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,
Air Management Services, Inc. and Sheet Metal Workers’ International Association, Local No. 49, AFL–CIO. Case 28–CA–21378
August 29, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On April 16, 2008, Administrative Law Judge William L. Schmidt issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief.
The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[1] and conclusions and to adopt the recommended Order[2] as modified and set forth in full below.[3]
ORDER
The National Labor Relations Board orders that the Respondent,
Air Management Services, Inc.,
1. Cease and desist from
(a) Coercively interrogating job applicants regarding their union membership, affiliation, or activities.
(b) Threatening job applicants by informing them that it would be futile to apply for employment if they were members of a union;
(c) Threatening not to hire job applicants who are union members;
(d) Requiring job applicants to sign a declaration disavowing any union membership or affiliation as a condition of hire;
(e) Failing and refusing to hire job applicants on the basis of their union affiliation or activities;
(f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer immediate employment to Dominic Baca, Kenneth Chavez, Patrick Lucero, and Richard Espinosa in the positions for which they applied, or if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired to fill the positions for which they applied.
(b) Make Dominic Baca, Kenneth Chavez, Patrick Lucero, and Richard Espinosa whole for any loss of earnings and benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful refusal to hire Dominic Baca, Kenneth Chavez, Patrick Lucero, and Richard Espinosa, and within 3 days thereafter 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) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in
(f) 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.
It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not specifically found.
Dated,
Peter C. Schaumber,
Chairman
Wilma
B. Liebman,
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 coercively interrogate job applicants regarding their union membership, affiliation, or activities.
We will not threaten job applicants by informing them that it would be futile to apply for employment if they were members of a union.
We will not threaten not to hire job applicants who are union members.
We will not require job applicants to sign a declaration disavowing any union membership or affiliation as a condition of hire.
We will not fail and refuse to hire job applicants on the basis of their union affiliation or activities.
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, within 14 days of the date of the Board’s Order, offer Dominic Baca, Patrick Lucero, and Kenneth Chavez instatement to the position of apprentice, and Richard Espinosa instatement to the position of journeyman, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges they would have enjoyed.
We will make Dominica Baca, Patrick Lucero, Kenneth Chavez, and Richard Espinosa whole for any loss of earnings and other benefits suffered as a result of the discrimination against them with interest as provided by law.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful refusals to hire Dominic Baca, Patrick Lucero, Kenneth Chavez, and Richard Espinosa, and we will, within 3 days thereafter, notify each of them in writing that this has been done and that the refusals to hire will not be used against them in any way.
Air Management Services, Inc.
Liza Walker-McBride, for the General Counsel.
Mitchell S. Rubin, Esq., on brief.
Wayne E. Bingham, Esq., for the Respondent.
DECISION
Statement of the Case
William L. Schmidt,
Administrative Law Judge: This case
arose from a salting1 campaign
conducted by Sheet Metal Workers’ International Association, Local No. 49, AFL–CIO
(Union or Local 49) that involved Air Management Services, Inc. (Respondent or
AMS), a heating and air conditioning contractor that operates in the
Based on the underlying unfair labor practice charge the Union filed on May 14, 2007, the Regional Director for Region 28 of the National Labor Relations Board (NLRB or Board) issued a formal complaint on July 31, 2007, pursuant to Section 10 of the National Labor Relations Act (the Act) alleging that Respondent violated Section 8(a)(1) by creating an impression of surveillance, coercive interrogations and threats, and that Respondent violated Section 8(a)(1) and (3) of the Act by refusing to consider for hire or to hire four applicants for employment. Respondent filed a timely answer denying the unfair labor practices alleged.
I heard this case in
Findings of Fact
Jurisdiction
Respondent sells, installs and services heating and air
conditioning equipment from its office and place of business in
Alleged Unfair Labor Practices
relevant facts
Background
Respondent maintains a construction department and a service department. This case involves the construction side installation department which installs heating and cooling equipment on site in ready-to-operate condition. The installation unit consists of foremen, lead person installers, journeymen, and apprentice sheet metal workers. It is headed by a project foreman. In late 2006, the position of project foreman was in transition. Luke Wanek was the outgoing project foreman. Ed Martinez had just been hired to take over as project foreman.
Top-Down Organizational Effort
Union business manager Raymond Diaz wrote to Respondent in
May 2006 requesting a meeting to discuss the benefits of unionization. Although
Respondent operates on a nonunion basis, in May 2006, Respondent’s president,
Dale Rechtenbach, met with Raymond N. Diaz, business representative of the
Employment Advertisements
In December 2006, the relevant time herein, Respondent
hired through advertisement in the Albuquerque Journal. When applicants
appeared at Respondent’s office, the receptionist provided an application and
the appropriate test for the position. The completed application and test were
given to President Dale Rechtenbach for review. After background checks,
Rechtenbach graded the test and evaluated the application. Assuming a satisfactory
background check, Rechtenbach then forwarded the construction applications to
Respondent’s unlicensed sheet metal installation employees
are referred to as either journeymen or apprentices. Journeymen who possess a
journeyman sheet metal license from the State of
After management discussions regarding the severe problems faced in finding qualified applicants during the spring and summer months, Respondent placed the following advertisement (First Advertisement) in the Albuquerque Journal beginning Sunday, November 26, and Sunday, December 3, 2006:
SHEET METAL
INSTALLER
Journeyman Lead Person Installer
needed for commercial projects.
Must have JSM License, valid
driver’s license, no DWI’s. 401K,
profit sharing, medical, dental, vi-
sion, top pay & benefits for top
people. Possible sign-on bonus.
Call or apply in person.
Air Management Services
8904
Respondent continued the First Advertisement on Sunday, December 10, and Sunday, December 17, 2006, and, additionally, ran the advertisement below (Second Advertisement) on these Sundays:
SHEET METAL
INSTALLER
Journeyman and Apprentice posi-
tions available for commercial
projects. 401K, medical, dental, vi-
sion, top pay and benefits for top
people. Call or apply in person.
Air Management Services
8904
President Rechtenbach explained that in the First Advertisement, by the term “JSM License,” he was seeking applicants with the CID License. Rechtenbach did not recall receiving any applications in response to these ads. He explained that he was unable to refresh his recollection by reviewing any applications kept on file because there were none. Respondent has no written or unwritten policy on application retention. However, Rechtenbach testified that he habitually purges his files at the end of the year.
Respondent’s Employment Application
At least from the time it advertised for employees in November and December, 2006 until shortly after April 10, 2007, Respondent used an employment application form containing the following four questions:3
Are you now or have you ever been a member of the sheet metal workers labor union? ____ yes ____ no
Are you now or have you ever been a member of the plumbers and pipefitters labor union? ____ yes ____ no
Are you now or have you ever been a member of any labor union?
____ yes ____ no
If yes, name of labor union ___________________________
Are you applying for employment for the purpose of recruiting employees for any labor union or to convert Air Management Services, Inc. to a union shop? ____ yes ____ no
Immediately above these questions, applicants are advised in bold print:
All questions must be answered truthfully. Applicant will be immediately disqualified from consideration for employment or immediately terminated from employment if it is determined that the questions are not answered truthfully.
The Telephone Message
After reading AMS’s advertisement in the Sunday, December 10, 2006, Albuquerque Journal, Local 49’s youth-to-youth4 organizer Dominic Baca called Respondent on Monday, December 11, 2006, to inquire about an employment application he submitted to Respondent in October 2006, as part of a salting campaign targeting Respondent.5 He still heard nothing for another week so he filed another application around December 18. Both were covert applications meaning that he did not disclose any union affiliation. Shortly after filing the second application, Baca received a cell phone message from Rechtenbach stating that he did not want to become a union shop.6
Rechtenbach admitted that he responded to an incoming message and left such a message. He asserted that he did so because his caller ID showed the incoming call originated from “Sheet Metal Workers U” and the caller asked about the status of an employment application. Rechtenbach returned the call to Baca’s number as listed on the application but purportedly aimed his comments at Diaz, with whom he had discussed unionization in May 2006. Rechtenbach recalled stating that Respondent did not want to become a Union shop. However, after listening to a tape recorded version of the message, Rechtenbach agreed that he left the following message:
You were here this morning about an application that you’d filled out, uh, the only problem is with your application—it’s not really with your application. Uh, we’re a nonunion sheet metal shop and we are going to stay that way. We have no interest in becoming a union sheet metal shop, so, um, anyway if you have any questions about that, you can call me back. Bye.
Rechtenbach recalled that this call occurred in October 2006, outside the 10(b) period. Baca said the call occurred on December 18, within the 10(b) period. Based on the corroboration provided for Baca’s recollection, I credit him as to the timing of this call. Thus, Baca’s cell phone records show that he received a call from AMS on December 18. GC Exhibit 13. Baca claimed that he played the message back for his superiors at Local 49, Diaz and business agent Espinoza, in order to seek guidance from them concerning it. They both corroborate Baca on this point and place his replay of the call in December. Although it might be possible technically for Baca to retain the call in his voicemail box from October to December so that he could have played it back after Espinoza joined the Local 49 staff in December 2006, I find that likelihood highly improbable as, by then, the message would have been quite stale for purposes of seeking advice regarding it and because other evidence shows that Baca faithfully reported on his salting activities in a very timely fashion. By contrast, Rechtenbach’s recollection lacks corroboration. As his recollection on other questions of significance was demonstrably inaccurate, I find it impossible to accord any degree of trustworthiness to his version of this critical matter where it conflicts with Baca’s account.
As earlier noted, even though Respondent operates on a nonunion basis, in May 2006, Rechtenbach met with Local 49 business representative Diaz to discuss the advantages of operating on a unionized basis. Following their discussion, including talks about the Union wage and benefit structure, no further meetings were scheduled.
Baca’s Return Call
When Baca returned the call, Rechtenbach asked him whether he was a union member or had any union affiliation. If so, Rechtenbach said, he would not hire him, and suggested applying with one of the several union contractors in the area. Baca denied that he was a union member or affiliation with a union, and told Rechtenbach he was not sure what Rechtenbach was trying to elicit. Rechtenbach then asked Baca if he knew Raymond Diaz or Richard Espinosa, Terry Farmer, or Jerry Arms.7 Baca denied knowing any of them, and then asked Rechtenbach what a union was. Rechtenbach ended the conversation saying that someone would be in touch with him about an interview but Baca would have to sign a document stating that he was not affiliated with the union.
Rechtenbach did not specifically recall asking Baca if he
was a member of the Union, asking if he was associated with any union activities,
or asking if he was affiliated with the
I find Baca’s account of that the foregoing conversation more probable than Rechtenbach’s account. Baca’s account is largely consistent with the practice followed by AMS at the time as reflected in the portion of its employee application in use at the probes into the applicant’s union affiliation and intentions concerning future union activity. Moreover, Rechtenbach’s general recollection of this particular conversation appeared most uncertain.
The Employment Applicants
Dominic Baca
Youth-to-youth Union Organizer Dominic Baca completed an
application for work with Respondent in October 2006 but was not called for an
interview. After reading the Second Advertisements
of December 10 and 17, Baca applied again on December 18. He noticed the four
new questions concerning union affiliation on the application at this
time. He responded “no” to all four
questions although he candidly admitted that his answers were not true. At the time of this application, Baca was a
third-period apprentice in the
On December 20, Baca interviewed with
Although Rechtenbach testified that he never saw Baca
prior to his testimony at this proceeding and neither
Baca was in the union’s apprentice program. At the time he applied with Respondent, he
had completed 3 years of the program. He
had prior work experience with Year-Out Mechanical before participating in the
Kenneth Chavez
In late December 2006, probably on or about December 22,
Union Member Kenneth Chavez visited Respondent’s office seeking to file an
application for employment. At the time of the hearing, Chavez had been in the
Union’s apprenticeship program for 1–1/2 years and a member of the
Patrick Lucero
On December 22, 2006, Union Member and Third-Period Apprentice
Patrick Lucero visited Respondent seeking to file an employment
application. Lucero did not have a CID
License at the time of his application.
At the direction of Baca, Lucero wore union insignia on his shirt and
jacket. Lucero entered through a side
door and approached a man in a small office to the right of the side
entrance. Lucero asked the man if Respondent
was hiring and the man said that they were.
He directed Lucero to the front desk.
Lucero proceeded to the front desk and asked an older woman for an
application form. The woman gave him a
clipboard with the application on it.
Lucero completed the application listing his prior union jobs. He also
answered two of the four questions regarding union membership in the
affirmative. His negative answers were
to the questions involving the Plumbers Union and the question regarding
whether he was seeking to recruit Respondent’s employees for the
Richard Espinosa
Business representative Espinosa completed his application
for the position of journeyman lead person installer on December 19 or 20, 2006.
At the time of his application, he had a CID License. Although he was not wearing union insignia,
he revealed his prior employment with known union contractors. He answered yes to the question about
membership in the Union, no to the question about membership in the Plumbers
& Pipe Fitters’
On the following day, Espinosa had an interview with
Prior to becoming business representative for the Union in
December 2006, Espinosa worked for various union contractors in
Hiring
From November 26, 2006, through July 13, 2007, Respondent hired thirteen individuals either as “licensed journeyman lead person installer,” “journeyman sheet metal installer,” or “apprentice sheet metal installer.” These are the terms utilized in Respondent’s First and Second Advertisements. The position of “journeyman lead person installer” required a CID License. The positions of journeyman and apprentice sheet metal installers did not require a CID License. Five individuals were hired as apprentices. Three unlicensed individuals were hired as journeymen. Four licensed journeymen were hired, and the remaining individual was either a licensed or unlicensed journeyman. The record does not reflect the experience, if any, of 10 of the 13 successful applicants.
Dominic Calmelat was hired as an apprentice on November 27, 2006, at $16 per hour. His application reflects 5 years’ work experience. From 2001 to 2004, he was employed as a plumber/pipe fitter. From 2004 to 2006, he was employed as an apprentice for Premier Mechanical, a heating and cooling company. He responded “no” to all questions asking about union membership or affiliation. He correctly answered seven of sixteen general test questions and four of sixteen heating and cooling questions. In May 2007, Calmelat’s hourly wage was increased by $2.
The application of Aaron Soriano, who was hired as an apprentice on December 20, 2006, shows that he held three prior installer jobs. A total of 4 years’ service is reflected for these jobs. Soriano received a certificate for completing a specialized program involving the installation of “Firemaster Grease and Air Ventilation Duct Work Systems” and he was certified as a universal installer by the Esco Institute.9 Soriano answered all union affiliation questions in the negative. Soriano correctly answered ten of sixteen general test questions and three of sixteen heating and cooling questions.
Cipriano Mondragon was hired as an apprentice on January 15, 2007. Mondragon’s application stated, in answer to Respondent’s questions, that he was a member of the Union but did not plan to organize Respondent’s employees. Mondragon correctly answered twelve of the sixteen general test questions and four of the sixteen heating and cooling questions. The portion of his application listing prior experience was not entered in evidence.
Finally, on July 13, 2007, Ramon Munoz was hired as a licensed journeyman sheet metal worker. His application indicated 4 years experience in sheet metal installation. He correctly answered eleven of sixteen general test questions and eight of the sixteen construction department test questions correctly. Aside from his CID license, Munoz also had a certificate for completing an OSHA Construction and Safety course.
Salting Correspondence
On January 3, 2007, Rechtenbach received a letter from Diaz stating, in relevant part,
I have sent numerous members of Local 49 to apply for employment with your company, Air Management Services, Inc. We have compiled numerous NLRB Unfair Labor Practice violations in your hiring procedures in which your hiring personal [sic] have committed. I would like the opportunity to discuss these violations with you at your earliest convenience.
By letter dated April 10, 2007, Diaz informed Rechtenbach:
We have gathered information on your company and have found multiple labor violations. To file NLRB charges against your company would be a long drawn out process, and would not be in anybody’s best interest. In order to avoid this we are requesting to sit down with you to create a working relationship and discuss the benefits of being a union contractor, and how if we work together we can do it better.
The letter concluded that if Diaz did not hear from Rechtenbach by close of business Thursday, April 12, 2007, Diaz would have no other choice than to pursue NLRB charges. In response to this letter, Rechtenbach removed the four questions from the employment application.
Analysis and Conclusions
Alleged Independent Violations of Section 8(a)(1)
Section 8(a)(1) of the Act provides that it is an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Section 7 of the Act provides,
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [of the Act].
Employment Application Questions—Alleged Coercive Interrogation
In general, interrogation of an employee regarding the employee’s union membership or sympathies is held unlawful when it “reasonably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act.” Blue Flash Express, 109 NLRB 591, 593 (1954); see also Rossmore House, 269 NLRB 1176, 1177 (1984), affd. sub nom. Hotel Employees Union Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985); Medcare Associates, Inc., 330 NLRB 935, 940 (2000) (“whether under all the circumstances the questioning at issue would reasonably tend to coerce the employee at whom it is directed so that he or she would feel restrained from exercising rights protected by Section 7 of the Act.”).
The tendency to restrain or interfere is judged in light
of surrounding circumstances such as the employee response, the purpose in
questioning employees, whether assurances were given that no reprisals would
take place, and whether the questioning occurred in an atmosphere of hostility
to union organization. Blue Flash Express, supra, 109 NLRB at 593–594; see also Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir.
1964) (per curiam), setting forth five criteria for evaluation of the
lawfulness of isolated interrogation of an employee, as follows: (1) background
of employer hostility and discrimination, (2) the nature of the information
sought, (3) the identity of the questioner, (4) the place and method of
interrogation, and (5) the truthfulness of the employee’s reply.
Examination of the surrounding circumstances leads me to
conclude that Respondent’s application questions reasonably tended to restrain
and interfere with employee Section 7 rights.
I note in particular that the questions were aimed at all applicants for
employment. Moreover, the questions were
set forth on an employment application without any identifiable legitimate
purpose and with a warning of dire consequences if not answered
truthfully. The reasonable inference to
be drawn from questioning under these circumstances was that the information
was being sought in order to determine whether to hire the applicants. Although I am cognizant that there was no pattern
of employer discrimination at the time of these employment applications, I note
Respondent’s admitted hostility to the
Telephone Message of December 18, 2006—Alleged Threat of Futility and Alleged Impression of Surveillance
The General Counsel alleges that Respondent’s message
threatened employee-applicants by informing them it would be futile to apply
for employment with Respondent if they were members of the
An employer who tells salting applicants they are wasting their time in applying for a job because the employer is happy operating on a nonunion basis violates Section 8(a)(1) of the Act. Tradesmen International, 351 NLRB No. 27, slip op. at 1 fn. 4 (2007) (cited by General Counsel). Rechtenbach’s message stated, in relevant part, “we’re a nonunion sheet metal shop and we are going to stay that way.” The instant facts are indistinguishable from those in Tradesmen, supra, and I find that Respondent violated the Act accordingly.
The General Counsel also alleges that Respondent’s message created the impression that employee-applicants’ union activities were under surveillance.
The test for whether an employer unlawfully creates an impression of surveillance is whether under the circumstances, the employee reasonably could conclude from the statement in question that his protected activities are being monitored. Mountaineer Steel, Inc., 326 NLRB 787 (1998), enfd. 8 Fed.Appx. 180, 2001 WL 431487 (4th Cir. 2001). The Board does not require that an employer’s words to an employee reveal on their face that the employer acquired its knowledge of the employee’s activities by unlawful means. See United Charter Service, 306 NLRB 150, 151 (1992).
Sam’s Club, 342 NLRB 620 (2004). Based upon my finding that Rechtenbach’s caller ID revealed a union hall phone had been used to leave the message, I find no creation of an impression of surveillance.
Telephone Conversation of December 18, 2006—Alleged Coercive Interrogation, Impression of Surveillance, and Threats
In response to the above message, Baca returned Rechtenbach’s call. The General Counsel alleges that Respondent violated Section 8(a)(1) during this telephone conversation by interrogating Baca about his union membership, created an impression that Baca’s union activities were under surveillance, threatened Baca that Respondent would not hire union members, and threatened Baca by telling him that to be considered for employment he would have to complete paperwork affirming that he was not affiliated with any labor organization.
Having credited Baca’s testimony regarding this conversation,
I find that Rechtenbach asked Baca if Baca was a member of the
Regarding the General Counsel’s allegation of creation of the impression of surveillance, I find that Baca could not have concluded that his protected activities were under surveillance due to use of a union hall phone in leaving the message about his employment application.
I find further that Respondent threatened not to hire union
members. A direct statement of intent to
discriminate against job applicants on the basis of their union membership has
a reasonable tendency to restrain and coerce employees in the exercise of their
Section 7 rights. Eastern Energy
Services, 349 NLRB No. 53, slip opinion at 6 and opinion of Member Kirsanow at n. 1 (2007); SKC Electric, Inc., 350 NLRB No. 70,
slip opinion at 1, 17 (2007) (violative to tell employees that employer will
avoid hiring union sympathizers).
Similarly, a requirement that a job applicant sign a
declaration disavowing any union membership or affiliation as a condition of
hire reasonably tends to restrain and coerce employees in the exercise of
Section 7 rights. Eddyleon Chocolate Co., 301 NLRB 887 (1991) (relied upon by General
Counsel) (prospect of working under unlawful “yellow dog” contract raised at
job interview as a condition of hire is unlawful).
Alleged Violations of Section 8(a)(1) and (3)
Alleged refusal to hire Baca, Espinosa, Chavez, and Lucero
In order to establish a discriminatory refusal to hire violation in the salting context, the General Counsel must show10
(1) the applicant’s actual interest in employment, if this is challenged by the employer;11
(2) “that the respondent was hiring or had concrete plans to hire at the time of the alleged unlawful conduct,”12
(3) “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;”13 and
(4) “that antiunion animus contributed to the decision not to hire the applicants.”14
On the record as a whole, I find that Respondent has not raised the genuineness of the four alleged discriminatees’ interest in employment. Moreover, were there such evidence, I would further find that the General Counsel has shown by a preponderance of the evidence that the four alleged discriminatees were genuinely interested in employment with Respondent and, thus, maintained their status as “employees” as defined in Section 2(3) of the Act:
The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer . . . and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment . . . .
In the salting context, an employer may put the genuineness of the applicant’s interest into question “through evidence that creates a reasonable question as to the applicant’s actual interest in going to work for the employer.” 15 As the Board explained in Toering Electric Co.,16
In other words, while we will no longer conclusively presume that an applicant is entitled to protection as a statutory employee, neither will we presume, in the absence of contrary evidence, that an application for employment is anything other than what it purports to be. Consequently, once the General Counsel has shown that the alleged discriminate applied for employment, the employer may contest the genuineness of the application through evidence including, but not limited to the following: evidence that the individual refused similar employment with the respondent employer in the recent past; incorporated belligerent or offensive comments on his or her application; engaged in disruptive, insulting, or antagonistic behavior during the application process; or engaged in other conduct inconsistent with a genuine interest in employment. Similarly, evidence that the application is stale or incomplete may, depending upon the circumstances, indicates that the applicant does not genuinely seek to establish an employment relationship with the employer.
Counsel for General Counsel asserts that Respondent did not call into question the genuineness of the alleged discriminatees’ interest in going to work. Counsel is correct that Respondent did not present any of the evidence that the Board set forth as examples of lack of genuine application; i.e., there is no evidence that any of these applicants refused similar employment with Respondent, no evidence of belligerent or offensive comments in the application process, no evidence of disruptive, insulting, or antagonistic behavior during the application process, and no evidence of conduct inconsistent with a genuine interest in employment.
Nonetheless, I note that one of the four alleged discriminatees, Espinosa, was cross-examined about the seriousness of his intention of working for Respondent, if offered a position. This issue was raised no doubt because the witness was a union business agent. I find that Respondent’s cross examination of one of the applicants about the seriousness of his application is insufficient to raise an issue of the genuineness of the application. Moreover, were there sufficient evidence to raise the issue, I find that the General Counsel has shown by a preponderance of the evidence that the alleged discriminatees were genuinely interested in working for Respondent.
If the employer puts at issue the genuineness of the applicant’s interest through evidence that creates a reasonable question as to the applicant’s actual interest in working for the employer, the General Counsel must prove by a preponderance of the evidence that the applicant was genuinely interested in seeking to establish an employment relationship with the employer. As the Board explained,
Assuming the employer puts forward such evidence, the General Counsel, to satisfy the genuine applicant element of a prima facie case of hiring discrimination, must then rebut that evidence and prove by a preponderance of the evidence that the individual in question was genuinely interested in seeking to establish an employment relationship with the employer. Thus, the ultimate burden of proof as to the Section 2(3) status of the alleged discriminatee-applicant rests with the General Counsel.
The applications were timely, complete, and were made under
circumstances indicating that the applicants were genuinely seeking work. No disrespect was shown by the applicants. I note specifically that Chavez and Lucero
had recently been laid off from prior employers and were in need of
employment. Moreover, I find that
Espinosa was seeking employment and would have been able to accommodate the
field work despite the fact that he was employed as a business representative
with the
Having found that the four alleged discriminatees were employees within the meaning of Section 2(3) of the Act, I turn to the remaining elements of a discriminatory refusal to hire analysis. I find that General Counsel has proven that Respondent was hiring or had concrete plans to hire in December 2006, at the time the four alleged discriminatees applied or attempted to apply for employment with Respondent. Thus, the record reflects that Respondent was advertising for “journeyman lead person installer” with a CID License beginning November 26, 2006. Further, Respondent began advertising for journeyman and apprentice sheet metal installers on December 10, 2006. These advertisements represent concrete plans to hire.
Finally, I note that Respondent had actually begun hiring. Respondent hired one apprentice in November 2006, another in December 2006, and three more apprentices in January 2007. Respondent hired one licensed journeyman in January 2007 and another journeyman who may or may not have been licensed, also in January 2007. Thus, I find that Respondent had concrete plans to hire and was, in fact, hiring during the relevant period.
I find that General Counsel has shown that the four alleged discriminatees possessed the experience and training relevant to the announced or generally known requirements of the positions for hire. Thus, business representative Espinosa applied for the journeyman lead person installer position. The record reflects that Espinosa possessed recent field experience and the required CID license. Thus, I find that the General Counsel has satisfied the requirement of proving that Espinosa had the experience and training relevant to the announced requirements of the position of “journeyman lead person installer.”
Similarly, I find that the General Counsel has shown that
Baca and Lucero, who applied for work as apprentices or unlicensed journeymen,
possessed the experience and training relevant to the announced requirements
for journeyman and apprentice positions as advertised on December 10,
2006. No specific amount of experience
was suggested in either the First or Second Advertisement. Both Baca and Lucero, who applied for
unlicensed journeyman positions, were third-period apprentices in the
On requesting an application for employment on or about
December 22, 2006, applicant Chavez was told by an unidentified man behind the
counter that Respondent was not hiring.
Chavez was wearing Union insignia at the time. Although applicant Chavez was denied the
opportunity to complete an application form, I find that Respondent manipulated
its hiring process to avoid a known union salt.
Had Chavez been allowed to do so, his qualifications and training were
satisfactory for the announced journeyman and apprentice positions as advertised
on December 10, 2006.
In determining whether antiunion animus led to the decision not to hire the four alleged discriminatees, I find that Respondent knew or suspected the union affiliation of the four and that Respondent exhibited antiunion animus. Thus, I note that Lucero, Chavez, and Espinosa were “overt” salts, i.e., their union affiliation was obvious from their answers to the application questions and from Chavez’s and Lucero’s union insignia. Further, Baca’s union affiliation was suspected by Rechtenbach who voiced suspicion of Baca’s union affiliation and sympathies during their December 18, 2006, phone conversation. Denial of an employment application to Chavez, in the face of current advertisements for employment, also exhibits union animus.
Moreover, Respondent exhibited antiunion animus by inserting the four coercive questions into the employment application, leaving the telephone message for Baca stating that it would be futile to apply if Baca was affiliated with the Union and implying that Baca’s union activities were under surveillance, coercively questioning Baca regarding his union affiliation and sympathies during the telephone conversation, giving further impressions that Baca’s union activity was under surveillance, stating that Respondent would not hire union sympathizers, and requiring a signed document stating that Baca was not affiliated with the Union in order to process an employment application. Consequently, I find that General Counsel has shown by a preponderance of the credible evidence that antiunion animus contributed to the decision not to hire the four alleged discriminatees.
Respondent asserts that it hired known union members and
thus, did not exhibit antiunion animus.
Indeed, the record indicates that Respondent hired an apprentice whose
application indicated he was a member of a plumbers union. On July 13, 2007, Ramon Munoz was hired as a
licensed journeyman sheet metal worker.
His application did not reveal his union affiliation but Rechtenbach
testified that Munoz told him that he was a member of the
Respondent did not present evidence that the alleged discriminatees
did not have the skills or qualifications it was seeking regardless of their
experience and training. Moreover, Respondent
did not seek to prove that those who were hired had superior qualification and would
have been hired over the union applicants even in the absence of union
affiliation. These were Respondent’s
burdens to shoulder. See,
Alleged Refusal to Consider for Hire
The General Counsel bears the burden of showing the following elements in order to establish a discriminatory refusal to consider for hire:
(1) “that the respondent excluded applicants from the hiring process;”17
(2) “that antiunion animus contributed to the decision not to consider the applicants for employment.”18
The four alleged discriminatees were excluded from the hiring
process while at the same time, Respondent considered and hired other
employees. As found above, this resulted
from the discriminatees’ known or suspected union affiliation. Thus, I find
that the General Counsel established the required elements of the initial
Respondent’s Defense for Refusal to Hire and
Refusal
to Consider
Once the General Counsel has shown a discriminatory refusal
to hire, or a refusal to consider for hire, the burden shifts to Respondent to
show that it would not have hired the applicants even in the absence of their
union activity.
Based solely on years of experience, it may be assumed that employees Camelot, Soriano, and Munoz19 were better qualified than the three apprentices Baca, Lucero, and Chavez.20 However, this does not excuse failure to hire or to consider for hire these three for other apprentice or unlicensed journeyman positions. Accordingly, I find that Respondent refused to hire or consider for hire Baca, Lucero, and Chavez because of their union activity or affiliation. Similarly, a licensed journeyman was hired on January 16, 2007. No qualifications or experience for this employee was presented by Respondent. Therefore, I find that Respondent refused to hire or consider for hire Espinosa only because of his union affiliation.
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. By its coercive interrogation of employees, its threat of futility in making an employment application, its threat that applicants affiliated with the Union would not be hired, and its demand that an applicant for employment sign a document disavowing the Union, the Respondent violated Section 8(a)(1) of the Act.
4. By failing to hire or consider for hire Dominic Baca, Kenneth Chavez, Patrick Lucero, and Richard Espinosa because of their union affiliation, the Respondent violated Section 8(a)(1) and (3) of the Act.
5. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) 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.
Specifically, having found that the Respondent unlawfully discriminated against the named job applicants by refusing to hire or consider them for hire, the four applicants here are entitled to instatement and a make whole remedy. Respondent shall immediately offer instatement at rates paid to the individuals hired by Respondent for positions to which they applied or for which they would have been qualified to perform or, if such positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges and, if necessary, terminating the service of employees hired in their stead.
Turning to the exact dates that Respondent would have hired the four union applicants, absent discrimination, I make the following observations. The objective evidence of years of experience is the only evidence with which to analyze the order of hiring. Although there is evidence of past work experience for three of the thirteen whom Respondent hired, there is no comparative evidence for the four union applicants. All that is known of their years of experience is that three of them were trained in the union apprentice program for certain amounts of time (Baca, 3 years; Lucero, 3 years; and Chavez, 1–½ years) and that Espinosa possessed a CID license and had prior unspecified years of field experience. Nevertheless, years of experience, when available, has been utilized as the sole and only available factor for making the instatement determination.
Further, there is only one piece of evidence regarding the years of experience actually required by Respondent for the position of journeyman lead person installer. That is with regard to successful applicant Munoz who possessed 4 years experience. Similarly, there is little evidence regarding years of experience required for the apprentice position and no evidence regarding the journeyman position. This lack of evidence is due, no doubt, to Respondent’s having purged its files prior to receipt of the subpoena duces tecum which requested this information. In any event, all that can be deduced is that two individuals whom Respondent hired as apprentices, Calmelat and Soriano, had 5 and 4 years of experience, respectively. From this evidence, I deduce that Baca, Lucero, and Chavez may only be considered for apprentice positions. Their experience was less than that of Calmelat and Soriano, two successful applicants. Finally, as to Union Applicant Espinosa, whose years of experience is unknown, it is impossible to conclude that he would have been hired over the successful applicants who possessed a CID license. Because it was General Counsel’s burden to show Espinosa’s years of service, he cannot be considered for the journeymen lead person installer positions. Accordingly, he will be considered for the journeymen positions only.
Utilizing these facts and inferences, I find that applicant Soriano would have been hired on December 20, 2006, rather than Union Applicant Baca because of Soriano’s lengthier experience. However, I find that Baca would have been hired on January 15, 2007, the date that apprentice Mondragon (unknown length of experience) was hired. I also find that Union Applicant Lucero would have been hired on January 16, 2007, the date that applicant Beltran (unknown length of experience) was hired as an apprentice. I find that Union Applicant Chavez would not have been hired prior to July 13, 2007, because no further apprentices were hired through that time. I find that Union Applicant Espinosa would have been hired either by January 29 or February 5, 2007, when Shawn Miller and Jeremy Herrera were hired as unlicensed journeymen. The table below shows the applicant and hiring chronology, and the basis for my determinations:
|
Applied |
Hire Date |
Name |