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,
Exceptional Professional, Inc. d/b/a EPI Construction
and Carpenters’ District Council of
August 28, 2007
SUPPLEMENTAL DECISION AND ORDER
By Chairman Battista and Members Kirsanow
and Walsh
On August 5, 1998, Administrative Law Judge Mary Miller
Cracraft issued a decision in this case.
The Respondent filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the
On September 28, 2001, the National Labor Relations Board
issued its Decision and Order,1 finding
that the Respondent committed certain violations of Section 8(a)(1) and (3) of
the Act and dismissing an allegation that the Respondent violated Section
8(a)(4) and (1) of the Act. The Board also remanded, for further consideration
under
On January 11, 2002, Judge Cracraft issued the attached
decision on remand. The Respondent filed
exceptions, the
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 ruling, findings,4 and conclusions and to adopt the recommended Order.5
As noted above, the Board remanded, for further consideration
under
the burden will shift to the respondent to show that it would not have hired the applicants even in the absence of their union activity or affiliation. If the respondent asserts that the applicants were not qualified for the positions it was filling, it is the respondent’s burden to show, at the hearing on the merits, that they did not possess the specific qualifications the position required or that others (who were hired) had superior qualifications, and that it would not have hired them for that reason even in the absence of their union support or activity.[6]
In her decision on remand, the judge, applying
The judge found that eight of the employees whom the Respondent hired to fill its job openings—employees Argaez, Cen, Herrera, Rivero, Varguez, Garcia, Archer, and Self—had superior qualifications to those of the union-affiliated applicants. Thus, employees Argaez, Cen, Herrera, Rivero, Varguez, Garcia, and Archer were well known to Stewart, the Respondent’s president, for their drywall work as subcontractors for the Respondent on prior projects, and Stewart had been able to assess their drywall work through their participation in these projects. Additionally, these employees had been working steadily in drywall for at least 1 year before the Respondent hired them. Archer also had been an employee of the Respondent previously, and the Respondent had first-hand knowledge of his work history. Employee Self was highly recommended by employees of the Respondent for his drywall expertise, and the Respondent had recruited him for some time prior to securing him as an employee.
The judge found that these eight employees’ drywall qualifications—precisely the type of work that the Respondent performed—and their “immediate, observed, steady drywall employment” made them superior applicants to the discriminatees, who were journeymen carpenters. Thus, the judge found that the Respondent established that, even if the discriminatees had not engaged in union activity, the Respondent would have hired these eight employees rather than the alleged discriminatees. We agree.
Our dissenting colleague contends that the judge’s finding as to these eight discriminatees cannot stand because, when assessing whether the General Counsel had met his initial FES burden, the judge found, among other things, that the Respondent did not uniformly adhere to its hiring criteria, which the judge found were pretextually applied. In our view, however, the judge’s finding in this regard was mistaken. The Respondent did uniformly adhere to its hiring criteria. It merely deviated from its usual procedures for determining whether applicants satisfied those criteria.
According to Stewart’s testimony, the Respondent tried to hire employees who had drywall experience, had been working in drywall on a regular basis, and had a steady employment history. Those were the Respondent’s hiring criteria. Stewart further testified that he used employment applications to determine whether employees possessed the requisite experience and training, and he requested that applicants list personal references. Finally, Stewart relied on interviews to determine whom to hire. Those were the Respondent’s procedures for measuring applicants against its criteria.
The judge, who specifically found that the Respondent’s
hiring criteria were not themselves
pretextual, concluded that Respondent did not uniformly adhere to its hiring
criteria as to 10 of the 13 individuals placed on the payroll between June 30
and July 27, 1997—including employees Argaez, Cen, Herrera, Rivero, Varguez, Garcia,
Archer, and Self—because few of these 13 individuals completed an application,
gave personal references, or had interviews.
In other words, the judge confused the Respondent’s usual procedures for
applying its criteria with the criteria themselves. In her analysis of the Respondent’s rebuttal
case under
We agree with our colleague, however, that the General
Counsel met his initial burden under
Although the Respondent did not adhere to all of its hiring procedures when seeking to identify experienced drywall workers to hire, its actual hiring shows that it did hire applicants who had been regularly working in drywall. All but one of the 13 individuals whom the Respondent hired between June 30 and July 27 had drywall experience.9 Additionally, while Argaez, Cen, Herrera, Rivero, Varguez, Garcia, Archer, and Self did not submit applications or give references, the Respondent, as noted above, was familiar with their work as subcontractors (and, in Archer’s case, as an employee) and Self had been recruited by the Respondent based on the recommendations of current employees.10
Thus, even though the Respondent did not always follow its usual procedures, its lack of uniformity in this regard did not mean that, given a choice between applicants who had “immediate, observed, steady drywall employment” and others, the Respondent was indifferent or would hire applicants at random. As set forth by the judge, the eight employees whom the Respondent hired had substantial, recent experience in doing drywall work. Moreover, as described above, the Respondent had directly observed the work of all but one of them, and the other came highly recommended by current employees of the Respondent. Given these employees’ drywall experience and the fact that the work of all but one of them had been directly observed by the Respondent, we agree with the judge that the Respondent has established that these eight employees were superior applicants and that the Respondent would have hired them rather than the discriminatees even in the absence of the discriminatees’ union activity and affiliation.
Our dissenting colleague says that the Respondent “skewed” the overall process so as to prefer nonunion applicants, and “grudgingly” accepted applications from Union adherents. Accepting these quoted terms arguendo, they support our agreement that the General Counsel met his initial burden of proof. However, the judge found, and we agree, that the Respondent then met its burden of showing that those selected had qualifications superior to those of the alleged discriminatees (not simply, as our colleague says, that those selected were qualified). Thus, we cannot agree that those quoted terms establish a violation.
In sum, the judge found, and we agree, that the General
Counsel met his initial burden. The
burden then shifted to the Respondent.
We conclude, as did the judge, that the Respondent would have chosen the
persons hired because of their superior drywall qualifications, even absent the
union affiliation and activity of the nonchosen applicants.
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified below and orders that the
Respondent, Exceptional Professionals, Inc., d/b/a EPI Construction,
Substitute the attached notice for that of the administrative law judge.
Dated,
Robert J. Battista, Chairman
Peter N. Kirsanow Member
(seal) National
Labor Relations Board
Member Walsh, dissenting in part.
I join in all aspects of the majority’s decision, with the
exception of its adoption of the judge’s finding that the Respondent did not
violate Section 8(a)(3) and (1) by refusing to hire 8 of the 10
union-affiliated job applicants. That
finding is the apparent result of our misstatement of the appropriate test in
the remand order, and it is fundamentally inconsistent with
Under FES, in a hiring discrimination case, the General Counsel has the initial burden of showing: (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 or training relevant to the announced or generally known requirements of the positions for hire, or, in the alternative, that the employer has not adhered uniformly to such requirements, or that the requirements themselves were pretextual or were applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the applicants. If the General Counsel satisfies that burden, 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.
In this case, the
judge found that the General Counsel
established the first and third elements of its initial burden: that the
Respondent was hiring when the 10 union-affiliated applicants applied for work
and that antiunion animus contributed to the Respondent’s decision not to hire
them. Regarding the second element of
the test, the judge found that all of those applicants had experience or
training relevant to the announced or generally known requirements of the
positions for hire and that the Respondent
had not adhered uniformly to those requirements. With respect to the second part of that test,
the judge specifically found that the Respondent applied one set of criteria to
the union-affiliated applicants and a different set to other applicants. In other words, as the judge stated, the
Respondent’s hiring criteria were “pretextually applied.”
In making that
finding, the judge correctly observed that FES
set forth that element of the test—whether the applicants met the announced or
generally known job requirements or
that the employer had not uniformly adhered to those requirements—in the disjunctive,
but that the Board’s decision remanding the case to her stated it in the
conjunctive. “In an excess of caution,”
the judge proceeded “as instructed . . . .”
Based on those findings, the judge found that the General Counsel met
his initial burden, and that the burden therefore shifted to the Respondent to
show that it would not have hired those applicants even in the absence of their
union affiliation.
The judge then found that the Respondent met its rebuttal burden as to 8 of the 10 applicants, because it established that it hired 8 other applicants who possessed stronger qualifications than those of any of the union-affiliated applicants. Accordingly, the judge concluded that the Respondent violated Section 8(a)(3) and (1) only by refusing to hire two of the union applicants.2
Although the judge correctly found a violation regarding the Respondent’s refusal to hire two of the applicants, her finding concerning the remaining eight cannot stand. The judge found that the Respondent applied its hiring criteria pretextually, but she then permitted the Respondent to avoid liability by showing that it would have refused to hire 8 of the 10 union applicants because it hired 8 other applicants who possessed stronger qualifications. That finding is illogical.3 Having found that the Respondent acted with antiunion animus and that it applied its announced hiring criteria pretextually, the inquiry was over: at that point, it was no longer possible for the Respondent to mount a defense based on a neutral application of those same criteria.4 Accordingly, the judge should not have found that the Respondent acted lawfully in hiring the eight nonunion applicants, based on their allegedly superior credentials.
I would reverse the judge’s finding that the Respondent met its rebuttal burden as to any of the refusal-to-hire allegations, and would therefore find that the Respondent’s refusal to hire all 10 of the union-affiliated applicants violated the Act.
Dated,
Dennis P. Walsh, Member
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 fail
and refuse to hire employees because of their activity on behalf of or
membership in Carpenters’ District Council of Kansas City and Vicinity Locals
311 and 978 affiliated with United Brotherhood of Carpenters and Joiners of
America (the
We will not refuse
to consider applicants for employment because of their activity on behalf of or
membership in the
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above.
We will offer instatement to two individuals we discriminatorily failed and refused to hire, whose identity will be determined in a Board compliance proceeding, 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 had we not unlawfully refused to hire them.
We will make these individuals whole for any loss of earnings and other benefits resulting from the discrimination against them, less any net interim earnings, plus interest.
We will consider the remaining discriminatees, whose identity will be determined in the compliance proceeding, for future job openings in accord with nondiscriminatory criteria, and we will notify them, the Union, and the Regional Director for Region 17 of future openings in positions for which the discriminatees applied or substantially equivalent positions.
We will remove from our files any reference to our unlawful refusal to hire or to consider for hire the individuals identified in the compliance proceeding as stated above, and we will notify each of them in writing that this has been done and that the refusal to hire them or consider them for hire will not be used against them in any way.
EPI Construction
Stanley D. Williams, Esq., for the General Counsel.
Donald W. Jones, Esq. (Hulston, Jones, Gammon
8 Marsh) of
Michael T. Manley, Esq. (Blake 8 Uhlig), of
DECISION ON REMAND
Statement of the Case
Mary Miller
Cracraft, Administrative Law Judge. This is a remand pursuant to
(1) whether there were available openings at the time that
the alleged discrimination occurred; (2) the number of such available openings;
and (3) whether the applicants had training and/or experience relevant to the announced
or generally known requirements of the openings and whether those requirements
were not uniformly adhered to or were either pretextual or pretextually
applied. The judge may, if necessary, reopen the record to obtain evidence
required to decide the case under the
EPI Construction, 336 NLRB 234, 235 (2001). The Board specifically noted that its remand allowed for consideration of other factors as well.2
On the entire record, including my observation of the demeanor of the witnesses, and after considering the original and additional briefs filed by counsel for the General Counsel, counsel for the Charging Party and counsel for the Respondent, I make the following
Findings of Fact on Remand
There were
available openings at the time of the alleged
discrimination
The date of the alleged discrimination is June 30 1997 and thereafter. Thus, the complaint alleges that about June 30, 1997, Respondent refused to consider for hire or to hire employee applicants Jim Carsel, Larry Collinsworth, Roger Hensley, Bob Hum, John Duncan, Tom McFarland, Mike Joyce, Shelley Williams, Steve Wilson, and Matt Rausch. In my original decision, 336 NLRB 234, 250 (2001), I found that on June 30, 1997, at about 10 or 10:30 a.m., Carsel and the other alleged discriminatees completed job applications and submitted them to Respondent. Stewart said he would not get to these applications for 2 weeks. He said he would call.
On June 30 1997 or shortly thereafter Respondent had available openings. In my original decision at 336 NLRB 234, 250, I found that although Respondent’s president Fred Stewart initially told Carsel that Respondent was not taking applications on June 30, 1997, when Carsel countered that Gerald Hill, job supervisor for general contractor Dalton Killinger, told Carsel that Respondent was behind on the Dalton Killinger project, Stewart replied, “fine,” and handed job applications to all of the alleged discriminatees. I further found that Respondent hired at least 13 employees shortly after June 30, 1997, and additionally utilized 4 employees from its general contractor between June 25 and July 30, 1997. 336 NLRB 234, 251. Based upon this evidence, I conclude that Respondent had available openings on June 30, 1997, or shortly thereafter.3
There were
at least 13 available job openings on or shortly after June 30, 1997
Respondent is a sheet rock installation contractor engaged in the construction industry. Around the time the alleged discriminatees applied for employment, Respondent’s projects included the Carthage Elementary School, Columbian‑Fairview Elementary School, Santa Fe School, Tomahawk School, Mills Anderson Justice Center, College Heights Christian School, Remington Country Club, Fairfield Inn, Budgetel Inn, Hickory County School and the Carthage Humane Society.
Respondent generally allowed individuals to complete application forms before and after June 30, 1997. Accordingly, Jonathon Hackenberg testified that he was allowed to complete an application on July 3 but was requested to postdate the application to June 25.
Moreover, Respondent’s general contractor testified that Respondent
was behind schedule on the
This evidence indicates that Respondent was taking applications and needed assistance. There is no evidence regarding any specific length of time which Respondent maintained applications for active consideration. Excluding those employees hired primarily to perform plastering work,4 Respondent hired at least 13 individuals to perform carpentry work between June 30 and July 27, 1997. Appendix B sets forth the complete information regarding Respondent’s hiring during this period. The record conclusively demonstrates that Respondent was hiring at the time the alleged discriminatees applied for work.
The
applicants had training and/or experience relevant to the announced or
generally know requirements of the openings
The third requirement on remand is phrased in the conjunctive. Accordingly, the Board has requested on remand that I determine
Whether the applicants had training and/or experience relevant to the announced or generally known requirements of the openings and whether those requirements were not uniformly adhered to or were either pretextual or pretextually applied.
EPI Construction,
336 NLRB 234, 235. I note that in
(2) that the applicants had experience or training relevant to the announced or generally known requirements of the positions for hire, or in the alternative, that the employer has not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for discrimination. . . .
In an excess of caution, I will make the findings as instructed on remand by the Board.
There is no evidence of any employment announcements or advertisements listing specific job requirements. Respondent explained that it preferred to hire applicants with past drywall experience and steady employment, among other criteria. The record evidence regarding the qualifications conveyed to Respondent by the alleged discriminatees is limited to statements made by Carsel, the only one of the ten to actually speak to Stewart, and to the job applications submitted by the applicants. The applicants were wearing union jackets, caps, and shirts. Carsel told Stewart that all of the individuals would like to make application to go to work for Respondent. He added that these individuals were qualified carpenters, stating, “[The applicants] were all journeymen, and we’d like to, you know, we’d work for his wages, his terms, his benefits, and we’d do him a good job. And if hired, we would try to organize his company.”
The alleged discriminatees uniformly listed training and/or experience relevant to the generally known requirements of the openings. Thus, each of the alleged discriminatees listed past experience and training in carpentry. Appendix C sets forth this information in detail.
Respondent did not uniformly adhere to its hiring criteria
Respondent explained that it attempted to hire employees with past drywall experience. In many instances, Respondent paid at or near the prevailing wage for journeyman carpenters, $17.51 per hour, to individuals placed on the payroll between June 30 and July 27, 1997. From this rate of pay, I infer that Respondent wanted employees who were capable of rapid, competent drywall framing and hanging.
Stewart testified that he utilized employee applications to determine whether employees possessed the requisite experience and training to work for him. He also preferred to hire individuals with a steady employment history. Stewart requested that applicants list personal references. Finally, Stewart relied on an interview to determine which‑employees to hire. Stewart explained that Respondent performed specialized carpentry and he was looking for individuals who had been working in drywall on a regular basis, rather than sporadically. However, Stewart's past practice, as set forth in my prior decision, indicates that on at least one occasion he did not require drywall experience at all. Rather, Stewart hired one applicant with no relevant training and hired another applicant with only one month of relevant training. As I have previously concluded, Respondent did not uniformly apply its hiring requirements. See 336 NLRB 234, 251. (“Rather, the evidence establishes that different criteria were utilized for other applicants than for the batch applicants.”)5
I conclude that Respondent did not uniformly adhere to its hiring criteria as to 10 of the 13 individuals placed on the payroll between June 30 and July 27. Few of these individuals completed an application, gave personal references, or had interviews. There is little evidence regarding the qualifications or training of these individuals. Appendix D sets forth the relevant names and the manner in which Respondent adhered or failed to adhere to its hiring criteria.
Antiunion
animus contributed to Respondent’s decision not to hire the applicants
In my prior decision, I found various violations of Section 8(a)(1) and (3). These findings were affirmed by the Board6 and support a finding that antiunion animus contributed to the decision not to hire the applicants. I note additionally that Carsel told Stewart that if any of the alleged discriminatees were hired, they would attempt to organize Respondent’s employees. Accordingly, Respondent’s defense, that it hired 16 other employees who had worked for known unionized companies, or who had a recent history of union membership, and assumed or knew that these employees belonged to the Union, is not persuasive. Respondent also relies on the fact that Stewart was himself a union member in the past, Respondent has a past record free of unfair labor practices, and Respondent has signed union agreements in the past. As the Board has noted, there is a significant difference between past union affiliation and a stated intent to organize. H. B. Zachry Co., 332 NLRB 1178, 1183 (2000), relying on Flour Daniel, 311 NLRB 498, 500 (1993), enfd. in part, remanded in part, 161 F.3d 953 (6th Cir. 1998). In light of Carsel’s announcement that the applicants would attempt to organize employees if hired, Respondent’s defense fails.
Respondent’s
Burden
Based upon the
above findings, the General Counsel has met the initial burden in the
discriminatory refusal‑to‑hire violation. The burden now shifts to
Respondent.
If the respondent asserts that the applicants were not qualified for the positions it was filing, it is the respondent’s burden to show, at the hearing on the merits, that they did not possess the specific qualifications the position required or that others (who were hired) had superior qualifications, and that it would not have hired them for that reason evne in the absence of their union support or activity. In sum, the issue of whether the allege discriminates would have been hired but for the discrimiantion against them must be litigated at the hearing on the merits.
Respondent has not presented any evidence that the applicants did not possess the experience and training that the positions required. Rather, the sole relevant evidence on the record as a whole, i.e., the applications forms themselves as well as Carsel’s comments to Stewart on June 30, 1997,7 indicate that the alleged discriminatees were qualified for the positions Respondent was filling. They were journeymen union carpenters, according to Carsel’s statement to Stewart, and they listed experience in carpentry on their applications.
Stewart testified that although he hired some employees shortly after June 30, 1997, in his view, the employees he hired were better qualified than the alleged discriminatees. Stewart testified that he did not eliminate any of the alleged discriminatees because they did not list personal references or provide dates for their prior employment.
Respondent’s evidence, as set forth in Appendix D, indicates that one of those hired, Dave Archer, was a prior employee of Respondent’s. Six employees, Miguel Argaez, Enrique Cen, Vladimir Herrera, Fabian S. Rivero, Miguel Varguez, and Miguel Garcia, were well known to Respondent for their drywall work as subcontractors for Stewart on other projects. Byron Self, an eighth employee hired during the relevant period, was highly recommended as an excellent drywall employee by employees of Respondent. Respondent had been trying to hire Self for some time prior to June 30, 1997. I conclude that these eight applicants were superior applicants to the alleged discriminatees.
As to Archer, Respondent was familiar with his work during his prior tenure with Respondent. Archer was a known prior employee with a work history of which Respondent had first‑hand knowledge. Similarly, Argaez, Cen, Herrera, Rivero, Varguez, and Garcia worked since 1996 hanging drywall for Stewart as subcontractors in apartment buildings. It must be inferred from the record as a whole, that Stewart was able to assess their steady drywall work through this employment relationship. These six employees had been working steadily in drywall for at least 1 year prior to Respondent’s hiring them. Finally, as to Self, Stewart’s testimony establishes that Self came highly recommended specifically for his expertise in drywall. Based upon these qualifications which are specific to drywall, the work which Respondent was performing at the time, I find these applicants superior to the alleged discriminatees. This is not to take away from the excellent qualifications of the alleged discriminatees who, according to Carsel, were journeymen carpenters. There can be no doubt that these applicants possessed substantial training and experience and could have performed the drywall work. However, because the eight who were hired had immediate, observed, steady drywall employment, I find that they were superior applicants.
Two others who were
hired without benefit of uniform application of Respondent’s hiring criteria
did not have superior qualifications or past known job experience with
Respondent and were not well‑known to Respondent for their drywall expertise
or experience. These two are Greg and Steve Rucker. Stewart acknowledged that
Greg Rucker worked as a superintendent from 1992 to 1997 at National
Specialties, where commonly superintendents did not work with their tools.
Stewart testified that Greg Rucker stated during his interview that he had been
using his tools to complete a project. However, this does not convince me that
he had superior qualifications to those of the applicants. Steve Rucker had no
experience in drywall. As to those vacancies, Respondent has not shown that it
would not have hired the alleged discriminates because they did not possess the
specific qualifications for the positions even in the absence of their union
support or affiliation. A compliance proceeding may be utilized to determine
which of the alleged discriminatees would have been hired for those two
vacancies.
Respondent
excluded the applicants from the hiring process and antiunion animus
contributed to the decision not to consider the applicants for employment
In my prior decision, I found that Respondent excluded the alleged discriminatees from the hiring process and that antiunion animus contributed to the decision not to consider them in the hiring process. It is undisputed that during that time, other employees were hired who did not complete job applications. It is also undisputed that Stewart told the applicants it would take him 2 weeks to get back to them. After consideration of the factors outlined above, I find no reason to alter my conclusion that Respondent excluded the applicants from the hiring process and antiunion animus contributed to the decision not to consider the applicants for employment.9
Conclusions of Law
1. By discriminatorily refusing to hire two of the alleged discriminatees, Respondent has violated Section 8(a)(1) and (3) of the Act within the meaning of Section 2(6) and (7) of the Act.
2. By discriminatorily refusing to consider the ten alleged discriminatees for employment, Respondent has violated Section 8(a)(1) and (3) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
Having discriminatorily failed to hire two of the alleged discriminatees, Respondent shall cease and desist and offer the discriminatees instatement to the positions to which they applied or, if those positions no longer exist, to substantially equivalent positions, and make them whole for losses sustained by reason of the discrimination against them. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). This Order is subject to the compliance stage to determine which of the ten alleged discriminates would have filled the two vacancies.
Having failed to
consider for hire the ten alleged discriminatees, Respondent shall cease and
desist and place the discriminatees in the position they would have been in,
absent discrimination, for consideration for future openings, to consider them
for the openings in accord with nondiscriminatory criteria, and notify the
discriminatees, the Union, and the Regional Director of Region 17 of future
openings in positions for which the discriminatees applied or substantially
equivalent positions. Because the number of applicants is greater than the
number of available openings, if job openings occur after the beginning of the
hearing, the General Counsel must initiate a compliance proceeding to determine
whether the remaining discriminates would have been selected in the absence of
Respondent’s discriminatory failure to consider them.
On these findings
of fact and conclusions of law and on the entire record, I issue the following
recommended10
ORDER
The Respondent, Exceptional
Professional, Inc. d/b/a EPI Construction,
1. Cease and desist
from
(a) Discriminatorily
failing to hire employees because of their union activity or membership.
(b) Discriminatorily
failing to consider for hire applicants because of their union activity or
membership.
(c) 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 two alleged discriminates, whose identity is to be determined in
the compliance stage of this proceeding, to the positions to which they applied
or, if those positions no longer exist, to substantially equivalent positions
and make them whole for any loss of earnings and other benefits sustained by
reason of the discrimination against them, in the manner set forth in the
remedy section.
(b) Consider on a
nondiscriminatory basis the remaining discriminates for future job openings
that arise subsequent to the beginning of the hearing and notify the
discriminates, the Union, and the Regional Director for Region 17 of such
openings in positions or substantially equivalent positions for which the
discriminates applied, in the manner set forth in the remedy section.
(c) Remove from its
files any reference to unlawful refusal to hire two discriminatees, whose
identity is to be determined in the compliance stage, and notify them in
writing that this has been done and that the refusal to hire them will not be
used against them in any way.
(d) Remove from its
files any reference to unlawful refusal to consider for employment the
remaining discriminatees, whose identity is to be determined in the compliance
stage, and notify them in writing that this has been done and that the refusal
to consider them will not be used against them in any way.
(e) Preserve and,
within 14 days of a request, provide at the office designated by the Board or
its agents, a copy of 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. If requested,
the originals of such records shall be provided to the Board or its agents in
the same manner.
(f) Within 14 days after service by the Region, post at
its place of business in
(g) Wthin 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 January 11, 2002.
APPENDIX A
ORDER ON REMAND
On September 28, 2001, this case was remanded “for further
consideration [regarding] the complaint allegation that the Respondent unlawfully
refused to consider for hire or to hire 10 applicants. . . .”1 Specifically,
the Board noted that on May 11, 2000, it issued
We have decided to remand this case to the judge for
further consideration in light of FES, including,
but not limited to determination of: (1) whether there were available openings
at the time that the alleged discrimination occurred; (2) the number of such
available openings; and (3) whether the applicants had training and/or
experience relevant to the announced or generally known requirements of the
openings and whether those requirements were not uniformly adhered to or were
either pretextual or pretextually applied. The judge may, if necessary, reopen
the record to obtain evidence required to decide the case under the
Thereafter, all parties participated in a conference call
held on November 9, 2001, to discuss procedures on remand. Counsel for the
General Counsel asserted that the record made in November 1997 and March 1998
was sufficient and there was no need to reopen the record to receive further
evidence. Counsel for the Charging Party stated that he agreed with counsel for
the General Counsel regarding the basic elements of
Based upon the positions of the parties as well as the
holding in FES and the terms of the
Board’s remand herein, I have determined that the record is sufficient to
decide the case under the
Dated November 9, 2001.
APPENDIX B
Between June 30, 1997, and the end of the payroll period of July 7 to July 13, 1997, 17 new names appeared on Respondent’s payroll. At least 13 of these individuals primarily performed carpentry work? Respondent agrees that the rate of $17.51 per hour was a journeyman carpenter rate. Respondent paid its newly hired employees at or near this rate. From this, I infer that Respondent wanted skilled employees who could work competently and rapidly.
Dave Archer first appeared on the payroll during the period July 7 to July 13. He was compensated at a rate of $17.51 and worked 47 hours during that pay period. There is no application form in evidence for Archer.
Miguel Argaez first appeared on the payroll during the period July 7 to July 13. Respondent asserts that he was hired on June 30, 1997, as a helper at $10 per hour. However, the payroll indicates that Argaez started at a rate of $16.05 and worked 38 hours that pay period. Respondent contends that Argaez, Cen, Herrera, Rivero, Varrguez, and Garcia were "hired" long before June 30, 1997, when the alleged discriminatees applied for work. However, there is no evidence that this is so. Respondent relies on a date in April 1997 when Gabriel May was hired. However, Stewart was unable to tie the hiring of these six employees to the date when May was hired, sometime in April. These employees all began working during the week of July 7 or later. I find that the dates which they appeared on the payroll are much more reliable than the dates in other documents generated by Respondent. There are no applications for these employees. Stewart's vague testimony regarding plans to hire them predating June 30, 1997, was unpersuasive. Accordingly, I conclude these six individuals were hired after June 30, 1997.
Enrique Cen first appeared on the payroll during the period July 7 to July 13. He is listed as starting at a rate of $16.05 and working 16 hours during that pay period.
Quinten Carter, Sebastian Carter, Ted Carter, and Robert Carter first appeared on the payroll during the period July 7 to July 13, 1997. According to Respondent, the four Carters were hired on June 30, 1997, as journeyman plasterers. They spent about 10 to 20 percent of their time performing interior framing, which is carpentry work.
Vladimir Herrara (sometimes listed as Vladimir, H.) first appeared on the payroll during the period July 7 to July 13. He is listed as starting at a rate of $16.05 and working 40 hours during that pay period.
Fabian. S. Rivero is listed as beginning employment during the period July 7 to July 13, 1997, at a rate of $18.32 and working 32 hours on each of two different projects during that pay period.
Greg and Steve Rucker dated their applications for work June 3, 1997. Respondent’s set up sheets for new employees to list their date of hire as June 30, 1997. I discredit both the date of application and the date of hire on these documents as unreliable and inconsistent with a full reading of these individuals' applications. Thus, Greg Rucker stated that he worked for National Specialties from December 1992 until July 1997. Under reason for leaving, he stated, “came to work here!” Steve Rucker stated that he worked for National Specialities until July 1997. Both individuals first worked during the payroll period July 7 to 13, 1997. Greg Rucker’s starting rate of pay was $17.32. Steve Rucker’s starting rate of pay was $15.40. Both performed carpentry work for Respondent. I find these individuals were hired after June 30, 1997.
Miquel Varguez first showed up as an employee during pay period July 7 to July 13, 1997, at a rate of $16.05 working 15 hours.
M. Williams began working during pay period July 7 to July 13, 1997, at a rate of $15.18 for 40 hours. Respondent contends that the record indicates that Williams was hired prior to June 30, 1997. In fact, Williams’ employee set up sheet shows a hire date of June 25, 1997. His application for employment is dated June 1, 1997, on the front and July 1, 1997 by his signature. The front date, “June 1, 1997” shows clear tampering or rewriting. Williams’ 1-9 form is also dated July 1, 1997. For these reasons, I find that the date when Williams actually began working is more reliable. I discredit these other dates and find that Respondent hired Williams in July 1997.
New employees continued to arrive. For instance, during payroll period July 14 to July 20, 1997,
Jonathan T. Hackenberg, who submitted an employment application on July 3, 1997,2 first worked during payroll period July 14 to July 20, 1997. Hackenberg is listed at a rate of $18.32 per hour and worked 46 hours during that pay period.
Danny Joiner first appeared on the payroll during the period July 14 through 20, 1997, at a rate of $16.05, working 16 hours.
Miguel Garcia appeared on the payroll during the period July 14 through 20, 1997, at a rate of $16.05 and worked 58 hours.
During payroll period July 21 to 27, 1997, Byron Self first appeared at a rate of $17.51, working 37 hours.
APPENDIX C
Alleged discriminatee James D. Carsel applied for any position
starting anytime with “salary desired,” an open issue. He noted his special
skills as carpentry and union organizing and listed his trade school as Carpenters
#311. Carsel listed his job experience from 1986 to 1990 with R. E. Smith
Construction; from 1990 to 1995 with Dalton Killinger Construction; and from
1995 to 1997 as an organizer with the
Larry Dale Collinsworth, alleged discriminatee, stated on
his application that he wanted a job as a carpenter, was available immediately,
and would work for Respondent’s wages. He listed vocational—technical training
for 2 years in a machine shop and listed special skills as, “all phases of
construction.” His job history showed fairly steady employment work in the
construction industry including the
Alleged discriminatee Roger A. Hensley applied with Respondent stating that he would perform any position and could start immediately. He listed his skills and training as a carpenter noting that he had atteneded for 4 years and graduated from “Union Apprentice Classes.” Hensley listed three jobs of 5 to 8 months duration in 1993, 1995 and 1996.1 He did not list any personal references.
Bob Dale Hurn applied for carpentry work immediately, noting
that he was referred by the
Alleged discriminatee John P. Duncan completed Respondent's
employment application on June 30, 1997, stating that he was interested in
“Sheetrock Metal Stud” and could begin the following day. He stated that he was
a journeyman carpenter with special skills in other specific areas. He listed
two past jobs, “Freesen Corp. III” from January to July 1996 and “Danan Corp.
Penn” from July to October 1996.
Thomas Earl McFarland applied for “Carpenter any work” immediately for prevailing wage or your carpenters’ wages. He listed special skills in tiling and he filled in the names of four companies with no dates indicated in which he worked as an installer. He listed three personal references. His work as an “installer” with special skills in tile and metal would not necessarily rule out general carpentry work, especially if he installed the drywall upon which he installed tile. In any event, among the undated list of employers, including Superior Tile, Zichel, and Fred & Tom’s Flooring, another employer, Interior Construction, appears. McFarland listed his position with Interior Construction as an installer. Any ambiguities in McFarland’s application could have been resolved with a personal interview. However, Respondent did not afford the alleged discriminatees interviews.
Mike F. Joyce applied for a job as a carpenter stating that
he could start immediately. His special skills listed on the application were
drywall‑studs‑concrete work and forms. He completed the application
showing fairly steady employment and gave three personal references.
The application of Shelley Rose Williams indicated that
she desired carpentry work. She was available immediately and would work at
Respondent’s wages. Special skills were listed as carpentry and drywall. Four
past jobs were listed. Respondent’s notes on the application indicate that one
of the jobs was a drywall job and one was forms. Three personal references are
listed.
Alleged discriminatee Steven Paul Wilson applied for a position
with Respondent as a carpenter to start immediately at a negotiable salary
rate. He listed special skills as “layout & trim.” He also noted that he
had studied civil engineering by correspondence at a community college.
Alleged discriminatee Matthew Allen Rausch completed his application for the position of carpenter noting that he could begin work that day and would like $15.28 per hour. He stated he was referred by Union Local #978 and completed 4 years of carpentry trade school. His special skills were listed as “metal stud & sheet rock.” He listed steady employment and two personal references.
APPENDIX D
Dave Archer began working for Respondent during the payroll period ending July 13 for a rate of $17.51. Respondent did not require Archer to complete a job application. Stewart explained that Archer worked for one of Respondent’s subcontractors, Elite Plastering. When Elite ran out of work in 1996, Stewart hired Archer for a brief time. Archer was rehired in July 1997 and eventually served as foreman on the Carthage Humane Society project which Respondent began in the spring of 1998. Based upon the record, it would appear that Archer performed as a drywall worker when he began working for Respondent in July 1997. In any event, Archer was hired based upon his prior work for one of Respondent’s subcontractors and for Respondent. There is no evidence that he was hired based upon a uniform standard or any training relevant to the generally known requirements of the job. Rather, the evidence indicates he had prior experience with Respondent and was rehired based upon that prior experience.
Miguel Argaez was hired after the alleged discriminatees applied for work. Respondent did not have an application for Argaez. Respondent claimed somewhat conflictingly in papers prepared for trial that Argaez was either a helper or a drywall hanger. These documents have been discredited. Stewart explained that Argaez had worked previously for him on a subcontract basis on apartment units hanging drywall. These subcontracts were paid on a lump sum or piece rate basis. Argaez had never been an employee of Respondent’s until he appeared on the payroll during the period ending July 13. There is no evidence regarding Argaez’ training. There is no evidence of personal references or a satisfactory interview. Apparently, according to Stewart, Argaez had past job experience as a drywall hanger and Stewart was familiar with this experience. The hiring procedures for Argaez do not indicate that a uniform standard was applied.
Enrique Cen was hired under the same circumstances as Argaez. Cen worked for Stewart on a subcontract basis on apartment units. There is no job application for him. Stewart did not testify what Cen’s experience was except to say that he was one of the subcontractors on the drywall hanging. I find, as with Argaez, that the hiring procedures were not uniformly applied with regard to Cen.
Vladimir Herrera first appeared on the payroll during the period ending July 13, 1997. Herrera did not complete an employment application. Stewart testified that Herrera was hired under the same circumstances as Argaez and Cen, in that Herrera worked on the apartment complex subcontracts. There is no other evidence regarding Herrera’s experience, training, qualifications, work history, or personal references. There is no indication that he was interviewed. I find that the hiring procedures were not uniformly applied with regard to Herrera.
Fabian S. Rivero first appeared on the payroll during the period ending July 13, 1997. Rivero did not complete an employment application. Stewart testified that Rivero was a subcontractor, a sheet rock hanger. There is no evidence regarding his experience, qualifications, training, work history, personal reference or interview. I find that the hiring procedures were not uniformly applied with regard to Rivero.
Four individuals named Rucker worked for Respondent during the relevant time period. Two of these individuals, Randy Rucker and Joe Rucker, were employees of Respondent as early as pay period May 25 to June 1, 1997. Accordingly, their hiring is not at issue herein. However, Greg and Steve Rucker first began working for Respondent during pay period July 7 to 13, 1997.
Greg and Steve Rucker dated their employment applications June 3, 1997. As earlier noted, I find that Greg Rucker’s application could not have been submitted on June 3, 1997, as dated, because it indicates that Greg Rucker left his prior job in July 1997 and “came to work here!” Similarly, I find that Steve Rucker’s application could not have been submitted on June 3, 1997, as dated, because it indicates that Steve Rucker left his prior job in July 1997 while at the same time indicating that he could start work for Respondent “now.”
The Ruckers’ applications contain such internal inconsistencies regarding the date they completed the applications, that I find it more likely that they completed their applications in early July 1997 just as Hackenberg did. Respondent asserts that in my prior decision I made a specific finding that Greg and Steve Rucker applied for work on June 3, 1997.1 It is true that I made specific findings that their applications were dated June 3, 1997. However, this does not preclude further consideration of the internal inconsistencies which lead me to discredit that date of application.
Greg Rucker’s employment application indicates that he attended 1 year of building trades classes in high school. For special skills, he listed that he built a house. His prior job was as a superintendent for National Specialties for 8 years. He listed drywall and carpentry experience in 1991 and 1992. Greg Rucker’s application indicated steady employment. Three personal references were listed. Greg Rucker’s drywall experience was somewhat dated and his training was minimal. Respondent did not uniformly apply its stated hiring criteria in hiring Greg Rucker.
Stewart acknowledged that Steve Rucker had absolutely no drywall experience. In fact, Steve Rucker’s application indicated that he had previously worked as a cook for Sonic and then as a laborer for National Specialties. Steve Rucker listed three personal references. In any event, as to lack of relevant experience, Stewart testified,
He [Steve Rucker] was getting ready to go into the military and he [Greg Rucker, Steve’s uncle] said he [Steve Rucker] would like to work for about two months, period, and that he [Greg Rucker] could try to get a lot of work out of him [Steve Rucker], but he [Steve Rucker] was a good hard worker and he [Greg Rucker] worked directly with him [Steve Rucker]. And I took Randy [Rucker—Steve’s father] and Greg’s vouch that they would try to get it for him [Steve Rucker] and that’s‑‑I basically hired him [Steve Rucker] because him [Steve Rucker] being his [Randy Rucker’s] son and [Greg Rucker’s] nephew.
With regard to Steve Rucker, there can be no doubt that Respondent did not adhere to its hiring criteria.
Miguel Varguez (spelled on payroll records as Vargus) first appeared on the payroll during the period ending July 13, 1997. Varguez did not complete an employment application. Stewart testified that Varguez was a subcontractor, a sheet rock hanger, “He’s one of the subs that Raphael and Fabian [Rivero] was in charge of, one of the individuals.” There is no evidence regarding Varguez’ experience, qualifications, training, work history, personal reference or interview. I find that the hiring procedures were not uniformly applied with regard to Varguez.
Michael Williams dated his employment application June 1,
1997, but signed it on July 1, 1997. Williams first appeared on Respondent’s
payroll during the period ending July 13, 1997. I find that the application was
submitted no earlier than July 1, 1997. Williams applied to be a “Carpenter
Apprentice,” with “open” salary desired and immediate availability. He listed
special studies or research work as carpentry, drywall. Williams listed steady
employment as a carpenter and laborer with Midwest Drywall (November 1996 to
July 1997),
Well, I would have talked to him, he—Ron East, he was a close friend to him and Ron vouched for him and I looked through it, but I don’t think I specifically saw that he had been working drywall on all the deals and Ron said he worked with him extensively.
Williams’ pay ($17.51 per hour) indicates he was hired as a journeyman carpenter. There is application and interview evidence regarding Williams’ specific drywall experience. I find that the hiring procedures were uniformly applied with regard to Williams. I also note that his personal reference, Ron East, “vouched” for him.
Jonathan T. Hackenberg first appeared on Respondent’s payroll for the period July 14 to 20, 1997, earning in excess of journeyman carpenter rates. Hackenberg submitted his employment application on July 3, 1997, indicating experience in the construction industry without dates. He listed three personal references. Hackenberg testified that he had contacted Respondent throughout the year and one‑half prior to July 1997 attempting to get hired. He was interviewed by Stewart on July 3, 1997, and hired thereafter.
As Stewart explained,
He had contacted me numerous times over the previous year or year and a half prior. At two or three different locations, he’d come on about getting jobs and at the times we weren’t hiring or just missed him and he was always working, he worked mostly for Doug Wilson, which I knew Doug. And he’d always kept busy and it always seemed to be wrong—whenever he was busy with Doug, I was busy too or vice versa, so, I never did end up offering him a job until he come in and said he was off and then he filled out an application and he—you know, had been currently employed and I said—he has very good qualifications, been always working steady at drywall and Doug Wlson gave a real high recommendation. He’d always—even Doug stated, he was kept to the last on a job, which that’s always your best guys, to the last two or three people on the job when you’re closing it out to finish it.
I find that Respondent utilized its hiring procedures, as outlined by Stewart, on a uniform basis with regard to Hackenberg.
Danny Joiner completed an employment application for Respondent
on July 14, 1997, and first appeared on the payroll during the period July
13–20, 1997. Joiner was sent by the
Danny came in and—he was a friend that had worked around Ron East for quite some time and Danny came in, I talked to him at length, filled out an application. He basically, had really good qualifications, he’d been working at that time and he was—he’d just finished doing a project and was available right then and he said he might have something come up and I said I’d try to put him on over at the other job.
I find that Respondent utilized its hiring procedures, as outlined by Stewart, on a uniform basis with regard to Joiner.
Miguel Garcia began working for Respondent during payroll period July 13–20, 1997. Respondent did not have an application for Garcia. Stewart explained that Garcia worked with Argaez and Varguez on a subcontract basis on apartment units. These subcontracts were paid on a lump sum or piece rate basis. Garcia had never been an employee of Respondent’s until he appeared on the payroll during the period ending July 13. There is no evidence regarding his qualifications, personal references, work history, or interview. Apparently, according to Stewart, Garcia had past job experience as a drywall hanger and Stewart was familiar with his work. The hiring procedures for Garcia do not indicate that a uniform standard was applied.
During payroll period July 21–27, 1997, Byron Self began
working. Self was referred to Respondent by the
And Steve and Carl, two of the guys that are still with me, worked with him down there and said he was very good. As a matter of fact, I’d tried to get him over the last year, three or four other times. He’d been doing work on the road and I was never able to connect with him, but he knew that I was trying to get him to go to work back for me at some point and he’d come back in. And of course, those guys—and I worked down there with the guys then and knew that he was a real good hand and so, I hired him.
I find that Respondent did not utilize its standard hiring procedures with regard to Self.
APPENDIX
E
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 fail and refused to
hire employees because they engaged in protected concerted activities in
support of Carpenters’ District Council of Kansas City and Vicinity Local 311
and 978 affiliated with United Brotherhood of Carpenters and Joiners of
America.
We will not refused
to consider applicants for employment because they engaged in protected
concerted activities in support of Carpenters’ District Council of Kansas City
and Vicinity Local 311 and 978 affiliated with United Brotherhood of Carpenters
and Joiners of America.
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 two discriminatees to the positions to which they applied or, if
those positions no longer exist, to substantially equivalent positions.
We will make them
whole for losses sustained by reason of the discrimination against them, plus
interest.
We will consider the
remaining discriminatees for future job openings in accord with
nondiscriminatory criteria, and notify them, the Union, and the Regional
Director for Region 17 of future openings in positions for which the
discriminatees applied or substantially equivalent positions.
We will remove from
our files any reference to the unlawful refusal to hire two discriminatees,
whose identity is to be determined in the compliance stage of this proceeding
and we will
notify them in writing that this has been done and the refusal to hire them
will not be used against them in any way.
We will remove from
our files any reference to the unlawful refusal to consider for employment the
remaining discriminatees whose identity is to be determined in the compliance
stage of this proceeding, and we will notify each of them in writing that this has been done
and that the refusal to consider them for employment will not be used against
them in any way.
EPI Construction