Aim Royal Insulation, Inc. and Jacobson Staffing, L.C.

National Labor Relations Board - Board Decisions

Jul 30, 2012

358 N.L.R.B. 787 (N.L.R.B. 2012)

AIM ROYAL INSULATION, INC. 787

358 NLRB No. 91
Aim Royal Insulation, Inc. and Jacobson Staffing,
L.C. and International Association of Heat &
Frost Insulators & Allied Workers, AFL–CIO,
Local No. 73. Cases 28–CA–022605 and 28–CA–
022714
July 30, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
The primary issues in this case are whether the judge
correctly dismissed two sets of unfair labor practice alle-
gations: that Aim Royal Insulation violated Section
8(a)(3) and (1) by refusing to hire or consider for hire
union-affiliated applicants Angel Aizu, Luis Bolaños,
Ezequiel Macias, Jose Flores, Adrian Anaya, Nathan
Collison, Darrel Speakman, Chester McClure, Pablo
Equizabal, and John Rohrback, and that Aim and Jacob-
son Staffing, acting as joint employers, violated Section
8(a)(3) and (1) by refusing to hire or consider for hire
union-affiliated applicants Shawn McMillan, Luis Bo-
laños, and Gustavo Gonzalez.1 For the reasons stated
below, we reverse the judge and find these violations.2
We discuss these issues in turn, after briefly addressing
other, subsidiary findings.

1 On May 21, 2010, Administrative Law Judge William G. Kocol is-
sued the attached decision. The Acting General Counsel filed excep-
tions and a supporting brief, Respondents Aim and Jacobson each filed
answering briefs, and the Acting General Counsel filed reply briefs.
Respondent Aim filed cross-exceptions and a supporting brief, the
Acting General Counsel filed an answering brief and Aim filled a reply
brief.
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 rulings,
findings, and conclusions only to the extent consistent with this Deci-
sion and Order.
2 No exceptions were filed to the judge’s findings that Aim violated
the Act by: (1) maintaining overly broad work rules; (2) coercively
interrogating Shawn McMillan; and (3) refusing to hire or consider for
hire Jose Gurrola. In addition, no exceptions were filed to the judge’s
findings that Jacobson violated the Act by: (1) telling McMillan that he
would not be hired because of his union status; (2) coercively interro-
gating McMillan; and (3) telling Bolaños and Chavez that they lost
employment opportunities because of their support for the Union.
Finally, no party has excepted to the judge’s dismissal of the allegations
that: (1) Aim unlawfully created an impression of surveillance; and (2)
Jacobson coercively interrogated Angel Aizu.
The Acting General Counsel and Aim have excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
I. BACKGROUND
The allegations in this case arose out of the efforts of
International Association of Heat & Frost Insulators &
Allied Workers, AFL–CIO, Local No. 73 to organize
Aim, which is engaged in the construction and repair of
commercial insulation systems in Phoenix, Arizona. As
fully set forth in the judge’s decision, the Union, in 2008,
devised a plan to send organizers and union-represented
employees to apply for jobs with Aim and with Jacobson,
which was under contract to recruit and provide tempo-
rary employees to Aim. The various incidents giving rise
to the allegations occurred from May 2008, when union
organizer Jose Gurrola initially applied for a job with
Aim, through July 2009.3 Nearly all of the allegations
involved the Respondents’ handling of the union appli-
cants.4
II. THE JUDGE’S SUBSIDIARY FINDINGS
We agree with the judge, for the reasons set forth in
his decision, that Aim violated Section 8(a)(3) and (1) by
refusing to hire or consider for hire Shawn McMillan in
July. We also agree with the judge’s findings that Jacob-
son did not violate Section 8(a)(3) and (1) by refusing to
hire or consider for hire McMillan in June; and that Aim
and Jacobson, acting as joint employers, did not violate
8(a)(3) and (1) by refusing to hire or consider for hire
Aizu in July.5

3 All dates herein are in 2009 unless otherwise stated.
4 The judge found that Aim did not violate Sec. 8(a)(3) and (1) by re-
fusing to reinstate Gurrola in April when he made an unconditional
offer to return to work after going on strike. The Acting General Coun-
sel has excepted to the judge’s finding, but seeks no remedy for the
alleged violation beyond what we have already directed for the sepa-
rate, uncontested violation concerning Gurrola. See fn. 2, supra. Ac-
cordingly, we find it unnecessary to pass on this allegation.
5 In adopting the judge’s dismissal of the allegation that Aim and Ja-
cobson jointly refused to hire or consider for hire Aizu, we rely solely
on the Acting General Counsel’s failure to establish that, at the time
Aizu applied, Jacobson was aware of his union affiliation. Aizu ap-
plied using an alias, and Jacobson wrote “not with Union” on his appli-
cation. As described below, Jacobson had written “Union” on the
applications of the other union-affiliated applicants.
We reverse the judge’s finding that Aim did not violate Sec. 8(a)(1)
by telling Gurrola that he no longer worked for Aim when he uncondi-
tionally offered to return. The judge found, without exception, that
Aim terminated Gurrola in July 2008 for engaging in a protected eco-
nomic strike. Aim’s statement to Gurrola that he was not entitled to
reinstatement because he no longer worked for Aim clearly referred to
Gurrola’s earlier discharge. It would have reasonably tended to convey
the message that additional protected activity would negatively affect
his employment prospects. See TPA, Inc., 337 NLRB 282, 283–284
(2001). Accordingly, we find that Aim’s statement was coercive and
violated Sec. 8(a)(1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 788
III. THE REFUSAL TO HIRE 10 UNION-AFFILIATED
APPLICANTS
As stated above, we find that Aim violated Section
8(a)(3) and (1) by refusing to hire or consider for hire
applicants Aizu, Bolaños, Macias, Flores, Anaya, Colli-
son, Speakman, McClure, Equizabal, and Rohrback.
Contrary to the judge, we find that Aim’s asserted non-
discriminatory hiring policy, which it raises as a defense
to this allegation, was in fact a pretext to mask its dis-
crimination against union applicants.
A. Aim’s Hiring Practices
Throughout the hearing, Aim emphasized that it does
not accept walk-in applications for employment. Instead,
Aim asserted that its practice is to rely exclusively on (1)
rehiring former employees; and (2) hiring individuals
who have been referred by current employees. The judge
did not make a finding as to when Aim assertedly began
this practice. Aim Owner Michael Gibbs testified that,
from about 2000 through 2006, Aim sought new hires by
placing ads in local newspapers and accepting cold-call
applications, some of which were kept on file for 4–6
weeks. Gibbs could not identify the start date of Aim’s
current practice, but testified that starting in 2006 or ear-
ly 2007 Aim began shredding all hand-delivered and
faxed-in applications. Gibbs testified that beginning
around that time Aim could find an abundance of good
workers by rehiring former employees and from refer-
rals. Gibbs further testified that these practices were
more efficient and cost effective than its prior practices.
The judge found that Aim has two signs posted at its
office stating that it is not accepting applications; Gibbs
testified that they have been displayed since about early
2008. When asked whether Aim’s reliance on rehires and
referrals is the Company’s official policy, Gibbs stated
that “it’s not a policy, period.” Instead, he asserted that it
is merely the way that Aim meets its hiring needs. Gibbs
added that, “[i]t’s not a written policy because we’ve not
had to go there.”
Reliable evidence undermines Gibbs’ testimony. Aim
hired four walk-in applicants during the first half of
2007. In May 2008, it hired walk-in applicant Jose Gur-
rola. Shortly thereafter, Gurrola began wearing union
paraphernalia and soliciting Aim employees to sign un-
ion authorization cards. The record evidence indicates
that, thereafter, Aim hired no additional walk-in appli-
cants. However, applicant Equizabal testified, without
contradiction, that he hand delivered an application for
employment to Aim in June 2009. Equizabal stated that
Aim’s secretary accepted the application and said that
she would call him if work became available.
From May 27 through August 10, 2009, Aim hired
nine full-time employees, five of whom were former
employees and four of whom were referrals. The judge
found that, during this period, Aim’s workload had in-
creased substantially and its employees were working a
considerable amount of overtime. All five of the rehired
employees Aim had previously fired for cause, for rea-
sons including failure to timely appear for work, defi-
cient work performance, and excessive customer com-
plaints.
During the same period, Aim unlawfully refused to
hire or consider for hire former employees Gurrola and
McMillan, both of whom were union supporters. As
stated above, Aim does not contest the judge’s finding
that it unlawfully refused to hire or consider for hire Gur-
rola because he engaged in protected strike activity dur-
ing his earlier tenure with Aim. With respect to McMil-
lan, a former employee who had been laid off several
years earlier, we agree with the judge that Aim violated
the Act by refusing to hire or consider him for hire, as
well.6
Also during the same period, on June 30, Aim began to
request temporary employees from Jacobson, an em-
ployment agency. Gibbs testified that Aim would go to
Jacobson when it could not meet its staffing needs
through hiring former employees and referrals. Lazaro
Campos, Aim’s superintendent, testified that Aim re-
quested employees from Jacobson when it was coming to
the end of a job and it was preferable to use a temporary
employee rather than hiring a new employee. Gibbs
acknowledged, however, that some Jacobson employees
worked at Aim for significant periods of time, sometimes
even working at Aim sites longer than Aim employees.
Campos described one situation where he suggested to a
friend that he apply with Jacobson if he wanted to work
at Aim.
B. Aim does not Respond to Aizu’s Application
Union organizer Angel Aizu testified that in April he
went to Aim’s office seeking employment. Although
Aim’s secretary indicated that it was not hiring, she gave
Aizu an application for employment and a business card
for Lazaro Campos. On May 27, Aizu, this time accom-
panied by known union activist Gurrola, returned to
Aim’s office. The secretary told them that things were
slow and that no work was available. Nonetheless, she

6 Aim contended that it declined to hire or consider for hire McMil-
lan because he had previously engaged in rude and belligerent conduct.
Specifically, Aim alleged that when it laid off McMillan, he an-
nounced, in a very dramatic tone, “Do me a favor, lose my number.”
The judge found, and we agree, that Aim’s account of this incident was
greatly exaggerated and that Aim presented it as a pretext for its unlaw-
fully motivated hiring decision.
AIM ROYAL INSULATION, INC. 789

accepted Aizu’s application and told him that she would
pass it to Campos. On June 1 and 9, Aizu called the Aim
office, indicated that he had submitted an application,
and asked if Aim was hiring. In both instances, he was
told that things were slow. Aim never contacted Aizu
regarding employment.
C. Aim does not Consider the Applications of Nine
Other Union Members
On June 23, the Union faxed job applications to Aim
for union members Bolaños, Macias, Flores, Anaya, Col-
lison, Speakman, McClure, Equizabal, and Rohrback.
The Union wrote the word “organizer” on all nine appli-
cations before faxing them. The judge found that each of
the applicants testified credibly that he filled out the ap-
plication himself and would have accepted employment
with Aim had it been offered. Aim owner Gibbs testified
that he knew that the faxed applications came from the
Union. He conceded that Aim never considered any of
those applicants. Gibbs did not shred the applications,
but only because he was instructed by legal counsel to
save them for possible litigation.
D. The Judge’s Findings
The judge found, without exception, that the Acting
General Counsel met his initial burdens under FES for all
10 applicants.7 Specifically, the judge found that the
Acting General Counsel established that: (1) Aim was
hiring and had specific plans to hire during the period
covered by the allegations in the complaint; (2) all of the
applicants had the necessary experience to work at Aim;

7 331 NLRB 9 (2000), supplemented 333 NLRB 66 (2001), enfd.
301 F.3d 83 (3d Cir. 2002). Under FES, in order to meet his initial
burden for establishing a refusal to hire violation, the General Counsel
must show:
(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 expe-
rience or training relevant to the announced or generally known re-
quirements of the positions for hire, or in the alternative, that the em-
ployer has not adhered uniformly to such requirements, or that the re-
quirements were themselves pretextual or were applied as a pretext for
discrimination; and (3) that antiunion animus contributed to the deci-
sion not to hire the applicants. Once this is established, the burden
shifts to the respondent to show that it would not have hired the appli-
cants even in the absence of their union activity or affiliation.
Id. at 12.
Regarding refusals to consider for hire, the Board stated:
[T]he General Counsel bears the burden of showing the following at
the hearing on the merits: (1) that the respondent excluded applicants
from a hiring process; and (2) that antiunion animus contributed to the
decision not to consider the applicants for employment. Once this is
established, the burden will shift to the respondent to show that it
would not have considered the applicants even in the absence of their
union activity or affiliation.
Id. at 15.

and (3) antiunion animus contributed to Aim’s decision
not to hire the applicants, as evidenced by its other unfair
labor practices. Nonetheless, the judge concluded that,
because Aim rejected the applicants pursuant to a non-
discriminatory preference policy, it successfully rebutted
the Acting General Counsel’s showing. On this basis, he
dismissed the allegations. The Acting General Counsel
excepts, contending that Aim’s purported policy was
pretextual or, in the alternative, that it discriminated
against union applicants. We agree that Aim’s stated
policy was pretextual.8
Discussion
The Board has held that “an employer legitimately
may implement a hiring policy based on a hiring system
that gives preference to former employees and employees
referred by current employees.” CBI Na-Con, Inc., 343
NLRB 792, 792 (2004). “Where an employer departs
from such a policy in a sufficient number of instances,
however, it cannot carry its [FES] rebuttal burden by
relying on the policy.” Jesco, Inc., 347 NLRB 903, 906–
907 (2006). Of course, an employer cannot rebut the
General Counsel’s initial showing of discriminatory mo-
tivation with a pretextual explanation, such as an asserted
hiring policy that was not actually relied on. Id. at 907.
Finally, in determining whether an employer has unlaw-
fully excluded applicants from the hiring process, the
Board considers all of the surrounding circumstances.
C&K Insulation, Inc., 347 NLRB 773 (2006). Here, we
find that the judge erred by accepting Aim’s purported
nondiscriminatory hiring policy at face value, without
analyzing the totality of Aim’s hiring practices. We have
carefully examined the record and, for the reasons set
forth below, we find that Aim’s asserted hiring policy
was a pretext for discrimination against union applicants.
First, we find that Aim failed to establish that its as-
serted hiring policy predated the Union’s organizing
drive, or that it was ever an official policy at all. Aim’s
testimony in this regard was inconsistent and vague.
Aim’s owner, Gibbs, imprecisely characterized the im-
plementation of the policy as an “evolving process” that
developed over the period from 2005 to 2008. At anoth-
er point, Gibbs testified that the policy was already in
place when Aim promoted Campos to superintendent in
February 2007. But the record evidence shows that Aim
hired three walk-in applicants after that date.

8 In its reply brief, Aim asserted for the first time in this litigation
that Aim was neither hiring nor had concrete plans to hire during the
relevant period. Because Aim did not except to the judge’s finding that
Aim was hiring during that period, Aim has not properly raised this
argument before the Board. Teddi of California, 338 NLRB 1032
(2003). In any event, the record clearly establishes that Aim was in fact
hiring.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 790
Aim failed to introduce any documentary evidence to
substantiate the existence of a formal policy, and even at
the hearing, Gibbs refused to categorize it as a policy at
all. See Richard Mellow Electrical Contractors Corp.,
327 NLRB 1112, 1115 (1999) (finding that employer’s
defense failed where it did not characterize hiring prefer-
ences as a policy and it failed to present documentary or
corroborating evidence). Cf. Ken Maddox Heating & Air
Conditioning, 340 NLRB 43, 44–45 (2003) (finding em-
ployer’s defense to be valid where employer established
that hiring policy was in existence 4 years before alleged
unfair labor practices). Indeed, Aim’s reliance on rehires
and referrals became consistent only after Gurrola, the
union organizer, was hired as a walk-in applicant. Aim’s
refusal to hire any more walk-in applicants after Gurrola
supports an inference that its conduct was motivated by
an unlawful desire to avoid hiring other union members
who might apply through the same channel. See Richard
Mellow, supra at 1114–1115.
Second, Aim never disclosed its purported hiring poli-
cy to union applicants, nor did it actually rely on the pol-
icy in rejecting them. See Beacon Electric Co., 350
NLRB 238, 242 (2007). For example, in the spring of
2009, Aim accepted walk-in applications from both
Equizabal and Aizu. Aim’s secretary told Equizabal that
he would be contacted if work became available. More
tellingly, Aim lied to Aizu on three occasions by telling
him that work was slow, when, in fact, its business was
booming and it was hiring regularly. Id. (employer’s
defense failed where it “deceived the union applicants by
denying that it was hiring . . . and deliberately sought to
divert them from discovering its referral policy”). Alt-
hough the judge acknowledged Aim’s dishonesty, he
failed to account for this evidence in evaluating the legit-
imacy of Aim’s defense.9
Third, in pursuing its alleged preference for former
employees, Aim departed from its asserted business ra-
tionale and manipulated its practices to exclude union
applicants. Gibbs testified that rehiring former employ-
ees was a cost-effective way to ensure a high quality
work force. Counsel for Aim echoed this sentiment in
his opening statement, stating that Aim was looking for
“capable, honest, and hardworking employees.” All five
of the former employees that Aim rehired, however, had

9 Aim relies heavily on the fact that it displayed signs in its office
stating that it was not accepting applications. However, according to
Aim’s representatives and hiring records, the statement was not true.
Aim’s purported policy of considering only rehires and referrals was
not stated in the signs. Moreover, as shown above, Aim did accept
applications from union supporters on several occasions, and in those
instances, lied rather than tell them that they would not be considered
pursuant to its purported policy.

been terminated for cause and, in several instances, had
caused significant economic losses for Aim. See Nel-
corp, 332 NLRB 179 (2000), enfd. 51 Fed. Appx. 33 (2d
Cir. 2002). Given these circumstances, it is difficult to
comprehend how Aim’s hiring choices would have fur-
thered its stated interests in quality work and cost effi-
ciency.
Aim’s purportedly neutral policy of rehiring former
employees was also administered in an overtly discrimi-
natory manner. Although Aim was willing to overlook
the transgressions of former employees with poor work
records, it refused to rehire former employees Gurrola
and McMillan because they supported the Union. Aim
argues that, unlike the other former employees it rehired,
Gurrola and McMillan were unwilling to express re-
morse for their prior actions and take steps to reestablish
Aim’s trust. As the judge found, however, Aim’s stated
rationale is obviously pretextual. In Gurrola’s case, Aim
essentially demanded that he express remorse for engag-
ing in a protected strike. Aim never even told McMillan
the purported basis for its refusal to rehire him; he had no
reason to know that an apology was necessary or ex-
pected. Moreover, McMillan was a stronger candidate
for rehire than the five individuals who were
reemployed, as he had been laid off for lack of work ra-
ther than discharged for cause. If Aim had any real pref-
erence, it was for former employees, whatever their abil-
ity, who did not support the Union.10
Fourth, although Aim asserted that it was able to meet
all of its hiring needs by relying on rehires and referrals,
it began requesting employees from Jacobson only 1
week after the Union faxed the packet of applications.
Although the judge characterized the Jacobson employ-
ees as a wholly separate group of temporary hires, the
record indicates that the distinction between hiring chan-
nels was more amorphous, with some Jacobson employ-
ees staying with Aim for significant periods. Aim’s oft-

10 Aim also contends that its hiring policy could not have been dis-
criminatory because it resulted in the employment of union-affiliated
employees Mario Chavez, Saul Granados, Luis Jaime, Manual Mur-
rieta, and Jose Villa. We reject this argument. As an initial matter, the
judge found that both Chavez and Murietta explicitly denounced the
Union before rejoining Aim. The record is clear that when they were
rehired by Aim the Company knew that they were not union supporters.
In addition, Villa, Granados, and Jaime were all initially hired long
before the Union initiated its organizing campaign, and there is no
evidence that any of them were still involved with the Union when they
were hired. See Fluor Daniel, Inc., 304 NLRB 970, 970–971, enfd.
976 F.2d 744 (11th Cir. 1992) (employer’s hiring of applicants with
“weak or nonexistent union ties” not a defense to discrimination).
Although Aim relies on its hiring of Granados to argue that its policy to
rely exclusively on rehires and referrals was nondiscriminatory, the
facts do not support its argument: Granados was a walk-in applicant,
not a rehire or referral.
AIM ROYAL INSULATION, INC. 791

repeated claim that it could fulfill its hiring requirements
exclusively through the two preference categories was
simply not true. See Lin R. Rogers Electrical Contrac-
tors, 328 NLRB 1165, 1166 (1999). In addition, alt-
hough Campos apprised at least one prospective Aim
applicant that work was available through Jacobson, Aim
did not recommend this alternative to Aizu, nor did it
forward the faxed union applications to Jacobson. See
Beacon Electric, supra at 249. Finally, as discussed in the
next section, we find that Aim unlawfully directed Ja-
cobson to turn away three applicants once it became
aware of their union affiliation. See Jesco, supra at 910
fn. 8. In all aspects of its hiring program, then, Aim
worked aggressively to ensure that union applicants
would not be hired.
For all of these reasons, we agree with the Acting
General Counsel that Aim had “an overall scheme of
refusing to hire or consider union applicants.” Beacon
Electric, supra at 242. In so doing, we reject Aim’s as-
serted hiring practice as pretextual and find that Aim has
failed to rebut the Acting General Counsel’s FES case as
to all 10 applicants. We therefore reverse the judge and
find that Aim violated Section 8(a)(3) and (1) by refusing
to hire them or consider them for hire.
IV. THE JOINT EMPLOYER ALLEGATIONS
We also disagree with the judge’s finding that Aim and
Jacobson did not violate Section 8(a)(3) and (1) by refus-
ing to hire or consider for hire union members McMillan,
Bolaños, and Gonzalez.
A. Aim’s Relationship with Jacobson
Since 2008, Aim and Jacobson have been parties to a
contract under which Jacobson provides temporary and
temporary-to-permanent employees to Aim. Aim pays
Jacobson an hourly rate for each employee that it uses.
Jacobson, in turn, pays and provides benefits to the em-
ployees. When Aim seeks additional temporary workers,
Aim Superintendant Lazaro Campos notifies Sandy
Chavez, Jacobson’s account manager. Chavez then re-
cruits and interviews applicants to determine whether
they would satisfy Aim’s needs. She sends suitable ap-
plicants to Campos, who then interviews them himself
and tells Chavez whether Jacobson should hire them.
Jacobson does not hire an individual until Aim has ex-
pressly approved him.
During the hearing, Campos and Chavez provided ex-
tensive, undisputed testimony regarding the work duties
of Jacobson employees while assigned to Aim. Although
the workers that Jacobson sends to Aim are Jacobson
employees, their day-to-day duties are dictated solely by
Aim. They are supervised by Aim’s foremen and lead-
men. Aim tells them when to report to work and decides,
without Jacobson’s input, when they are to work over-
time. Aim also provides Jacobson employees with tools,
safety equipment, and all other needed materials and
supplies. In addition, Aim has discretion to mete out
low-level discipline, including verbal warnings. For
more severe or repeated infractions, Aim contacts Jacob-
son to request an employee’s removal, and Jacobson
complies with Aim’s request.11
B. Jacobson’s Interview with McMillan
On June 30, Aim Superintendant Campos contacted
Jacobson Account Manager Chavez and requested insu-
lators. Pursuant to the request, Chavez contacted McMil-
lan, a former Aim employee who had been recommended
by another insulator. During their initial phone conver-
sation, McMillan told Chavez that he was not sure
whether he was able to work for Jacobson because of his
union status. After several additional conversations,
however, Chavez invited McMillan to interview with
Jacobson on July 14.
When McMillan arrived at Jacobson’s office, Chavez
gave him paperwork to complete. After McMillan com-
pleted it, Chavez asked him how his application with
Jacobson would affect his union status. McMillan asked
Chavez what she meant, and Chavez abruptly changed
the subject. Chavez then told McMillan to go home and
get his social security card; she warned that if he did not
return promptly, she would give the job to someone else.
McMillan returned with the card and completed the ap-
plication process. At some point during their conversa-
tion, Chavez told McMillan that he was a good candidate
for Aim. Chavez told McMillan to go home, and that
Aim would call him to schedule an interview for 1 p.m.
When McMillan returned home, however, Chavez called
and told him that Aim had backed out and that there was
no work for him.
The judge discredited Chavez’ testimony about her
pivotal conversations with Campos. Chavez testified that
she contacted Campos after her meeting with McMillan
and told him that she had a good candidate, whom, she
further testified, she did not name. In Chavez’ account,
Campos replied that he was no longer looking for addi-
tional workers that day. The judge reasonably found that
Chavez’ testimony was “exaggerated” and “conveniently
contrived to suit a litigation strategy.”

11 In 2008, for example, Campos called Chavez and directed her to
replace a group of Jacobson employees working at Aim because Aim
was not satisfied with their work performance. Chavez complied with
that instruction.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 792
C. Jacobson’s Interview with Applicants Bolaños
and Gonzalez
Later the same day that Chavez interviewed McMillan,
Bolaños and Gonzalez arrived at Jacobson’s office, coin-
cidentally at the same time. Both had been told by Angel
Aizu, the union organizer, that Aim was hiring workers
through Jacobson. Upon their arrival, Chavez told Bo-
laños and Gonzalez that Aim had already hired two Ja-
cobson employees that day and was going to hire two
more. After completing their applications, Bolaños and
Gonzalez went into Chavez’ office where she examined
the paperwork and asked them questions. Bolaños’ ap-
plication indicated that he had worked for Argus, a union
employer. Chavez told both men that they would be sent
to interview with Aim.
The record indicates that over the next 15 minutes
Chavez engaged in a series of phone conversations with
Campos. During Chavez’ first call to Campos, she told
him that she had two applicants with insulation experi-
ence. She arranged for Gonzalez to interview with Aim
at 1:30 p.m. and wrote that time on his application. After
further discussion with Campos, she told Bolaños that
Aim was not interested in him and his interview was
canceled. Shortly thereafter, Chavez received a call from
Campos. After that conversation, Chavez asked Gonza-
lez who sent him for the job. Gonzalez replied that it
was “Angel,” and he produced a business card with Ai-
zu’s full name and his title as a union organizer. Chavez
wrote the word “Union” on both applications and report-
ed Gonzalez’ union affiliation to Campos. Following
further discussion with Campos, she told Gonzalez that
Aim was no longer interested in interviewing him and
that his interview was also canceled. Bolaños remarked
that perhaps Aim did not want them because of their un-
ion affiliation. Chavez did not respond to that comment,
but said that she was upset because she had to look for
additional applicants.
The judge found that both Bolaños and Gonzalez were
not working at the time and would have accepted em-
ployment with Jacobson had it been offered. He also
wholly discredited testimony by Chavez and Campos
regarding their discussions. Chavez testified that she
called Campos and told him that she had two great can-
didates. In Chavez’ account, Campos replied that he had
already hired the first two referrals and that he did not
need any additional workers. Campos also testified that
when Chavez called him he did not need any more per-
sonnel. Chavez claimed that she never mentioned the
Union in her conversations with Campos and that she
wrote “Union” on the applications before she spoke with
Campos because she considered that a positive attribute.
The judge observed, however, that in Chavez’ pretrial
affidavit, she stated that she wrote “Union” on the appli-
cations after she spoke with Campos. The judge also
observed that neither Chavez nor Campos could explain
why Campos required multiple phone calls to communi-
cate that he did not need the workers.
D. The Judge’s Findings
The judge found that Jacobson violated Section 8(a)(1)
by interrogating McMillan and by threatening Bolaños
and Gonzalez with a loss of job opportunities because of
their support for the Union. The judge relied on the fact
that Jacobson canceled their interviews immediately after
they disclosed their union affiliation. No party excepts to
those findings.
Nonetheless, the judge dismissed the Acting General
Counsel’s allegation that Aim and Jacobson, acting as
joint employers, violated Section 8(a)(3) and (1) by re-
fusing to hire or consider for hire McMillan, Bolaños,
and Gonzalez. Relying on the following stipulation of
the parties: “Respondent Jacobson is a joint employer
with Respondent Aim Royal with respect to those indi-
viduals that were Jacobson employees assigned to the
Aim Royal workplace,” the judge rejected the Acting
General Counsel’s contention that Aim and Jacobson
acted as joint employers with regard to McMillan, Bo-
laños, and Gonzalez. He reasoned that none of these
applicants had ever been assigned to Aim’s workplace.
He also found that Jacobson could not have refused to
hire McMillan, Bolaños, and Gonzalez, because it did
not have authority to hire employees without Aim’s ap-
proval. The judge also found that Jacobson had fully
considered the applicants and was ready to refer them to
Aim. Finally, the judge found that the Acting General
Counsel did not “allege that Aim independently violated
the Act by rejecting these applicants.”
The Acting General Counsel excepts, arguing that un-
der the Board’s analysis for joint employer liability in
Capitol EMI Music, 311 NLRB 997 (1993), enfd. 23
F.3d 399 (4th Cir. 1994), Aim and Jacobson, acting as
joint employers, violated the Act as alleged. For the rea-
sons set forth below, we find merit in those exceptions.
Discussion
As an initial matter, we agree that Capitol EMI pro-
vides the appropriate framework for our analysis. In that
case, Capitol operated a distribution facility using its
own employees, as well as temporary employees provid-
ed by Graham, an employment agency. Id. Employee
Harris worked for Graham and was assigned to work as a
temporary employee at Capitol. Harris’ supervisor at
Capitol informed him that the company had to let him go
because he supported the union. Capitol then contacted
Graham and asked that Graham end Harris’ assignment
AIM ROYAL INSULATION, INC. 793

at Capitol because he was not being cooperative with his
supervisors. Graham complied and removed Harris from
the assignment. Id. at 1013–1015.
The General Counsel’s complaint alleged that Capitol
and Graham discharged Harris because he supported the
union. Id. at 1013. In evaluating the merits of the com-
plaint, the Board adopted a three-step approach. First, it
found that Capitol acted unlawfully in requesting that
Graham terminate Harris’ assignment. Second, it found
that Capitol and Graham were acting as joint employers.
Id. at 998 and fn. 7. Third, it found that in spite of the
parties’ joint employer relationship Graham was not lia-
ble for Capitol’s unlawful activity. Id. at 1001.
In assessing whether Graham was liable for Capitol’s
unlawful conduct, the Board articulated the appropriate
standard for finding that an employment agency is liable
under Section 8(a)(3) and (1) for an unlawful action tak-
en by the other employer. It held as follows.

[I]n joint employer relationships in which one employ-
er supplies employees to the other, we will find both
joint employers liable for an unlawful employee termi-
nation (or other discriminatory discipline short of ter-
mination) only when the record permits an inference
(1) that the nonacting joint employer knew or should
have known that the other employer acted against the
employee for unlawful reasons and (2) that the former
has acquiesced in the unlawful action by failing to pro-
test it or to exercise any contractual right it might pos-
sess to resist it.

Id. at 1000. Applying this standard, the Board found
that Graham was not liable for Capitol’s unlawful con-
duct because it had no knowledge of Capitol’s motive for
seeking Harris’ removal. In the present case, because the
judge failed to meaningfully analyze any of the major
issues under Capitol EMI, we discuss them below.
A. Aim Royal’s Liability
First, we find that the judge erred by failing to find that
Aim violated the Act by directing Jacobson not to hire
McMillan, Bolaños, and Gonzalez. An employer may
not lawfully direct an employment agency to affect an
individual’s employment status for discriminatory rea-
sons. Id. at 1000 fn. 22. Here, the Acting General Coun-
sel has adduced compelling evidence that Campos in-
structed Chavez, first, to find out whether the applicants
were involved with the Union, and then, to reject them if
they were. This process played out with unmistakable
clarity during Chavez’ interview with Bolaños and Gon-
zalez. Chavez had informed both that they were strong
candidates for employment with Aim and that they
would be sent for interviews. Nonetheless, they were
quickly dismissed after Chavez disclosed their union
affiliation to Campos. It is apparent that Campos, during
his phone conversations with Chavez, instructed her not
to send Bolaños and Gonzalez to Aim because they were
with the Union. We can infer that Chavez abruptly can-
celed McMillan’s scheduled interview with Aim for the
same reason.
Aim’s only defense is that it told Jacobson to turn
away McMillan, Bolaños and Gonzalez because it no
longer needed to hire additional workers that day. This
contention is implausible given that Jacobson continued
to search for applicants for Aim after all three applicants
had been interviewed and rejected. And, as the judge
observed, Campos could have communicated this mes-
sage in a single phone conversation rather than a series of
calls. The judge reasonably discredited the testimony
underlying Aim’s defense, and we find for the foregoing
reasons that Aim violated Section 8(a)(3) and (1).
We reject the judge’s suggestion that the Acting Gen-
eral Counsel did not properly allege that Aim violated
the Act regarding these three applicants. At all times
during litigation, the Acting General Counsel contended
that both Aim and Jacobson acted unlawfully. In his
complaint, the Acting General Counsel alleged that “the
Respondents refused to consider for hire or hire McMil-
lan, Bolaños, and Gustavo Gonzalez.”12 Consistent with
this theory, the Acting General Counsel adduced evi-
dence during the hearing regarding Aim’s hand-in-glove
relationship with Jacobson and its determining role in
Jacobson’s decision to dismiss these applicants. The
Acting General Counsel asserts this argument yet again
in his exceptions brief.13 There was no reason for the
judge to bypass the issue of Aim’s liability.
B. Joint-Employer Status of Aim and Jacobson
Second, we find that Aim and Jacobson acted as joint
employers with regard to McMillan, Bolaños, and Gon-
zalez. The test for joint-employer status is whether two
entities “share or codetermine those matters governing
the essential terms and conditions of employment.”
Laerco Transportation, 269 NLRB 324, 325 (1984). To
establish a joint-employer relationship, there must be
evidence that one employer “meaningfully affects mat-

12 Even assuming that the judge correctly found that Aim and Jacob-
son did not act as joint employers, under Capitol EMI, he was still
required to assess whether Aim was liable for its own actions. Id. at
1000 fn. 22. See also Dews Construction Corp., 231 NLRB 182, 182
fn. 4 (1977), enfd. mem. 578 F.2d 1374 (3d Cir. 1978).
13 Significantly, although Aim offers a defense to this theory of lia-
bility on the merits, it does not contend that the violation was not ap-
propriately alleged in the complaint or litigated at the hearing, or that it
lacked notice of its potential liability for its conduct in conjunction with
Jacobson with respect to these three individuals.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 794
ters relating to the employment relationship such as hir-
ing, firing, discipline, supervision, and direction of the
other employer’s employees.” Id. The Board has found
joint-employer relationships where an employer “partici-
pated meaningfully in the exercise of control over mat-
ters governing the terms and conditions of employment”
of an employment agency’s employees. D&F Industries,
339 NLRB 618, 640 (2003). See Capitol EMI, supra at
1017 (finding joint-employer relationship where employ-
er assigned work to, directly supervised, and could effec-
tively discipline employees of employment agency).
Here, Jacobson interviewed, hired, and paid wages and
benefits to the employees it referred to Aim. Nonethe-
less, Aim exercised complete and exclusive control over
those employees’ day-to-day direction and supervision.
Aim also maintained authority to discipline them and to
order their removal from the worksite. In this regard,
there is no record evidence that Jacobson was authorized
to question or, in fact, ever questioned Aim as to its deci-
sion to terminate the services of Jacobson employees.
D&F Industries, supra at 640. Aim “could effectively
fire any or all of them by simply requesting that [Jacob-
son] remove any or all of them from its operations.”
Capitol EMI, supra at 1017. Significantly, as Jacobson
concedes in its brief, Aim had the same unchallenged
control over Jacobson’s hiring decisions. Even after Ja-
cobson interviewed applicants, it could not actually hire
them until Aim conducted its own interviews of the ap-
plicants and expressed its approval. See W. W. Grainger,
Inc., 286 NLRB 94, 96 (1987), enf. denied on other
grounds 860 F.2d 244 (1988). For these reasons, we find
that the Acting General Counsel easily established that,
at all material times, Aim and Jacobson were joint em-
ployers with regard to McMillan, Bolaños, and Gonzalez.
We disagree with the judge that finding a joint-
employer relationship here is precluded by the parties’
stipulation, above p. 6, which provided that the parties
were joint employers with respect to individuals assigned
to the Aim workplace, without any qualification or limi-
tation. The language used does not bar a finding that
Aim and Jacobson were also joint employers during the
prehire stage, nor is there any indication in the record
that the parties so intended.14 And, as shown above,
there is ample record evidence that Aim and Jacobson
acted as joint employers with regard to these applicants.
C. Jacobson’s Liability
Finally, we find that Jacobson is jointly liable for
Aim’s unlawful conduct. Under Capitol EMI, supra,

14 Contrary to Jacobson’s contention, the fact that the parties enu-
merated the names of the Jacobson employees who were assigned to
the Aim workplace does not alter the meaning of the stipulation.
once the General Counsel has established that the two
employers were joint employers and that one of them has
taken an unlawful discriminatory action against an em-
ployee in the jointly managed work force, the burden
shifts to the employer seeking to escape liability to show
that it neither knew nor should have known of the reason
for the other employer’s action. Id. at 1000. In the pre-
sent case, because the Acting General Counsel has met
his burden, the burden shifted to Jacobson. The record,
however, makes clear that Jacobson Account Manager
Chavez was fully aware that Aim Superintendant Cam-
pos’ requests were motivated by union considerations:
Chavez probed the applicants regarding their union sta-
tus, passed this information to Campos, and then wrote
“Union” on their applications. See Skill Staff of Colora-
do, 331 NLRB 815 (2000).
Contrary to the judge, Jacobson did not fully consider
McMillan, Bolaños, and Gonzalez merely because it in-
terviewed them and was ready to refer them to Aim.
Jacobson considered the applicants only until Aim made
clear that they were not acceptable because of their union
affiliation. At that point, Jacobson swiftly rejected them
pursuant to Aim’s directive, without protest or even the
slightest expression of disapproval. Id. Rather, Jacobson
fully acquiesced in Aim’s effort to exclude them from
the hiring process.
For all of these reasons, we reverse the judge and find
that Aim and Jacobson, acting as joint employers, violat-
ed Section 8(a)(3) and (1) by refusing to hire or consider
for hire McMillan, Bolaños, and Gonzalez.
AMENDED REMEDY
Having found that the Respondents have engaged in
certain unfair labor practices, we shall order them to
cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent Aim Royal violated
Section 8(a)(1) by maintaining overly broad work rules,
we shall order it to cease and desist, to rescind its unlaw-
ful rules and remove them from its employee handbook,
and to advise employees in writing that its unlawful rules
are no longer being maintained. See Guardsmark, LLC,
344 NLRB 809, 812 fn. 8 (2005), enfd. in relevant part
475 F.3d 369 (D.C. Cir. 2007).
Having found that Respondent Aim Royal alone vio-
lated Section 8(a)(3) and (1) by refusing to hire or con-
sider for hire Jose Gurrola, Shawn McMillan, Angel Ai-
zu, Luis Bolaños, Ezequiel Macias, Jose Flores, Adrian
Anaya, Nathan Collison, Darrel Speakman, Chester
McClure, Pablo Equizabal, and John Rohrback, we shall
order Respondent Aim Royal to offer them instatement
to the positions for which they applied or, if those posi-
tions no longer exist, to substantially equivalent posi-
AIM ROYAL INSULATION, INC. 795

tions, without prejudice to their seniority or any other
rights or privileges they would have enjoyed absent the
discrimination against them. Further, we shall order Re-
spondent Aim Royal to make them whole for any loss of
earnings and other benefits suffered as a result of dis-
crimination against them by Aim Royal alone.
Having found that Respondents Aim Royal and Jacob-
son Staffing, acting as joint employers, violated Section
8(a)(3) and (1) by refusing to hire or consider for hire
Shawn McMillan, Luis Bolaños, and Gustavo Gonzalez,
we shall order the Respondents to offer them instatement
to the positions for which they applied or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges they would have enjoyed absent the
discrimination against them. Further, we shall order Re-
spondents Aim Royal and Jacobson Staffing to jointly
and severally make them whole for any loss of earnings
and other benefits suffered as a result of both Respond-
ents’ discrimination against them.
The duration of the backpay period shall be deter-
mined in accordance with Oil Capitol Sheet Metal, Inc.,
349 NLRB 1348 (2007), pet. for review dismissed 561
F.3d 497 (D.C. Cir. 2009). Backpay shall be computed
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), and interest shall be computed in accordance
with New Horizons, 283 NLRB 1173 (1987), plus daily
compound interest as prescribed in Kentucky River Medi-
cal Center, supra. Although our Order herein provides
for instatement, the instatement award is subject to de-
feasance if, at the compliance stage, the Acting General
Counsel fails to carry his burden of going forward with
evidence that the discriminatees would still be employed
if they had not been victims of discrimination. Oil Capi-
tol Sheet Metal, 349 NLRB at 1354.
Finally, we agree with the judge that the notices shall
be posted in both English and Spanish.
ORDER15
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that
A. The Respondent, Aim Royal Insulation, Inc., Phoe-
nix, Arizona, its officers, agents, successors, and assigns,
shall
1. Cease and desist from

15 In accordance with our decision in Kentucky River Medical Cen-
ter, 356 NLRB 6 (2010), enf. denied on other grounds sub nom. Jack-
son Hospital Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011), we modi-
fy the judge’s remedy by requiring that backpay shall be paid with
interest compounded on a daily basis. We shall also modify the judge’s
recommended Order to provide for the posting of the notice in accord
with J. Picini Flooring, 356 NLRB 11 (2010).
(a) Maintaining overly broad work rules that prohibit
employees from leaving the work area or jobsite without
permission.
(b) Coercively interrogating applicants concerning
their support for the Union.
(c) Threatening applicants with loss of employment
opportunities because of their union or other protected
concerted activities.
(d) Refusing to hire, or to consider for hire, applicants
because of their union or other protected concerted activ-
ities.
(e) In any like or related manner interfering with, re-
straining, 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) Rescind the employee handbook’s rules that pro-
hibit employees from leaving the work area or jobsite
without permission.
(b) Furnish all current employees with inserts for the
current employee handbook that (1) advise employees
that the unlawful rules have been rescinded, or (2) pro-
vide the language of lawful rules; or publish and distrib-
ute revised employee handbooks that (1) do not contain
the unlawful rules, or (2) provide the language of lawful
rules.
(c) Within 14 days from the date of this Order, offer
Jose Gurrola, Shawn McMillan, Angel Aizu, Luis Bo-
laños, Ezequiel Macias, Jose Flores, Adrian Anaya, Na-
than Collison, Darrel Speakman, Chester McClure, Pablo
Equizabal, John Rohrback, and Gustavo Gonzalez em-
ployment in the position in which they would have been
hired in the absence of discrimination against them or, if
that job no longer exists, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
(d) Make Jose Gurrola, Shawn McMillan, Angel Aizu,
Luis Bolaños, Ezequiel Macias, Jose Flores, Adrian
Anaya, Nathan Collison, Darrel Speakman, Chester
McClure, Pablo Equizabal, and John Rohrback whole for
any loss of earnings and other benefits suffered as a re-
sult of discrimination against them by Aim Royal alone,
in the manner set forth in the amended remedy section of
the decision.
(e) Jointly and severally with Respondent Jacobson,
make Shawn McMillan, Luis Bolaños, and Gustavo
Gonzalez whole for any loss of earnings and other bene-
fits suffered as a result of both Respondents’ discrimina-
tion against them, in the manner set forth in the amended
remedy section of the decision.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusals to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 796
hire or consider for hire and, within 3 days thereafter,
notify the employees in writing that this has been done
and that this unlawful conduct will not be used against
them in any way.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facility in Phoenix, Arizona, copies of the attached
notice marked “Appendix A.”16 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since January 20, 2009.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
B. The Respondent, Jacobson Staffing, L.C., Phoenix,
Arizona, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Telling applicants that they will not be hired
because of their union status.

16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(b) Coercively interrogating applicants concerning
their union status.
(c) Telling applicants that they lost employment oppor-
tunities because of their support for the Union.
(d) Refusing to hire, or to consider for hire, applicants
because of their union or other protected concerted activ-
ities.
(e) In any like or related manner interfering with, re-
straining, 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
Shawn McMillan, Luis Bolaños, and Gustavo Gonzalez
employment in the position in which they would have
been hired in the absence of discrimination against them
or, if that job no longer exists, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed.
(b) Jointly and severally with Respondent Aim Royal,
make Shawn McMillan, Luis Bolaños, and Gustavo
Gonzalez whole for any loss of earnings and other bene-
fits suffered as a result of both Respondents’ discrimina-
tion against them, in the manner set forth in the amended
remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusals to
hire or consider for hire and, within 3 days thereafter,
notify the employees in writing that this has been done
and that this unlawful conduct 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic 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 Phoenix, Arizona, copies of the attached
notice marked “Appendix B.”17 Copies of the notice, on
forms provided by the Regional Director for Region 28,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such

17 See fn. 16, supra.
AIM ROYAL INSULATION, INC. 797

as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since July 1, 2009.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated 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 on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain overly broad work rules that
prohibit you from leaving the work area or jobsite with-
out permission.
WE WILL NOT coercively interrogate applicants con-
cerning their support for the Union.
WE WILL NOT threaten applicants with loss of em-
ployment opportunities because of their union or other
protected concerted activities.
WE WILL NOT refuse to hire, or consider for hire, appli-
cants because of their union or other protected concerted
activities.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce employees in the exercise of their
rights listed above.
WE WILL rescind the employee handbook’s rules that
prohibit employees from leaving the work area or jobsite
without permission, and WE WILL furnish all current em-
ployees with inserts for the current employee handbook
that (1) advise employees that the unlawful rules have
been rescinded, or (2) provide the language of lawful
rules; or publish and distribute revised employee hand-
books that (1) do not contain the unlawful rules, or (2)
provide the language of lawful rules.
WE WILL, within 14 days from the date of the Board’s
Order, offer Jose Gurrola, Shawn McMillan, Angel Aizu,
Luis Bolaños, Ezequiel Macias, Jose Flores, Adrian
Anaya, Nathan Collison, Darrel Speakman, Chester
McClure, Pablo Equizabal, John Rohrback, and Gustavo
Gonzalez employment in the position in which they
would have been hired in the absence of discrimination
against them or, if that job no longer exists, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
WE WILL make Jose Gurrola, Shawn McMillan, Angel
Aizu, Luis Bolaños, Ezequiel Macias, Jose Flores, Adri-
an Anaya, Nathan Collison, Darrel Speakman, Chester
McClure, Pablo Equizabal, and John Rohrback whole for
any loss of earnings and other benefits suffered as a re-
sult of discrimination against them by Aim Royal alone,
less any net interim earnings, plus interest.
WE WILL, jointly and severally with Respondent Ja-
cobson, make Shawn McMillan, Luis Bolaños, and Gus-
tavo Gonzalez whole for any loss of earnings and other
benefits suffered as a result of the both Respondents’
discrimination against them, less any net interim earn-
ings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusals to hire or consider for hire and, within 3 days
thereafter, notify the employees in writing that this has
been done and that this unlawful conduct will not be used
against them in any way.

AIM ROYAL INSULATION, INC.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated 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 on your behalf
with your employer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 798
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT tell applicants that they will not be hired
because of their union status.
WE WILL NOT coercively interrogate applicants con-
cerning their union status.
WE WILL NOT tell applicants that they lost employment
opportunities because of their support for the Union.
WE WILL NOT refuse to hire, or consider for hire, appli-
cants because of their union or other protected concerted
activities.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce employees in the exercise of their
rights listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Shawn McMillan, Luis Bolaños, and Gusta-
vo Gonzalez employment in the position in which they
would have been hired in the absence of discrimination
against them or, if that job no longer exists, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
WE WILL, jointly and severally with Respondent Aim
Royal, make Shawn McMillan, Luis Bolaños, and Gus-
tavo Gonzalez whole for any loss of earnings and other
benefits suffered as a result of both Respondents’ dis-
crimination against them, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusals to hire or consider for hire and within 3 days
thereafter notify the employees in writing that this has
been done and that this unlawful conduct will not be used
against them in any way.

JACOBSON STAFFING, L.C.

John Giannopolis, Esq., for the General Counsel.
Thomas M. Rogers and Kristin M. Mackin, Esqs. (LaSota &
Peters PLC), of Phoenix, Arizona, for Respondent AIM.
Kevin J. Kinney, Esq. (Krukowski & Costello, S.C.), of Mil-
waukee, Wisconsin, for Respondent Jacobson.
Gerald Barrett, Esq. (Ward, Keenan, & Barrett, P.C.), of
Phoenix, Arizona, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This case
was tried in Phoenix, Arizona, on February 8–12, and 17, 2010.
The charges and amended charge were filed by the Internation-
al Association of Heat & Frost Insulators & Allied Workers,
AFL–CIO, Local No. 73 (the Union) on July 17, September 28,
and October 30, 2009,1 and the order consolidating cases, con-
solidated complaint, and notice of hearing (the complaint) was
issued October 30. The complaint alleges that Aim Royal Insu-
lation, Inc. (Aim) and Jacobson Staffing, L.C. (Jacobson) are
joint employers and, as clarified by the General Counsel, alleg-
es that Aim violated Section 8(a)(1) by interrogating employees
concerning their union activities and creating the impression
that those activities were under surveillance and violated Sec-
tion 8(a)(3) and (1) by failing to reinstate striking employee
Jose Gurrola to his former position or to a substantially equiva-
lent position and failing to consider for hire or hiring Gurrola,
Angel Aizu, Shawn McMillan, and nine other named employ-
ee-applicants. The complaint also alleges that Aim maintained
several provisions in its employee handbook that required em-
ployees to obtain permission before leaving a jobsite before the
designated quitting time and indicated that leaving the jobsite
without the requisite permission may be lead to automatic ter-
mination. The complaint alleges that Jacobson violated Section
8(a)(1) by threatening employee-applicants with loss of em-
ployment opportunities because of their union activities and
interrogating employee-applicants concerning those activities,
and violated Section 8(a)(3) and (1) by failing to consider for
hire or hiring Shawn McMillan, Luis Bolaňos, Gustavo Gonza-
lez, and Aizu. Aim and Jacobson filed timely answers that, as
clarified at hearing, admitted the allegations in the complaint
concerning filing and service of the charges, jurisdiction, labor
organization status, joint employer status as it pertains to em-
ployees referred by Jacobson to Aim, and relevant agency sta-
tus; both denied the substantive allegations of the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel
2
Aim and Jacobson, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Aim, a corporation, is engaged in the business of construc-
tion and repair of commercial insulation systems out of its fa-
cility in Phoenix, Arizona, where it annually purchases and
receives goods valued in excess of $50,000 directly from points
located outside the State of Arizona. Aim admits and I find that
it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Jacobson, a corporation, is
engaged in the operation of an employment agency, including
providing “temporary to permanent” labor, with facilities in
several States including an office located in Phoenix, Arizona,
where it annually provides services to enterprises located with-
in the State of Arizona, including Aim, which in turn are en-
gaged in interstate commerce within the meaning of Section
2(2), (6), and (7) of the Act. Jacobson admits and I find that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Aim and Jacobson admit

1 All dates are in 2009, unless otherwise indicated.
2 I grant the General Counsel’s unopposed motion to correct tran-
script that is attached to his brief.
AIM ROYAL INSULATION, INC. 799

and I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. FACTS
A. Background
Michael J. Gibbs is owner and president of Aim and Jeff
Herron is vice president and part owner. Lazaro Campos is
Aim’s superintendent; he is in charge of the daily operations
and made decisions concerning hiring of insulators subject to
Gibbs’ final approval. During the relevant time period Aim
employed about 15–20 full-time insulators.
Sandy Chavez is Jacobson’s account manager and its only
employee at its Phoenix office. She is responsible for recruit-
ing, interviewing, and hiring employees to satisfy the needs of
its clients. Since 2008, Aim and Jacobson have been parties to
a contract that provides that Aim will use the services of Jacob-
son for temporary and temporary to permanent employees at
Aim’s Phoenix location. Under this contract Aim pays Jacob-
son an hourly rate for each employee used by Aim. Jacobson,
in turn, pays and provides benefits to the employees.
Lazaro Campos notifies Chavez when Aim is looking to em-
ploy additional temporary workers. Chavez then initially inter-
views applicants to determine whether they would satisfy
Aim’s needs and then sends them to Aim. Campos then also
interviews the applicants and decides whether or not to hire
them. Aim and Jacobson admit that they are joint employers
of the employees referred by Jacobson and used by Aim.
B. Aim’s Employee Handbook
Aim’s Employee Handbook contains the following provi-
sions:

Employees shall not leave the project other than at designated
quitting times, unless authorization is obtained from the fore-
man or supervisor.

. . . .

Employees are required to be at their assigned work areas at
the beginning of each work day and shall not [l]eave the des-
ignated area without obtaining authorization fro[m] their
foreman or superintendent.

. . . .

Leaving Job Site. Any employee leaving the job site without
the approval of the office or the supervisor may be automati-
cally terminated.

Employees sign a form indicating that they have read and un-
derstood the employee handbook and that failure to abide by its
rules could result in termination.
Analysis
Aim’s employee handbook forbids employees from leaving
the jobsite without permission and provides that employees
who do so without permission may be automatically terminat-
ed. The General Counsel contends that these rules impinge
upon the right of employee to strike, a right that does not re-
quire an employer’s permission. In Labor Ready, Inc., 331
NLRB 1656 fn. 2 (2000), the Board held that a rule that forbids
employees from walking off a job under penalty of discharge
violated Section 8(a)(1). More recently, in Crowne Plaza Ho-
tel, 352 NLRB 382, 386–387 (2008), the Board held that work
rules that forbid employees from leaving their work area with-
out authorization before completion of their shift and from
walking off the job violated Section 8(a)(1). The Board rea-
soned that:

[T]hese rules unlawfully overbroad because an employee
would reasonably read these rules as, respectively, requiring
management’s permission before engaging in such protected
concerted activity, thereby allowing management to abrogate
the Section 7 right to engage in such activity, or altogether
prohibiting employees from exercising their Section 7 right to
engage in such protected concerted activities.

Id. (footnotes omitted). Applying this case law, it follows that
Aim’s rules forbidding employees from leaving the jobsite
without permission under penalty of termination likewise im-
pinge upon employees’ rights under Section 7 to concertedly
engage in a work stoppage. In its brief Aim cites Bechtel Pow-
er Corp., 239 NLRB 1139 (1979). That case is inapposite be-
cause it dealt with a situation involving raising complaints on
company time. By maintaining work rules that prohibit em-
ployees from leaving the work area or jobsite without permis-
sion, Aim violated Section 8(a)(1).
C. Aim’s Hiring Practices
Regarding hiring of insulators, Aim’s general practice is not
to accept applications for employment from persons who walk
in its office. To this end Aim has signs posted both on a win-
dow and on a door at its facility indicating that it is not accept-
ing applications. Instead, Aim relies on rehiring former em-
ployees, including those fired for cause, and recommendations
from current employees and supervisors to fill its hiring needs.
Applications for these persons are then completed after the
hiring process is started. In addition, Aim began using Jacob-
son’s services to find insulators to work temporarily for Aim.
Aim hired the following insulators beginning May 27; this
date is important because, as explained below, beginning on
that date and continuing through July a number of union appli-
cants sought employment with Aim:

Manuel Murrieta - July 17 (previously employed by AIM).
Mario Chavez – July 8 (previously employed by AIM).
Anthony Sandoval – June 10 (previously worked for AIM).
Luis Jaime – July 15
George Campos – June 16 (previously employed by AIM).
Sean Herron – May 27
Jacob Ollarsava – July 24
William Loy – June 26 (previously employed by AIM).
Victor Hernandez – August 10

Aim’s workload was increasing substantially in July and em-
ployees were working a lot of overtime. Lazaro Campos found
it necessary to perform insulation work himself; this was unu-
sual.
Number 1 above, Murrietta, was rehired after he had been
fired for cause when he did not appear for work; Murrieta oth-
erwise was a good worker. Murrieta filed a claim for unem-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 800
ployment insurance with the State of Arizona and Aim indicat-
ed that Murrieta had been fired on May 19, 2008, for:

[C]onsistently being late to work, leaving work early and de-
ficient work performance. He was warned in writing two
times before he was fired. After we fired him he joined As-
bestos Workers Union (Local 73) and has been employed
with other insulation contractors since. For these reasons we
protest this claim.

In fact, Aim lost the customer on which Murrieta had been
working. Before Murietta was rehired he told Lazaro Campos
“bad things” about the Union. Number 2 above, Chavez, was
also rehired after having been fired for cause. Aim’s records
indicate the Chavez was fired on October 24, 2008, for:

To[o] many customer complaints & employee complaints.
Would not do as told, he would not order material accordingly
was always running out of material & was not working when
his title is workin[g] foreman.

Lazaro Campos also knew that Chavez had been in the Un-
ion before Aim rehired him, but he too complained to Campos
about the Union before Aim agreed to rehire him. Number 3,
Sandoval, has previously been fired by Aim because he was
failing to show up for work. Number 4, Jaime, was recom-
mended for employment by employee Murrietta. Number 5,
George Campos, is the brother of Lazaro Campos, Aim’s super-
intendent. George Campos had been fired earlier by Lazaro
because George was not sufficiently productive. Number 6,
Sean Herron, is Jeff Herron’s son and Gibbs’ grandson and
works during the summer when he is not in school. He worked
in the warehouse where, among other things, he helped with
prefab work that is typically part of work performed by insula-
tors. Employee Joseph Campos, recommended number 7, Ol-
larsava, for employment. Loy, number 8, had earlier been ter-
minated by Aim after Lazaro Campos discovered that Loy did
not appear at a jobsite as scheduled. Lazaro Campos recom-
mended number 9, Hernandez, for employment.
Armando Torres was originally listed by Aim as a “walk-in”
but Lazaro Campos credibly explained that this was an error
and instead Torres was recommended for hire by employee
Juan Torres.
D. Organizing Effort
The Union had a detailed, written organizing plan for Aim.
The goal, unsurprisingly, was to get Aim to sign a contract.
The plan included the use of “salts” and “peppers” and de-
scribed efforts to get the 30 percent of employees to sign au-
thorization cards that are needed to trigger an NLRB election.
The plan included the following:

If we don’t have enough support to win an election we should
file Unfair Labor Practice’s to buy time to gain support.

Dale Medley, a business agent for the Union, credibly testified
that this meant the Union would file charges only when there
was evidence to support them. In fact, apart from the charges
involved in this proceeding, the Union filed one other charge.
That charge was filed on June 27, 2008, and withdrawn on July
8, 2008. Aim contended at trial and argues in its brief that the
Union’s organizing plan served to remove the union organizing
activity, in particular that of Jose Gurrola described below,
from the protection of the Act. However, I have examined the
plan and find nothing in it worthy of mention that supports such
a conclusion. Also, I reject Aim’s assertion that I should draw
an adverse inference from the Union’s alleged failure to pro-
duce certain minutes that Aim had subpoenaed. Although there
was some initial lack of clarity in the Union’s response, the
matter was finally resolved to my satisfaction and I conclude
that the Union has provided Aim with all the requested docu-
ments.
Jose Gurrola is an organizer for the International Association
of Heat and Frost Insulators and Allied Workers Union; he has
also worked as an insulator. He was assigned to seek work at
Aim and then organize its employees. On May 16, 2008, Gur-
rola went to Aim’s office and asked for, was given, and com-
pleted an application for employment. This is notwithstanding
the sign posted by Aim indicating that it was not accepting
employment applications. After speaking with Lazaro Campos
by telephone Gurrola was hired. At that time he was neither a
former employee nor was he referred for employment by any
Aim employee thereby contradicting Aim’s general hiring prac-
tice. Campos did not know that Gurrola was an organizer for
the Union at the time he hired Gurrola. In mid June 2008 Gur-
rola began wearing union “paraphernalia” at work. On July 2,
2008, the Union notified Aim by letter that Gurrola had signed
an authorization card and would be soliciting other employees
to do so also. At times during 2008 the Union distributed
handbills to employees criticizing Aim’s employment policies
and encouraging employees to join the Union.
Gurrola and the Union planned that Gurrola would go on
strike at some point. Gurrola observed that at times Aim did
not provide water for its employees at jobsites where they were
working; he discussed this issue with other employees. Re-
member that these jobsites are in the Phoenix area and that this
occurred during the summer. On July 17, 2008, the employees
working for Aim at the Gila River Indian Project, including
Gurrola, ran out of water. There were other contractors work-
ing on the site and these contractors provided water for their
employees. These contractors would certainly allow a thirsty
employee from another contractor to have some water if the
employee’s own employer had failed to provide water, but it
was understood that each contractor should supply water for its
own employees. On July 18 Gurrola met Joseph Campos, the
lead person for Aim at the Gila River Indian Project, at Aim’s
office before starting work. Gurrola picked up some keys to
the project because Campos was going to be late arriving at the
project. Joseph Campos told Gurrola that he would fill the jug
with water and bring it to the jobsite later. When Gurrola ar-
rived at the project at around 6 a.m. it was hot outside and of
course Aim had still not placed water on the jobsite for its em-
ployees; Gurrola was also unable to find any dust masks. He
called Angel Aizu, organizer for the Union, reported these ob-
servations to him, and indicated that this would be the day he
went on strike. They had previously planned that when Gurrola
went on strike Aizu would come to assist Gurrola. Gurrola
then also called Lazaro Campos at about 8:12 a.m. and told him
he was on strike because there was no water and no dust masks
at the site. Campos then called Gibbs and informed Gibbs of
AIM ROYAL INSULATION, INC. 801

the matter and indicated that Aim did not, in fact, have water at
the site for its employees that morning. Gurrola stopped work
and began his strike. He and Aizu picketed outside the jobsite
with signs reading “Strike. AIM Royal Insulation.”
On July 18, 2008, Gibbs sent Gurrola a letter regarding the
work stoppage that read:

It has come to my attention that you informed the labor super-
intendent that you were going on strike because of your alle-
gation that Aim Royal Insulation would not provide you with
drinking water at the jobsite. This is not a true statement.
Drinking water has been provided on site for you. Had you
asked the superintendent he would have advised you that the
foreman that brings the water was going to be a half hour late
today. This is your notice that you must contact the superin-
tendent for assignment for Monday, July 23, 2008. If you do
not it may be grounds for dismissal from Aim Royal Insula-
tion.

Aim terminated Gurrola on July 24, 2008. That same day,
July 24, Gurrola went to Aim’s office with a handwritten note
that read “Aim Royal Insulation will provide proper safety
equipment and will also provide water to all their employees to
all jobsites being performed.” Gurrola announced that he
would end his strike and return to work if Aim agreed to those
demands. Aim refused to accept the handwritten note. Instead,
Gurrola was told that he had been terminated. Gurrola made a
recording of the conversations, and from the transcript of the
recording it is clear that the reason Gurrola was fired was be-
cause he went and remained on strike. Indeed, according to
notes made by Gibbs shortly after this event:

[I] said that his actions on the job and the fact that he did not
contact Lazaro [Campos] for placement for employment was
(sic) considered abandonment of his position at this company.
He said he didn’t quit and that we were firing him for union
activities. He was told that the union did not matter to us but
that we cannot allow employee to arbitrarily walk of[f] jobs
and jeopardize relationships with contractors or employees.

Gurrola then explained to Gibbs that he was on an economic
strike for the benefit on Aim’s employees over the issues of
lack of water and masks at the jobsite.
As part of the organizing effort, in 2009 the Union sent let-
ters to governmental agencies concerning Aim.
E. Complaint Allegations against Aim
In April 2009 Gurrola called Aim and spoke with Lazaro
Campos, Gurrola unconditionally offered to return to work, but
Campos told Gurrola that he no longer worked for Aim. As
noted above, Aim hired a number of insulators over the period
of time beginning May 27 through August 10. On May 27,
2009, Gurrola and Aizu went to Aim’s office; Gurrola made a
tape recording of the conversation that occurred. Gurrola asked
for work so he could end his strike and return to work uncondi-
tionally. Aizu also sought employment and left an employment
application. They were told that things were slow and no work
was available. Aizu credibly testified that he would have ac-
cepted employment if it were offered. That same day Gurrola
contacted Lazaro Campos by telephone and made an uncondi-
tional offer to return to work. On June 1 and 9 Aizu called
Aim’s office and indicated that he had left an employment ap-
plication and asked if Aim was hiring; in both instances he was
told that things were slow.
On June 23 the Union faxed applications for employment for
Luis Bolaňos, Ezequiel Macias, Jose Flores, Adrian Anaya,
Nathan Collison, Darrel Speakman, Chester McClure, Pablo
Equizabal, and John Rohrback to Aim. Earlier, on June 12
Speakman, a member of the Union, filled out an application for
Aim after a layoff and being informed that he would be out of
work for quite a while. He received the application from Aizu
who informed him that he would send it to Aim upon comple-
tion. Aizu placed the word “organizer” on the top of the appli-
cation as well as on the remaining eight applications. Bolaňos
likewise filled out an application for Aim at Aizu’s urging.
Aizu told him that he would send the application to Aim. Bo-
laňos, who was unemployed at the time he filled out the appli-
cation, credibly testified that he would accepted employment
there if it had been offered. Jose Flores, Adrian Anaya, John
Rohrback, Pablo Equizabal, Chester McClure, Nathan Cullison,
Ezequiel Macias, all also completed applications, gave them to
Aizu, and credibly testified that they would have accepted em-
ployment with Aim if they had been offered positions. It was
apparent to Gibbs from the content of the applications that the
Union had sent them. Gibbs admitted that Aim never consid-
ered hiring those applicants, explaining that Aim continued to
be able to fulfill its needs under the process that excluded walk-
in applicants. Gibbs retained those applications and kept them
on his desk.
Analysis
The complaint alleges that Aim refused to reinstate Gurrola
to his former position or to a substantially equivalent position
or to place him on a preferential hiring list after he terminated
his strike and made an unconditional offer to return to work.
However, I have concluded that Aim terminated Gurrola’s em-
ployment on July 24, 2008. No charge was filed to challenge
the legality of that termination and the 10(b) period has long
expired. I may not make a finding concerning its legality. The
rights under Laidlaw Corp., 177 NLRB 1366 (1968), enfd. 414
F.2d 99 (7th Cir. 1969), flow to former strikers who remain
employees and not to former employees. The General Counsel
cites Lee A. Consaul Co., 192 NLRB 1130 (1979). In that case
the Board adopted the judge’s finding that strikers who were
fired outside the 10(b) period but who later made unconditional
offers to return to work were nonetheless entitled to the
Laidlaw rights. But this finding is contrary to countless other
Board cases that hold that Laidlaw rights end when a striker has
been lawfully fired and here Section 10(b) precludes me from
finding otherwise. It appears, however that the Board later
found it significant that in Lee Consaul there was an “agree-
ment acknowledging the possibility of reinstatement of dis-
charged strikers constituted "changed circumstances," amount-
ing, in effect, to rescission of the discharges and restoration of
the status of striking employees. (footnote omitted)” Wood-
lawn Hospital, 233 NLRB 782, 790 (1977). There is no such
agreement in this case. I agree with Aim’s observation in its
brief that:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 802
If an employee after an unchallenged . . . termination can re-
ceive the right to reinstatement . . . by simply walking in and
offering unconditionally to return to work, Section 10(b) is
nullified.

I dismiss this allegation.
The complaint alleges that Aim violated the Act when in
about April after Gurrola made his unconditional offer to return
to work Lazaro Campos told him that he no longer worked for
Aim. The General Counsel cites H.B. Zachary Co., 319 NLRB
967, 969, enforced in part sub nom. International Brotherhood
of Boilermakers v. NLRB, 127 F. 3d 1300 (11th cir. 1997). But
that case involved a typical 8(a)(1) threat that connected dis-
charge with protected concerted activity. Here, Campos told
Gurrola that Gurrola no longer worked for Aim, that statement
was not connected to any activity protected by Section 7.
Moreover, as more fully described above, Gurrola in fact had
been terminated by Aim outside the 10(b) period that is appli-
cable to this case and thus the legality of that discharge cannot
be challenged in this proceeding. Under these circumstances I
dismiss this allegation of the complaint.
The complaint next alleges a number of violations concern-
ing employee-applicants. In Toering Electric Co., 351 NLRB
225 (2007), the Board criticized the practice of labor organiza-
tions in some salting campaigns of submitting batched applica-
tions on behalf of workers who were neither aware of the appli-
cations nor interested in employment with the employer. The
Board also criticized applicants for employment that engage in
conduct clearly inconsistent with an intent to gain employment.
The Board condemned employment application practices de-
signed solely to create a basis for unfair labor practice charges
and thereby inflict substantial litigation costs on employers. To
remedy these described abuses, the Board placed an additional
burden on the General Counsel to establish that applicants for
employment have a “genuine interest in seeking employment.”
In this case I conclude that all the applicants for employment
genuinely sought employment at Aim or, as described below,
Jacobson. All credibly testified that they intended to accept
employment from these employers; all were in personal cir-
cumstances where accepting employment seemed entirely rea-
sonable, and none of the applicants engaged in any conduct that
could be considered as inconsistent with accepting and remain-
ing employees.
In addressing these allegations I next apply FES, 331 NLRB
9 (2000), enfd. 301 F.3d 83 (3rd Cir. 2002). Here, the General
Counsel has established that all the applicants had the experi-
ence necessary to perform the work for Aim and Jacobson. The
evidence also shows that Aim was hiring and had concrete
plans to hire during the period May 27 through July 15, the
time period specifically covered by the allegations in the com-
plaint. I have described above how during the time period May
27 through August 10, a time period that I conclude may be
appropriately considered by the complaint allegations, see Zar-
con, Inc., 340 NLRB 1222, 1228–1229 (2003), Aim hired about
8–9 insulators.
I now specifically address the allegations to determine
whether antiunion animus played a role in Aim’s failure to hire
the applicants for employment. The first complaint allegations
pertain to the May 27 and July 7, 2009, applications for em-
ployment to Aim made by Gurrola and Aizu. As to Gurrola, I
again note that he had been employed by Aim previously and
had been fired on July 24, 2008. Under most circumstances my
analysis would quickly end because many employers do not
rehire employees that they have fired. But Aim specifically
relies on its practice of doing so as a means of supplying its
hiring needs so as to avoid hiring unknown applicants, includ-
ing those who might be supporting a union. I have described
above the more specific circumstances of how Aim rehired
workers it had earlier discharged for cause during the very time
period it had refused to rehire Gurrola. Because Gurrola was a
previous employee and because Aim hires workers that have
worked for it in the past, even if fired for cause, the more pre-
cise question becomes why did Aim not rehire Gurrola. Gibbs
admitted that he never considered rehiring Gurrola for any of
the positions that were filled in the weeks following Gurrola’s
attempt to be rehired. Gibbs explained that “Gurrola has never
expressed to this company a remorse for his actions when he
was terminated.” Gibbs later expanded that he did not consider
rehiring Gurrola because:

Attitude. When you have an organization you can’t have
people on their own being disruptive to this organization.
With the fact of what was done, what transpired during that
period of time, we determined that we did not want him to be
an employee at AIM Royal.

In context I conclude that Gibbs was referring to the fact that
Gurrola had engaged in a strike against Aim and that was the
reason Aim failed to rehire him. I further conclude that the
strike was part of Gurrola’s union activity. See NLRB v. Town
& Country Electric, Inc., 516 U.S. 85, 95–96 (1995) (“the em-
ployer has no legal right to require that, as part of his or her
service to the company, a worker refrain from engaging in pro-
tected activity”).
Aim argues that Gurrola’s strike was unprotected for a num-
ber of reasons. First, Aim argues that Gurrola’s activities were
not concerted. But the strike and ensuing picketing were by
their very nature designed to induce other workers to join in.
This is especially so because the reasons for the strike quickly
spread across the jobsite that day. This distinguishes the cases
cited by Aim in its brief; they involved safety complaints and
did not involve a strike and picketing. Next, Aim argues that
Gurrola’s strike was unprotected because he failed to first in-
form Aim of the reason behind the strike. But neither the facts
nor the law support this argument. As a matter of fact I have
described above how Gurrola called Lazaro Campos at 8:12
a.m. and informed him of the reason for the strike; this was
before Aizu arrived and before they began picketing at the
jobsite. As a matter of law, there is no requirement that em-
ployees first give notice to an employer before engaging in a
strike. Aim cites House of Raeford Farms, Inc., 325 NLRB
463, 467–468 (1998). But there the Board stated:

[W]e do not agree with the judge’s suggestion that an explicit
demand made upon the employer is a necessary prerequisite
to a finding of protected activity. See, e.g., McEver Engineer-
ing, Inc., 275 NLRB 921, 925–926 (1985).

AIM ROYAL INSULATION, INC. 803

Id. at 463 fn. 2. Aim also implies that Gurrola’s strike was
unprotected because there was water on the jobsite, albeit not
Aim’s water, that was available to Gurrola and because Aim
would have eventually supplied its own water at the site later
that day. The fact remains, however, that the failure of Aim to
provide water for its employees at the jobsite, especially in
Phoenix during the summer, is a condition of employee over
which employees are entitled to strike. The Board does not
second guess employees to assess whether the matter at issue
was really worthy of complaint. Al Monzo Construction Co.,
Inc., 198 NLRB 1212, 1214 (1972), enfd. 485 F.2d 680 (3d.
Cir. 1973). In summary, I conclude that Gurrola’s strike was
protected under the Act. By failing to hire and to consider hir-
ing Gurrola because he engaged in union activity, Aim violated
Section 8(a)(3) and (1).
I now address the complaint allegations concerning Aizu. In
doing so I apply Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management, 462 U.S.
393 (1983). The facts show that Aizu was a union organizer
and Aim knew this. Aim’s hostility towards the Union is
shown by the unfair labor practices it committed as described
above. I conclude the General Counsel has met his initial bur-
den under Wright Line. I now assess whether Aim has shown
that it would not have hired Aizu even if he had not been a
union supporter. In support of this defense Aim points to its
hiring practice. That practice, as described above, relies on
rehiring former employees, including those fired for cause, and
recommendations from current employees and supervisors to
fill its hiring needs. The facial validity of this practice is not
challenged by the General Counsel and appears to be consistent
with similar policies that the Board has found to be lawful.
See, e.g., T.E. Briggs Construction Co., 349 NLRB 671 fn. 3
(2007). The General Counsel argues that Aim’s support for this
practice is based on Gibbs’ testimony and that his testimony is
not credible. While indeed I question Gibbs’ testimony in other
parts of this decision, I do credit Gibbs’ testimony concerning
Aim’s hiring practice. This testimony is corroborated by Laza-
ro Campos and to some degree by business records. The Gen-
eral Counsel argues that Gurrola and one other employee were
hired in contradiction of this practice in that they were hired as
new employees “off the street.” But these occasional and spo-
radic deviations are insufficient to undermine the existence of
the general practice. Next, the General Counsel argues that the
result of Aim’s hiring practice is that Aim was able to reject
competent union applicants by hiring back employees that it
had fired for cause. But there is no contention that this policy
is facially unlawful and there is no allegation in the complaint
that this practice was adopted for an unlawful purpose. As I
understand the law, it does not matter that the policy, as here,
results in the exclusion of qualified union applicants from the
hiring process.
Having resolved the issues concerning Aim’s hiring practice,
I now use that practice to determine whether Aim would have
excluded Aizu from consideration for hire even if he were not a
union supporter. Because Aizu was neither a former employee
nor was he recommended by a current employee he did not
qualify for consideration under Aim’s practice. It follows that
Aim has shown that it would not have hired Aizu or consider
hiring him even if he were not a union supporter. I dismiss
these allegations. Similarly, none of the nine employees whose
applications were faxed to Aim by the Union on June 23 fit into
Aim’s hiring practice; I dismiss that allegation in the complaint.
The same analysis dictates the dismissal of the complaint alle-
gations that Aim refused to hire or consider Aizu for hire on
about June 1 and June 10.
Returning to the facts of the case, on about July 15 Shawn
McMillan called Aim and spoke with Campos. McMillan said
that he wanted to come back to work for Aim. McMillan had
worked for Aim 2 or 3 years earlier but had been laid off due to
a reduction in force after a project was completed. Campos
told McMillan that he had to talk to Gibbs who was not availa-
ble at that time. On about July 16 Gibbs met with McMillan at
Aim’s office. McMillan asked Gibbs if there was any work.
Gibbs answered there was none at that time, but he would talk
to Campos and look into getting some work for McMillan.
During the course of the conversation Gibbs said:

I kind of heard that you were part of the union and how is that
going for you, and I (McMillan) told him it’s not really going
for me at all because I didn’t have no work at the time, and I
was just trying to get some work any way I could honestly.

The facts in the preceding paragraph are based on McMil-
lan’s credible testimony. According to Gibbs, after McMillan
indicated he wanted to work again for Aim, Gibbs explained
that he did not know what his present labor needs would be, but
that he had been told by Lazaro Campos that Aim needed addi-
tional workers. Gibbs said that he would check with Campos
and see if they needed workers. According to Gibbs, during the
course of the meeting McMillan indicated that the Union had
approached him and offered him a third year apprenticeship if
he would work for the Union. Gibbs denied there was any
quizzing. Based on my observation of the relative demeanors
of Gibbs and McMillan, I do not credit Gibbs’ testimony that
there was no quizzing. Gibbs testified that he consulted with
Campos and decided not to respond to McMillan’s request to
return to work for Aim. According to Gibbs, this was because
when McMillan came to the office to pick up his check after
being laid off several years ago McMillan said in “a very dra-
matic tone” “Do me a favor, lose my phone number.” Gibbs
went on to describe how “[T]here’s no reason for me to have to
put up with belligerence. It was in the normal course of busi-
ness and I was being subjected to his disdain for being dis-
charged.” This obvious exaggeration supports my conclusion
to discredit Gibbs testimony. Lazaro Campos testified that
McMillan stormed out of the office on that occasion and in a
rude way as he said “lose my number.” McMillan’s version of
this is that he was disappointed about having been laid off and
simply stated to Gibbs to “lose his number” after Gibbs told
him that Gibbs would call him if worked picked up. I conclude
McMillan’s testimony is again the most credible. As described
above, Aim hired insulators on July 15, 17, and 24.
Analysis
The complaint contends that in about mid July Gibbs inter-
rogated employees concerning their union activities and created
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 804
an impression among employees-applicants that their union
activities were under surveillance. I have concluded above that
Gibbs stated to McMillan that he had heard that McMillan was
part of the union and asked how it was going for him. Ques-
tions concerning union status are not per se violation of the Act.
Rather, accompanying circumstances must be assessed to de-
termine whether the questioning is coercive. Rossmore House,
269 NLRB 1176 (1984), enfd. sub nom. HERE Local 11 v.
NLRB, 760 F.2d 1006 (1985). In analyzing these allegations I
take into account McMillan’s status as an employee-applicant.
The Board has held that employee-applicants, like McMillan,
are particularly susceptible to the coercive effects of interroga-
tions concerning their union support. Gilberton Coal Co., 291
NLRB 344 (1988). I note that Gibbs was the highest ranking
official for Aim and had ultimate control over hiring. I also
note that the subject matter was raised by Gibbs and was not
part of a general conversation initiated by McMillan. I con-
clude that Aim violated Section 8(a)(1) by coercively interro-
gating an employee-applicant concerning his support for the
union. I dismiss, however, the allegation concerning the im-
pression of surveillance. I note the circumstances here that
McMillan was openly a member of the Union and had worked
on union projects. It strikes me as unlikely that an employee
would then reasonably believe that his union activity was under
surveillance. Rather, it is more a prelude to the interrogation
that I have concluded was unlawful.
I now address the allegations in the complaint that Aim un-
lawful refused to hire or consider for hire Shawn McMillan. I
have described above how on about July 15 McMillan sought
re-employment with Aim and how Aim was hiring during that
time period. McMillan supported the Union, Aim knew this,
and Aim was hostile to the Union. Moreover, the reason given
by Aim to McMillan as to why he was not rehired was false and
the reason given at trial, as explained above, was patently ex-
aggerated. I conclude that the General Counsel has established
his burdens under FES and Wright Line. As a former employee
McMillan was eligible for rehire under Aim’s hiring practice,
even if he had been fired for cause. At the trial and in its brief
Aim sought to explain why it nonetheless failed to hire or con-
sider hiring McMillan. Relying on Gibbs’ testimony, Aim
argues that McMillan unlike other former employees that were
rehired despite having been fired for cause, McMillan never
expressed remorse for having told Aim to “lose my number.”
But as the General Counsel pointed out, unlike those other em-
ployees Aim never broached the matter with McMillan. In any
event, Gibbs’ testimony in this regard is again wholly incredi-
ble. I conclude that by failing to hire and to consider hiring
McMillan because he engaged in union activity, Aim violated
Section 8(a)(3) and (1).
F. Complaint Allegations against Jacobson
Returning to the facts of the case, on about June 30 Lazaro
Campos called Chavez, Jacobson’s contact person, and request-
ed that insulators be sent to Aim. That same day as Chavez
attempted to fill Aim’s request she spoke to Imuris Garcia.
Garcia, a friend of Shawn McMillan, told Chavez that McMil-
lan was also looking for work as an insulator.3 On about July 1
Chavez interviewed Garcia and Marcellino Trujillo and sent
them to Aim. Campos interviewed Garcia and Trujillo, hired
them and they started work at Aim the next day.
After referring Garcia and Trujillo, Chavez then called
McMillan. At the time Chavez called McMillan he was with a
friend, Mark Waters; McMillan put the call from Chavez on the
speaker phone and Waters was able to hear the conversation.
Chavez asked McMillan if he was looking for insulation work
that paid $11 per hour and he replied that he was. At this point
the evidence becomes contradictory. Initially in his testimony,
according to McMillan, after asking about his experience,
Chavez asked if he was part of the union; McMillan replied that
he was. Chavez said that was all she could do for him right
then and the conversation ended. Later in his testimony, in
response to my question, McMillan stated that;

[Chavez] told me that she would look for work and she’ll call
me back because I told her at the time that I wasn’t really sure
if I could join Jacobson Staffing Company or go through Aim
Royal because of my union status, and she, oh, you’re part of
the union, and then she kind of said I can’t really help you
then, and hung up on me.

Based on my observation of McMillan’s demeanor, I credit the
testimony he gave in response to my question. This testimony
is confirmed to some extent by Water’s testimony. Waters
testified that he recalled an instance when McMillan used the
speaker phone feature and remembered that McMillan said he
was looking for a job but the person that he was talking to said
they would not hire McMillan either because he was or was not
a union member, Waters could not recall which it was. Accord-
ing to Chavez, McMillan expressed interest in working but
stated that he was in the union and he was not sure if he could
work for a nonunion company. Chavez said that if he changed
his mind he should call her back. But as described below I
have generally not found Chavez to be a credible witness and I
do not credit her testimony here either.
Analysis
The complaint alleges that on about July 1, Jacobson through
Chavez threatened employee-applicants with loss of employ-
ment opportunities because of their union activities. I have
described above how Chavez told McMillan that because he
was part of a union she could not help him find work. This
amounted to telling McMillan that he would not be hired be-
cause of his union status. Such comments violate the Act. J &
R Roofing Co, Inc., 350 NLRB 694, 694–695 (2007). By tell-
ing an employee-applicant that he could not be hired because of
his union status, Jacobson violated Section 8(a)(1). The com-
plaint alleges that on about July 1 Jacobson unlawfully refused
to consider for hire or hire McMillan. I have described above
how Chavez called McMillan and inquired whether he wanted
to work for Aim but McMillan said he was not really sure if he
could join Jacobson or go through Aim Royal because of his

3 Recall that I have described above how later, on July 15, McMillan
applied directly with Aim and Aim unlawfully refused to hire him.
AIM ROYAL INSULATION, INC. 805

union status. I conclude that McMillan did not apply for work
on this occasion and I dismiss this allegation of the complaint.
Returning to the facts, telephone records establish that
McMillan called Jacobson on July 2 at 11:45 a.m. but McMil-
lan provided no testimony concerning this second conversation.
Rather, McMillan claims that despite the fact that Chavez hung
up on him due to his ties with the Union she nonetheless called
him back several days later and asked him to come in and fill
out paperwork right away. According to Chavez, McMillan
called her back and said that the f –ing union was not giving
him enough hours so he did not want to be with the f –ing un-
ion anymore and that he needed a f –ing job right then, any job,
no matter what it paid. In the light of the telephone records, the
absence of testimony by McMillan concerning the content of
the call, and the unlikelihood that Chavez would hang up on
him one day because of his union ties yet call him back inviting
him to come in with no change in his union status, I conclude
that McMillan called Chavez on July 2 and renounced his ties
to the Union and sought employment.
Aim needed more workers so on July 14 Chavez sent Isidro
Ortega and Claudio Rendon to Aim; both retained by Aim. On
that same day, July 14, Chavez called McMillan and told him to
come in and fill out some paperwork right away. Telephone
records confirm that the next call between Chavez and McMil-
lan occurred on July 14, when three calls were made; at 8:55
a.m., 9:06 a.m, and 12:05 p.m. McMillan went to Jacobson’s
office that day and was given paperwork to complete. After
completing the paperwork, according to McMillan, Chavez
said:

[H]ow is this going to affect your union status. I asked her
what did she mean, and we kind of cut off the conversation
right there and simply jumped in and she said, oh, you have to
watch the safety (video) and you have to do this, trying to
avoid my question.

Chavez then told McMillan to go home to get his social securi-
ty card and that if he did not return in 20 minutes she would
give the job to someone else. McMillan left and then returned
with his social security card. After completing the application
process Chavez told McMillan to go home, that Aim will call
him because there is an interview arranged for him there at
about 1 p.m. But after McMillan returned home Chavez called
and told him that Aim had backed out and there was no work
for him. The foregoing facts are based on the credible portions
of McMillan’s testimony. In deciding to credit this testimony I
have considered Chavez’s testimony. According to Chavez she
did call McMillan who then came to Jacobson’s office and took
an application form but did not complete it because he said he
was very busy and had to go pick up his kids, again using foul
language. McMillan returned to the office later that day and
completed the application. Chavez admitted that she told
McMillan that he was a good candidate for employment with
Aim. According to Chavez, she then contacted Lazaro Campos
and told him that she had a good candidate but Campos replied
that he was only looking for two workers and he had already
hired the first two applicants she had sent earlier that day, sent
away another two applicants but that she should keep that em-
ployee’s name on file for possible future use. According to
Chavez, she did not mention McMillan’s name to Campos.
Chavez then told McMillan that she was sorry but Aim already
had enough workers; McMillan got angry, used the f-word and
slammed the door on his way out. I again do not credit
Chavez’s testimony. It struck me as exaggerated and conven-
iently contrived to suit a litigation strategy; her demeanor was
not convincing. McMillan credibly denied saying that he had
to pick up his children from school or that he even has a child
in school and he denied slamming the door. On the other hand,
McMillan also denied that he used the f-word with Chavez and
denied that the word was part of his vocabulary. I do not credit
this testimony to the extent that it indicates that he never uses
the f-word.
Also on July 14, Luis Bolaňos and Gustavo Gonzalez ap-
peared at Jacobson’s office; they coincidentally arrived around
the same time. Both were sent there by Aizu, who told them
that Aim was looking for workers to hire through Jacobson.
Chavez told Gonzalez, who arrived first, that the company
(Aim) had already hired two workers that day and they were
going to hire two more. Chavez told Bolaňos that they were
looking to hire two people to work as insulators. After com-
pleting the paperwork Gonzalez and Bolaňos went into
Chavez’s office where she examined the paperwork and asked
questions. Bolaňos’ application indicated that he had worked
for Argus, a union employer. Also recall that Bolaňos’ applica-
tion was among those that the Union has sent to Aim on June
23 and that Gibbs had retained copies of those applications.
Chavez told Bolaňos that she wanted to send him for an inter-
view for an insulator position. Bolaňos testified that three tele-
phone conversations then ensued; Campos’ telephone records
confirm this testimony and show that the first call that occurred
between him and Jacobson on July 14 occurred at 11:40 a.m.,
followed by calls at 11:49 and 11:53, about the time that Gon-
zalez and Bolaňos were in Jacobson’s office. During one of the
calls to Aim Chavez indicated that she had applicants there
with insulation experience; she arranged for an interview for
Gonzalez at 1:30 p.m.; Chavez marked “1:30” on Gonzalez’s
application, again confirming Gonzalez’s testimony. After
more discussion on the telephone Chavez indicated that Aim
was not really interested in Bolaňos and no interview time was
set for him with Aim. That telephone conversation ended, but
shortly thereafter Chavez received a telephone call and she then
asked Gonzalez who sent him for the job and Gonzalez replied
“Angel” but he could not remember the last name. Then he
retrieved a business card from his wallet and showed it to
Chavez; the card bore the name of Angel Aizu and it indicated
that Aizu was an organizer for the Union; Chavez then wrote
the word “Union” on his application. Chavez then told the
person on the telephone that Angel Aizu from the Union had
sent Gonzalez. After Chavez ended the call she told Gonzalez
and Bolaňos that they were no longer interested in interviewing
Gonzalez and the interview was cancelled. Bolaňos comment-
ed that maybe it was because they worked for the union that
they did not want them. Chavez did not reply to that comment
but said she was upset because she had to look for more people.
Bolaňos asked about other work opportunities. Chavez asked if
he could drive a fork lift; Bolaňos said he did not but could
learn. Chavez told Bolaňos to call her two or three times a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 806
week if he was still looking for employment. Gonzalez then
left the office and called Aizu and told him what had occurred.
Aizu suggested that Gonzalez get a copy of the application he
had completed. Gonzalez attempted to do so, saying that he
needed it to continue to receive unemployment compensation;
Chavez did not give him a copy of the application but she did
assure him that she would confirm that he sought employment
there. Gonzalez and Bolaňos each credibly testified that they
were not working at the time they sought this employment and
would have accepted the position if it had been offered. After-
wards, Bolaňos did call Jacobson to see if other work opportu-
nities were available but was not referred for employment.
The facts in the preceding paragraph are based on a compo-
site of the testimony of Gonzalez and Bolaňos. The demeanor
of both struck me as witnesses trying their best to relate factual
information. Their testimony was generally corroborative and
consistent with telephone records. Chavez’ own writing con-
firms that a 1:30 appointment was set for Gonzalez and that
subject of the “Union” came up during the conversation. Sig-
nificantly, how would Gonzalez have known that Aim had
already hired two workers sent by Jacobson unless Chavez told
him? There is no evidence that he could have learned this in-
formation from any other source. I have considered the testi-
mony of Chavez and Campos. According to Chavez after ex-
amining the applications and interviewing Gonzalez and Bo-
laňos, Chavez informed them that she would send them to Aim
for an interview. At some point Chavez wrote “Union” on top
of the applications, but she denied that she was presented with
Aizu’s business card. According to Chavez, in the presence of
Bolaňos and Gonzalez she then called Campos and told him she
had two great candidates for him; Campos said he had hired the
first two and did not need any more workers. According to
Campos, Chavez called and said she had two other applicants
and asked if Aim needed more workers; Campos replied that he
did not need any more personnel. According to Chavez, Gon-
zalez, and Bolaňos then said to each other it was probably be-
cause they were from the union that Campos did not want to
interview them; Chavez told them that she never mentioned the
union to Campos so she did not believe that was why Campos
did not want to interview them. At the trial Chavez explained
that she wrote “Union” on the applications before she spoke to
Campos because she considered that a good thing since all
applicants with the union had good work histories and the nota-
tion “Union” would remind her that these applicants had good
work records. But in her pretrial affidavit Chavez stated that
she wrote “Union” on the applications after she spoke to Cam-
pos and after Gonzalez and Bolaňos commented that the reason
that Campos did not want to interview them was because of the
Union. And Chavez does not credibly explain why she wrote
“1:30” on Gonzalez’s application. Neither Campos nor Chavez
explained why it took three telephone calls for Campos to tell
her that he did not need any more workers. For these reasons,
and because of their unconvincing demeanor, I do not credit the
testimony of Chavez and Campos.
Analysis
The complaint alleges that on about July 14 Chavez threat-
ened employee applicants with loss of job opportunities be-
cause of their union support. The General Counsel relies on the
events above concerning Gonzalez and Bolaňos where Chavez
told them that Aim was no longer interested in hiring Gonzalez
after he disclosed that the Union had sent them to seek em-
ployment. Here, the intimate connection of the Union with
Chavez’ announcement to the employees that their interviews
were canceled would reasonably tend to indicate to them the
cancellation was because of the Union. By telling employee-
applicants that they lost employment opportunities because of
their support for the Union, Jacobson again violated Section
8(a)(1). Next the complaint alleges that on about July 14
Chavez unlawfully interrogated employee-applicants. I con-
cluded above that Chavez did ask McMillan how applying for
work with Jacobson would affect his union status but then
changed the subject when McMillan asked why it mattered. I
recognize that McMillan himself raised the issue of his union
affiliation in earlier conversations with Chavez when he ex-
pressed concern over whether he could both maintain that affil-
iation and work with Jacobson and Aim. On the other hand, the
Board has held that employee-applicants, like McMillan, are
particularly susceptible to the coercive effects of interrogations
concerning their union support. And Chavez had earlier unlaw-
fully threatened McMillan concerning his union status. Finally,
Chavez was the highest Jacobson official at the location and
she had the authority to decide whether or not to refer McMil-
lan for employment. Under these circumstance I conclude that
by coercively interrogating an employee-applicant concerning
his union status, Jacobson violated Section 8(a)(1). Zarcon,
Inc., 340 NLRB 1222 (2003). The complaint alleges that Ja-
cobson refused to hire or consider for hire Bolaňos, Gonzalez,
and McMillan.4 As to the allegation that Jacobson refused to
hire these applicants, the General Counsel concedes in his brief
that “Workers are not hired by Jacobson until they have re-
ceived a commitment from the client to retain the specific em-
ployee.” Because Aim never hired these workers it follows that
Jacobson has shown that it would not have hired these employ-
ees even if they had not been union supporters. I dismiss this
allegation. The allegation that Jacobson refused to consider
these applicants for employment is not supported by the evi-
dence. To the contrary, the evidence shows that Jacobson fully
considered them for hire and was ready to refer them to Aim. I
dismiss this allegation too. The General Counsel cites Capitol-
EMI Music, 311 NLRB 997, 1000 (1993), enfd. 23 F.3d 399
(4th Cir. 1994), arguing that under certain circumstances both
employers in a joint-employer relationship may be liable for
unfair labor practices committed by only one. That is indeed
correct. But the problem here is that there is no evidence that
Aim and Jacobson were joint employers during the prehire
stage. The precise stipulation received into evidence here is:

4 As clarified at the hearing, the General Counsel does not allege that
Aim independently violated the Act by rejecting these applicants. In
his brief the General Counsel does not argue that Aim did so. Rather,
he relies solely on a “joint employer” theory that I reject for reasons
described below. And even initially, before the clarifications the com-
plaint specified that the word “Respondents” referred to Aim and Ja-
cobson only in their capacity as “joint employers.”
AIM ROYAL INSULATION, INC. 807

Respondent Jacobson is a joint employer with Respondent
Aim Royal with respect to those individuals that were as-
signed to the Aim Royal workplace.

None of these individuals were ever assigned to Aim’s work-
place. I therefore reject the General Counsel’s argument.
Returning once again to the facts of this case, on July 15 Ai-
zu went to Jacobson with an application he had received from
Chavez the day before. On the application he listed his name as
Angel A. Garcia; Garcia is his mother’s maiden name. Aizu
did this to avoid being identified as a union agent. Aizu told
Chavez that he wanted to work as an insulator. Chavez accept-
ed the application and asked Aizu to follow him to an office
area. As they were walking Chavez asked Aizu if he belonged
to the Union. Aizu answered “No.” He then asked Chavez if it
mattered and Chavez replied “No.” Chavez explained that she
asked the question because the union workers had more experi-
ence. Chavez also asked Aizu some questions about his back-
ground and experience. Chavez commented that Aizu was
already making good money after Aizu mentioned that he was
making $22 per hour. Chavez said that she had only filled insu-
lator jobs that were paying $11 per hour. Chavez said that she
did not have jobs right then, that she liked Aizu’s background
and skills, and that he should call her three times a week to see
if any jobs became available. After interviewing Aizu, Chavez
wrote “not with union” on the second page of Aizu’s applica-
tion. After the interview Aizu did not call Chavez as she had
requested. However, on about July 31 Aizu returned to Jacob-
son’s office accompanied by about seven others wearing union
tee shirts. Chavez told Aizu that he was already in the system
and did not have to be there again and reminded him that when
she spoke to him earlier she asked him to call her three times a
week but he never did call. The others completed applications.
There is no allegation in the complaint concerning the July 31
incident. The facts in this paragraph are based on Aizu’s credi-
ble testimony, his demeanor appeared convincing and his reci-
tation of events seemed to flow naturally and without exaggera-
tion.
Analysis
The complaint alleges that on July 15 Chavez again interro-
gated employee-applicants concerning their union activity. In
support of this allegation the General Counsel relies on the
interview of Aizu by Chavez. As more fully described above,
during that interview Chavez asked Aizu if he was in the union
or part of a union and Aizu replied that he was not. Aizu asked
if that mattered; Chavez replied that it did not, but that if you
worked with the union you have more experience. Here, unlike
other instances of coercive interrogation described above,
Chavez coupled her question with the assurance that his union
status did not matter to her and explained that she asked the
question because she felt union workers had more experience.
Under these circumstances I cannot conclude that the question-
ing had the tendency to be coercive. In any event any finding
here is cumulative and does not alter the remedy in this case. I
dismiss this allegation. Finally, the complaint alleges an un-
lawful failure to hire Aizu or to consider him for hire. For rea-
sons described in the preceding “Analysis” section, I dismiss
this allegation. Moreover, Chavez informed Aizu, as she had
informed others, to call her three times a week to show a con-
tinuing interest. He admittedly failed to do so.
CONCLUSIONS OF LAW
1. Respondent Aim has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act by:
(a) Maintaining overly broad work rules that prohibit em-
ployees from leaving the work area or jobsite without permis-
sion.
(b) Coercively interrogating an employee-applicant concern-
ing his support for the union.
2. Respondent Aim has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(3) and (1)
and Section 2(6) and (7) of the Act by refusing to consider for
hire and by refusing to hire Jose Gurrola and Shawn McMillan
because they engaged in union activity.
3. Respondent Jacobson has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act by:
(a) By telling an employee-applicant that he would not be
hired because of his union status.
(b) By coercively interrogating an employee-applicant con-
cerning his union status.
(c) By telling employee-applicants that they lost employment
opportunities because of their support for the Union.
REMEDY
Having found that Respondent Aim 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 effectu-
ate the policies of the Act. Because of the significant number
of employees that speak Spanish, I shall require that the “No-
tices to Employees” be posted both in English and Spanish.
I have concluded that Respondent Aim has maintained unlaw-
ful rules in its employee handbook; to remedy this violation I
apply Guardsmark, LLC, 344 NLRB 809, 812 fn. 8 (2005).
The General Counsel argues that notices to employees correct-
ing the rules should be in both Spanish and English, but I deny
this request. First, the General Counsel cites no case authority
to support this contention. I note that there is no evidence that
Aim’s employee handbook is provided to employees in Spanish
as well as English. I further note that I require that the Notices
to Employees be posted in Spanish as well as English. Under
these circumstances I believe that this violation will be fully
remedied.
Having found that Respondent Aim discriminatorily refused
to consider for hire and hire Jose Gurrola and Shawn McMillan,
Respondent Aim must offer them instatement and make them
whole for any loss of earnings and other benefits. The duration
of their backpay period shall be determined in accordance with
Oil Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007). Back-
pay shall be computed in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), and interest shall be computed in
accordance with New Horizons, 283 NLRB 1173 (1987). The
instatement of discriminatees is subject to defeasance if, at the
compliance stage, the General Counsel fails to carry his burden
of going forward with evidence that they would still be em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 808
ployed by Respondent Aim if he had not been the subject of
discrimination. Oil Capitol Sheet Metal, Inc., supra at 1351.
Having found that the Respondent Jacobson 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. Because of the number of
Spanish speaking employees, I shall require that the Notices be
posted both in English and Spanish.
[Recommended Order omitted from publication.]