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,
BCE Construction,
Inc. and International Brotherhood of
Carpenters & Joiners of
August 31, 2007
DECISION AND ORDER
By
Chairman Battista and Members Liebman
and Schaumber
On
August 11, 1997, Administrative Law Judge Pargen Robertson issued the attached
initial decision in this case. The
Respondent filed exceptions to the judge’s decision and a supporting brief, the
Charging Party filed an answering brief to the Respondent’s exceptions, and the
General Counsel filed exceptions and a memorandum in support of them.
On
June 7, 2000, the National Labor Relations Board remanded the case to the judge
for further consideration in light of the Board’s decision in FES, 331 NLRB 9 (2000), supplemental
decision 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002), which sets forth
the analytical framework for refusal-to-hire and refusal-to-consider
allegations.
On
July 9, 2001, the judge issued the attached supplemental decision. The
Respondent filed exceptions to the judge’s supplemental decision and the General
Counsel filed an answering brief.
The
National Labor Relations Board has delegated its authority in this proceeding to
a three-member panel.
The
Board has considered the decisions and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rulings, findings,[1]
and conclusions and to adopt the recommended Order as modified and set forth in
full below.[2]
This
case centers on whether the Respondent unlawfully failed to consider and/or
refused to hire nine applicants, in violation of Section 8(a)(3) and (1) of the
Act. The complaint also alleged that the Respondent discharged an employee in
violation of Section 8(a)(3) and (1) of the Act. Finally, the complaint alleged that the
Respondent independently violated Section 8(a)(1) in various respects.
We
agree with the judge’s findings, for the reasons he sets forth, that the
Respondent violated Section 8(a)(1) of the Act by threatening to discharge
employees because of their protected concerted activities,[3] by
creating an impression of surveillance of employee union activities, by
forbidding employees to talk about the Union,[4]
and by interrogating employees about their protected and union activities. However, concerning this last violation, we
base our finding on the Respondent’s unlawful conduct in an incident on
February 6, 1996,[5] when
Superintendent Leonard DeClue asked employee Anthony Twitty if employee
Terrence McCulloch was also in the
We
also adopt the judge’s finding that the Respondent violated Section 8(a)(1) of
the Act by informing employees that it would be futile to support
unionization. We adopt this finding, pro
forma, because we agree with the Charging Party’s contention that the
Respondent’s exception on this point fails to conform to Section 102.46 of the
Board’s Rules and Regulations. We note
that the Respondent excepted to the judge’s finding of this violation in its
enumerated exceptions. The Respondent
therein stated only that the judge’s decision was “contrary to the law
establishing the charges” and “contrary to the evidence adduced at the hearing.” Although the Respondent set forth specific
arguments on the merits for all other points in its exceptions, it did not do
so for this one. Further, it failed to “designate
by precise citation of page the portions of the record relied on” (Sec. 102.46(b)(1)(iii)). See Holsum
de Puerto Rico, 344 NLRB No. 85 fn. 1 (2005), enfd. 456 F.3d 265 (1st Cir.
2006); QSI, Inc., 346 NLRB No. 97,
slip op. at 2 (2006). Indeed, the Respondent
did not respond at all to the Charging Party’s procedural attack.
Finally,
we agree with the judge, for the reasons he sets forth, that the Respondent violated
Section 8(a)(3) and (1) of the Act. The
judge, applying the Board’s holding in
Finally,
the judge, applying Wright Line,[8]
concluded that the Respondent unlawfully discharged employee Anthony Twitty. In
its defense, the Respondent’s chief argument is that Twitty was not
discharged. Rather, according to the
Respondent, Twitty stopped showing up for work.
However, the judge discredited the Respondent’s defense that Twitty
quit. We adopt the judge’s decision.[9]
Amended
Remedy
Having
found that the Respondent discriminatorily refused to hire the nine applicants,
and refused to consider them for employment, the Respondent must make them
whole for its unlawful conduct against them.
The duration of their backpay period shall be determined in accordance
with Oil Capitol Sheet Metal, 349
NLRB No. 118 (2007).[10] Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
and interest shall be computed in accordance with the New Horizons for the Retarded,
283 NLRB 1173 (1987).[11]
ORDER
The
National Labor Relations Board adopts the recommended Order of the administrative
law judge as modified and set forth in full below and orders that the
Respondent, BCE Construction, Inc.,
1.
Cease and desist from
(a)
Threatening to discharge its employees because of their protected concerted activities.
(b)
Creating the impression that it is engaged in surveillance of its employees’ union
activities.
(c)
Discriminatorily prohibiting its employees from talking about the
(d)
Interrogating its employees about their union activities.
(e)
Refusing to consider for hire and refusing to hire employees that show an
affiliation with, or an intent to organize for, International Brotherhood of
Carpenters & Jointers of America, Local # 978, or any other labor organization.
(f)
Discharging its employees because of their protected and union activities.
(g)
In any like or related manner interfering with, restraining, or coercing its employees
in the exercise of rights guaranteed them by Section 7 of the Act.
2.
Take the following affirmative actions necessary to effectuate the policies of
the Act.
(a)
Within 14 days from the date of this Order, offer employment to Jim Carsel,
Larry Sowers, Davis Carson, Michael Rand, Kenneth Owens, Ted Birch, Steven Wilson,
Robert Wirth, and William Grooms, in the positions for which they applied or,
if those positions no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges to which they
would have been entitled absent the discrimination against them.
(b)
Make whole the nine discriminatees identified in paragraph (a) for losses
sustained by reason of the discrimination against them as set forth in the
amended remedy section of this Decision.
(c)
Within 14 days from the date of this Order, offer Anthony Twitty full
reinstatement to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(d)
Make Anthony Twitty whole for any loss of earnings or other benefits suffered
as a result of his unlawful discharge, in the manner set forth in the remedy
section of the judge’s decision.
(e)
Within 14 days from the date of this Order, notify, in writing, the nine
discriminatees who applied for employment at the Respondent’s office on February
22, 1996, and who were unlawfully denied employment, that any future job
applications will be considered in a nondiscriminatory manner.
(f)
Within 14 days from the date of this Order, expunge from its records all
reference to the unlawful actions taken against the nine discriminatees and
Twitty, and within 3 days thereafter advise them in writing that this has been
done and that these actions shall not be used against them in any manner in the
future.
(g)
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.
(h)
Within 14 days after service by the Region, post at its facility in
(i)
Within 21 days after service by the Region, file with the Regional Director,
Region 17, 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,
|
Robert
J. Battista, |
Chairman |
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Wilma
B. Liebman, |
Member |
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Peter
C. Schaumber, |
Member |
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(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 threaten to discharge
our employees because of their protected concerted activities.
We will not create the impression
that we are engaged in surveillance of our employees’ union activities.
We will not discriminatorily
prohibit employees from talking about International Brotherhood of Carpenters
& Joiners of
We will not interrogate our
employees about their union activities.
We will not refuse to employ or
consider for employment anyone because of our belief that the applicant may
engage in organizing activity for International Brotherhood of Carpenters &
Joiners of America, Local # 978, or any other labor organization.
We will not discharge our employees
because of their protected and union activities.
We will not in any like or related
manner interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
We will, within 14 days from
the date of the Board’s Order, offer employment to the nine discriminatees
listed below in the positions for which they applied, or if those positions no
longer exist, to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges they would have enjoyed.
Jim
Carsel Ted Berch
Larry
Sowers Steven Wilson
Michael
Rand William
Grooms
Kenneth
Owens
We will make those nine discriminatees
whole for any loss of earnings and other benefits suffered as a result of our refusal
to hire them.
We will, within 14 days from
the date of the Board’s Order, notify in writing the nine discriminatees who applied
for employment at our office on February 22, 1996, and who were denied
employment, that any future job applications will be considered in a
nondiscriminatory manner.
We will, within 14 days from
the date of the Board’s Order, offer employment to Anthony Twitty to his former
job or, if that job no longer exists, to a substantially equivalent position
without loss of benefits.
We will make Anthony Twitty
whole for any loss of earnings and other benefits suffered as a result of our
discharge of him.
We will expunge form our records
all reference to the actions taken against the nine discriminatees and Anthony
Twitty and advise them in writing that this has been done, and that such acts
shall not be used against them in any manner in the future.
BCE
Construction, Inc
Thomas M. Moore, Esq., of
Michael J. Stapp, Esq., of
DECISION
Pargen Robertson
Administrative Law Judge. This matter
was heard in
Respondent,
Charging Party (
On
consideration of the entire record and briefs, I make the following
Findings of Fact
i. jurisdiction
Respondent
admitted that at material times it has been a corporation with a place of
business in Branson, Missouri, where it has been engaged as a general
contractor in the construction business doing commercial construction; that
during the 12 months ending May 31, 1996, in conducting those business
operations, it purchased and received at its facility and jobsites in Missouri
goods and services valued in excess of $50,000 directly from points outside
Missouri; and that it has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the National Labor
Relations Act (Act).
iii. labor
organization
Respondent
admitted that the Charging Party (
iv. the unfair labor
practice allegations
Terrence
McCulloch, a carpenter, is a member of the
McCulloch was
hired by Superintendent Leonard DeClue after he applied at Respondent’s Cooper
Park Tennis Stadium job. Respondent showed that its superintendents were both
fully responsible and completely independent to run their respective projects.
DeClue was Respondent’s highest official on the Cooper Park job.
A.
Section 8(a)(1): By Leonard DeClue:
Threat of Discharge
At
the end of their work shift on January 16, 1996, DeClue talked with McCulloch.
McCulloch tape recorded the conversation. During the conversation DeClue told
McCulloch that one of three employees on the job was causing him grief, that “somebody is
causing me some real grief with my Labor Relations Board.”1
He went on to say, among other things:
They don’t think I’m
paying them good enough and somebody here on this job has been stealing my
documents out of my trailer and I’m just gonna tell you this between me and you
and don’t mention it to them guys, but I’m gonna find out who done it and I’m
gonna fire their ass.
. . . .
I don’t know what kind of
shit Tony (Anthony Twitty) is putting to you, but he, I think, you know, I
think that’s my culprit, I’m not sure about it. I can’t, you know, I can’t say
for certain, but I guarantee you not one of em will own up to it, whoever is
doing it to me. But I’ve had some real f—kin’ grief on this job. I been paying
$13.70 or whatever it is, laborer scale, to those guys and they’re whining, you
know, wanting more money. I don’t know what the f—k to do, you know what I’m saying.
. . . .
And they just ain’t, you
know, they haven’t been getting it done for me and some chickenshit has went
behind my back and back stabbed me right square in the ass and I’m gonna find
out who it is and when I do, he’s gone. So that’s just between me and you, so I
don’t know what kind of smoke he’s put to you there, but
. . . .
I know I’ve got some
grief on this job and somebody here has been copying my records and turning
them over to the Labor Relations Board. They called a grievance against me . .
. about it. These guys got a problem, they just need to come to me and talk to
me, you don’t like that. If you come talk to me, I might deal with it, but if
you try to stick it in my back like that, I’ll get rid of his ass in a
heartbeat, you know. I don’t need that shit. I know it wasn’t you, you just got
here.
1. Findings: Credibility
The evidence
as to this issue is not in dispute. I find in view of the full record, that the
tape recordings of Terrence McCulloch’s conversations with Leonard DeClue are
accurate.
2. Conclusions
An examination
of the taped conversation shows that Leonard DeClue threatened that he would
fire the employee causing him grief. DeClue mentions that the suspect employee
is stealing and copying records from his trailer, but the overall conversation
shows that it is the suspected activity of revealing evidence to the “Labor
Relations Board,” bringing a grievance against DeClue and inciting the
employees to demand more money, that are the true motivating factors behind
DeClue’s threat. The credited tape recording shows that DeClue suspects that employee
“Tony” Twitty is the employee that caused all those problems for DeClue. The
suspected activity of giving evidence to the state division of labor standards,
filing a grievance and encouraging employees to seek higher wages, are all
protected concerted activity under the National Labor Relations Act (Act).
DeClue’s threat against an employee because of the employee’s suspected activity
constitutes a violation of Section 8(a)(1) of the Act.
B.
Create Impression of Surveillance and Told of Futility of Unionization:
Promulgated Rule Against
Talking About the
McCulloch tape
recorded a conversation with employee George Pallicere on the morning of
January 24, 1996. The tape recording continued when Leonard DeClue arrived.
McCulloch told DeClue that McCulloch was a member of the
I know how to make phone
calls, too. I make phone calls on everybody anymore. I’ve had such f—kin’
reason. I ain’t puttin up with that shit. They’re paying the minimum wage,
they’re paying union scale. This ain’t a carpenter’s job, this is a f—kin’
concrete job. There you go.
Terrence
McCulloch and DeClue had a second conversation on the morning of January 24,
1996. Among other things DeClue told McCulloch:
BCE is not gonna go union
and I don’t want to hear any union bullshit on my job while you’re out here
working with my guys, cause you’re not entitled to do that. If you are a union
organizer, you can do that after work on your time, but not on my time while
you’re out here working.
DeClue agreed
that McCulloch could talk about the
DeClue told
McCulloch that he had been injured by the Carpenters and the Steelworkers
unions when he started a company in 1978, and that those unions had been unable
to man his job. DeClue told McCulloch the he would be tickled if McCulloch
stayed on the job even if only part-time, until it finished but the scale was
what he had been paying.
1. Findings: Credibility
DeClue
admitted that he did tell Terrence McCulloch that he could not talk about the
Again,
as shown above, I fully credit the tape recordings of conversations involving
Leonard DeClue.
2. Conclusions
After
McCulloch told Leonard DeClue that he was a union organizer, DeClue replied
that he knew he was with the
The
tape recording also shows during a later conversation on January 24 that DeClue
prohibited McCulloch from talking to other employees about the
Respondent
cited Central Hardware Co. v. NLRB,
439 F.2d 1321 (8th Cir. 1971), in arguing that an employer has the right to
prohibit union solicitation during work hours. Central Hardware is not
applicable here where the issue was not solicitation but talking and the record
show that employees were allowed to talk about anything other than the
The
prohibition on talking constitutes a discriminatory rule designed to coerce
employees into foregoing discussions about the
In
view of the full record including especially comments made by Superintendent
Leonard DeClue regarding the employees’ union and other protected activities, I
find that Respondent engaged in 8(a)(1) violations by creating the impression
of surveillance of its employees union activities; by telling employees that
efforts to organize Respondent’s jobs will be futile and by promulgating a
discriminatory rule against talking about the Union. DeClue made comments about
knowing of union activity at a time when employees were making initial efforts
to support the
C.
Interrogated Employees
1. February 6, 1996
During a
February 6, 1996 phone conversation Leonard DeClue asked Anthony Twitty what
the employees were doing walking a picket line. Twitty replied that he felt his
rights had been violated when DeClue told Terry McCulloch that he didn’t want
anybody talking any union shit on his job. DeClue asked Twitty if he was
“joining the f—kin’ union now?” In the conversation DeClue denied that he had
ever said Twitty could not talk about unions but he admitted telling Terrence
McCulloch that he “didn’t want anybody talking any union shit on (his) job.” At
the end of their phone conversation DeClue told Twitty to “get your ass up here
and talk to me like a man.”
Twitty went to
the job where he and DeClue talked. Donny Shuler was also present. Twitty tape
recorded that conversation. DeClue asked if Mike McCulloch “was in the union
too?” Twitty replied that Mike was not in the union as far as he knew. Twitty
and DeClue argued about Terrence McCulloch’s right to talk about the Union while
on the job. DeClue accused Twitty of calling him a “f—kin’ liar” by saying that
DeClue had said that nobody could talk about the
2. April 4, 1996
On April 3,
Twitty and another employee named Greg, incorrectly drilled holes in a landing
for handrails. DeClue came to the job the following morning and talked with
Twitty. DeClue was angry. He asked Twitty who was going to pay for the mistake.
He said, “I know you filed charges with me with the National Labor Relations
Board . . . if it wasn’t for the fact that I was afraid you would go file more
charges on me, I’d fire your ass a long time ago.” Twitty denied that he had filed charges
against DeClue.
DeClue then
asked Twitty “Have you gone working for the union now?”
DeClue and
Twitty had another conversation that afternoon. Twitty recorded that conversation.
DeClue repeated that Twitty would have been gone a long time but for the
possibility that he would file charges against DeClue.
3. Findings: Credibility
I credit the
tape recordings and the testimony of Anthony Twitty. As shown herein I do not
credit the testimony of Leonard DeClue. I make that finding on the basis of his
demeanor and the full record including evidence showing that DeClue’s version
of why Twitty was terminated conflicted with Respondent’s statement of position
to the NLRB.
4. Conclusions
The credited
record shows that Leonard DeClue asked why Twitty was picketing the job. DeClue
asked Twitty if he was joining the
The credited
evidence shows that DeClue again interrogated Twitty on April 4, 1996, as to
whether Twitty had gone working for the
I find that
DeClue unlawfully interrogated Twitty about employees’ union activities in
February and April 1996. At the time of those conversations the union
organizing campaign was not covert and it was not shown that Anthony Twitty was
ever a known union advocate. The record illustrated that Respondent through
Leonard DeClue took a strong position in opposition to the
Respondent
cited NLRB v. McCulloch Environmental Services, 5 F.3d 923 (5th Cir. 1993), in
arguing that Respondent had a valid purpose in interrogation of Twitty (i.e.,
the cause of his picketing). However, DeClue did not limit his questioning to
the cause for picketing. DeClue also asked Twitty about employees becoming union members. There was no legitimate purpose
shown to support that inquiry. That interrogation tends to coerce employees in
the exercise of their rights to engage or refuse to engage in union activities.
D.
Section 8(a)(3)
1. February 22, 1996 refusal to hire
Jim Carsel, an
organizer for the Carpenters District Council in
When Carsel
greeted Respondent’s receptionists on February 22, he announced that he and the
other eight applicants were with the
Several of the
February 22 applications included comments to the effect that the applicant was
a union organizer that would try to organize Respondent’s job during his own
time.
Carsel went to
Respondent’s Boatman’s Bank job in December 1995 and talked with Superintendent
Rick Shuler. Ken Shuler another union representative and a cousin of Rick
Shuler, was with Carsel. Rick Shuler said he was having a hard time getting
qualified help. Carsel asked how he felt about having union help. Rick Shuler
replied that he wished it was all union and that way he did not have to worry
about it. Carsel asked about the process of applying for work. Rick Shuler told
him to put in applications down at BCE in
Jim
Carsel and Danny Hyde, from the Union, went to Respondent’s
Rick Shuler
testified that his cousin, Ken Shuler, is business agent for the Plumbers
Union. He recalled talking with Ken Shuler and Jim Carsel while at the Boatman’s
Bank job. Shuler testified that he did not recall talking to Carsel and Ken
Shuler about the
Shuler
testified that since he started working for Respondent in June 1995 he has
hired only one employee that had no previous experience with Respondent. That
was James Glover and Shuler has known Glover for 20 years. Shuler contacted
Glover about working for Respondent and he hired Glover as a laborer on the
Southwest Power job. The parties stipulated that no job application was included
in Glover’s personnel file.
Although
Shuler testified that he hired Glover as a laborer, Glover’s pay record shows
that he was paid for concrete construction, concrete floors, carpentry, and dry
wall construction.
At
the time he hired Glover, Shuler had two other employees on that job. Those
were Shane Perkins and Shane McGinnis. Perkins and McGinnis came to the
Southwest Power job from another of Respondent’s jobs, the Cooper Tennis Stadium
job. Subsequently Leonard DeClue worked for Shuler on the Southwest Power job.
DeClue was a leadman. DeClue brought some of his people from the Cooper Tennis
job over to the Southwest Power job.
Rick
Shuler testified that Carsel has visited him on the Southwest Power job. Ken
Shuler was with Carsel at that time too.
Shuler
was shown the employment applications of February 22, 1996. He testified that
he received copies of those applications from Respondent’s office. He also
recalled receiving a copy of Robert Teitel’s application. Shuler testified that
he does not recall any of those applicants including Robert Teitel, actually
coming on his jobsite.
Rick
Shuler testified that he has never hired anyone whose application was sent out
to him by Respondent’s office. He has received no instructions from Respondent
about how to handle those applications.
On
cross-examination Shuler testified that he along with Leonard DeClue and
another superintendent, Larry Wright, sat down together with Respondent’s
attorney and discussed their anticipated testimony.
Robert
Teitel testified that he is a carpenter and has been a member of the
Teitel checked
back a week later and Younger told him to check back again in another week. On
his third visit to the site, Younger told Teitel that he did not do the hiring
at that site. Younger said that Teitel needed to go to the main office in
Branson and fill out an application. Teitel went to Respondent’s main office on
February 8, 1996, where he talked to a woman. He was given an application which
he filled out and returned to the woman. She told Teitel that she would fax his
application out to all the job superintendents and that if anyone of them
needed a carpenter they would call Teitel at home.
Robert
Teitel has heard nothing from Respondent.
The
Union subpoenaed personnel files from Respondent and none of those files contained
an application for work.
Larry
Wright is Respondent’s superintendent on its James River Power Station job. He
has handled several jobs for Respondent since 1991, and he has always been in
charge of hiring and firing on the particular job. He formerly worked for
Davern Schoonover. The employer was Schoonover Brothers, a union company and
Wright worked for it in the late 1960’s or early 1970’s.
Wright
explained Respondent’s hiring procedure. The superintendent may select new
hires from applications sent to them from the main office or they may select
people from previous jobs. He may also hire someone that comes on the jobsite
looking for work. Wright could recall only one applicant that he has hired
after receiving his application from Respondent’s office. In that instance he
first checked with a former employer listed on the application, then contacted
the applicant. Normally, when Wright receives applications from the office he
looks over the application then files it. He testified that he did not hire any
of the alleged discriminatees because when he received their applications from
the office he did not need any new employees.
After
reviewing the applications of the alleged discriminatees while testifying,
Larry Wright agreed that all the applicants appeared to be qualified to perform
some of Respondent’s work.
Wright
testified that he was never prohibited by Respondent from hiring anyone with a
union background.
Kendall
Schoonover, Respondent vice president, recalled receiving the batch
applications of the alleged discriminatees. He does not hire anyone for the
field and he does not conduct interviews for those jobs. Schoonover could not
recall any field applicant other than applicants for superintendent positions,
ever being interviewed in the main office. Respondent currently has four
superintendents, Rick Shuler, Larry Wright, Leonard DeClue, and Kenny Green.
All field employees other than superintendents, are hired by the respective job
superintendent. The job, or project, superintendent has 100 percent control and
is 100 percent accountable for the respective job.
Schoonover
testified that he does not know why none of the alleged discriminatees were
hired.
Leonard
DeClue testified that the Cooper Park Tennis job was his first job after being
employed by Respondent. DeClue testified that he did not hire any of the
alleged discriminatees because none of them came to the job site. He did not
hire Robert Teitel because he did not need anyone at the time Teitel applied.
Subsequently, on cross-examination, DeClue testified that he did not hire any
of the alleged discriminatees because each applicant listed carpenter as the
job sought and he did not need carpenters.
2. Findings: Credibility
In
consideration of the full record and his demeanor I find that Jim Carsel
truthfully testified that Superintendents Shuler and Younger informed him of
the procedure for applying for work with Respondent. To the extent there are
conflicts, I do not credit the testimony of Rick Shuler or Robert Younger.
Shuler admitted that he talked with Carsel and Ken Shuler while working on the
Boatman’s Bank job and he admitted that they may have talked about hiring even
though he testified that he did not recall them discussing that subject. I
credit Rick Shuler’s testimony that he could hire from applications that he
received from Respondent’s main office.
I
credit the testimony of Robert Teitel in view of his demeanor and the full
record. That credited testimony shows that after Teitel was told twice to check
back with superintendent Bob Younger, Younger told him around January 29, 1996,
that it would be necessary for Teitel to apply at Respondent’s main office.
The
credited testimony showed that Respondent advised all potential job applicants
that were known to be affiliated with the
The
record evidence including the testimony of Larry Wright and Kendall Schoonover
proved that Respondent rarely hired from applications made at its office.
However, the credited evidence showed that none of the potential applicants
known to be affiliated with the
As
shown herein I do not credit the testimony of Leonard DeClue. I base that
determination of DeClue’s demeanor and the full record.
3. Conclusions
General
Counsel alleged that Respondent refused to consider for hire and to hire nine
job applicants from February 22, 1996, because each of those nine applicants
were shown to be affiliated with the
In J. E. Merit Constructors, 302 NLRB 301,
303–304 (1991). The Board applied the following standard in a refusal to hire
question: (1) the applications were filed during hiring stages, (2) the Respondent
knew of their source, (3) it harbored union animus, and (4) it acted on that animus
in failing to hire.
There
is no dispute but that Respondent received the applications. Applications for
the below named alleged discriminatees were submitted to Respondent’s office on
February 22, 1996. Respondent made no effort to look behind the matters stated
on the applications. The applicants were shown to be qualified to perform some
of Respondent’s work:
Jim Carsel Michael Rand
Ted Berch Robert Wirth
Larry Sowers Kenneth Owens
Steven Wilson William Grooms
None of the
applicants were hired by Respondent. None were shown to have been considered
for hire.
As to the
question of whether Respondent was hiring when the applications were submitted
on February 22, the Respondent’s records2
show that it hired more than nine employees over the next 2 months. Two were
hired on the day after the alleged discriminatees submitted their applications.
Those two, Robert Bidwell and Gregory Carr, were hired on February 23, 1996, at
the Cooper Park Tennis Stadium job under Superintendent Leonard DeClue. In
consideration of Respondent’s records including workmen’s compensation codes,
Bidwell was shown to perform concrete construction and Gregory Carr performed
concrete construction and carpentry.
On March 11,
1996, Respondent hired two more employees at the Cooper Park Tennis Stadium.
Mark Daniel and
On March 20,
1996, Respondent hired James Glover. Glover worked at the Southwest Power Station
job. He worked at concrete construction; concrete floors, drives, walk; carpentry
and as wall board installer.
On March 27,
1996, Respondent hired Shannon D. Smalley. Smalley did concrete construction
and carpentry at Respondent’s Cooper Park Tennis Stadium job.3
On April 1,
1996, Respondent hired Lewis Eugene Warren.
David Shannon
Burns was hired on April 3, 1996. Burns worked at the Cooper Park Tennis Stadium
where he did concrete construction and carpentry.4 Edward
Hurley was hired on the Cooper Park Tennis Stadium on April 5, 1996. Hurley did
carpentry work.
Respondent
went on to hire three more employees later in April. It hired another employee
in July, one in September and at least four more in October 1996.
As shown
herein Leonard DeClue complained to both Terrence McCulloch and Anthony Twitty
about the poor quality of work he was receiving from the other Cooper Park
Tennis Stadium employees. Rick Shuler complained to Jim Carsel and Ken Shuler
that he needed qualified workers on the Boatman’s Bank job.
Respondent was
seeking qualified employees and Respondent actually hired applicants during the
period after the nine alleged discriminatees submitted their applications on
February 22, 1996.
Respondent
pointed to its Exhibit 2 as showing that it received applications from a total
of 25 applicants between January and July 1996, that were not hired. Those 25
applications included 16 that failed to show affiliation with a union. In consideration of that argument and the
evidence mentioned above, it appears that Respondent hired 13 employees from
February 23 through July 1996; it received applications from 16 employees that
showed no union affiliation during that period that it did not hire; and it
received 9 applications from union affiliated employees on February 22, 1996,
that it did not hire.
Respondent did not
consider any of the union affiliated applicants for employment. None of those
applicants were interviewed by Respondent either by phone or in person.
The record
does not show whether the 16 other applicants were considered for employment.
The evidence
clearly proved that Respondent was hiring during the period immediately
following February 22. Despite Respondent’s argument I am unable to conclude
that it did not discriminate against the alleged discriminatees. The record
failed to show whether it considered hiring any of the 16 applicants not
affiliated with the
As to whether
Respondent knew of the source of the nine alleged discriminatees, Jim Carsel
submitted nine applications to the receptionist at Respondent’s office on
February 22. Jim Carsel announced they were with the
Several of the
applications submitted by Carsel on February 22 in a batch, included comments
about the
In view of the
above I find that Respondent knew that the alleged discriminatees were
affiliated with the
As to the
question of animus, the record shows that Respondent harbored union animus.
Respondent created the impression of surveillance of the employees’ union
activities; it promulgated a rule against its employees talking about the
Union; it interrogated employees about employees’ union affiliation and it
warned that it would not go
In determining
the issue of animus I am mindful of the fact that all the 8(a)(1) activity came
from Superintendent Leonard DeClue. Nevertheless, during the time when DeClue
engaged in unlawful activity, Respondent through Superintendents Shuler and
Younger were informing obvious union supporters that it was necessary to apply
for work at Respondent’s main office.
If, as
Respondent argues, it was unnecessary to apply at the office and if it was
unlikely anyone would be hired unless they applied on a job, it appears that
more than one of Respondent’s superintendents was involved in misleading
prounion applicants into a job search that was unlikely to be successful.
Therefore I am not persuaded that Respondent’s unlawful activity was limited to
one superintendent. As to the issue of refusal to hire, it appears that others
were also involved.
I find that
the record also shows that Respondent used pretext in order to hide the true
reason it did not hire or even consider hiring any of the alleged discriminatees.
Fluor Daniel, Inc., supra; Adam Wholesalers, 322 NLRB 313 (1966).
When the alleged discriminatees appeared at Respondent’s office on February 22,
the receptionists gave them application forms. She subsequently thanked them
for submitting applications. They were told by Respondent’s receptionists that
their applications would be faxed to all Respondent’s jobs for consideration by
the superintendents. She gave the applicants a list of jobs but told them that
the phone numbers on that list were not correct.
Respondent
Superintendent Rick Shuler told Jim Carsel and Ken Shuler that they needed to
go to Respondent’s office to apply for a job. Robert Younger, another superintendent,
told Union Representatives Carsel and Danny Hyde and applicant Robert Teitel
the same thing.
Respondent, at
a time before it learned that the applicants’ appearance at its office on
February 22 was video recorded, submitted a letter of position to the NLRB Regional
office. In that June 17, 1996 letter, Respondent pointed out that the February
22 applicants were told that BCE did not hire from its home office, that
generally it did not take applications for hire at its home office and that
field employees were hired by the respective project superintendents upon
application made directly to the respective superintendent.
The video recording
of the February 22 appearance of Jim Carsel and other applicants at
Respondent’s office proved that Respondent was not truthful. The applicants
were not told that BCE generally did not take applications for hire at its home
office and they were not told that field employees needed to make application
directly to the respective project superintendents.
I also find
pretext in Respondent’s contentions that it did not consider hiring any of the
alleged discriminatees because they were carpenters and Respondent did not have
a need for carpenters. The record, as shown above, proved that some of the
employees hired after February 22, actually worked as carpenters. Moreover, the
record failed to show that a single superintendent actually determined not to consider
one or more of the alleged discriminatees for that reason. Leonard DeClue
testified that he was not seeking carpenters but he failed to show that he
actually rejected a specific applicant for that reason. Actually, as shown
herein, DeClue hired Anthony Twitty after Twitty told DeClue that he was a
carpenter. Nevertheless, DeClue offered Twitty a job as a laborer. I find that
Respondent’s claim that the nine alleged discriminatees were rejected because
they were seeking carpenter jobs was a fabrication.
In fact the
entire record shows that the applicants were not rejected because they were
carpenters. Throughout the record Leonard DeClue was shown to complain about
the incompetence of his employees. DeClue repeatedly praised one employee shown
to be a carpenter, Terrence McCulloch. Additionally, Superintendents Rick
Shuler and Bob Younger expressed their need for qualified help. That evidence
illustrates that Respondent was not in a position of rejecting qualified help
because the application failed to show with precision they were seeking an
available job. As shown herein, Respondent’s own records showed that many of
its employees engaged in carpentry. That was shown through Respondent’s use of
employment security codes in some of its records.
Despite its
claim to the contrary, Respondent did not routinely require applicants to
appear at the jobsite. In fact employees were hired even though they did not
appear at the jobsites. Those included William Baker and Ronnie Hardesty.
Moreover, it
would not improve Respondent’s position to show that overt union organizers
were not hired because they failed to apply with its superintendents in view of
evidence that they were never told to apply at the respective jobs. Two of its
superintendents told the union representatives including applicant Jim Carsel,
that they needed to apply for work at Respondent’s office. If the alleged
discriminatees were misled at a time after Respondent knew of their union
affiliation, that action in itself should constitute a violation of Section
8(a)(1) and (3) of the Act.
General
Counsel proved that Respondent was motivated to refuse to consider for hire and
to hire the below named job applicants and that Respondent engaged in pretext
in an effort to hide the fact that it took that action because of the alleged
discriminatees union affiliation. I also find that Respondent failed to prove
that it would have refused to consider or to hire the following applicants in
the absence of protected and union activities. As shown above, the reasons
given by Respondent were shown to be false. Manno
Electric, Inc., 321 NLRB 278 fn. 12 (1996); Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); NLRB
v. Transportation Management Corp., 462
Jim Carsel Michael Rand
Ted Berch Robert Wirth
Larry Sowers Kenneth Owens
Steven Wilson William Grooms