. Meredith worked as a field
construction boilermaker and earned a Bachelor of Science Degree in mechanical
engineering.
Meredith
spent the next 27 years working for the International Brotherhood of
Boilermakers at its Headquarters in
Meredith
has also served on the labor/management welding committee, which develops
welding testing procedures to test Boilermaker welders who work for various
construction employers. He also serves
on the National Boiler Board of Pressure and Vessel Inspectors. This is a nationwide industrial committee,
whose purpose is to establish safe practices for the operation, repair and alteration
of industrial boilers. All boiler
repairs in the State of
During
the past 7 years parts of Meredith’s duties have included teaching first and
second year apprentices in the Boilermakers Apprenticeship Program. Meredith is intimately familiar with the
training Boilermakers receive through that Apprenticeship Program.
Federal
Rule of Evidence 702 provides an expert witness may testify, as to his or her
opinion on any issue, which will aid the trier of fact to determine a fact at
issue. Arlington Hotel Co., Inc., 287 NLRB 851 (1987); Indeck, 325 NLRB 1684, 1987 (1998); Meijer, Inc., 329 NLRB No. 69
(1999). A witness may be qualified as an
expert based on knowledge, skill, experience, training or education. Federal Rule of Evidence 702.
Meredith
has offered his expert opinion on the relative qualifications of individuals,
based on their applications, to fill boilermaker and welder positions. Through his experience in the Boilermaker
Apprenticeship Program and the various labor management committees, Meredith is
fully qualified to render such an opinion.
Based on his training and experience as a Boilermaker, Meredith is
qualified to render such an opinion.
Based on his education as a boilermaker and as a mechanical engineer,
Meredith is qualified to give his expert testimony on this issue.
Andrew
Warner testified during the original trial in 1991 that Respondent’s primary
criteria for selecting an applicant was what information was contained in his
or her application. Warner testified that most of the time they can tell from
the application whether or not an individual is qualified for a particular
position. Warner went on to testify that
when selecting an applicant they look at the applicant’s previous experience
and evaluate whether one individual is better qualified than another. This is contradicted to some extent by the
testimony of Jack West, a witness for Respondent in the hearing on remand,
where he claims that he would interview certain applicants if their
applications show that they might be
qualified for a position.
Respondent
considers it important to hire qualified employees. Jan Linscome, who was primarily responsible
for hiring for the Fall outages, testified that someone with more experience in
a craft is generally preferred over someone with less experience. This was confirmed by Robert Wollard, the
Project Manager for the Big Rivers Projects.
Wollard and Andy Warner, who was primarily responsible for hiring during
the Spring outages, both testified to a preference for employees with a
construction background. Respondent
would prefer seasoned welders over those fresh out of school.
Applying
these criteria to the discriminatees and those hired, I find more than a
sufficient number of jobs for each Boilermaker discriminatee. Moreover, I find a significant number of jobs
where the discriminatees were clearly superior applicants to those hired. Lastly the boilermaker discriminatees were
compared with people hired as boilermakers who had not previously been
certified as craftsmen by Respondent or had even worked for Respondent.
a.
Boilermaker jobs
1. Based on his application, James A. Pierce was
clearly more qualified than several of the people hired in his stead.
Pierce
had apprenticeship training and approximately 11 years experience as a journeyman
boilermaker. Pierce also has journeyman
boilermaker experience in power plants such as Big Rivers.
Respondent
hired Tony D. Campbell after Pierce applied.
Joseph Meredith testified there was no training listed on
Respondent
hired James M. Glick after Pierce applied.
Joseph Meredith found that Glick listed no training on this application,
some related experience on his application and approximately 3 years of
boilermaker experience. Respondent
concluded that Glick has approximately 2 years of journeyman boilermaker
experience. In his expert opinion,
Meredith rated Pierce a better potential employee than Glick.
Respondent
hired Steven S. Hillburn after Pierce applied.
Although Steven Hillburn had approximately 5 years of journeyman boilermaker
experience he had no training or related experience. Respondent’s own witness concluded that
Hillburn had approximately 4 years of boilermaker journeyman experience. In Joseph Meredith’s expert opinion Pierce
was more qualified than Hillburn.
Respondent
hired Bruce Kennedy after Pierce applied.
Although Kennedy has some related experience, he had no journeyman
boilermaker experience. Meredith concluded
in his expert opinion that Pierce was much more qualified than Kennedy. Respondent’s own witnesses conceded that they
would prefer someone with some boilermaker experience over Kennedy.
The
Respondent hired Ricky Pollard after Pierce applied. Although Pollard has no training as a
boilermaker he does have approximately 2 years of boilermaker experience some
of which was in a power plant. In Meredith’s
expert opinion, Pierce is much more qualified as a journeyman boilermaker than
Pollard.
Respondent
hired John M. Shrodt after Pierce applied.
Shrodt has no training as a boilermaker and less than a year’s
experience as a boilermaker apprentice.
In Meredith’s expert opinion, Pierce is much more qualified than
Shrodt. Jack West, who was a Fluor
Daniel senior manager of recruitment in