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,
Brown & Root Power and Manufacturing, Inc., A
Subsidiary of Brown & Root, Inc. and
International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, AFL–CIO and
United Association of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, Local Union No. 229. Cases
15–CA–12752–S and 15–CA–12875–S
September 28, 2007
SUPPLEMENTAL DECISION AND ORDER
By Chairman Battista and Members Liebman
and Kirsanow
On August 13, 1996, Administrative Law Judge J. Pargen Robertson issued his decision in this proceeding. The Respondent filed exceptions and a supporting brief, the General Counsel and Charging Party Boilermakers filed cross-exceptions and supporting briefs, the Respondent and Charging Party Boilermakers filed answering briefs, and the Respondent filed a reply brief.
On June 7, 2000, following the issuance of
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision, supplemental decision, and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions, as modified below, and to substitute a new Order and notice for that of the judge.
The judge found that the Respondent violated Section 8(a)(3) and (1) by discriminatorily failing to hire, and to consider for hire, job applicants at a paper mill operated by Stone Container, Inc. (Stone Container). The Respondent was the general contractor at the Stone Container project. For the reasons set forth by the judge, as modified below, we adopt the judge’s findings, in part, that the Respondent violated the Act by failing to hire, and consider for hire, job applicants at the project. We also adopt the judge’s dismissal of allegations that the Respondent unlawfully failed to hire, or consider for hire, other applicants, as modified below.
1. In the spring of 1994,2 the Respondent performed scheduled maintenance work at the Stone Container facility. On April 13, a serious accidental explosion caused extensive damage at the facility, and Stone Container contracted with the Respondent to rebuild portions of the facility. This work consisted of demolition, clean-up, and rebuilding of the facility. The Respondent received 1740 applications and hired 291 employees in various construction trades, including electricians, ironworkers, pipefitters, pipewelders, and structural welders.
Commencing in late April, members of the Boilermakers, Pipefitters, and Electrical Workers (IBEW) unions applied for employment at the Stone Container facility. Most of their applications, except as noted below, identified the applicants as voluntary union organizers or indicated that the applicant was an active union member.
On May 5 and 6, Charging Party Unions, Pipefitters Local 229 (Local 229) and the Boilermakers, picketed the facility. On June 1, Local 229 Business Agent Greg Boggs complained to the Respondent’s Project Manager Joe Bob Caperton that over 30 of his members had applied and not one had been hired. Caperton told Boggs that Local 229 members “had wrote union organizer on their application and I [Boggs] didn’t have any qualified people that actually wanted to go to work.” Boggs replied that the union applicants averaged 15 years of experience. Caperton replied that “you don’t have one qualified man who wants to come down here and go to work.” When Caperton said he would hire anyone brought by Local 229 that was qualified, Boggs responded that he would bring in 30 union applicants the next morning. Caperton told Boggs “oh no, no, no, don’t do that. We’re not hiring now.” As noted below, the Respondent subsequently hired a number of nonunion pipefitters, pipe welders, and structural welders in June and July who did not fit within any preferential hiring category, instead of hiring union-affiliated applicants.
With the exception of applicant Tony Mack, the Respondent hired no applicants who indicated that they were voluntary union organizers or who claimed active membership with Local 229 or the Boilermakers. Mack initially applied on May 17, mentioned Local 229 on his application, and listed Business Agent Boggs as a reference. Mack was not hired. He applied again, 2 months later, and made no reference to Local 229 or to Business Agent Boggs. Mack was hired on July 19.
Under FES, the
General Counsel must establish, to show an unlawful refusal to hire, that (1)
the Respondent was hiring, or had concrete plans to hire, at the time of the
alleged unlawful conduct; (2) the applicants had experience or training
relevant to the announced or generally known requirements of the positions for
hire (or that the Respondent has not adhered uniformly to such requirements or
that the requirements are pretextual or applied pretextually); and (3)
antiunion animus contributed to the decision not to hire the applicants.
The Respondent hired numerous employees, and the alleged discriminatees applied during the hiring stages of the project.3 Accordingly, we find that the Respondent was hiring or had concrete plans to hire at the time of the alleged unlawful conduct. Further, for the reasons set forth by the judge, those applicants coded and classified by the Respondent as electricians, ironworkers, pipefitters, pipewelders, and structural welders had the requisite training and experience relevant to those positions.4
We also adopt the judge’s findings that antiunion animus
contributed to the decision not to hire the alleged discriminatees. As the judge found, Project Manager Caperton’s
comments to Business Agent Boggs are instructive as to the Respondent’s
treatment of the union-affiliated applicants seeking to organize.5
Boggs’ credited testimony shows that Caperton essentially considered
applicants who expressed the intent to organize or indicated active union
affiliation unqualified for hire.6 It is also noteworthy that applicant Mack,
the only applicant hired who revealed an active connection to those seeking to
organize at the facility, was hired only after cleansing his initial
application of any reference to the union organizers.7 In these circumstances, we find that the
General Counsel established that union animus contributed to the Respondent’s
decision not to hire the discriminatees, and that he met his initial
The Respondent defends its hiring decisions by arguing that they were made pursuant to its preferential hiring system. As the judge found in his supplemental decision, the Respondent demonstrated that it gave preference to (1) former employees of the Respondent, (2) applicants referred by the Respondent’s supervisors, and (3) applicants referred by on-site mill operator Stone Container. We agree with the judge that the Respondent demonstrated that applicants hired within these three non-discriminatory preferential categories lawfully were hired instead of the alleged discriminatees.
The Respondent contends that it gave preference to a fourth category of “gate hires.” Hall testified that gate hires were applicants who personally applied when an opening existed or were checking back when an opening arose—and were hired virtually on the spot. But the judge discredited Hall and found that “his testimony as to the basis for selection of applicants was especially suspect.” Thus, the testimony in support of the legitimacy of this alleged preferential category is not credible. Further, many of the alleged discriminatees applied in person “at the gate” and none was hired. This includes applicants Roland Gilmore (pipewelder) and Greg Johnson (pipefitter), who applied on June 8. Neither Gilmore nor Johnson was hired and, instead, the Respondent on June 8 hired pipewelder Darrow Simmons Jr. and pipefitter James M. Peaden, neither of whom was a preferential hire under the three nondiscriminatory preferential categories, nor was either evidently a walk-in “gate hire” (Simmons and Peaden applied on June 1 and 2, respectively).8 In these circumstances, we agree with the judge’s finding that the Respondent has not shown that “gate hire” was a nondiscriminatory preferential category, and we therefore adopt the judge’s finding that the Respondent has not carried its evidentiary burden to show that the alleged discriminatees would not have been hired because “gate hires” purportedly had priority over them.
2. The Respondent
contends that the Respondent had no openings at the project that constituted
boilermakers work.9 In his supplemental decision, the judge found
that “there may be a question” whether applicants coded as boilermakers were
qualified for particular positions. The
judge left this matter to compliance.
But, under
Hall testified that he preferred to keep boilermakers within their craft but also admitted that welding is not exclusive to other crafts. Indeed, Hall testified that an applicant with boilermaker skills was capable of performing work at the project as a structural welder. According to Hall, structural welding is less exacting than, for example, pipewelding. Other witnesses testified that boilermakers were capable of performing welding. Applicant David Greer testified that boilermakers possess a mix of skills, including welding. Night-Shift Foreman James Parker testified that the Respondent performed boilermakers work at the project. And Foreman Nalta Branning testified that boilermakers were qualified to perform work at the project, including welding. Based on the foregoing, we find that boilermakers were qualified to perform structural welding at the project.11
3. We adopt the judge’s finding that the Respondent had knowledge of the union organizing campaign on May 2, when alleged discriminatee Gerald Motley applied and stated on his application that he was a union organizer.12 We therefore agree with the judge that the Respondent’s discrimination in hire commenced with respect to openings as of May 2, when the Respondent had such knowledge and denied employment to applicants for discriminatory reasons.
As the Respondent contends, an instatement remedy for a discriminatory failure to hire must be tailored here to the job classification in which a discriminatee was qualified. Here, instatement is appropriate for openings, within each classification (as coded by the Respondent, other than as boilermakers), that were discriminatorily filled by nonpreference hires, i.e., by those who did not qualify for any of the three nondiscriminatory preference categories, as described above. Thus, a position filled by a nonpreference hire was an available opening for a discriminatee who had applied at or before the time that position was filled. Accordingly, we shall order instatement on that basis.13
4. On July 13,
Boilermakers Business Manager James Estes and International Organizer Dennis
King submitted to the Respondent the applications of Joseph Mixon and Dale
Ferguson, along with several other applications expressly identifying the
applicants as union organizers. Estes identified himself to Hall as a
Boilermakers official. Although the
applications of Mixon and
We also find that the Respondent had knowledge of the active union organizational intent of applicant Arthur Tison. Tison’s application was submitted by Boilermakers International Representative Michael Peterson and states on its face that Tison is a volunteer union organizer. In these circumstances, we find that the Respondent had knowledge of Tison’s active organizational intent.15 Hall glanced at Tison’s application and refused to accept it because it did not list an emergency contact number. Hall testified that omissions on an application did not necessarily warrant rejection of an application, and there is no evidence that the Respondent maintained a policy of rejecting applications lacking emergency contact numbers. Accordingly, we find that the Respondent failed to establish that it rejected Tison for non-discriminatory reasons.
The applications of certain alleged discriminatees do not show an active intent to organize or present union affiliation. The application of alleged discriminatee Jeff Mitchell shows only a prior trade school reference to the Pipefitters union, and alleged discriminatees Tramis Bush, James Danley Jr., Qulon Carl French, and Joseph Vickers listed only prior union apprentice programs or previous employers who were union contractors. We agree with the judge that this is insufficient to establish knowledge of organizational intent or current union affiliation. Our review of the record shows that the Respondent treated applicants who identified themselves as voluntary union organizers or evinced a present union affiliation in a discriminatory manner compared to those showing only prior union apprentice programs or previous employment with union contractors. Accordingly, we shall dismiss the allegations as to these applicants.16
5. Under
Amended Remedy
Having found that the Respondent discriminatorily refused
to hire the discriminatees, and to consider them for hire, the Respondent must
make them whole for its unlawful conduct against them. The duration of the backpay period shall be
determined in accordance with Oil Capitol
Sheet Metal, Inc., 349 NLRB No. 118 (2007). Instatement is subject to defeasance under Oil Capitol if, at the compliance stage,
the General Counsel fails to carry his burdens both of going forward with evidence
and of persuading that the discriminatees would still be employed by the
Respondent if they had not been the victims of discrimination.
ORDER
The National Labor Relations Board orders that the
Respondent, Brown & Root Power and Manufacturing, Inc., a subsidiary of
Brown & Root, Inc.,
1. Cease and desist from
(a) Refusing to hire, or to consider for hire, job applicants because of their union or other protected concerted activities.
(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer those applicants named in paragraph 2(b) below instatement to 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 if they had not been discriminated against by the Respondent.
(b) Make the applicants named below whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the judge’s supplemental decision as modified by the amended remedy section of this decision.
|
Howard Michael Childree |
Noel |
|
Gerald Motley |
Robert Fenaes |
|
Jason Greer |
Jimmy A. Vickers |
(c) Offer to those applicants listed below who are identified in the compliance stage of this proceeding as the individuals who would have been employed at the Stone Container jobsite instatement to 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 if they had not been discriminated against by the Respondent.
|
Don Andrews |
George Curtis Odom |
|
Timmy Bradbury |
Michael C. Peterson |
|
Rozier Lanier Collins |
Kenneth Richardson |
|
Stan Cooper |
James R. Robshaw |
|
Hulon French |
Norvin Thibodeaux |
|
David A. Greer |
William Tomlinson |
|
Bobbie Wayne Harvey |
Mark Wicker |
|
Greg Johnson |
George W. Berthaut |
|
Wilford Kelly |
Roy Eugene Cooper |
|
Steve Maddox |
Joseph E. Gleason Jr. |
|
Dennis Alan Meeks |
Marty |
|
Pat O’Brien |
|
|
Marty Ost |
Dennis H. King |
|
Shirlin E. Railey |
Michael McVay |
|
Randall Wade Richbourg |
Samuel T. Odom |
|
Bobby Singletary |
Juan Picardo |
|
Steve Wallace |
William T. Robichaux |
|
John Baxley |
John D. Kelly |
|
Joe Cooper Jr. |
Dale Ferguson |
|
Jerry Roy Cozart |
Donald Seale |
|
Roland L. Gilmore |
Gary Thomas |
|
Joel Holmgren |
Joseph Mixon |
|
Bobby F. Kelly |
Jasper Jasperson |
|
Crawford Lee Kemp |
Mike Bonifay |
|
Mike McNeil |
|
(d) Make whole those individuals set forth above in paragraph 2(c) who are identified in the compliance stage of this proceeding as discriminatees who would have been hired for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the judge’s supplemental decision as modified by the amended remedy section of this decision.
(e) Consider the remaining applicants named in paragraph 2(c) who do not receive an instatement order, as determined at compliance, and the applicant named below, for future job openings in accord with non-discriminatory criteria, and notify them, the Charging Party Unions, and the Regional Director for Region 15 of future openings in positions for which these individuals applied or substantially equivalent positions. If it is shown at the compliance stage of this proceeding that, but for the failure to consider these applicants, the Respondent would have selected any of them for job openings arising after the beginning of the hearing, or for any job openings arising before the hearing that the General Counsel neither knew nor should have known had arisen, the Respondent shall hire them for any such positions and make them whole for any losses, in the manner set forth in the remedy section of the judge’s supplemental decision as modified by the amended remedy section of this decision.
Arthur S. Tison
(f) Notify the applicants named above in paragraphs 2(c) and (e) in writing that any future job applications will be considered in a non-discriminatory way.
(g) Within 14 days from the date of this Order, remove from its files any reference to the unlawful refusal to hire, and to consider for hire, the individuals named above, and within 3 days thereafter notify them in writing that this has been done and that the unlawful refusal to hire or consider them will not be used against them in any way.
(h) 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.
(i) Within 14 days after service by the Region, post at
all of its jobsites within a 75-mile radius of
(j) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
______________________________________
Robert J. Battista, Chairman
______________________________________
Wilma B. Liebman, Member
______________________________________
Peter N. Kirsanow, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not discourage employees from engaging in activities on behalf of a labor organization by refusing to hire job applicants, or consider them for hire, because they are members or supporters of unions, or because they indicate on their employment applications that they are voluntary union organizers.
We will not in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights set forth above.
We will, within 14 days from the date of the Board’s Order, offer the applicants named below employment in the positions they applied for or, if those jobs no longer exist, in substantially equivalent positions, without prejudice to their seniority or any other rights or privileges to which they would have been entitled if we had discriminated against them and we will make them whole for any loss of earnings and other benefits resulting from our unlawful refusal to hire them upon application, less any net interim earnings, plus interest.
|
Howard Michael Childree |
Noel |
|
Gerald Motley |
Robert Fenaes |
|
Jason Greer |
Jimmy A. Vickers |
We will offer to those applicants named below who are identified in the compliance stage of the Board’s proceeding as the individuals who would have been employed at the Stone Container jobsite, employment in the positions for which they applied or, if those positions no longer exist, in substantially equivalent positions, without prejudice to their seniority or any other rights or privileges to which they would have been entitled if they had not been discriminated against by the Respondent, and we will make each of the individuals thus identified in compliance whole for any loss of earnings and other benefits suffered as a result of the discrimination against them.
|
Don Andrews |
George Curtis Odom |
|
Timmy Bradbury |
Michael C. Peterson |
|
Rozier Lanier Collins |
Kenneth Richardson |
|
Stan Cooper |
James R. Robshaw |
|
Hulon French |
Norvin Thibodeaux |
|
David A. Greer |
William Tomlinson |
|
Bobbie Wayne Harvey |
Mark Wicker |
|
Greg Johnson |
George W. Berthaut |
|
Wilford Kelly |
Roy Eugene Cooper |
|
Steve Maddox |
Joseph E. Gleason Jr. |
|
Dennis Alan Meeks |
Marty |
|
Pat O’Brien |
|
|
Marty Ost |
Dennis H. King |
|
Shirlin E. Railey |
Michael McVay |
|
Randall Wade Richbourg |
Samuel T. Odom |
|
Bobby Singletary |
Juan Picardo |
|
Steve Wallace |
William T. Robichaux |
|
John Baxley |
John D. Kelly |
|
Joe Cooper Jr. |
Dale Ferguson |
|
Jerry Roy Cozart |
Donald Seale |
|
Roland L. Gilmore |
Gary Thomas |
|
Joel Holmgren |
Joseph Mixon |
|
Bobby F. Kelly |
Jasper Jasperson |
|
Crawford Lee Kemp |
Mike Bonifay |
|
Mike McNeil |
|
We will consider the individuals listed above who do not receive an offer of employment, as determined at the Board’s compliance proceeding, and the individual named below, for future job openings in accord with nondiscriminatory criteria, and notify them, the Charging Party Unions, and the Regional Director for Region 15 of future openings in positions for which these individuals applied or substantially equivalent positions. If it is shown at the compliance stage of the Board’s proceeding that, but for the failure to consider these applicants, the Respondent would have selected any of them for job openings arising after the beginning of the hearing, or for any job openings arising before the hearing that the General Counsel neither knew nor should have known had arisen, we will hire them for any such positions and make them whole for any losses.
Arthur S. Tison
We will notify the individuals named above, who are entitled to consideration for future positions, in writing that any future job applications will be considered in a nondiscriminatory way.
We will, within 14 days from the date of this Order, remove from our files any reference to the unlawful refusal to hire or to consider for hire the individuals named above, and within 3 days thereafter, notify them in writing that this has been done and that the unlawful refusal to hire them or consider them for hire will not be used against them in any way.
Brown & Root Power and Manufacturing, Inc., a
subsidiary of Brown & Root, Inc.
Andrea J. Goetze, Esq. and Zoe Panarites, Esq., for the General Counsel.
Thomas J. McGoey II, Esq. and Bart N. Sisk, Esq., of
Michael T. Manley, Esq., of
Greg A. Boggs, of
Decision
J. Pargen
Robertson, Administrative Law Judge. This hearing was on September 5, 7, and 8,
1995, and on March 4 and 5, 1996, in
Respondent, the General Counsel, and Charging Parties were represented, were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. Upon consideration of the entire record and briefs filed by Respondent, the General Counsel, and Charging Party Boilermakers, I make the following findings
Jurisdiction
Respondent admitted that it is a corporation with an
office and place of business in
Labor Organizations
Respondent admitted that International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL–CIO and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 229 (Unions) have been labor organizations within the meaning of Section 2(5) of the Act, at all material times.
Motion to Correct Record
On May 31, 1996, counsel for the General Counsel filed a motion to correct record. That motion was not opposed. I grant the motion and direct correction of the record as shown in General Counsel’s motion.
The Unfair Labor Practice Allegations
It is alleged that Respondent refused to hire some 65 employees because of union activities. At issue is whether Respondent refused to hire members of the Boilermakers, Pipefitters, and IBEW Unions because of their union membership.
Respondent’s senior craft recruiter Kara Hall recruited employees to staff projects. He recruited employees for the Panama City Stone Container papermill project that is the subject of this litigation. In April 1994, he was at Stone Container recruiting manpower for an outage. An outage occurs when some or all of a plant is temporarily closed for repairs. Respondent was the contractor for 1994 outage repairs as well as being the full-time maintenance contractor. There was an accidental explosion at Stone Container on April 13, 1994. That explosion resulted in a substantial change in the nature of Respondent’s work at Stone Container. The job became a rebuild job and lasted substantially longer than originally planned. Although Kara Hall was at Stone Container originally to recruit manpower for the outage, his job was enlarged because of the explosion and it lasted from April through August 1994.
Hall testified that after the explosion he recruited general laborers to clean up the debris. He selected employees at the direction of Project Superintendent Joe Bob Caperton. Hall recalled that he hired around 60 employees for the cleanup phase of Respondent’s work.
There was a short time after the clean up while Stone Container decided whether to rebuild. Respondent was eventually selected as the rebuild contractor. At the direction of Joe Bob Caperton, Hall recruited for demolition work. The demolition was the second phase of the job. The third and final phase involved the rebuild. Approximately 200 employees were hired for the demolition phase. Hall testified that Caperton told him that he wanted “(i)ronworkers, pipefitters, welders.” Those employees were hired because they could continue to perform the rebuild work after completion of the demolition and clean up.
After the rebuild started it was occasionally necessary to hire additional people. Those were hired by Hall through requisitions. Requisitions, according to Hall, were sometimes verbal and sometimes in writing. Those requisitions came to Hall through Joe Bob Caperton.
Jeffrey Mitchell testified that he is a pipefitter/welder. He has been a member of Local 229 for 16 years. He applied for work with Respondent on April 27, 1994. Mitchell wrote on his application that he was a member of the United Association of Pipefitters. Mitchell identified Kara Hall as the one he spoke to when he picked up his application. Hall told Mitchell that they would be hiring pipefitters and that a drug test would be required. Mitchell told Hall that he would take a drug test. All the previous employers listed on Mitchell’s application were union contractors. After submitting his application Mitchell was told that Respondent was not hiring at that time. Subsequently he phoned back three times and was told on each occasion that Respondent was not hiring.
Joseph Vickers is on the finance committee at Pipefitters Local 229. He applied for work with Respondent on April 27, 1994. He talked with a woman at Respondent’s office. She told him that Respondent would be in touch, that they would probably be hiring in a week or two. His previous employers listed on his application were all union contractors. There was nothing on his application showing that Vickers is a Local 229 member. Vickers usually wears a union cap and he believed that he had on the cap when he applied with Respondent. Vickers phoned to check on jobs around twice a week for a couple of months but he has not been offered a job.
Qulon French is a boilermaker. He is not a union member but he holds a permit. He applied with Respondent on April 28, 1994. All his recent prior employers listed on his application, are union contractors. French was told by Kara Hall that Respondent had no boilermaker work at that time but that he had just missed out on a structural welding job. Hall told French there would most likely be some work in a week or a week and a half. French told Hall that he could do structural welding and fitting as well as boilermaker’s work. French went back to Respondent and inquired about work three times over the next 2 weeks. He also phoned Respondent on three occasions. Qulon French participated in the May 5 or 6, 1994 picketing against Respondent. He was never offered work by Respondent.
Joseph Cooper Jr., a member of Pipefitters Local 229, is a pipefitter/welder. Cooper applied for work with Respondent on April 29, 1994. Cooper wrote on his application that he attended the Local 229 apprenticeship school. He listed Greg Boggs, pipefitter B.A. and Jerry Motley, electrician B.A. as references. Cooper spoke with a woman who told him to come back on “Tuesday” after Cooper turned in his job application. Cooper phoned on Tuesday but was told there was no news and that he should phone again. Cooper phoned the following Tuesday. Again he was told there was no news.
Pipefitters Local 229 as well as the Boilermakers, IBEW, and other trade Unions, picketed Respondent’s Stone Container job on May 5 and 6, 1994. The Pipefitters and Boilermakers were the two main Unions involved in the picketing. There were approximately 150 pickets the first day and around 75 the second. Their signs advocated local jobs for local people and attacked the use of out-of-state workers.
Joseph Vickers picketed Respondent on May 5 and 6, 1994, along with Donny Wicker, Greg Boggs, Jimmy Vickers, Mark Wicker, Ben Nunery, Jeff Mitchell, and others. Vickers’ sign protested Respondent’s failure to hire local people. Dennis Meeks also participated in the picketing against Respondent. The parties stipulated that picketing occurred on May 5 and 6, 1994. Gary Thomas picketed Respondent around May 6, 1994. Norvin Thibodaux was one of the pickets on May 5 or 6, 1994.
Norvin Thibodaux is a certified pipefitter. He has worked in that craft for 20
years. He has been a member of
Pipefitters Local 229 for 6 years.
Stan Cooper, a member of Pipefitters Local 229, is a pipefitter/welder. Cooper was involved in the picketing against Respondent on May 5 and 6, 1994. He passed out leaflets each day while wearing a union T-shirt. Cooper applied for work with Respondent on May 10, 1994. Stan Cooper wrote on his application that he had been through a union apprenticeship school. Also some of his references were union people and he worked for a union contractor. Cooper talked with Kara Hall. He told Hall that he was interested in a pipefitting welding job. Hall said they were hiring pipefitters and welders. He told Cooper that he would be in touch. Cooper checked back with Respondent a week later but was told they were not hiring. He admitted that Respondent phoned in August 1994, but he was working out of town. Respondent sent Cooper a letter in October or November. He was out of town working at that time.
Don Andrews, a member of Pipefitters Local 229, is a pipefitter and certified welder. He is the president of Local 229. Before January 1995, Andrews was the Local vice president. He was one of the pickets at Respondent on May 5 and 6, 1994. He applied for work with Respondent on May 10, 1994. He wrote union organizer on his application. Andrews talked with Kara Hall. Hall told him that it may be 3 weeks before they hired anyone. Hall said that they were still in the demolition phase and were not hiring any fitters or welders at that time.
Jimmy Vickers testified that he is a union boilermaker. Vickers participated in the May 5 and 6, 1994 picketing against Respondent. He applied for work with Respondent in early May 1994. On every occasion that Vickers went to Respondent’s office he was wearing a “Boilermaker’s Local 199” T-shirt. Vickers talked with a woman. She handed him a business card of Kara Hall and told him to call that number to check on hiring. Vickers phoned Respondent on May 23, and talked with Kara Hall. Hall told Vickers they did not need anyone and they would contact Vickers if they needed him. Vickers phoned again on June 3, and July 25, 1994. He left his name, phone number, address, and social security number. Vickers finally talked with someone in Respondent’s office. He left word for Kara Hall to phone but he heard nothing from Hall.
Kara Hall admitted that he became aware that the Stone Container job was targeted by both Pipefitter and Boilermaker Unions when they set up picket lines at the job on May 5, 1994.
Gary Thomas is a member of Pipefitters Local 229. He testified that he is a pipewelder and has been one for 17 years. Thomas picketed Respondent around May 6, 1994. He applied for work with Respondent on May 10, 1994. Thomas wrote Union Organizer 229 on his application. He talked with Kara Hall. Hall told Thomas to keep in touch. Thomas called three times after submitting his application. After July 4, 1994, Thomas went into Respondent’s office and told Hall his name. Hall told Thomas that he was not hiring pipewelders at that time. Hall said that he was hiring laborers. Thomas asked about the laborers’ pay and Hall told him that he was over qualified for that job. Thomas was not offered a job.
On May 13, Local 229 Business Manager Greg Boggs and three others passed out leaflets at the main entrance to Stone Container. The leaflets complained about Respondent using nonunion and out-of-state workers.
Boilermaker International Representative Dennis King testified that he has worked as a journeyman boilermaker. He is a graduate apprentice. King went to Respondent at Stone Container on May 16, 1994. King asked Kara Hall for an application. Hall asked if King was a certified welder. King told him yes and that he could do rigging. Hall asked about the difference between structural welding and King explained that he could do TIG welding and some other forms of welding. King told Hall that he was a boilermaker. Hall told King that he would need him in a couple of weeks. King asked for and received some other application forms.
Dennis Meeks has been a member of the Boilermakers Union since 1990. He applied for work as a boilermaker/welder with Respondent on May 17, 1994. Meeks interviewed with Kara Hall. Hall mentioned that Meeks had brought in more than one application. Meeks asked if Hall would like to see the other men saying they were outside in the truck. Hall responded that he did not need to see them. In addition to his own Meeks turned in applications for Randy Richbourg, Mike Childree, and Qulon French. Meeks wrote on his application that he was a voluntary union organizer and listed on his application union contractors as his previous employers. Meeks participated in picketing against Respondent before he applied for work on May 17, 1994. As shown above the parties stipulated that picketing occurred on May 5 and 6, 1994. Hall looked at the applications and said, “boilermaker, well, we really don’t have