Allied Mechanical Services, Inc.

National Labor Relations Board - Unpublished Board Decisions

May 28, 2004

07-CA-040907 (N.L.R.B. May. 28, 2004)

1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Allied Mechanical Services, Inc. and Plumbers and
Pipefitters Local 357, United Association of
Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and
Canada, AFL—CIO. Cases 7—CA-40907 and 7—
CA-41390
May 28, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND MEISBURG
On February 8, 2000, Administrative Law Judge David
L. Evans issued the attached decision. The Respondent
and the General Counsel filed exceptions and supporting
briefs, and the Charging Party filed cross-exceptions and
a supporting brief.
The National Labor Relations Board has delegated au-
thority 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 as
modified and to adopt the recommended Order as modi-
fied2 and set forth in full below.
The essential facts giving rise to the unfair labor prac-
tice complaint in this case are as follows. In 1991, pur-
suant to a settlement agreement, the Respondent agreed
to recognize and bargain with Plumbers and Pipefitters
Local 337, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL—CIO. The parties en-
gaged in contract negotiations but never reached an
agreement. On March 1, 1998,3 the United Association
of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada,
AFL—CIO, merged Plumbers and Pipefitters Local 337
with Plumbers and Pipefitters Local 513 to create a new
local, Plumbers and Pipefitters Local 357, the Charging
Party herein. On March 2, the Charging Party made an
unconditional offer to return to work on behalf of 10
' The Respondent has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponder-
ance 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. In addition, some of the Respondent's
exceptions imply that the judge's rulings, findings, and conclusions
demonstrate bias and prejudice. On careful examination of the judge's
decision and the entire record, we are satisfied that the Respondent's
contentions are without merit
2 We shall modify the judge's recommended Order in accordance
with our decision in Ferguson Electric Go, 335 NLRB 142 (2001)
3 All dates are in 1998, unless otherwise indicated.
strikers, 2 of whom had begun striking in December
1996 (Jon Kinney and Tobin Rees), while the remaining
8 had begun striking in July 1997 (Jim Bronkhorst, Ken
Falk, Ted Fuller, Grant Maichele, Marty Preston, Max
Roggow, Brian Rowden, and Steve Titus). The Respon-
dent refused to reinstate the 10 strikers. Thereafter, on
July 22, the Respondent withdrew recognition from the
Charging Party and announced that it would not bargain
with it.4 In the meantime, between March 31 and August
5, 21 union members applied for work with the Respon-
dent. None was hired.
1. We agree with the judge's dismissal of complaint
allegations that the Respondent violated Section 8(a)(5)
and (1) of the Act by withdrawing recognition from Lo-
cal 357 on July 22, and thereafter making unilateral
changes and refusing to furnish Local 357 with informa-
tion. In adopting the judge's finding that the Respon-
dent's withdrawal of recognition was lawful, we rely
solely on his finding that Local 357 did not succeed to
the bargaining rights of Local 337.
Following an incumbent union's merger or affiliation,
an employer's duty to recognize and bargain with the
union continues unless the union's members did not have
an adequate opportunity to participate in a vote on the
merger, the vote was conducted without adequate due
process safeguards, or the merger caused changes so sig-
nificant that substantial continuity was lost between the
pre- and post-affiliation union. NLRB v. Financial Insti-
tution Employees (Seattle-First National Bank), 475 U.S.
192, 199 (1986); Minn-Dak Farmers Cooperative, 311
NLRB 942, 945 (1993), enfd. 32 F.3d 390 (8th Cir.
1994). The judge properly found, as the General Coun-
sel concedes, that the merger of Locals 337 and 513,
which resulted in the creation of Local 357, did not sat-
isfy the Board's standard, because Local 337's members
were not given an opportunity to vote on the merger.
Therefore, the Respondent had no duty to bargain with
Local 357.
Thus, we fmd it unnecessary to pass on the judge's al-
ternative finding that the withdrawal of recognition was
lawful on the basis that the Respondent and Local 337
Although the Respondent's letter withdrawing recognition was ad-
dressed to Local 337, the letter acknowledged that the Respondent had
been notified in March that Local 337 had been merged with Local 513
to create Local 357, the Charging Party Additionally, the Respon-
dent's letter was addressed to Robert Williams, the Charging Party's
business manager and financial secretary, who had served in the same
capacities for Local 337 prior to the merger.
5 The 21 union job applicants were Elton Bennett, Scott Calhoun,
Terri Jo Conroy, Mike Curran, Eric Englehart, Ken Falk, Ted Fuller,
Marty Hampton, Harold Hill, Jeff Kiss, Dave Knapp, Grant Maichele,
Rod Newcomb, Tom Patterson, Marty Preston, Tobin Rees, Max Rog-
gow, Brian Rowden, Jeff Warren, Todd West, and Randy Wood.
341 NLRB No. 141
ALLIED MECHANICAL SERVICES 1085
had a bargaining relationship under Section 8(f), rather
than Section 9(a), of the Act. We also do not rely on the
judge's apparent finding that the withdrawal of recogni-
tion was lawful because the Respondent had bargained
for a reasonable period of time with Local 337.
2. The judge found, and we agree, that the Respondent
violated Section 8(a)(3) and (1) of the Act by refusing to
reinstate 10 strikers (Jim Bronkhorst, Ken Falk, Ted
Fuller, Jon Kinney, Grant Maichele, Marty Preston,
Tobin Rees, Max Roggow, Brian Rowden, and Steve
Titus) who made unconditional offers to return to work
on March 2.6 The judge found that the 10 strikers were
not unfair labor practice strikers, as alleged, but, rather,
were economic strikers. The judge, nevertheless, found
the Respondent's refusal to reinstate the strikers violated
Section 8(a)(3) and (1), because the Respondent had not
permanently replaced them. The result is the same re-
gardless of whether the employees were economic strik-
ers or unfair labor practice strikers, because employees
who engage in either type of strike have the same right to
reinstatement if they have not been permanently re-
placed. Anaheim Plastics, Inc., 299 NLRB 79 fn. 3
(1990). In adopting the judge's finding that the Respon-
dent's refusal to reinstate the strikers violated the Act, we
find it unnecessary to pass on his fmding that the strikers
were not unfair labor practice strikers.'
3. The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by refusing to consider for
employment and to hire 10 union members (Scott Cal-
houn, Terri Jo Conroy, Eric Englehart, Marty Hampton,
Harold Hill, Jeff Kiss, Rod Newcomb, Tobin Rees, Brian
6 In Allied Mechanical Services, Case 7—CA-44304, et al., a later
case that involves the same parties as the present case, the General
Counsel has alleged that, in 2001, the Respondent unlawfully dis-
charged Steve Titus after reinstatement and made an invalid offer to
reinstate Marty Preston. The administrative law judge's decision in
that case is currently before the Board The effect, if any, that the
Board's ultimate disposition in that case may have on our reinstatement
and make-whole remedies here regarding Titus and Preston may be
resolved at the compliance stage in this case
7 Some or all of the strikers struck, in part, over the Respondent's
earlier refusal to reinstate the "summer-of-1996" strikers, who had
made an unconditional offer to return to work in September 1996.
Judge Evans noted that, in an earlier case, Administrative Law Judge
Beddow had found that the Respondent's refusal to reinstate the "sum-
mer-of-1996" strikers violated Sec. 8(a)(3) and (1) Judge Evans de-
clined to rely on that finding, however, because Judge Beddow's deci-
sion was under review by the Board at the time that Judge Evans was
preparing his decision in the present case. Although not passing on
Judge Evans' finding that the 10 strikers who made unconditional of-
fers to return to work on March 2, were not unfair labor practice strik-
ers, we nevertheless note that the Board subsequently affirmed Judge
Beddow's finding that the Respondent's termination of and refusal to
reinstate the "summer-of-1996" strikers violated Sec 8(a)(3) and (1)
Allied Mechanical Services, 332 NLRB 1600 (2001)
Rowden, and Todd West)8 who applied for jobs on vari-
ous dates in 1998.9 We agree with the judge's conclu-
sion that the Respondent violated Section 8(a)(3) and (1)
of the Act by refusing to hire four of the applicants—
Calhoun, Conroy, Hill, and Kiss—because of their union
membership.19 Although the judge decided this case
before the Board issued its decision in FES, 331 NLRB 9
(2000), supplemented 13), 333 NLRB 66 (2001), enfd.
301 F.3d 83 (3d Cir. 20,02), and applied slightly different
standards in assessing the General Counsel's case, we
nevertheless find that, with regard to these four appli-
cants, the General Counsel has met his burden of proof
under the FES standard's.
In FES, supra, the Board set forth the framework for
analysis of refusal-to-hire and refusal-to-consider cases.
To meet his burden of proof in a discriminatory refusal-
to-hire case, the General Counsel must show:
(1) that the respondent was hiring, or had concrete
plans to hire, at the time of the alleged unlawful con-
duct; (2) that the applicants had experience or training
relevant to the annOunced or generally known require-
ments of the positions for hire, or in the alternative, that
the employer has not adhered uniformly to such re-
quirements, or that the requirements were themselves
pretextual or were applied as a pretext for discrimina-
tion; and (3) that antiunion animus contributed to the
decision not to hire the applicants."
We find that, with respect to applicants Calhoun, Con-
roy, Hill, and Kiss, the general Counsel has successfully
established each elemerit of the FES standards for a re-
fusal-to-hire violation. With respect to element (1), the
judge found that Calhoun, Conroy, Hill, and Kiss applied
with the Respondent for plumbing and pipefitting jobs
g In the conclusions of lay.} and remedy sections of his decision, the
judge inadvertently referred to Todd West as "Randy West" We cor-
rect this error
9 The judge dismissed allegations that the Respondent unlawfully re-
fused to consider and to hire 11 other job applicants (Elton Bennett,
Mike Curran, Ken Falk, Ted Fuller, Dave Knapp, Grant Maichele, Tom
Patterson, Marty Preston, Max Roggow, Jeff Warren, and Randy
Wood). There were no exceptions as to the judge's dismissals regard-
ing Bennett, Curran, Falk, Fuller, Knapp, Preston, or Roggow.
II) We find it unnecessary to pass on the alleged unlawful refusals to
hire Rees and Rowden As Rees and Rowden were among the 10 strik-
ers whom the Respondent unlawfully refused to reinstate on March 2,
they are already entitled to reinstatement and make-whole remedy
Accordingly, an additional reinstatement and make-whole remedy
awarded them on the basis of the Respondent's subsequent refusal to
hire them in August would be superfluous The remaining four em-
ployees are discussed in sec. 4, infra
The judge's findings that the Respondent unlawfully refused to hire
applicants Englehart, Hampton, Newcomb, and West are addressed
below.
"331 NLRB at 12 (fns. omitted).
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
between July 28 and 30.12 The judge further found, and
the record shows, that between August 5 and 31, the Re-
spondent hired five employees in plumbing and pipefit-
ting jobs and made an additional job offer to a plumbing
and pipefitting employee. The Respondent hired 16
more plumbing and pipefitting employees during the rest
of 1998 and early 1999.13
With respect to element (2), the judge found that the
Respondent did not contend that any of the applicants
against whom it allegedly discriminated were not quali-
fied for the plumbing and pipefitting jobs that the Re-
spondent filled in 1998. Moreover, record evidence,
including the applicants' resumes, amply demonstrates
that all of them had "experience or training relevant to
the announced or generally known requirements of the
positions for hire." Indeed, applicants Calhoun, Hill, and
Kiss, had previously worked for the Respondent in
plumbing and pipefitting positions.
With respect to element (3), the judge found that the
Respondent's animus toward union applicants was
shown by a number of factors, including its labor rela-
tions history,14 its discriminatory refusal to reinstate the
10 strikers, President Huizinga's instructions to Human
Resources Director DeJong not to interview union mem-
bers, and the Respondent's disparate treatment of union
applicants. Thus, we are satisfied that the parties liti-
gated, and the General Counsel established, each element
of the prima facie case for discriminatory refusal to hire
under FES.
Under FES, once the General Counsel meets his initial
burden of proof, the burden shifts to the Respondent to
show that it would not have hired the alleged discrimina-
tees even in the absence of their union activities or af-
filiation. FES, 331 NLRB 9, 12 (2000). We agree with
the judge that the Respondent failed to meet this burden.
Although the Respondent argues that it did not hire Hill
because he was a journeyman and did not hire Calhoun,
Conroy, and Kiss because they were advanced appren-
tices, the judge rejected these arguments for lack of
proof Thus, although DeJong testified that the Respon-
dent was primarily seeking apprentices, neither he nor
any other witness testified that the Respondent did not
12 The Respondent received Kiss' application on July 28, Calhoun's
application on July 29, and Conroy's and Hill's applications on July 30.
13 The five applicants whom the Respondent hired between August 5
and August 31, were Scott Andrews, Robert Holler, Daniel Kilgore,
James Meeuwse, and Mark Sloan. The Respondent made an additional
job offer to applicant Verden Campbell in early August. Campbell
accepted but arranged to defer his start date to October 14 Ultimately,
he declined the job prior to October 14. Thus, as of August, the Re-
spondent believed it had hired six new employees
14 The aspects of the Respondent's labor relations history on which
the judge relied all involve violations of the Act.
hire or would not have hired Calhoun, Conroy, Hill, or
Kiss because they were too experienced. Moreover, Cal-
houn, Conroy, and Kiss were, in fact, apprentices.
The Respondent also contends that it did not hire or
even consider the applications of Calhoun, Conroy, Hill,
or Kiss because, at the time it received their applications,
between July 28 and 30, it already had enough applicants
and was "into the process" of scheduling interviews with
them and checking their references. The Respondent's
explanation of its conduct in processing these applica-
tions, however, is in conflict with its own standard hiring
procedures.
Under the Respondent's written policy, the Respon-
dent, when hiring, considers all current applications,
which, under the Respondent's definition, are applica-
tions received within the last 30 days. (An application's
"current" status can be extended beyond 30 days if, dur-
ing the 30-day period, the applicant contacts the Respon-
dent to update his application or the Respondent contacts
the applicant.) The Respondent's written hiring policy,
which it supplied to job applicants, stated that "[w]hen
AMS is preparing to hire, we will go over all current
resumes." (Emphasis in original.) This language ap-
peared in the Respondent's hiring policy that was in ef-
fect before August 1, and was reaffirmed in the Respon-
dent's revised policy issued August 1. Human Resources
Director DeJong further confirmed in his testimony that,
when new employees were needed, the Respondent
looked at "every" active application.
As noted above, the Respondent received the applica-
tions of Calhoun, Conroy, Hill, and Kiss between July 28
and 30, and it did not make even its first hire until Au-
gust 5. Thus, in order to ignore these timely applica-
tions, the Respondent deviated from its own standard
policy of reviewing all current applications when prepar-
ing to hire. The Respondent's handling of the applica-
tions in a nonstandard way—that is, ignoring them even
though they were timely—does little to show that the
Respondent would not have hired them even in the ab-
sence of their union activities or affiliation. Rather, it
tends to demonstrate the opposite.
Further, the Respondent's contention that it did not
consider the applications of Calhoun, Conroy, Hill, and
Kiss because it already had enough applications is not
supported by the facts. By July 28, the Respondent pos-
sessed only six other current applications, those of non-
union applicants Andrews, Campbell, Holler, Kilgore,
Meeuwse, and Sloan. Beginning August 5, the Respon-
dent hired five new employees in August and made a job
offer to a sixth, which was tentatively accepted. It hired
10 more employees between September and December.
Thus, as the Respondent in late July was preparing to
ALLIED MECHANICAL SERVICES 1087
hire a significant number of employees, the six current
applications that it possessed on July 28, clearly were not
such an abundant supply as to plausibly cause the Re-
spondent to depart from its established policy and dis-
pense with considering any additional applications. In
light of the meager number of current applications that it
possessed, the Respondent's contention that it did not
consider the subsequent timely applications of Calhoun,
Conroy, Hill, and Kiss because it already had enough
rings hollow.
We find that the Respondent has failed to show that it
would not have hired Calhoun, Conroy, Hill, or Kiss
even in the absence of their union activities or affiliation.
Accordingly, we conclude, in agreement with the judge,
that the Respondent violated Section 8(a)(3) and (1) by
refusing to hire Scott Calhoun, Terri Jo Conroy, Harold
Hill, and Jeff Kiss.
4. Contrary to the judge, we find that the Respondent
did not violate Section 8(a)(3) and (1) by refusing to con-
sider and to hire applicants Eric Englehart, Marty Hamp-
ton, Rod Newcomb, and Todd West. Assuming ar-
guendo that the General Counsel met his burden of proof
under FES regarding Englehart, Hampton, Newcomb,
and West, we fmd that the Respondent succeeded in
showing that it would not have considered or hired these
alleged discriminatees even in the absence of their union
activities or affiliation.
West's job application was filed with the Respondent
on April 23, and Englehart's, Hampton's, and New-
comb's applications were filed on May 1. The Respon-
dent hired no new employees from January 1 through
August 2. It began interviewing job applicants during
the first week of July.
As noted above, when the Respondent was hiring, it
would consider only current applications, and it deemed
an application "current" if it had been filed within 30
days or, if during the 30-day period, either the applicant
contacted the Respondent to update his application or the
Respondent contacted the applicant. Englehart's, Hamp-
ton's, Newcomb's, and West's applications were filed
with the Respondent more than 30 days before the first
week of July, when the Respondent began considering
hiring. Neither Englehart, Hampton, Newcomb, or West
thereafter updated their applications, and the Respondent,
which was not hiring at the time that it received their
applications, did not contact them. Consequently, the
applications of Englehart, Hampton, Newcomb, and
West were not current at the time that the Respondent
began hiring.
The judge found that the Respondent's policy of re-
quiring applications to be filed within 30 days in order to
be considered current was facially nondiscriminatory.
He found, however, that the Respondent applied this pol-
icy in a discriminatory fashion because, in his view, the
Respondent had relaxed the rule to consider expired ap-
plications of two nonunion applicants, Stevenson and
Andrews. The judge found that Stevenson's August 31
application had expired when the Respondent called him
to its office to file a neVy application and be hired on Oc-
tober 9. The judge further found that the Respondent's
preferential treatment of Stevenson was not an isolated
case, because the Respondent called Andrews to come in
for an interview and be hired the day before his July 9
application would have expired.
We do not agree wip-i the judge's analysis. The Re-
spondent called Andres to come in for an interview and
be hired before his application would have expired—i.e.,
while his application was still current. Thus, the Re-
spondent's treatment of Andrews was not an instance of
the Respondent's failure to apply its 30-day rule to a
nonunion applicant. Therefore, we are left with the Re-
spondent's treatment of Stevenson as the only instance of
the Respondent's failure to apply its 30-day rule to a
nonunion applicant. The Respondent interviewed 25 job
applicants in 1998. In these circumstances, contrary to
the judge, we find the Respondent's failure to apply its
30-day rule to 1 job applicant out of 25 to be an isolated
event and, as such, an insufficient basis for finding that
the Respondent applied its 30-day rule in a discrimina-
tory fashion.15
Consequently, contrary to the judge, we find that the
record supports the Respondent's defense that it would
not have considered or hired Englehart, Hampton, New-
comb, and West even in the absence of their union activi-
ties or affiliation, as their applications were no longer
current under the Respondent's 30-day rule at the time
that the Respondent began considering hiring. Accord-
ingly, we dismiss the complaint allegations that the Re-
spondent violated the Act by refusing to consider and to
hire Englehart, Hampton, Newcomb, and West.
I ORDER
The National Labor Relations Board adopts the rec-
ommended Order' of the administrative law judge as
modified and orders that the Respondent, Allied _Me-
chanical Services, Inc., Kalamazoo, Michigan, its offi-
cers, agents, successors, and assigns, shall
1. Cease a-ft-CI-desist from
(a) Discouraging membership in United Association of
Journeymen and Apprentices of the Plumbing and Pipe-
15 See, e g; Avondale Indastries, 329 NLRB 1064, 1231 (1999) (sin-
gle instance . does not prove disparate treatment); Albertsons, Inc.,
289 NLRB 177, 178 fn. 5 (1988) (disparate application of rule not
shown by isolated instances), Kendall Ca, 267 NLRB 963, 965 (1983)
(disparate enforcement of policy not shown by isolated deviations)
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fitting Industry of the United States and Canada, AFL—
CIO, or any other labor organization, by unlawfully fail-
ing and refusing to reinstate or otherwise discriminating
against its employees because they have engaged in a
protected strike or other concerted activity for their mu-
tual aid or protection.
(b) Refusing to consider job applicants for employ-
ment, or hire, because of their union memberships, ac-
tivities, or desires.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed 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
Jim Bronkhorst, Ken Falk, Ted Fuller, Jon Kinney, Grant
Maichele, Marty Preston, Tobin Rees, Max Roggow,
Brian Rowden, and Steve Titus full reinstatement to their
former jobs, or if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or other rights and privileges previously enjoyed.
(b) Within 14 days from the date of this Order, offer
employment to Scott Calhoun, Terri Jo Conroy, Harold
Hill, and Jeff Kiss.
(c) Make Jim Bronkhorst, Ken Falk, Ted Fuller, Jon
Kinney, Grant Maichele, Marty Preston, Tobin Rees,
Max Roggow, Brian Rowden, Steve Titus, Scott Cal-
houn, Terri Jo Conroy, Harold Hill, and Jeff Kiss whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the judge's decision.
(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 re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its Kalamazoo, Michigan facility copies of the attached
notice marked "Appendix."16 Copies of the notice, on
forms provided by the Regional Director for Region 7,
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,
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."
including all places where notices to employees are cus-
tomarily posted. The Respondent shall take reasonable
steps to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, dur-
ing 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 cur-
rent employees and former employees employed by the
Respondent at any time since March 2, 1998.
(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.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
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 with us on
your behalf
Act together with other employee for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail or refuse to reinstate strikers to their
former or substantially equivalent positions because they
have engaged in a strike or other protected activities on
behalf of United Association of Journeymen and Appren-
tices of the Plumbing and Pipefitting Industry of the
United States and Canada, AFL—CIO, or any other labor
organization, or because they have engaged in other pro-
tected concerted activities.
WE WILL NOT fail and refuse to consider for employ-
ment employee-applicants, or refuse to hire employee-
applicants, because of their union memberships, activi-
ties, or desires.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights guaran-
teed to you by Section 7 of the Act.
ALLIED MECHANICAL SERVICES 1089
WE WILL offer to Jim Bronlchorst, Ken Falk, Ted
Fuller, Jon Kinney, Grant Maichele, Marty Preston,
Tobin Rees, Max Roggow, Brian Rowden, and Steve
Titus immediate reinstatement to the jobs that they held
when they went on strike, or if those jobs no longer exist,
substantially equivalent positions of employment, with-
out prejudice to their seniority or other rights and privi-
leges previously enjoyed, and WE WILL make them whole
for any loss of earnings or other benefits that they may
have suffered because of the discrimination practiced
against them.
WE WILL offer employment to Scott Calhoun, Terri Jo
Conroy, Harold Hill, and Jeff Kiss, and WE WILL make
them whole for any losses of earnings or the other bene-
fits that they may have suffered because of the discrimi-
nation practiced against them.
ALLIED MECHANICAL SERVICES, INC.
Bradley Howell, Esq., for the General Counsel.
David M Buday, Craig Miller, and Nathan D. Plantinga, Esqs ,
of Kalamazoo, Michigan, for the Respondent.
Tina Marie Pappas, Esq., of Ann Arbor, Michigan, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case un-
der the National Labor Relations Act (the Act) was tried before
me in Kalamazoo, Michigan, on eight dates from June 30
through July 16, 1999. Plumbers and Pipefitters Local 357,
United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, AFL—CIO (the Charging Party or Local 357), filed the
charge in Case GR-7—CA-40907 on April 27, 1998, and it filed
the charge in Case GR-7—CA-41390 on September 25, 1998,
both against Allied Mechanical Services, Inc. (the Respondent).
Based on those charges, the General Counsel issued a com-
plaint on June 16, 1999, alleging that the Respondent had vio-
lated Section 8(a)(3), (5), and (1) of the Act by various acts and
conduct toward its employees. The Respondent duly filed an
answer admitting that this matter is properly before the Na-
tional Labor Relations Board (the Board) but denying the
commission of any unfair labor practices.
Upon the testimony and exhibits entered at trial,' and upon
my observations of the demeanor of the witnesses,2 and after
Certain passages of the transcript have been electronically repro-
duced. Some corrections to punctuation have been entered. In my
quotations of the exhibits, I sometimes simply correct meaningless
grammatical errors rather than use "[sic] "
2 Credibility resolutions are based on the demeanor of the witnesses
and any other factors that I may mention
consideration of the briefs that have been filed,3 I make the
following findings of fac and conclusions of law.
I. JURISDICTION
As it admits, the Respondent is a corporation with an office
and place of business in Kalamazoo, Michigan (the Kalamazoo
facility), where it is engaged in the construction industry in the
business of fabrication and installation of heating, plumbing,
and air conditioning systems. During the calendar year ending
December 31, 1998, the Respondent, in conducting said busi-
ness operations, purchased and received at its Kalamazoo place
of business goods valued in excess of $50,000 directly from
suppliers located at points outside Michigan. Therefore, at all
material times Respondent has been engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
There are three areas of alleged unfair labor practices to be
considered in this case. The first area is that of alleged unlaw-
ful refusals to bargain; the bargaining issues arise from com-
plaint allegations that the Respondent has violated Section
8(a)(5) by withdrawing tecognition from one union, commit-
ting unilateral actions before and after that withdrawal, refusing
to provide relevant bargaining information before and after that
withdrawal, and thereafte[r refusing to recognize a second union
as the lawful successor td:1) the first. The second area of alleged
unfair labor practices to he considered is that of alleged unlaw-
ful refusals to reinstate strikers; the striker-reinstatement issues
arise from complaint allgations that the Respondent has vio-
lated Section 8(a)(3) by refusing to reinstate 10 employees who
had unconditionally offered to return to work from strikes that
I were caused, at least in part, by the Respondent's bargaining
violations and by its failtire to remedy certain previously adju-
dicated unfair labor practices. Because the first and second
areas of complaint allegations are so closely related, I shall
consider them together in subsection A. The third area of al-
leged unfair labor practices to be considered is that of alleged
unlawful refusals to hire employee-applicants; the refusal-to-
hire issues arise from complaint allegations that, also in viola-
tion of Section 8(a)(3), the Respondent has refused to hire some
22 employee-applicants because of their known or suspected
prounion sympathies. I shall consider the refusal-to-hire allega-
tions in subsection B.
A. Alleged Unlawful Refusals to Bargain and
Refusals toReinstate Strikers
I I. The evidence upon which the General Counsel relies
a. Overview
The Respondent is a construction industry contractor that
l has, for many years, emp oyed plumbers and pipefitters at vari-
ous construction sites ini southwestern Michigan. The United
Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada, AFL—
An appendix that the General Counsel filed with his brief has been
helpful in marshaling the facts relevant to the refusal-to-hire allega-
tions.
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CIO (the UA), maintains several local unions in southwestern
Michigan to represent plumbers and pipefitters such as those
employed by the Respondent. Historically, two of those unions
have been Local 337 in Kalamazoo and Local 513 in Benton
Harbor.
In 1991, pursuant to a Board settlement agreement of
charges that had been filed by Local 337, the Respondent
agreed to bargain with Local 337. Pursuant to the 1991 settle-
ment agreement (as I shall call it), bargaining was conducted
until mid-1998, but no contract was ever reached. Over the
years following the 1991 settlement agreement, Local 337 filed
several other unfair labor practice charges against the Respon-
dent. One group of those resulted in an administrative law
judge's decision, a Board order, and an enforcing court decree;
a second group of those charges resulted in an administrative
law judge's decision that is now pending before the Board; and
a third group of those charges resulted in a second settlement
agreement. On March 1, 1998, the UA merged Locals 337 and
513 to create Local 357, the Charging Party herein. The
charges in this case involve Respondent's 1998 conduct after
that merger.
Local 337 called two strikes that are involved in this case,
one in December 1996 and the other in July 1997. On March 1,
1998, the UA consolidated Locals 337 and 513, and those two
locals jointly became the Charging Party. On March 2, 1998,
on behalf of the 10 employees who had participated in the two
strikes, the Charging Party offered to return to work. The Re-
spondent, however, has refused to reinstate the 10 employees to
date. On July 22, 1998, the Respondent announced that it was
withdrawing recognition from Local 337, and it further an-
nounced that it would not bargain with the Charging Party.
The General Counsel contends that, by virtue of the 1991
settlement agreement, the Respondent and Local 337 had a
mandatory bargaining relationship under Section 9(a) of the
Act.4 The General Counsel further contends that the Charging
Party is the lawful successor to Local 337 and that the Respon-
dent has a continuing duty to bargain, again under Section 9(a),
with the Charging Party. The General Counsel contends, there-
fore, that the Respondent was not free to withdraw from bar-
gaining with Local 337 or the Charging Party for a "reasonable
period of time" following the execution of the 1991 settlement
agreement. The Respondent contends that it was free to with-
draw from bargaining with Local 337 (and free never to recog-
nize any successor to Local 337 such as the Charging Party),
because no contract had ever been reached between it and Lo-
cal 337 and because its bargaining with Local 337 had not been
mandatory under Section 9(a) but only permissive under Sec-
tion 8(f).5 Alternatively, the Respondent contends that it has
'Sec 9(a) of the Act provides
Representatives designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit appropriate for
such purposes, shall be the exclusive representatives of all the em-
ployees in such unit for the purposes of collective bargaining in re-
spect to rates of pay, wages, hours of employment, or other condi-
tions of employment..
5 Sec. 8(f) provides:
It shall not be an unfair labor practice under subsections (a) and (b) of
this section for an employer engaged primarily in the building and
proved that, even if the 1991 settlement agreement did establish
Local 337 as a 9(a) representative of its employees, it has
shown that it had a good faith doubt of Local 337's majority
status and that Local 337 did not, in fact, represent a majority
of its employees. As an alternative to this alternative, the Re-
spondent contends that, even if Local 337 had been the 9(a)
representative of its employees, the Charging Party is not Local
337's lawful successor and the Board can issue no prospective
bargaining order on its behalf. The Respondent further con-
tends that it has committed no unfair labor practices and that
the strikers are not, therefore, unfair labor practice strikers. The
Respondent does not deny that the strikers have made an un-
conditional offer to return to work, and it does not contend that
it permanently replaced them before they made that offer; the
Respondent, however, contends that it had no duty to reinstate
the strikers, even as economic strikers, because their activities
were not protected by the Act for various reasons.
Ultimately, I find and conclude that the 1991 settlement
agreement did not establish Local 337 as a Section 9(a) repre-
sentative of the Respondent's employees, that the Respondent
was free to withdraw from the process of bargaining with Local
337 or any labor organization that may have been Local 337's
lawful successor, that the Charging Party was not, in any event,
the lawful successor to Local 337, that the strikes were not
unfair labor practice strikes but they were protected economic
strikes, and that Respondent unlawfully refused to reinstate the
strikers upon their unconditional offer to return to work.
b. Chronology
To consider the many bargaining and striker-replacement is-
sues that are raised by the complaint, it is necessary to detail the
history of the relationship between the parties, including the
extensive amount of litigation that has been conducted between
them.
In late 1989 or early 1990, Local 337 began an organiza-
tional attempt of the Respondent's plumbers and pipefitters.
From February 6, 1990, through October 22, 1990, Local 337
filed various unfair labor practice charges against the Respon-
dent (none of which are in evidence). On April 24, 1990, Local
337 submitted to the Respondent a letter demanding recogni-
tion as the collective-bargaining representative of the Respon-
dent's employees, reciting that it "now represents a majority"
of the Respondent's plumbers and pipefitters, and offering to
"demonstrate proof of our majority status to a mutually agreed-
upon third party." Such a demonstration of majority status (by
presentation of authorization cards or otherwise) was never
made; nor have the Respondent's employees selected Local 337
(or any other labor organization) as their collective-bargaining
representative in a Board-conducted election.
On December 13, 1990, in Case GR-7—CA-30196, et al., the
General Counsel issued a complaint (the 1990 complaint) alleg-
construction industry to make an agreement covering employees en-
gaged (or who, upon their employment, will be engaged) in the
building and construction industry with a labor organization of which
building and construction employees are members . because (1)
the majority status of such labor organization has not been estab-
lished under the provisions of section 9 of this Act prior to the mak-
ing of such agreement.
1091 ALLIED MECHANICAL SERVICES
ing that: (a) Respondent's plumbers, pipefitters and certain
other employees constitute a unit appropriate for bargaining
under Section 9(b) of the Act (the unit); (b) on or about April
24, 1990, a majority of the unit employees designated Local
337 as their collective-bargaining representative by signing
union authorization cards; and (c) the Respondent had commit-
ted against the unit employees numerous unfair labor practices
within Sections 8(a)(1) and (3) of the Act. The 1990 complaint
further alleged that a bargaining order was an appropriate rem-
edy for the Respondent's violations of Section 8(a)(1) and (3),
but it did not allege that the Respondent had violated Section
8(a)(5) by refusing to recognize and bargain with Local 337.
The Respondent duly filed an answer to the 1990 complaint,
denying that it had committed any unfair labor practices, deny-
ing that the unit was appropriate for bargaining, denying that
the employees had designated Local 337 as their collective-
bargaining representative, and denying that a bargaining order
was an appropriate remedy for any unfair labor practices that
could be found by the Board.
On July 30, 1991, Local 337, the Respondent and the Gen-
eral Counsel entered an "informal" Board settlement agreement
of the 1990 complaint. (A Board "informal" settlement agree-
ment is a written agreement but, unlike a "formal" settlement
agreement, it is one that does not provide for a withdrawal of a
respondent's answer, and it does not provide for a Board order
or enforcing court decree.) The 1991 settlement agreement
provided that the Respondent would not thereafter engage in
various actions that constitute violations of Section 8(a)(1) and
(3) such as threatening employees or laying them off because of
their union activities; it provided that the Respondent would
make whole certain employees who had allegedly been dis-
criminated against; and it further provided that the Respondent
would
. . recognize and, upon request, bargain in good faith with
[Local 337] as the exclusive collective bargaining representa-
tive of the employees set forth in the unit described below,
with respect to rates of pay, wages, hours, and other terms and
conditions of [employment], and if an understanding is
reached, embody it in a signed collective bargaining agree-
ment: [Then followed the precise unit description.]
The Respondent and Local 337 engaged in some collective
bargaining over the ensuing 7 years, but no contract was ever
reached.
On July 14, 1993, in Case GR-7—CA-34274, et al., the Gen-
eral Counsel issued another complaint (the 1993 complaint)
alleging that the Respondent had violated Section 8(a)(3) by
refusing offers of economic strikers to return to work and that
the Respondent had violated Section 8(a)(5) by making a uni-
lateral change in the unit employees' terms and conditions of
employment. The 1993 complaint, at its paragraph 8, further
alleged that: "Since July 30, 1991, and at all material times
[Local 337] has been the designated exclusive collective-
bargaining representative [of the unit employees] and since that
date [Local 337] has been recognized as such representative by
the Respondent. This recognition has been embodied in a set-
tlement agreement dated July 30, 1991." The 1993 complaint,
at its paragraph 9, further alleged that: "At all times since July
30, 1991, based on Section 9(a) of the Act, [Local 337] has
been the exclusive collective-bargaining representative of [the
Unit employees]." The Respondent filed an answer to the 1993
complaint, denying the Commission of any unfair labor prac-
tices but admitting that, Pursuant to the 1991 settlement agree-
ment, it had recognized Local 337 as the exclusive collective-
bargaining representative of the unit employees; it further spe-
cifically denied that Local 337 had ever been designated as the
majority representative of the unit employees based on Section
9(a).
On July 19, 1994, after a trial and briefing, Administrative
Law Judge Richard H. Beddow issued his decision in the 1993
complaint case. Judge Beddow concluded, inter alia, that the
following employees had offered to return from economic
strikes in 1992 and 1993 but that the Respondent had refused
to reinstate them in violation of Section 8(a)(3): Ted Fuller,
Harold Hill, Grant Maichele, Gil Ragsdale, Max Roggow,
Steve Titus, Jim Bronkhorst, Ken Falk, Marty Preston, and
Brian Rowden. Judge Beddow further found that the Respon-
dent had not changed any term or condition of employment of
the unit employees and recommended dismissal of the 8(a)(5)
allegation solely on that basis. Because Judge Beddow had
found that no change had been made, he was not required to
pass on the issue of whether, by virtue of the 1991 settlement
agreement, the Respondent's recognition of Local 337 had been
based on Section 9(a) or Section 8(f) of the Act.
On December 18, 199, at 320 NLRB 32, the Board affirmed
Judge Beddow's 8(a)(3) findings and conclusions, except per-
taining to Ragsdale (who was found not to have offered to re-
turn to work), and it fur4ler affirmed Judge Beddow's finding
that no changes to the unit employees' terms and conditions of
employment had been made. (The Board, therefore, also did
not pass on the question of whether, by entering the 1991 set-
tlement agreement, the Respondent had agreed to bargain with
Local 337 under Section 9(a) or Section 8(f).) On May 16,
1997, the Court of Appgals for the Sixth Circuit, at 113 F.3d
623, enforced the Boarcl's order in full, thereby ordering the
Respondent not to unlawfully reject strikers' offers to return to
work again.
On December 19, 1996, in Case GR-7—CA-38022, the Gen-
eral Counsel issued another complaint (the 1996 complaint).
As the 1993 complaint had done, the 1996 complaint alleged
that, by virtue of the 1991 settlement agreement, Local 337 was
the majority representative of the unit employees under Section
9(a). The 1996 complaint alleged that, in violation of Section
8(a)(5), the Respondent had announced that it would not bar-
gain with Local 337, had unilaterally laid off employees, and
had committed several other unilateral actions. The 1996 com-
plaint further alleged that the Respondent had refused to furnish
Local 337 with relevant bargaining information, had directly
dealt with employees about an insurance program, and had
refused to meet with LOcal 337 since March 26, 1996. The
1996 complaint further I alleged that employees Todd Hayes,
Jeff Kiss, 6 Mark Lemmer, Ron Parlan, Kirk Wood, and Jeff
Warren had begun an unfair labor practice strike during the
6 I correct the transcript where, at various places, it misspells Kiss'
name as "Gist."
1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
summer of 1996, and that thereafter the Respondent had termi-
nated the employment of those employees (the summer-of-1996
strikers) in violation of Section 8(a)(3). The Respondent duly
filed an answer to the 1996 complaint, again admitting that it
had recognized Local 337 under the 1991 settlement agreement
but denying that Local 337 was the majority representative of
the unit employees under Section 9(a) of the Act and further
denying the commission of any unfair labor practices.
David Knapp is an organizer for various Michigan local un-
ions of the UA. By letter dated December 23, 1996, Knapp, on
behalf of Local 337, notified the Respondent that its employees
Jon Kinney and Tobin Rees were about to begin an unfair labor
practice strike against it. The Respondent replied by letter, also
dated December 23, asking what unfair labor practices Knapp
was referring to, and asking what remedies Local 337 sought.
By letter dated December 24, Knapp replied by referring to a
"continuance to refuse to bargain in good faith and the other
unfair labor practices set forth in the most recent National La-
bor Relations Board complaint." (That would have been the
1996 complaint, as described above.) Knapp also stated that,
upon the Respondent's cessation of its refusal to bargain, and
upon it's remedying all unfair labor practices in the last com-
plaint, the employees would be "prepared to end their unfair
labor practice strike." Kinney and Rees began strike and pick-
eting activities at one of the Respondent's jobsites on Decem-
ber 26, 1996. Knapp testified before me that the causes of the
December 1996 strike were failures by the Respondent to fur-
nish Local 337 with certain unspecified information (presuma-
bly that mentioned in the 1996 complaint), and failures by the
Respondent to reinstate the six summer-of-1996 strikers who
had been named in the 1996 complaint. Knapp further testified
that he discussed the reasons for the December 1996 strike with
Kinney and Rees before sending his December 23 letter. Also
before me, Kinney and Rees corroborated that testimony and
further testified that they agreed with Knapp as to the purposes
of the December 1996 strike. As well, Kinney testified that he
and Rees struck for "wages." (As discussed below, Kinney and
Rees continued their strike until March 2, 1998, at which time
Knapp made an offer on their behalf to return to work along
with eight other employees who began a strike in July 1997.)
On February 11 through 14, and on September 15 and 16,
1997, Judge Beddow conducted the hearing on the 1996 com-
plaint.
Knapp testified that, during the early summer of 1997,
"through the grapevine" and his organizing efforts, he heard
that the Respondent had hired new employees. On June 10,
Knapp requested information about all employees that the Re-
spondent had hired in 1997. In early July, the Respondent fur-
nished at least some of the requested information. (The amount
is not shown in the record.)
On July 9, 1997, the Respondent offered reinstatement to the
employees who had gone on strike in 1993, and whom the
Sixth Circuit, on May 16, had ordered reinstated and made
whole; to wit: Fuller, Hill, Maichele, Roggow, Titus, Bronk-
horst, Falk, Preston, and Rowden. All but Hill accepted. The
Respondent, however, offered none of those nine employees
any backpay that may have been due them as a result of its
unlawful delays in refusing to reinstate them during the period
between their 1992 or 1993 offers to return to work and their
July 9 reinstatements.
Knapp testified that Maichele, after his reinstatement, gave
him a copy of the Respondent's then-current mileage-
reimbursement policy for employees who were required to
drive certain distances to the Respondent's jobs. Knapp testi-
fied that, although the Local 337 and the Respondent had been
discussing the implementation of a new mileage policy in nego-
tiations, the Respondent had not proposed the policy that Ma-
ichele showed him. Received in evidence was a copy of a
mileage policy statement dated April 15, 1997; it is undisputed
that the Respondent instituted that mileage policy on that date
without notice to the Union.
As previously noted, in July 1997, the Respondent furnished
Local 337 with at least some of the information that had been
requested about the unit employees' names and rates of pay.
Thereafter, however, Knapp came to believe that two other
employees had been hired, Terry Miller and Matt Meuller. On
July 22, Knapp, by letter of that date, requested information
about Miller and Meuller; further Knapp requested: ". . . an
updated list of all employees hired through today and/or are in
the process of being hired." By letter dated August 6, 1997,
Knapp repeated his requests for information regarding Miller,
Meuller, and all other new hires. In the same letter, Knapp
asked for copies of all employee evaluations that either had
been completed or were then in the process of being completed.
By letter dated July 23, 1997, Knapp informed the Respon-
dent that Fuller, Maichele, Roggow, Titus, Bronkhorst, Falk,
Preston, and Rowden (again, the eight employees who had
accepted the Respondent's July 9, 1997, offers of reinstatement
pursuant to the May 16, 1997, decree of the Sixth Circuit) were
beginning an unfair labor practice strike. Knapp stated:
The unfair labor practice strike is for, and is not lim-
ited to, the following reasons.
1) Allied Mechanical Services' failure to fully remedy
unfair labor practices as found by both the National Labor
Relations Board and the U.S. Sixth Circuit Court of Ap-
peals, including its failure to make whole the affected em-
ployees and failure to post a notice to employees.
2) Suspension of Steve Titus.
3) Assault and battery of Steve Titus and Jay Titus.
4) Allied Mechanical Services' unilateral determina-
tion and implementation of wage rates for the (9) nine re-
turning strikers without bargaining with the Union.
5) Allied Mechanical Services' threat of bodily harm
to an employee.
6) Denial of overtime opportunities to union support-
ers.
The eight employees named in Knapp's letter ("the July 1997
strikers") began a strike on July 25 (and they continued that
strike, along with the December 1996 strikers, until March 2,
1998, as discussed below).
Knapp testified that, before the July 1997 strike began, he
discussed with the July 1997 strikers the reasons for the strike
which included, in addition to the failure to pay them (and Hill)
backpay under the Sixth Circuit's decree, the Respondent's
failure to reinstate the six summer-of-1996 strikers, the Re-
ALLIED MECHANICAL SERVICES 1093
spondent's failure to furnish information for bargaining pur-
poses, and the Respondent's unilateral institution of the mileage
policy. Each of the eight July 1997 strikers testified that Knapp
discussed with them as a reason for the strike the Respondent's
failure to pay them backpay according to the Six Circuit's or-
der; as well, Preston, Rowden, and Titus testified that Knapp
mentioned as a reason for the strike the fact that the six sum-
mer-of-1996 strikers not been reinstated after their offers to
return to work. Maichele, Preston, Roggow, and Titus testified
that a reason for the strike was the Respondent's failure to fur-
nish information. Roggow, Rowden, and Titus also testified
that a reason for the strike had been the Respondent's unilateral
institution of a mileage policy. Roggow and Titus testified that
Knapp also mentioned the unilateral change in the mileage
policy as a cause of the strike. These eight employees also
testified to other reasons that Knapp mentioned as reasons for
the strike; they were not perfectly consistent in their inclusions
and exclusions, but they all testified that they agreed with rea-
sons for the July 1997 strike that were given to them by Knapp.
Knapp and the eight July 1997 strikers conducted picketing
of the Respondent's offices in Kalamazoo from July 25 through
July 30, 1997. Picket signs that were used during that period
said: "Allied Mechanical Services, Inc., Has Committed Unfair
Labor Practices In Violation Of Federal Law." The picketing
ceased on July 30, but the strikers did not offer to return to
work until March 2, 1998, as discussed infra. Other than the
eight employees who had been reinstated pursuant to the Sixth
Circuit's decree, no employees of the Respondent engaged in
the strike (except Kinney and Rees who had been on strike
since December 26, 1996, and who also continued to strike
until March 2, 1998).
By letter dated August 6, 1997, Knapp asked the Respondent
again for information on Miller and Mueller and further asked
for completed employee annual evaluations (and future ones as
they were completed). On August 22, John Huizinga, the Re-
spondent's president, by letter of that date, replied with the
requested information regarding Miller (who had been hired on
April 30, 1997), but Huizinga denied the existence of any em-
ployee named Meuller. Huizinga further denied hiring any
other employees through August 15. Finally, Huizinga replied
that the evaluations were not yet completed and that they "con-
tain confidential information about employees, some of which
is highly personal." Huizinga concluded: "Therefore, please
articulate the reason that the Union has a need for this informa-
tion and its alleged relevance to the Union's collective bargain-
ing function." Knapp did not respond to Huizinga.
On September 29, 1997, the General Counsel issued a com-
plaint in Case GR-7—CA-40066, alleging, again on the basis of
the 1991 settlement agreement, that Local 337 was the Section
9(a) representative of the unit employees and further alleging
that the Respondent had violated Section 8(a)(5) by engaging in
unilateral actions and refusing to furnish information that was
relevant to the bargaining processes. The Respondent duly
filed an answer stating that: "The settlement agreement speaks
for itself, as well as the Respondent's current relationship with
[Local 337] based upon that agreement." Additionally, and
again, the Respondent denied the allegation that Local 337 was
the Section 9(a) representative of the unit employees.
On February 5, 1998, the parties entered into an informal set-
tlement agreement in Case GR-7—CA-40066 (the 1998 settle-
ment agreement). That settlement agreement repeated the
above unit description; it recited an agreement by the Respon-
dent that it would bargain upon request with Local 337 as the
exclusive representative of the unit employees; it recited that
the Respondent agreed that it would not make unilateral
changes; and it recited that the Respondent would furnish rele-
vant bargaining information.
On February 9, 1998 Judge Beddow issued his decision
based on the 1996 compthint and his 1997 hearing. Judge Bed-
dow found that the RespUndent had violated Section 8(a)(3) by
discharging the six summer-of-1996 strikers (whom Judge
Beddow found to have been unfair labor practice strikers).
Judge Beddow further found that the Respondent had violated
Section 8(a)(5) by engaging in unilateral actions, by refusing to
furnish information, by directly dealing with employees, and by
failure to meet at reasonar ble times with Local 337. To intro-
duce his discussion of the issues before him, Judge Beddow
stated: "These proceediftgs arose during a period of unfruitful
collective bargaining attmpts by the Respondent and [Local
337] after [Local 337] had been certified as the bargaining rep-
resentative for the Respondent's plumber/pipefitter employees
in July 1991." Judge Beddow's second decision (as I shall call
it) is at this time before the Board on exceptions, including
exceptions by the RespouI dent to Judge Beddow's finding that
Local 337 had been "certified."
On February 26, 1998I? the UA's general executive board is-
sued an order consolidating Local 337 in Kalamazoo with its
Local 513 in Benton Harbor. The general executive board fur-
ther declared that after March 1, the two merged local unions
would thereafter constitute the UA's Local 357, the Charging
Party. The UA gave the employee-members of neither Local
337 nor Local 513 an opportunity to vote on the matter of con-
solidation. Robert Williams was the business manager and fi-
nancial secretary of Lochl 337; he was appointed to the same
position with the Charging Party by the UA. By letter dated
March 2, Williams notifiled the employees who had been mem-
bers of Locals 337 and 513:
. . . As a condition of the [UA's] consolidation order,
this organization [the Charging Party] will operate under
the direct supervision of International Representative Jo-
seph L. Sposita.
Additionally, the other consequences of this order that
impact you are: the by-laws have been suspended, the
regular meetings of the local union are discontinued, and
officers and committee members are terminated.
All meetings will be called by the International Repre-
sentative. The meetings can be of an informational nature
only. The International Representative will appoint in-
terim officers until the consolidation is complete and elec-
tions are held. By-laws will be established at a later date
to define the operations of the local union.
The local union office will continue to operate in much
the same manner as you are accustomed to.
Williams testified that, as a result of the UA's action, Local 357
was placed in receivership for 3 years. There is no evidence
1094

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that the election suggested in Williams' quoted letter was ever
held. Williams did testify that those who had been members of
Local 337 or Local 513 automatically became members of the
Charging Party.
(The complaint alleges that, at all material times, the Charg-
ing Party has been a labor organization within the meaning of
Section 2(5) of the Act. The Respondent denies that allegation.
Section 2(5) of the Act defines labor organizations as entities
". . . in which employees participate . . . .'' As Williams' letter-
would seemingly demonstrate, employee participation was
suspended by the UA's actions, and there is no evidence that
their participation ever resumed. Section 8(a)(3) prohibits dis-
crimination against employees only if it is ". . . to encourage or
discourage membership in any labor organization . . . ." Even
assuming, however, that after the consolidation of Locals 337
and 513 the Charging Party was not a statutory "labor organiza-
tion" because employees did not "participate" in it, the Re-
spondent did not know this, and I would not dismiss the 8(a)(3)
allegations of the complaint on that basis. Moreover, Local 337
was unquestionably a statutory labor organization (as previ-
ously found by the Board and the Sixth Circuit), and retaliation
against employees because of their activities on behalf of that
entity would necessarily be designed to discourage their mem-
bership, or discourage the membership of other employees, in
any labor organization that might become Local 337's succes-
sor. Finally on this point, even if I am in error in finding that
certain conduct of the Respondent discussed herein violated
Section 8(a)(3), it nevertheless violated Section 8(a)(1) because
it was clearly carried out in retaliation for the employees' pro-
tected concerted activities.)
Also on March 2, 1998, Knapp sent a letter to the Respon-
dent making an unconditional offer to return to work on behalf
of the 10 employees who were then on strike (again, Kinney
and Rees who had begun their strike on December 26, 1996,
and Bronkhorst, Falk, Fuller, Maichele, Preston, Roggow,
Rowden, and Titus who had begun their strike on July 25,
1997). Knapp testified that before he sent the offer to return to
work, he discussed the matter with each of the named employ-
ees, telling them that it was time to end their strikes and turn
their efforts to the attempt to organize the Respondent's shop.
The 10 strikers corroborated Knapp's testimony; each of the 10
further testified that they were then willing to return to work
had they been offered reinstatement by the Respondent. The
Respondent has made no offers of reinstatement to any of the
10 strikers, and the Respondent's failure to reinstate them is the
subject of 8(a)(3) allegations before me.
By letter to the Respondent dated June 29, 1998, Knapp re-
quested information Igor the Union to carry on constructive
negotiations and to properly represent your workers." Then
follow 21 numbered requests for information, 3 of which the
General Counsel herein contends that the Respondent unlaw-
fully refused to comply with; to wit:
15. A list of all Allied Mechanical licensed plumbers
within the State of Michigan with current wage rates.
16. A list of all Allied Mechanical welders who are
carbon-steel certified.
17. A list of all Allied Mechanical welders who are
stainless-steel certified.
Wilbert Weidenaar, the Respondent's comptroller, replied to
Knapp by letter dated July 9.7 In response to request number
15, Weidenaar stated that all of the Respondent's plumbers
(except apprentices) were licensed and that: "You have a de-
tailed listing of all employees and their wage rates." In re-
sponse to numbers 16 and 17, Weidenaar stated that the Re-
spondent employed 19 welders who were carbon-steel certified
and 14 welders who were stainless-steel certified. Weidenaar
further stated: "Wages for these people are as follows: 10 @
$20; 1 @ $20.75; 4 @ $21.00; 2 @ $18; 2 @ $15.50." Weide-
naar did not provide the names of any of the 19 employees who
were certified for welding carbon steel, or stainless steel, or
both. On cross-examination, Weidenaar admitted that the "de-
tailed listing" to which he had referred in his letter of July 9 had
been submitted in July or August 1997. Weidenaar further
admitted that he did not know, and could not remember if he
checked to find out, if the Respondent had hired any employees
during the year following that submission. The complaint be-
fore me alleges that by Weidenaar's incomplete response the
Respondent has refused to furnish information in violation of
Section 8(a)(5).
Williams (again, the Charging Party's business manager) tes-
tified that the Respondent and the Charging Party met nine
times for purposes of collective bargaining after the March 1,
1998, consolidation of Locals 337 and 513 into Local 357. On
July 17, 1998, by letter of that date to Weidenaar, Williams
stated that "the Union" had bargained in good faith, but that the
Respondent had not. Williams requested Weidenaar to meet
another time for purposes of collective bargaining, specifically
on August 4.
In a letter to Williams dated July 22, 1998, Weidenaar stated
that the Respondent had bargained in good faith pursuant to the
1991 settlement agreement, but that Local 337 had not. Wei-
denaar concluded his letter by stating:
As a result, AMS finds it necessary to notify you that it
is terminating the voluntary collective bargaining process
for the following reasons:
1. AMS has met all of its legal obligations pursuant to
the settlement agreement dated July 30, 1991.
2. The bargaining process created by the settlement
agreement was, and is, a voluntary 8(f) relationship that
AMS is free to unilaterally terminate and is doing so.
3. The UA has never established majority status
among AMS' employees and AMS has, as of today's date,
objective considerations that establish a good faith doubt
as to majority status.
4. Recently, on March 9, 1998, we were notified dur-
ing the bargaining process that Local 337 had been
merged/consolidated with Local 513 to create Local 357.
7 On brief, the Respondent makes much of the fact that Knapp's June
29 request had the number "335" typed into a letterhead space for "Lo-
cal No." Weidenaar, however, promptly replied to the request with no
reservation about which local union Knapp was seeking to represent or
which union's stationery Knapp had used. This lawyer's afterthought,
therefore, is without merit.
ALLIED MECHANICAL SERVICES 1095
AMS has no legal obligation to continue to bargain with
the surviving entity, Local 357, pursuant to the settlement
agreement or under law.
5. Independent of the reasons listed above, 1 through
4, AMS is also withdrawing from the voluntary bargaining
process due to the disingenuous approach to bargaining
UA/337 has [employed] by using the bargaining process
for purposes other than reaching [an] agreement.
In short, we are terminating the voluntary bargaining
process, and our final offer on all issues is withdrawn.
There has been no further contact between the parties.
On August 1, 1998, the Respondent, without prior notice to
or consultation with the Charging Party, revised its application
procedure to require applicants to appear at its office in Kala-
mazoo, rather than to allow them to mail in their applications to
that office. The complaint before me alleges that by this unilat-
eral change the Respondent violated Section 8(a)(5). The Re-
spondent, of course, contends that by August 1, it had no duty
to bargain with Local 337 (or the Charging Party as its succes-
sor) because it had lawfully withdrawn recognition by that
point. (Alternatively, the Respondent contends that it had no
duty to bargain about the issue because hiring processes are not
mandatory subjects of bargaining within Section 8(d) of the
Act.)
2. The evidence upon which the Respondent relies
a. The striker-reinstatement issues
The Respondent admits that it failed to respond to Knapp's
March 2, 1998, offer to return to work that he made on behalf
of the 10 strikers (again, the 2 December 1996 strikers and the
8 July 1997 strikers). The Respondent does not contend that
the 10 strikers were economic strikers whom it had perma-
nently replaced by March 2. The Respondent contends, rather,
that it had no duty to reinstate the 10 strikers because: (a) all of
the strikers immediately secured substantially equivalent em-
ployment elsewhere and thus became ineligible for reinstate-
ment; (b) all of the strikers were "salts" who were not engaging
in a strike against the Respondent so much as they were obey-
ing their joint employers, the local unions of which they were
members; (c) the strikers sought no specific remedy; and (d) at
least the July 1997 strikers had engaged in a pattern of "inter-
mittent" work stoppages which, the Respondent further con-
tends, were unprotected under the Act.
It is undisputed that all of the 10 unreinstated strikers were,
at the time that they went on strike, being paid by Local 337 (or
one of the other Michigan UA locals) to assist in organizing the
Respondent's employees and were therefore "salts," as that
term is commonly used in labor relations law. During his
cross-examination, Knapp admitted that he and the 10 strikers
had agreements that they would go on strike when he told him
to and that they would return to work (or, at least, offer to re-
turn to work) when he told them to.
On cross-examination, December 1996 striker Kinney testi-
fied that he had become a member of Local 335 of the UA
while working for the Respondent earlier in 1996. Kinney also
testified that, from the point that he went on strike until the time
of trial, he was never without work (and during some periods
he worked 12 hours per day, 7 days per week). Kinney testified
that when he went on strike Local 335 immediately referred
him to a contractor that paid union scale and that Local 335
kept him in such referrals through time of trial. The union scale
was higher than the wage rate that Kinney had earned while
working for the Respondent; also, the fringe benefits were
greater with the union contractors. Kinney testified that he
never had to sign an out-of-work list at Local 335's hiring hall
to obtain these referrals because there were no employees "on
the bench" (or out of work) during this period. Kinney ac-
knowledged that during his testimony before Judge Beddow on
September 15, 1997, he stated that he had "no present plans" to
return to work with the Respondent. When asked during this
trial what he had meant by that testimony before Judge Bed-
dow, Kinney replied: "Well, if I remember, I was employed at
Diversified. I liked what I was doing and I didn't want to
leave, I guess." Kinney testified that he agreed to return to
work from the Decembeii 1996 strike because: "I had an under-
standing with him [Knapp] at anytime—anytime he wanted us
to go back to work that ,Nie could go back to work." (Kinney
added that he also thought that March 1998 was a good time to
end the 1996 strike ". . . and continue to try to organize the
shop.")
During their cross-examinations, Rees and the eight July
1997 strikers also acknowledged (in effect or exactly) that they
had agreed to go on strike when Knapp told them to, and they
acknowledged that they had agreed with Knapp that they would
offer to return to work for the Respondent, and would actually
do so, at any time that Knapp told them to. The July 1997
strikers also testified that their local unions paid them union
scale for picketing during the week of July 25, and that those
locals thereafter kept tlirn lined up with union-scale jobs dur-
ing much or all of the remainder of the time that they were on
strike against the Respondent and even after the March 2, 1998,
offer to return to work.
b. The bargaining issues
In support of its contrition that the 1991 settlement agree-
ment did not establish a Section 9(a) relationship between it
and Local 337, the Respondent points to Local 337's only writ-
ten proposal for recogninon that Local 337 made in bargaining
after the 1991 settlement agreement; to wit:
The Employer voluntarily recognizes the Union con-
sistent with Section 8(f) of the National Labor Relations
Act, and the employer shall recognize the Union's major-
ity status upon presentation of objective evidence as set
forth in Section 9(a) of the National Labor Relations Act.
The Respondent contends that by such proposal Local 337 ac-
knowledged that it was not a Section 9(a) representative and
that it could have becorl ie such only after it demonstrated its
majority status to the Respondent. As noted above, Local 337
never made such demoastration, by card-check or otherwise.
Specifically, no certification, as mentioned by Judge Beddow in
his second administrative law judge's decision, was ever issued
(no election was even conducted), and only the 10 salts (and
Knapp, himself) joined in the strikes and picketing against the
Respondent.
1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent contends that, because it and Local 337 had
negotiated with each other only pursuant to Section 8(f), it was
free to withdraw from the negotiations at any time and that its
July 28, 1998, withdrawal of recognition was therefore not a
violation of the Act. The Respondent further contends that, to
the extent that it ever had a duty to furnish bargaining informa-
tion to Local 337 by virtue of the 1991 settlement agreement,
the evidence discussed above demonstrates that it has done so.
3. Conclusions—The bargaining and striker-
reinstatement issues
a. The bargaining issues
Section 8(f), as quoted above, permits employers and unions
in the construction industry to bargain with each other and enter
collective-bargaining agreements without being subjected to
8(a)(2) or 8(b)(1)(A) allegations solely because the unions may
not have demonstrated their majority status under Section 9(a).
Section 8(f), however, does not require construction industry
employers or nonmajority unions to meet and bargain with each
other, and the General Counsel does not contend that it does.
The General Counsel contends, and the complaint alleges, that
the Respondent has refused to bargain with the Charging Party
in violation of Section 8(a)(5). As that section of the Act
plainly states:
Sec. 8. It shall be an unfair labor practice for an employer...
(5) to refuse to bargain collectively with the representatives
of his employees, subject to the provisions of section 9(a).
The immediate issue, therefore, is whether Local 337 (or its
alleged successor, the Charging Party) was ever the Section
9(a) representative of the unit employees or whether the Re-
spondent recognized Local 337 only pursuant to the permissive
provisions of Section 8(f).
Under John Deklewa & Sons, 282 NLRB 1375, 1385 fn. 41
(1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843
F.2d 770 (3d Cir. 1988), a collective-bargaining relationship in
the construction industry is presumed to be governed by Sec-
tion 8(1) rather than by Section 9(a). That presumption is a
strong one, and the showing necessary to overcome it and to
establish the existence of a Section 9(a) relationship must be
persuasive. For example, in Stack Electric, 290 NLRB 575
(1988), the Board summarized this rule of Deklewa by stating:
Mil light of the legislative history of Section 8(f) and the pre-
vailing practice in the construction industry, the party to an
8(f) relationship who asserts the existence of a collective-
bargaining relationship under Section 9(a) has the burden of
proving the existence of such a relationship, through either (1)
a Board-conducted representation election or (2) a union's
express demand for, and an employer's grant of, recognition,
based on a clear showing of support for the union among a
majority of the employees in an appropriate unit. (Emphasis
supplied.)
In Casale Industries, 311 NLRB 951 (1993), moreover, the
Board was clear that, once established, a Section 9(a) relation-
ship may not be belatedly disturbed by claims that a labor or-
ganization did not possess a majority status when that relation-
ship was created, but the Board further agreed with prior cases
that the issue of whether the parties had originally intended a
Section 9(a) relationship could be raised at any time that a con-
tract was not in effect. The Board reasoned (emphasis sup-
plied):
In nonconstruction industries, if an employer grants
Section 9 recognition to a union and more than 6 months
elapse, the Board will not entertain a claim that majority
status was lacking at the time of recognition.15 A contrary
rule would mean that longstanding relationships would be
vulnerable to attack, and stability in labor relations would
be undermined.16
These same principles would be applicable in the con-
struction industry. In Deklewa," the Board said that un-
ions in the construction industry should not be treated less
favorably than those in nonconstruction industries. As
shown above, parties in nonconstruction industries, who
have established and maintained a stable Section 9 rela-
tionship, are entitled to protection against a tardy attempt
to disrupt their relationship. Parties in the construction in-
dustry are entitled to no less protection. Accordingly, if a
construction industry employer extends 9(a) recognition to
a union, and 6 months elapse without a charge or petition,
the Board should not entertain a claim that majority status
was lacking at the time of recognition.18
15 Bryan Mfg. Co., 362 U.S. 411 (1960).
16 Id. at 429.
17 John Deklewa & Sons, supra at fn. 53.
18 Brannan Sand & Gravel Co., 289 NLRB 977
(1988), does not require a contrary result. There was no
showing in that case that the parties intended a 9(a) rela-
tionship. Rather, the General Counsel argued, unsuccess-
fully, that the Board should presume that pre-1959 rela-
tionships were 9(a) relationships. By contrast, in the in-
stant case, there is a showing that the parties intended a
9(a) relationship.
Similarly, in J & R Tile, 291 NLRB 1034 (1988), and
in American Thoro-Clean, 283 NLRB 1107 (1987), there
was no showing that the parties intended to have a 9(a) re-
lationship.
In this case, the Respondent's challenge to the majority status
of Local 337 did not come within 6 months after recognition
was granted and bargaining began; it came 7 years later.
Therefore, under Casale Industries, if the General Counsel has
shown that the parties originally intended to enter a Section
9(a) relationship by entering the 1991 settlement agreement, as
the General Counsel contends,8 the challenge clearly comes too
late.
Evidence that the parties originally intended to enter a Section
9(a) relationship has been found in several cases where the
8 On brief, the General Counsel does not contend that the 1998 set-
tlement agreement somehow extended the Respondent's obligation to
recognize Local 337 and bargain with it (or its alleged successor, the
Charging Party).
1097 ALLIED MECHANICAL SERVICES
parties agreed to a check of authorization cards,9 or they agreed
to a private election to verify a union's majority status (which
was the case in Casale Industries). Even without such demon-
strations, the Board has found that the parties intended a Sec-
tion 9(a) relationship if they enter a contract or a collateral
agreement that indicates that recognition had been requested on
the premise, and granted on the premise, that the labor organi-
zation represents a majority of the employer's employees. An
example of such a contract is found in Decorative Floors, Inc.,
315 NLRB 188 (1994), where the construction industry em-
ployer withdrew recognition from a union and committed uni-
lateral actions after its collective-bargaining agreement with
that union expired. The Board noted that the expired contract
had recited that "the union represents a majority of [the em-
ployer's] eligible employees in an appropriate unit and . . .
pursuant to Section 9(a) . . . the union is the sole and exclusive
bargaining representative." The Board held that such language,
"standing alone is sufficient to establish that such a [Section
9(a)] relationship existed here." The Board accordingly found
that the employer violated Section 8(a)(5) by its unilateral ac-
tions and withdrawal of recognition. An example of a collateral
agreement that would similarly bind an employer is found in
Oklahoma Installation Co., 325 NLRB 741 (1998), where the
construction industry employer repudiated all bargaining obli-
gations after a collective-bargaining agreement had expired.
The Board noted that before the collective-bargaining agree-
ment had been entered the parties had executed a separate letter
of assent stating that the employer was "satisfied that the union
represents a majority of its employees." The Board found that
the employer had violated Section 8(a)(5), reasoning that: "Be-
cause the Act confers 9(a) status only on majority unions, and
because Section 8(f) permitted these parties to contract without
concern for the Union's majority status, it is clear that the Re-
spondent's recognition of the Union as the majority representa-
tive of unit employees constituted recognition on the basis of
Section 9(a)."
In this case, of course, there was no collective-bargaining
agreement that was entered by the Respondent and Local 337.
On brief, however, the General Counsel attempts to equate the
1991 settlement agreement with the collateral agreement in
Oklahoma Installation Co. I do not believe that the comparison
can validly be made. The 1991 settlement agreement did not
recite that Local 337 represented a majority of the Respon-
dent's employees, and it made no other reference to Section
9(a), expressly or by implication. The 1991 settlement agree-
ment did require that the Respondent treat Local 337 as an "ex-
clusive" bargaining representative of the unit employees, but a
labor organization that seeks, and is granted, recognition under
Section 8(f) is no less an "exclusive" representative, at least for
as long as an employer is willing to recognize it as such. When
the parties here entered the 1991 settlement agreement, they, of
9 See, e.g. Goodless Electric Co., 321 NLRB 64, 66 (1996), enf. de-
nied 124 F.3d 322 (1st Cir. 1997), and Golden West Electric, 307
NLRB 1494, 1495 (1992) See also Triple A Fire Protection, Inc., 312
NLRB 1088 (1993) (fringe benefit report "confirming that all, or nearly
all . . . employees are members of and represented by [the involved
union]").
course, could have included some reference to Section 9(a), or
they (at least) could have included some reference to Local 337
as the "majority" representative of the unit employees. They
did neither, and it is not the province of the Board to retroac-
tively engraft such phraseology into what they did agree to by
entering the 1991 settlement agreement.
The General Counsel further contends that, even if the parties
did not execute any agreement that would, itself, indicate that
they intended to enter a 9(a) relationship, Local 337 did de-
mand recognition as a majority representative and the General
Counsel did issue a complaint alleging that status. From these
facts, the General CounSel argues that, by entering the 1991
settlement agreement, the Respondent must have acceded to
Local 337's demand, or Me Respondent must have agreed with
the General Counsel's allegation, or both. It is true that Local
337 did demand recognition as majority representative on April
24, 1990; no more need be said of that fact than the demand
was ignored by the Respondent. I° It is also true that the Gen-
eral Counsel did issue a complaint on December 13, 1990, al-
leging that a majority of the Respondent's employees had se-
lected Local 337 as then- collective-bargaining representative;
nevertheless, the General Counsel did not in that complaint
allege that by ignoring Local 337's prior demand for recogni-
tion the Respondent had violated Section 8(a)(5). Because
there had been such a prior demand, of course, the General
Counsel could have alleged a 8(a)(5) violation under Trading
Port, 219 NLRB 298 (1975), and its progeny. Rather than do
that, however, the 1990. complaint sought a bargaining order
only as a matter of reniedy for certain alleged violations of
Section 8(a)(1) and (3). There is no law or logic for holding
that a settlement agreement that provided a bargaining order
only as a remedy for allged violations of Section 8(a)(1) and
(3), and specifically not as a remedy for any alleged violations
of Section 8(a)(5), somehow establishes a union as a Section
9(a) representative. In any event, the Respondent denied the
allegation that Local 337 represented a majority of the unit
employees in its answer to the 1990 complaint," and neither by
operation of the 1991 settlement agreement nor by any other act
did the Respondent withdraw that answer.12 In summary, the
Respondent did not agrdie to the premise of either Local 337's
1990 demand for recognition or General Counsel's 1990 allega-
tion that Local 337 was al majority representative; accordingly,
it cannot be said that any agreement was reached on the basis of
that demand or that allegation.
Moreover, in labor law, like all other varieties of litigation,
parties enter settlement agreements for all manner of reasons.
Obviously, potential litigation costs would have been a factor.
Also, in agreeing to the bargaining order of the 1991 settlement
10 The Respondent also ignored the one oral demand for Section 9(a)
recognition that Local 337 made during the parties' 7-year course of
bargaining.
'I As well, the Respondent has consistently denied the Section 9(a)
status of Local 337 in its answers to all other complaints that the Gen-
eral Counsel has issued
12 The General Counsel's arguments in this regard would seemingly
elevate the informal 1991 settlement agreement, which did not provide
for a withdrawal of the answer, to the status of a formal settlement
agreement that did
1098

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreement, Respondent may well have thought it could reach
an agreement that was advantageous to it. The Respondent
may have anticipated, as did happen, that Local 337 would be
unable to get anyone but its salts to strike against it, and the
Respondent thereby knew that it would be in a strong bargain-
ing position during all negotiations that were to follow the 1991
settlement agreement. But no matter how well the Respondent
may have thought it could do at the bargaining table, such con-
struction industry bargaining is exactly what Congress intended
to encourage by enacting Section 8(f), according to the legisla-
tive history as discussed in Deklewa.
Additionally, and again, the 1990 complaint contained only
8(a)(1) and (3) allegations and, for purposes of remedy only, an
allegation of the majority status of Local 337. In 1991, while
considering whether to enter the proposed settlement agreement
that was based on those allegations, the Respondent would
logically have considered what remedies might subsequently be
sought against it if it breached the agreement. It would have
realized that a subsequent breach would possibly require it to
defend against the underlying unfair labor practice allegations
in the 1990 complaint, but certainly it would not have viewed a
subsequent breach as subjecting itself to litigation of allegations
that were not in the 1990 complaint; to wit: the 8(a)(5) allega-
tion that is made here.
Finally on this point, that the parties did not intend to enter a
9(a) relationship by entry into the 1991 settlement agreement is
made quite clear by Local 337's conduct after bargaining be-
gan. The only written recognitional proposal that Local 337
made during the 7-year course of negotiations was that:
The Employer voluntarily recognizes the Union con-
sistent with Section 8(f) of the National Labor Relations
Act, and the employer shall recognize the Union's major-
ity status upon presentation of objective evidence as set
forth in Section 9(a) of National Labor Relations Act.
If the agents of Local 337 had truly believed that they had en-
tered a Section 9(a) relationship with the Respondent when they
entered the 1991 settlement agreement, they would not have
advanced the language of either the first or second clause of
this proposal. Rather, by advancing this proposal the agents of
Local 337 acknowledged that, in order to achieve a Section 9(a)
relationship with the Respondent, they needed to present it with
"objective evidence as set forth in Section 9(a) of National
Labor Relations Act," as the proposal plainly states.
In summary, Local 337 and the Respondent did not intend to
enter a 9(a) relationship when they entered the 1991 settlement
agreement. Accordingly, the Respondent was free to question
the majority status of Local 337 (or its alleged successor, the
Charging Party), even after 6 months had elapsed.13 As Local
337 never attempted to make any showing of majority status,14
I find and conclude that the General Counsel has not overcome
13 See, especially, the cases cited in fn. 18 of Casale Industries, as
quoted above.
14 Indeed, there is no evidence in the record to indicate the size of the
unit at any point during the 7 years that elapsed between the execution
of the 1991 settlement agreement and the 1998 withdrawal of recogni-
tion, much less evidence of the size of any theoretical majority that
Local 337 may have achieved during that period.
the strong presumption that recognitional agreements in the
construction industry are made pursuant to Section 8(f), not
Section 9(a), and I further find and conclude that by its with-
drawal of recognition from Local 337 (or its alleged successor,
the Charging Party) the Respondent did not violate Section
8(a)(5).
Assuming, however, that the General Counsel did somehow
establish Local 337 as the majority representative of the unit
employees, the General Counsel nevertheless makes no valid
argument that the Respondent's withdrawal of recognition was
unlawful. On brief, the General Counsel argues that, once a
9(a) relationship was established by the 1991 settlement agree-
ment, recognition could be withdrawn only after the parties had
bargained "for a reasonable period of time." The argument that
an employer can withdraw recognition if it has bargained for a
reasonable period of time would, of course, be radically incon-
sistent with the current law that an employer may withdraw
recognition from an established Section 9(a) representative only
by a showing of a good faith doubt of a union's majority status
or by a showing that the union did not, in fact, represent a ma-
jority.15 Moreover, in support of his position, the General
Counsel cites only Douglas-Randall, Inc., 320 NLRB 431
(1995). That case, however, did not involve a refusal-to-
bargain complaint allegation; that case was not a complaint
case at all; that case was a Board decision on an issue of
whether a regional office should process a decertification peti-
tion that conflicted with the settlement of a 8(a)(5) complaint in
another case. The Board rejected the decertification petition,
holding that the employer and the union should be allowed a
"reasonable period of time" to bargain after the settlement
agreement was entered without the interference of a question of
the union's majority status. In this case, again, the 1991 set-
tlement agreement did not settle an 8(a)(5) charge or complaint;
it settled a 8(a)(1) and (3) complaint only. But even if the 1991
settlement agreement had settled 8(a)(5) allegations, it is to be
noted that, although the General Counsel cites the "reasonable
period of time" language of Douglas Randall, he (tellingly)
does not come out and argue that bargaining in this case was
not permitted a reasonable period of time before the Respon-
dent withdrew from negotiations. Indeed, bargaining was con-
ducted from mid-1991 through mid-1998; 7 years is long
enough.16
I would further find and conclude that, even if a Section 9(a)
relationship had been established between the Respondent and
Local 337, the Charging Party is not a successor that can le-
gitimately assert Local 337's bargaining rights. The law of
union successorship, or affiliation, is succinctly stated in Sulli-
van Bros. Printers, 317 NLRB 561 (1995), enfd. 99 F.3d 1217
(1st Cir. 1996):
15 See, e g., Hajoca Corp., 291 NLRB 104 (1988), enfd. 872 F.2d
1169 (3d Cir. 1989); Station KKHI, 284 NLRB 1339 (1987), 891 F 2d
230 (9th Cir. 1989) Antiunion employers would seemingly welcome
the General Counsel's "reasonable period of time" theory as a lower
standard of proof for defending against allegations of unlawful with-
drawals of recognition.
16 The General Counsel does not contend that any of the intervening
settled, or even adjudicated, unfair labor practice allegations should
somehow extend the process
ALLIED MECHANICAL SERVICES 1099
Once certified by the Board or voluntarily recognized
by an employer as the majority representative of unit em-
ployees, a union enjoys a presumption of continued major-
ity support and the employer has a corresponding continu-
ing obligation to recognize and bargain with the union.
Minn-Dak Farmers Cooperative, 311 NLRB 942, 944
(1993), enfd. 32 F.3d 390 (8th Cir. 1994), citing Burger
Pits, Inc., 273 NLRB 1001 (1984), and cases cited therein.
A change in internal structure or affiliation does not neces-
sarily change this obligation.
Consistent with the Supreme Court's admonition in
NLRB v. Food & Commercial Workers Local 1182 (Seat-
tle-First National Bank), 475 U.S. 192 (1986), that the
paramount policy of the Act, i.e., encouraging stable bar-
gaining relationships to preserve industrial peace, should
not be unnecessarily disrupted, [and] the Board will inter-
ject itself only in the most limited of circumstances involv-
ing such internal changes. Thus, only where an affiliation
vote is conducted with less than adequate due process
safeguards or where the organizational changes are so
dramatic that the postaffiliation union lacks substantial
continuity with the preaffiliation union will the Board find
the employer's duty to bargain does not continue. Minn-
Dak, 311 NLRB at 945; City Wide Insulation, 307 NLRB
1, 3 (1992); May Department Stores Co., 289 NLRB 661
(1988), enfd. 897 F.2d 221 (7th Cir. 1990), cert. denied
111 S.Ct. 245 (1990); and Quality Inn Waikiki, 297 NLRB
497 (1989). Further, the Board has consistently held that a
party seeking to avoid its bargaining obligation by virtue
of a change has the burden of demonstrating that the
change was not accomplished with minimal due process,
e.g., News/Sun-Sentinel Co., 290 NLRB 1171, 1176
(1988), enfd. 890 F.2d 430 (D.C. Cir. 1989); and Quality
Inn Waikiki, 297 NLRB at 501 fn. 13; or was sufficient to
raise a question concerning representation, e.g., Minn-Dak,
311 NLRB at 945, citing H B. Design & Mfg., 299 NLRB
73 (1990). [Footnotes omitted.]
Sullivan Bros. Printers was expressly followed in the recent
case of CPS Chemical Co., 324 NLRB 1018 (1997), enfd. 160
F.3d 150 (3d Cir. 1998), and there is no doubt that it states the
law. For a successorship to be established so that one labor
organization may assert the Section 9(a) bargaining rights of
another, the affected member-employees must have been af-
forded a chance to vote on the matter of affiliation, with provi-
sion of adequate due process safeguards for that voting, and
there must be a substantial continuity between the preaffiliation
and postaffiliation unions. In this case, whether or not there
was substantial continuity after the UA's March 1, 1998,
merger of Local 337 in Kalamazoo with Local 513 in Benton
Harbor to create the Charging Party, the fact is that the UA
gave none of the affected employees (even those who were its
members) an opportunity to express their wishes by voting on
the matter, with or without adequate due process safeguards.
On brief, the General Counsel recognizes the present status
of the law as stated in Sullivan Bros. Printers and CPS Chemi-
cal, and the General Counsel concedes the binding effect that
those decisions have on my decision herein. The General
Counsel, however, argues that the Board should overrule Sulli-
van Bros. Printers, CPS Chemical, and all other casesI7 that
hold that affected employees (or, at least, affected union mem-
bers) must be allowed to vote on affiliation or consolidation
issues. The General Counsel argues that the Board should es-
tablish new law that, if lihere is substantial continuity between
preaffiliation and postaffiliation unions, that factor alone should
be controlling. The General Counsel further argues that there
was such continuity here. Given the current state of the law,
this is an argument that I need not address." That is, even
assuming such continuity, the Board and the courts are far from
holding that employees are to be given no voice in whether they
shall be represented 1:1 1, a consolidated labor organization,
which is what happened in this case. Again, none of the mem-
bers of Local 337 were given an opportunity to vote on whether
their union should be dissolved and incorporated into a com-
pletely new entity, the Charging Party. Therefore, even if Lo-
cal 337 had once had a Section 9(a) relationship with the Re-
spondent, the Charging Party did not succeed to Local 337's
bargaining rights with the Respondent. The Respondent's re-
fusal to recognize the Charging Party, therefore, did not violate
Section 8(a)(5).
I shall further recommend dismissal of the allegations that
the Respondent has unlawfully refused to furnish Local 337 (or
its alleged successor, the Charging Party) relevant bargaining
information and has unlawfully committed unilateral actions.
As described above, the Respondent did withhold requested,
relevant information about employees' wages and qualifica-
tions, and it did act unilaterally by changing hiring procedures.
Like allegations of unlawful withdrawals of recognition, how-
ever, allegations of failtires to provide relevant bargaining in-
formation and allegations of unlawful unilateral actions cannot
be sustained when made on behalf of a union such as Local 337
(or its alleged successor) that does not, and never has, repre-
sented a majority of unit employees. That is, although the Re-
spondent committed unilateral actions and failed to supply
bargaining information, and although that conduct may have
been a breach of the 1998 settlement agreement (something that
the complaint does not allege), that conduct did not constitute
violations of Section 8(a)(5).
b. The striker-reinstatement issues
The General Counsel contends that the two December 1996
strikers (again, Kinney and Rees) and the 8 July 1997 strikers
(again, Bronkhorst, Falk, Fuller, Maichele, Preston, Roggow,
Rowden, and Titus) were unfair labor practice strikers because
17 See, for example, Insulfab Plastics, 274 NLRB 817, 821 (1985),
enfd. 789 F.2d 961 (1st Cir. 1986).
18 Nevertheless, I feel copstrained to point out that the only argument
that the General Counsel advances for giving controlling consideration
to the substantial-continuitY half of the test for the lawfulness of suc-
cessorship is that sometime S it is difficult to ascertain whether adequate
due process safeguards had been provided when affiliation votes are
conducted. This argument, of course, ignores the real possibility that
the affected employees may not like, or even trust, the potential per-
sonnel or the structure of a proposed consolidated union. In such cir-
cumstances, the employees should be afforded a choice, even if sub-
stantial continuity between preaffiliation and postaffiliation unions
would be maintained after the affiliation is accomplished
1100

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
they struck over one or more of the following alleged unfair
labor practices: (a) the Respondent's refusals to furnish infor-
mation and its unilateral actions, (b) its discharges of the sum-
mer-of-1996 strikers (again, Hayes, Kiss, Lemmer, Parlan,
Wood, and Warren), and (c) its failure to pay backpay to the
July 1997 strikers (plus Hill) for the period from 1992 or 1993,
when those employees offered to return to work from a prior
strike, until the Respondent reinstated them (or offered rein-
statement to Hill) on July 9, 1997, pursuant to the Sixth Cir-
cuit's decree. Although disputed by the Respondent, I find that
there is enough credible testimony that each of the 10 strikers
struck, at least in part, because of one or more of those alleged
unfair labor practices. (I am counting the alleged failure to
comply with the make-whole provision of the Sixth Circuit's
decree as an unfair labor practice itself.) I do not, however,
find that the 10 ,strikers in this case were unfair labor practice
strikers because I conclude that the General Counsel has not
proved that the Respondent's actions were, in fact, unfair labor
practices. My reasons are as follows: (a) I have rejected the
allegations that the Respondent has unlawfully refused to fur-
nish relevant bargaining information and has unlawfully en-
gaged in unilateral actions because I have found that the Re-
spondent had no duty to furnish the information, or refrain from
unilateral actions, under Section 8(a)(5); again, the Respondent
had no such duties because Local 337 (or its alleged successor,
the Charging Party) was not the Section 9(a) representative of
the unit employees. (b) The allegation that the Respondent
unlawfully refused to reinstate the six summer-of-1996 strikers
has not been proved. In his second administrative law judge's
decision, Judge Beddow found that the Respondent had unlaw-
fully discharged the summer-of-1996 strikers. That administra-
tive law judge's decision, however, has not been reviewed by
the Board as of this date. That is, Judge Beddow's unreviewed
decision does not establish the discharges as adjudicated unfair
labor practices, and the General Counsel did not seek to intro-
duce in this hearing any evidence that the discharges had been
unlawful. (c) Finally, the eight July 1997 strikers did strike, at
least in part, because they (and Hill) had not received any
backpay from the Respondent pursuant to the Sixth Circuit's
decree. The General Counsel, however, offered no evidence
that any of those nine employees were entitled to backpay un-
der the decree. The July 1997 strikers were "salts," and, as they
testified, when they were on strike against the Respondent,
Local 337 (and other UA local unions) kept them constantly
employed elsewhere, at higher wages and benefits. Their in-
terim earnings, therefore, could well have exceeded the pay that
they would have earned had the Respondent honored their 1992
or 1993 offers to return to work, and there is a real question that
any of them were entitled to any backpay. Accordingly I find
and conclude that none of the 10 alleged striker-discriminatees
in this case were unfair labor practice strikers.
Nevertheless, the Respondent was not necessarily free to dis-
regard, as it did, the 10 strikers' March 2, 1998, offer to return
to work made on behalf of the 10 strikers. As stated by Judge
Beddow in his first decision between these parties, and as ap-
proved by the Board and the Sixth Circuit:
Moreover, as pointed out by the General Counsel, the
traditional approach by the Board is that if the strike is not
an unfair labor practice strike, it is nevertheless an eco-
nomic strike. See, e.g., Commercial Candy Vending Divi-
sion, 294 NLRB 908 (1989), and when unfair labor prac-
tices cease to be the motivating factor for a strike, the
strike is viewed as economic. Trident Seafoods Corp., 244
NLRB 566, 569-570 (1979), enfd. 642 F.2d 1148 (9th Cir.
1981).
Particularly in this case, each of the strikers had economic ob-
jectives of which Knapp clearly informed the Respondent.
First of all, Kinney and Rees testified that they struck beginning
in December 1996 because the Respondent had failed to furnish
Local 337 with "information." Although the Respondent did
not have a statutory duty to furnish information to Local 337,
the attempt by Kinney and Rees to get the Respondent to fur-
nish information to Local 337, as if there had been a lawful
obligation for the Respondent to do so, was necessarily an at-
tempt to get the Respondent to recognize Local 337. A recog-
nitional objective is an economic objective, and Kinney and
Rees therefore engaged in an economic strike. The Respondent
knew this, even beforehand, by virtue of Knapp's December
24, 1996, letter which referred to the allegations (necessarily
including the information allegations) of the 1996 complaint.
Also, Kinney and Rees testified that they struck because the
Respondent had failed to reinstate the summer-of-1996 strikers,
another economic (if not unfair labor practice) objective of
which the Respondent was also apprized by Knapp's letter. As
well, the eight July 1997 strikers may or may not have been
entitled to backpay as a matter of law; nevertheless, their strike
for backpay was a purely economic objective, and they were
economic strikers solely on that account, as the Respondent
knew by virtue of the first listed item of Knapp's July 23, 1997
letter. Also the eight July 1997 strikers testified that they
struck because of one or more of the other reasons listed in
Knapp's letter, such as the suspension of another employee.
Those other matters did not involve unfair labor practices, but
they were economic objectives of the strikers_
The 10 strikers who offered to return to work on March 2,
1998, therefore, were economic strikers who were entitled to
reinstatement unless they previously had been permanently
replaced or their strike activities had not been protected by the
Act for some reason. The Respondent does not contend that it
had replaced the 10 strikers by the time it received their offer to
return to work, but it does contend that the strikers cannot be
considered to have engaged in activity that was protected by the
Act.
The Respondent first contends that the 10 strikers did not
possess "employee" status under the Act at the time that they
offered to return to work. Section 2(3) of the NLRA states, in
pertinent part:
The term "employee" shall include ... any individual whose
work has ceased as a consequence of, or in connection with,
any current labor dispute or because of any unfair labor prac-
tice, and who has not obtained any other regular and substan-
tially equivalent employment.
ALLIED MECHANICAL SERVICES 1101
The Respondent quotes this section of the Act and argues that
each of the 10 strikers had secured "other regular and substan-
tially equivalent employment" before their offer to return to
work. The factual premise for this argument is correct; the 10
strikers did secure regular, substantially equivalent, employ-
ment while they were on strike. The conclusion that the Re-
spondent seeks, however, is invalid.
In Phelps Dodge Corp., 19 NLRB 547, 598-599 (1940), the
Board held that, even if a striker obtains other regular and sub-
stantial employment, reinstatement is still an appropriate use of
the Board's remedial powers under Section 10(c) of the Act.
The Second Circuit refused to enforce the Board's order, but
the Supreme Court sustained the Board's position in Phelps
Dodge v. NLRB, 313 U.S. 177 (1941). The Court concluded
that Section 2(3) and the remedial provisions of Section 10(c)
must be read together and that Section 2(3) does not limit the
Board's power to award reinstatement to an employee even if
he obtains substantially equivalent employment. 313 U.S. 190-
191. The Court noted that the Board exists to adjudicate public,
not private, rights.
Although dicta in some subsequent cases would arguably
support the literal interpretation of Section 2(3) that the Re-
spondent advances in this case, the Board has consistently held
that, even if an employee secures substantially equivalent em-
ployment while on strike, his struck employer may deny him
reinstatement only if that employer shows that the employee
unequivocally intended to abandon his employment with it. In
Marchese Metal Industries, 313 NLRB 1022 (1994), the Board
so held, affirming the correctness of an exhaustive analysis of
the issue by Judge Steven B. Fish. In that analysis, Judge Fish
recited the holding of Phelps Dodge and thereafter noted:
Subsequently, in Mastro Plastics Corp., 136 NLRB
1342 (1962), the Board set forth various principles in con-
nection with backpay, and citing Phelps Dodge, supra,
held that employees who have obtained regular and sub-
stantial employment are still employees entitled to the
Board's remedies. The Board noted the dilemma that em-
ployees would be placed in, if a contrary interpretation
were to be made. Thus, an employee could be deprived of
his claim because he did not make reasonable efforts to
find interim employment, and on the other hand would be
deprived of his total claim by obtaining the interim em-
ployment. Finally, the Board also cited, as did the Su-
preme Court, the Board's power to vindicate public rights
and not merely correcting private injuries. Id. at 1350 fn.
20.
Judge Fish acknowledged that some cases that came after
Phelps Dodge and Mastro Plastics contained dicta that would
be consistent with the Respondent's interpretation of Section
2(3), but Judge Fish concluded:
Thus, it would seem that the Board has abandoned its previ-
ous position in Phelps Dodge and Mastro, that the obtaining
of substantially equivalent employment does not end em-
ployee status. But see Rose Printing Corp., 304 NLRB 1076
fn. 3 (1991), in which the Board observed that even if the re-
turning strikers had obtained regular and substantially equiva-
lent employment elsewhere "that would not per se establish
that they had abandoned interest in pre-strike jobs." See also
Daniel Construction Co., 276 NLRB 1093 fn. 3 (1985), in
which the Board citing Phelps Dodge found that the responsi-
bility to reinstate discharged employees does not terminate in
the event the employees obtain substantially equivalent em-
ployment elsewhere. Accord: Standard Materials, 237
NLRB 1136 (1978).19
In Marchese Metal Industries, the interim employment of two
employees was also at higher wages and benefits. Neverthe-
less, Judge Fish, and the Board, ordered reinstatement because
the employer had failed to show that the employees had said or
done anything to indicate that they had intended to abandon
their struck employment. In this case, the Respondent points to
the testimony of only one of the 10 strikers as indicating an
intent to abandon his employment with the Respondent.
Kinney acknowledged that in 1997, before Judge Beddow, he
testified that he had "no present plans" to return to work with
the Respondent. Befor me, Kinney was asked what he had
meant by that testimony, and he replied: "Well, if I remember, I
was employed at Divers fed. I liked what I was doing and I
didn't want to leave, I guess." This answer was probative of
nothing. Kinney's testiMony before me about what he had
meant by an answer that he gave 2 years before was, at best,
retroactive speculation.29 Certainly, there is no authority for
the proposition that Kinney's testimony before Judge Beddow
forever waived his rights to reinstatement. Moreover, even
though in 1997, Kinney expressed no "present" plans to return
to work for the Respondent, "present" plans are always subject
to change with changes in circumstances. Indeed, the circum-
stances did change becatise Kinney had quit Diversified at the
time of the 10 strikers' March 2, 1998 offer to return to work,
and he was then working elsewhere. Finally on this point, rea-
sons for declining reinsiatement are examined only after valid
offers of reinstatement have been made. Domsey Trading
Corp., 310 NLRB 777 (1993), enfd. 16 F.3d 517 (2d Cir.
1994). The Respondent's valid offer of reinstatement to
Kinney, or to any other of the 10 strikers involved in this case,
has yet to be made.
The Respondent next contends that all of the strikers were
salts who were not engaging in a strike against the Respondent
so much as they were obeying their joint employers, the local
unions of which they were members. It is true that the 10
1
strik-
ers were paid, and paid well, to be salts. It is also true that,
although the Supreme C) urt in NLRB v. Town & Country Elec-
tric, 516 U.S. 85 (1995), held that a salt is an "employee" under
the Act, the Court also stated that: ". . . this is not to say that
the law treats paid union organizers like other company em-
ployees in every labor law context." Id. at 97. Nevertheless,
all salts are paid by a labor organization, and the Board has
never held that acceptance of emoluments somehow make salts
incapable of also being statutorily protected strikers. The 10
strikers wanted the emoluments that the local unions offered,
19 On brief, in its argument that the law is what it is not, the Respon-
dent quotes only the first sentence of this paragraph.
20 On brief, the Respondent quotes Kinney's answer before me with
the (obviously intentional) excision of his qualifying appositive, "I
guess."
1102

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and for that reason they were willing to go on strike when Lo-
cal 337 told them to do so, and they were willing to offer to
return to work for the Respondent when Local 337 told them to
do so. There is, however, nothing but speculation on the part of
the Respondent that they did not, as well, seek the economic
benefits that they listed in their testimonies, especially the eco-
nomic benefits of money and recognition of Local 337 as their
collective-bargaining representative. Finally on this point, the
Board and the Sixth Circuit rejected this very argument by the
Respondent in their respective 1995 and 1997 decisions involv-
ing these parties.
The Respondent's next argument, that the 10 strikers sought
no specific remedy, is strictly a make-weight proposition.
Again, Knapp's letters to the Respondent plainly stated the
economic, if not unfair labor practice, objective of the strikes.
Moreover, a bill of particulars of desired objectives need not be
submitted before, or even during, a strike for it to be protected.
It is sufficient that employees let their employer know, before
or during a strike, why they are striking.21
The Respondent's final argument, that the December 1996
and July 1997 strikes were unprotected under the Act because
they were "intermittent," is equally invalid. On brief, the Re-
spondent concedes that there is no way that the strike activity of
Kinney and Rees could be considered "intermittent." The Re-
spondent argues, however that the eight July 1997 strikers did
engage in unprotected activities, stating:
In the cases of Jim Bronlchorst, Ken Falk, Ted Fuller, Grant
Maichele, Marty Preston, Max Roggow, Brian Rowden and
Steve Titus, these series of strikes began in 1992. Those
strikes are chronicled in the Board's decision and the records
of Case Nos. 96-5208, 96-5332 and 96-5411. The strikers
then returned to work in early July 1997 and went back out on
strike on July 23, 1997. The pattern has been established and
the purpose is obvious: to disrupt and harass the operations of
AMS; to wobble jobs; and to abuse and misuse the National
Labor Relations Act in an attempt to force feed the union to
AMS' employees. This is not activity protected by the Na-
tional Labor Relations Act. This activity should be viewed
for what it is—unprotected, disruptive harassment.
Of course, a requirement that a strike not be disruptive of an
employer's operations, or harassing to it, is a requirement that
the strike not be conducted. Moreover, in support of its argu-
ment the Respondent cites only one Board and one court case,
each of which involved employees' repeatedly returning to
work from strikes and soon thereafter going back out on strikes
again. When they were returning to work on July 9, the eight
July 1997 strikers were not returning from a strike. They were
returning to work from effective discharges. They had been, in
effect, discharged because the Respondent had unlawfully re-
jected their 1992 and 1993 offers to return to work, as held by
the Board and the Sixth Circuit. Therefore, although the July
1997 strikers had been at work just a short time before they
initiated the July 1997 strike, that strike activity was their first
in 4 or 5 years, and it cannot be considered "intermittent" on
any account.
21 NLRB v. Washington Aluminum Co., 370 U.S. 9(1962)
As economic strikers whom the Respondent had not perma-
nently replaced by the time of their March 2, 1998, offer to
return to work, Kinney, Rees, Bronkhorst, Falk, Fuller, Maich-
ele, Preston, Roggow, Rowden, and Titus were entitled to rein-
statement upon that offer. The Respondent's failure to reinstate
the 10 strikers on that date therefore violated Section 8(a)(3), as
I find and conclude. 22
B. Alleged Unlawful Refusals to Consider and
Hire Union Applicants
1. Overview and contentions
Before August 1, 1998,23 the Respondent did not utilize ap-
plication forms in its hiring processes. Instead, it accepted indi-
vidually created resumes as applications for employment. But
it had certain requirements for such resumes, and a statement of
those requirements was available to applicants:at its Kalamazoo
office. The pre-August 1 published hiring policy24 contained:
WHAT TO DO IF YOU SEEK EMPLOYMENT
AT ALLIED MECHANICAL SERVICES
1. Submit a Resume with: (a) Name (b) Social Secu-
rity number (c) Driver's license number and state of issue
. . . (g) Education (h) Job History (i) Job Experience (j)
Special Skills (k) References with phone numbers—List
the names of any Allied Mechanical management employ-
ees that you know.
2. AMS will consider resumes current for 30 days.
After that period, unless there is contact made by the pro-
spective employee in person, resumes will be considered
inactive.
3. When AMS is preparing to hire, we will go over all
current resumes. [Emphasis in original.]
The final paragraph of the pre-August 1 stated policy, in bold
face and underlined completely, is: "A Certification and Re-
lease form must be signed and attached to your resume. Failure
to do this will terminate your opportunity to be considered for
employment at Allied Mechanical Services, Inc." The Respon-
dent attached a copy of the required "Certification and Release"
paragraph to each of the distributed copies of its statement of
hiring policies. The "Certification and Release" paragraph is
lengthy; generally, it states that an applicant understands that
falsification is grounds for termination, that a drug test will be
required, that prior employers (and others) may be contacted
22 As case authority for this conclusion, I can do no better than cite
Allied Mechanical Services, 320 NLRB 32 (1995), enfd. 113 F.3d 623
(1997). That case, as discussed above, not only involved this respon-
dent, it involved this respondent's discrimination against 8 of the 10
economic strikers in this case (Kinney and Rees being the exceptions)
The Respondent's unlawful discrimination against returning strikers
that I find in this case began in 1998, but whether the office of the
General Counsel has sought a citation for contempt of the Sixth Cir-
cuit's 1997 decree is not reflected by the record herein
2' All dates subsequently mentioned are in 1998, unless otherwise
indicated.
24 Just when the Respondent first published its pre-August 1 state-
ment of hiring policy was not shown. On brief, however, the General
Counsel concedes that it was in effect " . from the time the unions
starting applying in March until August 1, 1998."
ALLIED MECHANICAL SERVICES 1103
for references, and that such employers (and others) are re-
leased from liability for their responses.
The complaint, as amended, alleges:
14. On various dates between, March 31, 1998, and
August 5, 1998, the Charging Party Union sent Respon-
dent employment applications for Elton Bennett, Scott
Calhoun, Terri Jo Conroy, Mike Curran, Eric Englehart,
Ken Falk, Ted Fuller, Marty Hampton, Harold Hill, Jeff
Kiss, Dave Knapp [i.e., the Local 337 representative men-
tioned above], Grant Maichele, Rod Newcomb, Tom Pat-
terson, Marty Preston, Tobin Rees, Max Roggow, Brian
Rowden, Jeff Warren, Todd West and Randy Wood.
15. Respondent failed and refused to hire or consider
for employment the employees named above in paragraph
14.
The complaint further alleges that by its conduct toward these
applicants the Respondent violated Section 8(a)(3). In its an-
swer, the Respondent claimed no knowledge of the facts that
are alleged in paragraph 14; at trial, however, its counsel stipu-
lated that: ". . . these were resumes that were received, on or
about the dates indicated, by the Respondent in this case." The
Respondent admitted paragraph 15, but it denies any violation
of law by its conduct.
Knapp testified that he created a resume-application form for
use by members of UA Locals 335 and 337 who wished to
assist him in organizing the Respondent by becoming em-
ployee-organizers (salts). The form that Knapp initially created
contained spaces for almost all of the information required by
the Respondent's pre-August 1 stated policy, but it did not con-
tain a "Certification and Release" paragraph to be signed by an
applicant, and it did not have a space for entry of an applicant's
driver's license number and state of issue. In a space for "Ref-
erences with phone numbers," Knapp's initial resume-
application form had preprinted Knapp's name and telephone
number and the name and telephone number of one Richard
Frantz; Frantz was a member of the Local 337 negotiating team
that was then attempting to secure a contract with the Respon-
dent.
From March 31 through August 5, first by certified mail and
sometimes by facsimile transmission (fax), and later by regular
mail, Knapp submitted to the Respondent resume-applications
individually signed by the 21 applicants named in paragraph 14
of the complaint, including himself For this purpose, Knapp
used only envelopes that had in the return-address areas the
hand-stamped legend: "DAVE KNAPP—UA ORGANIZER
[address]." Knapp obtained return receipts for the resume-
applications that he sent by certified mail, and he obtained con-
firmation reports for those that he sent by fax.
(At some point, the Respondent began a practice of refusing
to accept certified mail, the envelope of which showed that it
was from Knapp. I discredit all testimony offered by the Re-
spondent that this practice had reasons other than that it sus-
pected that such certified mail contained applications of pro-
union employees. Nevertheless, the Respondent thereafter did
accept applications that Knapp sent by regular mail, and only
two union applicants, Thomas Patterson and Randy Wood,
could possibly have been affected by the practice of refusing
certified mail from Knapp. As I find infra, however, there is
insufficient evidence to show that Patterson and Wood were
prejudiced by the Respondent's refusals to accept certified mail
from Knapp.)
In mid-April Knapp discovered that the Respondent required
that a signed "Certification and Release" paragraph be submit-
ted along with each resume-application. By that time, however,
Knapp had already submitted several resume-applications
without the paragraph. Upon his discovery, Knapp revised his
resume-application form to include the paragraph (and to in-
clude a space for an applicant's driver's license number and
state of issue), and all resumes that the Respondent received
from Knapp after April 15, did contain the "Certification and
Release" paragraph.
The dates that the Respondent received the union applicants'
resume-applications from Knapp were as follows: Bennett,
April 10; Calhoun, two rplications, April 10 and July 29; Con-
roy, July 30; Curran, March 31; Engelhart, May 1; Falk, April
8; Fuller, April 8; Hampton, May 1; Hill, two applications,
April 10 and July 30; Kiss, three applications, April 3, May 1,
and July 28; Knapp (i.e. Knapp's own), April 6; Maichele,
three applications, April 14, May 1, and August 3; Newcomb,
May 1; Patterson, two applications, April 17 and August 13;
Preston, April 13; Rees, three applications, April 9, May 7, and
July 30; Roggow, April 10; Rowden, three applications, April
6, May 1, and July 28; Warren, two applications, April 16 and
August 3; West, April 23; and Wood, two applications, April
10 and August 13.25 Several of these union applicants had
previously worked for the Respondent. As held above, the
Respondent unlawfully denied Rees reinstatement after his
March 2 offer to return to work from a strike that he and
Kinney began on December 26, 1996; Fuller, Hill, Maichele,
Roggow, Falk, Preston, and Rowden were previous employees
of the Respondent whom the Board and the Sixth Circuit, as
discussed supra, have found to have been unlawfully discrimi-
nated against by the Respondent's refusals of their 1992 and
1993 offers to return to work from strikes during those years.
It is undisputed that the Respondent hired no new employees
from January 1 through August 4. The Respondent admits that
it began interviewing (considering) new employees during the
first week in July, and it .admits that it hired 15 employees from
August 5 through December 28. (And I find infra that the Re-
spondent hired six more employees in 1999, on the basis of
applications that it considered in 1998.) The Respondent does
not contend that any of the employees named in paragraph 14
of the complaint were not qualified for any of the plumbing or
25 For the dates of the Respondent's receipts of the union applicants'
resume-applications, I rely on Respondent's record of receipts of all
applications, the accuracy or which the General Counsel does not ques-
tion. The Respondent's record of receipts sometimes lists two dates
that are quite close together; this was because, for some union appli-
cants, Knapp submitted mUltiple copies of the same application, by
certified or regular mail, by fax, or by some combination thereof In
such circumstances, I use only the date of the last copy that the Re-
spondent recorded as received
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pipefitting jobs that it filled in 1998.26 Instead, as well as con-
tending that the General Counsel has proved no prima facie
case, the Respondent advances three defenses for its failures to
consider any of the union applicants for employment: (A) The
Respondent contends that it did not consider eight of the union
applicants because they never submitted "compliant" applica-
tions; that is, applications that were facially compliant with its
then-current requirements as stated on forms that it distributed
at its Kalamazoo office.27 The Respondent includes in this
group union applicants Bennett, Curran, Falk, Fuller, Knapp,
Preston, Roggow, and Wood. Except for Wood, Knapp submit-
ted only one application for each of these eight alleged dis-
criminatees, and he did so before he came to know that the
Respondent's stated requirements for resumes included the
"Certification and Release" paragraph for an application to be
compliant. On August 13, Knapp submitted a resume-
application signed by Wood which included the "Certification
and Release" paragraph, but the Respondent contends that that
application was noncompliant with requirements that it insti-
tuted on August 1, as discussed infra, that applicants complete
Company-created application forms and that they complete
such forms at the Respondent's premises. (B) The Respondent
contends that it did not consider the applications of eight other
of the union applicants because, although they did submit com-
pliant applications at one time or another, it considers even
compliant applications to be "active" or "current" only for 30
days,28 and the applications of those eight applicants were more
than 30 days old when it started to consider hiring new employ-
ees in early July. The Respondent includes in this group union
applicants Engelhart, Hampton, Maichele, Newcomb, Patter-
son, Rowden, Warren, and West. There is no dispute that these
eight union applicants did not have on file with the Respondent
compliant resume-applications that were less than 30 days old
when it began considering hiring new employees in early July.
Rowden, however, submitted another application on July 28;
the Respondent contends that that application was noncompli-
ant because Rowden did not include a valid driver's license
number.29 (C) Finally, the Respondent contends that it did not
consider the remaining five union applicants because, although
their applications were "active" or "current" when it considered
other applicants in 1998, those applications were not filed until
after it had begun a process of considering only applicants who
were recommended by current employees or supervisors. The
alleged discriminatees whom the Respondent contends were
lawfully rejected for this reason are Calhoun, Conroy, Hill,
Kiss, and Rees.
Marinus DeJong, Jr., is the Respondent's director of human
resources. The complaint, at paragraph 19, alleges:
26 Indeed, on brief the Respondent contends, inter alia, that all of the
union applicants were overqualified as plumbers or pipefitters because
it was seeking only apprentices at almost all times that are relevant
27 The Respondent's pre-August 1 requirements for resume-
applications are quoted above; the Respondent issued other statements
of requirements on August 1 and October 14, as discussed infra.
28 See numbered pp. 2 and 3 of the above-quoted pre-August 1 stated
policy.
28 See numbered paragraph 1(c) of the above-quoted pre-August 1
stated policy
On August 1, 1998, Respondent, by [DeJong], changed
its employment application procedure by requiring all ap-
plicants to submit their applications in person and [to] use
an application form provided by Respondent and by pro-
hibiting applicants from submitting their resumes or appli-
cations by mail or facsimile.
The Respondent admits this allegation of the complaint. The
complaint, at paragraphs 22 and 23, further alleges that the
Respondent instituted the changes noted by paragraph 19 in
order to discourage union membership and activities of em-
ployees in violation of Section 8(a)(3).39 The General Counsel
contends that the changes were designed to thwart the efforts of
union applicants. The Respondent denies these allegations, and
it contends that the changes were made solely for legitimate
business reasons.
2. The applicants
a. The union applicants
Although, as I find infra, the Respondent's owner and presi-
dent, John Huizinga, made all decisions regarding which appli-
cants would be interviewed and which applicants would be
hired, the Respondent called only DeJong to testify in defense
of the refusal-to-hire allegations of the complaint.
DeJong testified that he reviews applications when they are
received, and he notes in a computer file, or log, whether they
are facially compliant, or noncompliant, with the Respondent's
then-current requirements for applications. The Respondent
placed into evidence a hard copy of DeJong's 1998 computer
log of applications. The log is a table with the far left column
designated for the names of all applicants, and the next column
is designated for the dates of receipts of the applications. If an
application is noncompliant with the Respondent's then current
requirements for applications, DeJong logs it in as such by
entering across the remaining columns "NONCOMPLIANT"
(in capital letters, but without the quotation marks). After log-
ging in a noncompliant application. DeJong places the hard
copy in an office file with other noncompliant applications.
(What DeJong did with two noncompliant applications after
placing them in that file is a matter to be discussed infra.) If an
application is compliant, DeJong logs it in as such by entering
nothing into the columns following the name of the applicant
and the date of receipt. (That is, DeJong does not enter, in
addition to the applicant's name and the date of receipt, another
notation such as "compliant.") After logging in a compliant
application, DeJong places the hard copy in an office file with
other compliant applications. As discussed infra, DeJong goes
to that file to pull those applications that are still current when
Huizinga tells him that the Respondent needs to hire new em-
ployees. To keep an application current under the Respon-
dent's standards, an applicant need not file an application every
30 days. An applicant may express his continued interest in
employment by updating his application every 30 days. If an
30 The changes noted by paragraphs 19, 22, and 23 of the complaint
are also subjects of 8(a)(5) allegations that I have dismissed above on
the basis of my finding that the Respondent had no duty to bargain with
the Charging Party.
ALLIED MECHANICAL SERVICES 1105
applicant who has submitted a compliant application comes to
the Respondent's Kalamazoo office, in accordance with para-
graph 2 of the above-quoted policy (or only telephones DeJong,
according to DeJong's testimony), to update his application,
DeJong enters into the columns following the applicant's name
and date of original application the dates of such updates with-
out any further comment. (That is, DeJong does not enter, in
addition to the date of the update, another notation such as "up-
date" along with the date of the update). As quoted above, the
Respondent's pre-August 1 hiring policy stated that the Re-
spondent accepted resumes as applications, and it stated that
resumes could be updated only if the applicant appeared at its
office (in person).
On August 1, the Respondent issued a revised statement of
its hiring policy; to wit:
Employment Application Process
1. Allied Mechanical Services, Inc. (AMS), conducts
all recruiting and hiring from its Kalamazoo office. All
individuals interested in employment at any AMS location
must complete an AMS employment application in person
at the Kalamazoo office.
2. All applicants, in order to be considered for em-
ployment, must complete an AMS employment applica-
tion. Resumes will not be accepted.
3. An application must be completed in its entirety at
[address] by the prospective employment candidate.
4. Only completed original applications will be ac-
cepted. No faxed resumes or applications will be ac-
cepted. No batch resumes or applications will be ac-
cepted.
5. All completed applications will be considered cur-
rent for thirty days. If candidates wish their application to
remain active beyond that point, they must make a per-
sonal appearance at the office at [address] prior to the ex-
piration of the thirty day period. Each update will keep
the application active for thirty days from the last candi-
date appearance.
6. When the need to add to our staff arises, AMS will
review all current applications ....
8. Applications can be completed between the hours
of 7:30 a.m. and 9:30 a.m. Monday through Thursday, or
by appointment. (The underlining is original.)
As previously noted, the complaint alleges that the Respondent
violated Section 8(a)(3) by instituting these August 1 policy
changes to the extent that they require applicants to complete a
Company-created application form and require applicants to
complete such forms at the Respondent's premises, rather than
submit applications by mail. On direct examination, DeJong
testified that the use of the Company-created application form
was necessitated to secure a consistency of the type of informa-
tion that the Respondent received from applicants; he further
testified that: "It would give us the opportunity to see how well
people followed instruction. [And] when it would be com-
pleted on site, we would make sure that the person who was on
the document was the same person that completed the applica-
tion." Also on cross-examination, DeJong testified that the
reason that the August 1 policy prohibited "batch applications"
(or applications sent as a group, as Knapp had done) was: ". . .
because we wanted the individual to make out the application
on site so we could see that it was the individual that completed
the application." DeJong further testified that, although he did
the drafting, Huizinga made the decision to issue the August 1
policy.
The Respondent introduced into evidence a July 31 memo-
randum from DeJong to Huizinga that states, inter alia:
By form of thisil memo the office staff are being in-
formed that all applications for employment must be ac-
quired from me or a designated representative, be com-
pleted on site, and De immediately returned to me or the
designated representative.
It is these changes that are highlighted by DeJong's memoran-
dum that the General Counsel alleges to have been violative of
the Act.
On October 14, the Respondent further amended its stated
application policy by, inter alia, deleting the express require-
ment that applicants appear in person to update their applica-
tions; the October 14 policy stated that updates may be made by
"contact" with the R4pondent's human resources depart-
ment.31 DeJong testified that, although the Respondent's pub-
lished policy at all time before October 14, was that applica-
tions could be updated only by personal appearance at the
Kalamazoo office, from the time that he was hired by the Re-
spondent as human resources manager in late 1997, and con-
tinuing thereafter, he allowed applicants to update their applica-
tions by telephone. (The General Counsel contends that De-
Jong's allowing applicadlts to update their applications by tele-
phone, contrary to the published hiring policy as that policy
existed prior to October 14, is evidence of discrimination
against union applicants. I reject this contention because no
union applicant testified that he attempted to update his applica-
tion by telephone but was refused.)
DeJong further testified that, when Huizinga tells him that
the Respondent needs to hire another employee, he reviews his
computer file log to see what applications are "active" or "cur-
rent" (that is, according to DeJong and the statements of hiring
policy quoted above, those compliant applications which had
been filed or updated within the last 30 days). DeJong pulls the
hard copies of all such active applications and confers with
Huizinga. At that point DeJong may make recommendations
to Huizinga about who he thinks should be interviewed; how-
ever, as copious quoted testimony will demonstrate, Huizinga
then makes all decisions about which applicants will be inter-
viewed, and Huizinga makes the decisions about which appli-
cants will be hired.32
None of the union applicants filed Company-created applica-
tions after August 1. All of the union applicants filed resume-
applications before Augur st 1, and some of them filed resume-
applications after August 1. - In October, some of the union
31 The October 14 policy did not state how that contact might be
made, but I find that any reasonable applicant would conclude that the
required contact could be made by telephone.
32 By March 31, DeJong had worked for the Respondent only for a
few months, his prior personnel-relations experience was in the phar-
maceuticals industry, not the construction trades.
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
applicants also sent letters to DeJong expressing continued
interest in employment with the Respondent. How DeJong
treated the union applicants' resume-applications, and how
DeJong responded to their October letters, is as follows:
Bennett, Curran, Falk, Fuller, Knapp, Preston, Rog-
gow and Wood. As noted above, Knapp submitted re-
sume-applications on behalf of these 8 applicants before
he discovered in mid-April that the Respondent's pub-
lished requirements for resume-applications included a
signed "Certification and Release" paragraph and an ap-
plicant's driver's license number and state of issue. De-
Jong testified that, because those resume-applications did
not have the "Certification and Release" paragraph, he
logged them in as non-compliant, and he did not consider
any of them when the Respondent began to consider hiring
new employees in early July. (DeJong did not, however,
testify that any of the 8 applications that were submitted
on Knapp's original form were considered non-compliant
because of the omission of a driver's license number and
state of issue.)
Roggow made no further attempts to secure employment
with the Respondent.
On August 13, Wood (through Knapp) submitted a second
resume-application to the Respondent. Although Wood's sec-
ond resume-application did contain the "Certification and Re-
lease" paragraph, it was received after the Respondent's August
1 change of policy that mandated that its application forms be
completed (and that the forms be completed at the Kalamazoo
office, rather than mailed in). DeJong therefore logged in
Wood's second resume-application also as noncompliant. Ad-
ditionally, by letter dated August 13, DeJong responded to
Wood stating: 33
Please be informed that, effective August 1, 1998, our
pre-employment policy and procedures changed. We no
longer accept resumes, faxed or otherwise. All applicants
are required to complete an application at our premises. If
you are interested in employment at Allied Mechanical
Services, Inc., please visit our facility at [address]."
Wood made no further attempt to contact the Respondent about
employment.
On October 14, Fuller and Knapp submitted letters stating
that each was "... still interested in obtaining employment with
Allied Mechanical Services." (Several other union applicants,
after they also had heard nothing in response to their submis-
sions of resume-applications, sent letters with the identical text
to the Respondent; I shall refer to any such letter as a "still
interested" letter.) DeJong responded to Fuller and Knapp that:
Please be informed that effective August 1, 1998, our
pre-employment policy and procedures changed. All ap-
plicants are required to complete a company application
on our premises at [address].
(The text of this letter was repeated to other applicants who
submitted "still interested" letters, and, for brevity, I shall refer
All of DeJong's responses to the union applicants were by letter.
to such responses by DeJong as "new-policy letters." Some of
the new-policy letters also included: "If you are still interested
in being considered for employment, you can complete an ap-
plication anytime between 7:30 a.m. and 9:30 a.m., Monday
through Thursday, at our office." Knapp made no further at-
tempt to contact the Respondent about his employment; Fuller
sent one more "still interested" letter.
On October 29, Curran, Falk, Preston, and Fuller submitted
"still interested" letters to the Respondent. DeJong responded
to each with a new-policy letter. Curran, Falk, Preston, and
Fuller made no further attempts to contact the Respondent
about employment.
Engelhart, Hampton, Maichele, Newcomb, Patterson, Row-
den, Warren, and West. As indicated above, before April 15
Knapp filed applications on behalf of Engelhart, Hampton,
Maichele, Newcomb, Patterson, Rowden, and Warren (but not
West), which applications DeJong testified that those applica-
tions were noncompliant with the Respondent's requirements
because they did not have the "Certification and Release" para-
graph. (DeJong did not testify that any of those applications
were noncompliant because they did not bear a driver's license
number or state of issue.) For those applicants, and West,
Knapp subsequently submitted resume-applications that the
Respondent received on the following dates: Patterson's on
April 17, West's on April 23, Warren's on April 24, and those
of Engelhart, Hampton, Maichele, Newcomb, and Rowden on
May 1. At the time that Knapp submitted these applications, he
did know of the Respondent's requirement of the "Certification
and Release" paragraph, and he had revised his resume-
application form to include that paragraph and to include a
space for an applicant's driver's license number and state of
issue. All eight, therefore, completed applications with the
"Certification and Release" paragraph; as well, all eight entered
their driver's license numbers. DeJong logged in all of these
applications as compliant (including specifically, it is to be
noted for purposes of later discussion, the May 1 resume-
applications of Maichele and Rowden). None of these eight
applicants, however, attempted to contact the Respondent to
update their (revised-form) resume-applications within 30 days
after filing. DeJong testified that each of the applications there-
fore became "inactive," under the Respondent's system, on the
30th day after they were filed. Neither Hampton nor West
made any further attempts to contact the Respondent about
employment, but Engelhart, Maichele, Newcomb, Patterson,
Rowden, and Warren did.
Engelhart submitted a "still interested" letter to the Respon-
dent on November 13. DeJong's reply is not in evidence, but at
trial DeJong testified that he responded to Engelhart (and others
who will be named below) with the same letter that he sent to a
nonunion applicant, Michael Collier. The letter to Collier,
which is in evidence, recites the same information that is stated
in the new-policy letters. The General Counsel does not ques-
tion the testimony by DeJong that he sent to Englehart (and
others) the same text that he sent to Collier; in fact, in an index
to the General Counsel's brief, the General Counsel repeatedly
refers to the text of DeJong's letter to Collier as that which was
sent to several of the alleged discriminatees.
ALLIED MECHANICAL SERVICES 1107
Maichele submitted another resume-application on August 3.
DeJong responded with the text of his above-quoted letter to
Wood. On October 2, Maichele submitted a "still interested"
letter to the Respondent. DeJong responded to Maichele with
the new-policy letter, but as a preface to the letter DeJong also
recited: "Please be informed that your application for employ-
ment expired on May 31, 1998." (May 31 was, of course, 30
days after Maichele's May 1 submission of a resume-
application which the Respondent concedes was compliant.)
After receiving this new-policy letter, Maichele made no fur-
ther attempts to contact the Respondent about employment.
Newcomb submitted a "still interested" letter to the Respon-
dent on October 14. DeJong responded with a new-policy let-
ter. Newcomb made no further attempts to contact the Respon-
dent about employment.
Patterson submitted another resume-application that the Re-
spondent received on August 13. DeJong responded to that
submission as he had to Wood. On October 19, Patterson sub-
mitted a "still interested" letter. DeJong sent no reply. (De-
Jong testified that he did not send another letter about the Re-
spondent's August 1 policy to an applicant if he had already
sent one such letter to that applicant.) Patterson made no fur-
ther contact with the Respondent about employment. The Gen-
eral Counsel contends that Patterson was prejudiced by the
Respondent's refusals to accept certified mail from Knapp.
Patterson's signature on his last resume-application is dated
July 22, but there is no evidence that it was mailed before Au-
gust 1, when the Respondent began requiring Company-created
application forms. (Knapp did not testify as to when he mailed
it, and the refusal date was not shown on the envelope that the
General Counsel placed in evidence.) As I find infra, that re-
quirement was lawful. The General Counsel does not make the
same contention for Wood, who signed his resume-application
on July 30, but my ruling would be the same.
Warren submitted a second resume-application to the Re-
spondent on August 3; DeJong responded with a new-policy
letter. On October 29, Warren submitted a "still interested"
letter. DeJong sent. no reply. Warren made no further contact
with the Respondent about employment.
Rowden submitted another resume-application on July 28.
The Respondent was still accepting resume-applications
through July 31, and Rowden's July 28 application was on
Knapp's revised application form, and it therefore did have the
"Certification and Release" paragraph, and it did have a space
for entry of his driver's license number and state of issue. De-
Jong testified that Rowden's July 28 resume-application was
noncompliant solely because Rowden had entered on that ap-
plication an incomplete driver's license number; specifically,
Rowden entered only "R350" in a space on the resume-
application for "Driver's License Number and State." Row-
den's driver's license number, as indicated by his unquestiona-
bly compliant, but expired, May 1 application is: "R350-098-
465-552." As DeJong was asked and he testified on cross-
examination:
Q. Apparently, he [Rowden] didn't finish completing
that application, correct? Or that entry? It looks like he
has R350, but it doesn't give a full number?
A. Yes. It would appear that he just did not finish
completing that. That's correct.
DeJong did not contact Rowden to indicate that his resume-
application was considered noncompliant by the Respondent
because it did not include a complete driver's license number.34
On April 22, one Jay POnicki filed a resume-application with
no driver's license numbeIr. DeJong initially recorded the ap-
plication as noncompliant; on April 30, DeJong recorded the
application as compliant and added the notation "Sent in DL #."
DeJong admitted that he had told Ponicki in a telephone call
about his omission of his driver's license number and that, if he
had not done so, Ponicki would not have known about it. De-
Jong at first claimed that,Ponicki had called him, but he later
admitted that he did no have a "specific recollection" of
whether he called Ponicki or Ponicki called him. (Ponicki was
not subsequently interviewed or hired.)
On May 22, one Mark Sloan filed a resume-application with
no driver's license number, but DeJong did not record his ap-
plication as noncompliant. DeJong interviewed Sloan on July
9, and the Respondent hired him on August 10, all without
Sloan ever having submitted a driver's license number. On
cross-examination, DeJolig conceded that Sloan's application
was noncompliant. DeJong further admitted that he had had
Sloan's application before him during Sloan's July 9 interview.
On redirect examination, DeJong testified that he had not no-
ticed the absence of a driver's license number on Sloan's appli-
cation at any time before it was shown to him at trial.
On August 31, one Joseph Stevenson filled out one of the
Company-created application forms that the Respondent began
using on August 1. The legend of one space on the form is:
"Do you have a valid driver's license? If so, please provide the
number." In that space, Stevenson wrote: "No, however trans-
portation [is] not a problm." The August 1 application form
has a total of 5 pages of questions and spaces for employment
information (including the "Certification and Release" para-
graph), all of which Stevenson completed. Stevenson did not
update his August 31 application during the following 30 days,
but on October 9 he came to the Respondent's premises to
submit a new application. Stevenson then completed only the
first and the signatory p4ges of another application form. For
the remainder of the required information, DeJong, as he admit-
ted on cross-examination, went to his file of noncompliant and
inactive applications, pulled Stevenson's (expired) August 31
application, and used a dlombination of the two as a compliant
application. The Respondent hired Stevenson on October 14.
On cross-examination, DeJong testified that: "In this [Steven-
son's] case, we knew he did not have a driver's license. So we
would not have allowed him to drive a company vehicle . . . .
34 There is no issue raised about the fact that Rowden also did not in-
clude his driver's license's state of issue in his July 28 resume-
application, Rowden had not included the state of issue in his resume-
application of May 1, and the Respondent still considered that applica-
tion to have been compliant, the same is true of an application by non-
union applicant Kerry Blown (who was hired). Also, the application
form that the Respondent instituted on August 1, calls for driver's
license number, but not the state of issue.
1108

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We wouldn't have allowed him to drive a company vehicle if
he didn't have a valid driver's license."
On September 4, one Richard Raith also filed a company-
created application form. Like Stevenson, Raith let his applica-
tion go 30 days without updating it, and the application became
"inactive" under the Respondent's policies. On October 16,
Raith came to the premises to file a second application. Raith
then filled out only the first and signatory pages of the form.
As he had done with Stevenson, DeJong used Raith's expired
September 4 application as a source of required employment
information, and the Respondent hired Raith on October 16.
On cross-examination, DeJong was asked and he testified:
Q. Now . . . with respect to the re-application or new
application that Mr. Raith submitted on October 16th,
1998, is it fair to say that you were willing to simply rely
upon his prior application [of September 4] for the bulk of
the information that was required in AMS' application?
A. Yes, it's fair to say that.
Q. And, with respect to [Exhibit] G.C. 65(b), that's
Mr. Stephenson's new or, well, updated or new application
that he submitted on October 9th, 1998. Is it again fair to
say that you were willing to rely on his expired, but prior,
application of August 31st, 1998, which is General Coun-
sel's Exhibit 65(a), for the bulk of the information that you
needed on the AMS application?
A. Yes, that's fair to say that.
Q. Is it fair to say that, when Mr. Rowden submitted
his July 28th, 1998 application, you were not willing to
simply rely upon his previously submitted application [of
May 1] to obtain his driver's license number?
A. I think it's fair to say that, yes.
During redirect examination, DeJong was not asked why he had
been willing to look to the expired August 31 and September 4
applications of Raith and Stevenson for the great bulk of the
information that was needed for their October 14 and 16 appli-
cations to be compliant but he was not willing to look at Row-
den's May 1 application for his driver's license number.
On October 2, Rowden submitted a "still interested" letter to
the Respondent. DeJong responded to Rowden with a new-
policy letter, but as a preface to that letter DeJong also recited:
"Please be informed that your application for employment ex-
pired on August 27, 1998." (August 27, of course, was 30 days
after Rowden's July 28 submission of a resume-application
which the Respondent does not concede to have been compliant
because it included an incomplete driver's license number.)
Rowden made no further attempts to secure employment with
the Respondent.
Calhoun, Conroy, Hill, Kiss, and Rees. As indicated above,
before April 15 Knapp filed resume-applications on behalf of
Calhoun, Hill, Kiss, and Rees (but not Conroy), which applica-
tions DeJong testified were noncompliant with the Respon-
dent's requirements because they did not have the "Certifica-
tion and Release" paragraph. Knapp thereafter submitted re-
vised form resume-applications for Calhoun, Conroy, Hill,
Kiss, and Rees on the following dates: Kiss on July 28, Cal-
houn on July 29, and Rees, Hill and Conroy on July 30. De-
Jong logged in each of those applications as compliant (again,
by making no notation that they were noncompliant). In his
subsequently described testimony about how he processed the
application of nonunion applicant Scott Andrews, DeJong ad-
mitted that, if he interviews, or even makes, "some sort-of at-
tempt to contact" an applicant during any period in which the
Respondent is considering the hiring of new employees, that
applicant's application remains current, or active, under the
Respondent's requirements for as long as that period lasts
(whether the applicant makes additional efforts to update his
application or not). DeJong further admitted specifically that if
he had decided to interview Calhoun, Conroy, Hill, Kiss, or
Rees, their applications would have remained active throughout
the period that the Respondent continued to consider hiring new
employees (which was, as I find infra, at least through the end
of 1998). Nevertheless, DeJong freely admitted that the Re-
spondent did not consider Calhoun, Conroy, Hill, Kiss, or Rees
for employment. As DeJong responded to questioning on
cross-examination:
Q. Did you look at the union applications that were
still current at the time that you were looking for these
people in August? The ones that were compliant? Did
you look them over?
A. I believe when we were looking for people in Au-
gust, we were well into the process of talking to our em-
ployees and finding out about their recommendations on
any individuals that we hired.
Q. So as a short answer to my question, "No," you
didn't look at their resumes?
A. That would be correct.
During further cross-examination, DeJong further asserted the
Respondent's "into the process" defense (as I shall call it) for
not considering Calhoun, Conroy, Hill, Kiss, and Rees:
Q. BY MR. HOWELL: Why was it you didn't interview
any of the Union applicants. .. in July and August?
A. Well, I believe, as I indicated earlier, we had al-
ready gotten well into the process of going through check-
ing with those people that were listed or that we knew,
employees that referred these people.
Q. Let me—in so many words, you are saying even
though they had timely submitted an application and were
still active, they were too late?
A. I think that is a fair assessment to say, yeah, be-
cause we were into the process already.
JUDGE EVANS: Process of what, now?
THE WITNEss: Of the reference-checking. Checking
with our current employees' status, these other people, and
any other references that we might have checked, schedul-
ing interviews, that type of thing. . . .
Q. And you are not saying that you had already de-
cided to offer the other person [a nonunion applicant] a
job, are you?
A. I would say that is a correct statement.
Q. So what is it about the process that prevented you
from considering the Union applicants?
A. Again, we were into the process of talking to our
fellow employees that knew these individuals. We were
ALLIED MECHANICAL SERVICES 1109
into the process of, if we did any reference calls—and I
don't know that we did, but if we did, we made those and
then [did] the scheduling of the interviewing.
Q. Okay. But . . . you couldn't have contacted the
Union applicants? What about your process, if there was
anything, prevented you from doing that?
A. Time constraint, for one. I was in the middle of
all—doing all that. I have a number of responsibilities
outside the human resource function, and we had a pool of
candidates that we had started a process with, and we did
not feel that we could bring into the process new candi-
dates at the time.
Q. So the only reason you didn't interview Union ap-
plicants is because you ran out of time? Is that—I mean,
does that summarize it fairly?
A. No, I think—I think the answer is we had enough
viable candidates that we were far enough along in the
process with that we could select.
Q. How long have you worked in human relations,
sir?
A. Almost ten years.
JUDGE EVANS: Let me ask you this, sir.
THE WITNESS: Yes?
JUDGE EVANS: Did Mr. Huizinga ever tell you not to
interview the Union applicants, directly or in words to that
effect?
Ti-E WITNESS: I don't recall him ever doing that, no.
JUDGE EVANS: Did he tell you not to consider their
applications?
THE WITNESS: I don't recall that either.
Further on cross-examination, DeJong admitted that nonunion
applicant Robert Holler35 submitted his resume-application on
July 24, that Holler was interviewed on August 1, and that Hol-
ler was hired on August 26. DeJong was therefore asked, and
he testified:
Q. So when did the process begin and when did the
process end? Or when did you—Well, when was the point
you stopped considering further applications because you
were already in the process?
A. I believe it was immediately after the [July] 24th.
Q. And . . . you're saying, [July 24 was] the day you
stopped receiving—considering any more applications?
A. That's certainly a possibility.
Q. Well, I'm not saying it's a—I'm asking you for
your best recollection, sir, not a possibility.
A. My best recollection is that would be it, yes .. . .
Q. You [then] had enough applications and you didn't
need anymore? You were in the process of reviewing the
ones you had?
A. We were in the process of reviewing the ones we
had, yes.
The General Counsel never did get an answer to the part of his
(compound) question that asked when the "process" of consid-
ering only applicants who had known referrals ended. De-
Holler's name is sometimes misspelled "Hollar" in the transcript
and exhibits.
Jong's subsequently described testimony makes it clear that, as
far as the union applicants were concerned, it continued at least
through the end of 1998. As I discuss infra, however, the Re-
spondent started taking new applications from nonunion appli-
cants on August 5.
Although DeJong testified at one point that he did not look at
the applications of the uni6 members, he testified that he knew
that some of them had worked for the Respondent in the past
because Huizinga told him that ". . . they used to work for us as
recently as 1997." Wheri asked (again) if Huizinga told him
not to consider applicant who were union members, DeJong
responded (again): "I don't recall him saying that, no."
DeJong's 1998 log of applications reflects that one Kerry
Blouin (who is nonunion) filed an application form on July 29,
and that one Charles Schewe (who is also nonunion) filed an
application form on August 4. During his redirect examination,
DeJong testified that, as well as the applications of Calhoun,
Conroy, Hill, Kiss, and Rees he also did not consider the appli-
cations of Schewe and BlCuin "at that time."
b. The nonunion applicants
Although the Respondent's answer admits that it did not
consider any of the 21 dnion applicants for employment, and
although DeJong admitted that he did not interview any of the
union applicants in 1998, from early July through December
31, DeJong interviewed 23 applicants whose applications indi-
cated no union affiliations, and he interviewed one more appli-
cant whose application is flot in evidence but who was shown to
be nonunion.
As previously noted, the Respondent's pre-August 1 applica-
tion policy included: "List the names of any Allied Mechanical
management employees that you might know." The application
form that the Respondent instituted on August 1 included a
space designated for: "List anyone you know who works for
us." Although the Respondent has also always required appli-
cants to list prior emploYers, DeJong admitted that he did not
check any such listings by the 1998 applicants. As DeJong
testified:
The method tha we use now of using—of having our
employees refer accrimintances of theirs, relatives of theirs,
has proven successful. We have gotten some very good
people. It's been done for I don't know how long.
It is something that John Huizinga and I talked about
when I first came on board, that he likes to hire people he
has knowledge of
None of the applicants whom DeJong interviewed in 1998 testi-
fied; nor did any of the Current employees or supervisors who,
according to DeJong, recommended them; nor did Huizinga, as
previously noted. The Respondent therefore relies solely on the
testimony of DeJong in its attempt to establish why, in fact,
only nonunion applicant were interviewed or hired in 1998.
In his testimony about how decisions to interview or hire
were made, DeJong invariably employed the indefinite pronoun
"we" (e.g., "we decided") or the indefinite passive voice verb
tense (e.g., "it was decided"). At other times, DeJong was led
to testify that he had made an interview or hiring decision (e.g.,
"And you made a decision to provide Mr. Schewe [a nonunion
1110

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
applicant] with an offer of employment, is that correct?"), or
DeJong was asked a question that was couched in the passive
voice (e.g., "Why was the decision made to hire [nonunion
applicant Stevenson]?"). These tactics were obviously em-
ployed to convey the false impression that DeJong, not Huiz-
inga, made the critical decisions of who should be interviewed
and who should be hired. Nevertheless, at other points in his
testimony DeJong admitted that he conferred with Huizinga
before he interviewed any applicants, and he admitted that he
did not "individually" make decisions to interview applicants.
DeJong even admitted several times that applicants were inter-
viewed, or hired, because Huizinga "told me to." Accordingly,
where I state in this decision that DeJong interviewed an appli-
cant, or I state "the Respondent hired" an applicant, I am mak-
ing the finding that Huizinga made the decision to interview or
hire an applicant and DeJong merely carried that decision out.
During his testimony about who was selected to be inter-
viewed, DeJong had before him his log of applications which
indicated how the applications had been processed. In that log,
along with the names of most (but not all) applicants who were
interviewed, DeJong listed, in parentheses, one or more names
of other persons. DeJong testified that a parenthesized name in
his log of applications was an indication that the applicant had
either named such other person in his application as a reference
or that such other person had recommended the applicant,
whether he had been named in the application or not. DeJong
testified that those other persons were current employees or
supervisors who were acquainted with the interviewed appli-
cant. (And, in one instance, the name that was listed along with
that of the interviewed applicant was the name of that appli-
cant's high school principal.) Except in three instances (those
of nonunion applicants Orrin Dennis, James Meeuwse, and
Jeffrey Linblom, as discussed below), DeJong only interviewed
applicants for whom he had listed such acquaintances in his
log. When the Respondent's counsel examined DeJong on
direct examination, he did not ask DeJong about any applicant
who was hired after August 30. Therefore, the record evidence
of which applicants the Respondent considered and hired, and
why, consists only of DeJong's direct examination and cross-
examination about those applicants who were interviewed or
hired before August 30, his cross-examination about who was
interviewed or hired afterwards, the hard copy of DeJong's log
of applications, and some other records that show when certain
applicants began working after being hired by the Respondent
and how they were classified (apprentice or journeyman).
(When the General Counsel began his cross-examinations of
DeJong about applicants who were interviewed or hired after
August 30, the Respondent objected on the ground that such
examinations went "beyond anything in the complaint." On
brief, the Respondent does not discuss the applicants who were
interviewed or hired after August 30, and it continues to argue
that: "Paragraph 14 of the complaint, as amended at the hear-
ing, specifically lists the relevant time frame as March 31, 1998
through August 5, 1998." As quoted above, however, para-
graph 14 of the complaint alleges those dates only as the period
in which the union applicants (through Knapp) applied. Para-
graph 15 of the complaint then alleges that the Respondent
"failed and refused to hire or consider for employment the em-
ployees named above in paragraph 14," without any limitation
as to time. Paragraph 23 further alleges that the Respondent's
refusals violated Section 8(a)(3), and the prayer seeks that the
Respondent be ordered to "cease" such violations. These were
plainly allegations that the Respondent is unlawfully continuing
to refuse to consider or hire the union applicants. Moreover,
even if the complaint were as temporally limited as the Re-
spondent argues, the evidence of how the Respondent treated
all of the 1998 nonunion applicants is obviously relevant to the
issue of whether the union applicants were unlawfully dis-
criminated against.)
In 1998, DeJon.g interviewed 25 applicants for journeymen
or apprentice jobs. 36 The applications of 23 of those applicants
are in evidence.37 None of those 23 applications reflect any
union affiliations. Those 23 applicants, in alphabetical order,
were:
1. Scott Andrews, who had experience in industry only as an
employee of an insulation company, filed a resume-application
on July 9. Andrews listed 5 persons as references, one of
whom was Dave Ellison; DeJong identified Ellison as one of
the Respondent's supervisors. Andrews did not update that
application before August 7 and, under the Respondent's poli-
cies, the application would have become inactive on August 8.
DeJong testified, however, that on August 7 he called Andrews
to schedule an interview. Andrews was not at home at the time,
so DeJong left a message for Andrews to call him back. De-
Jong did not testify when (or even if) Andrews did call him
back. If Andrews returned DeJong's call on August 7, DeJong
presumably would have so testified.
As discussed infra, the Respondent contends that several of
the union applicants were rejected because, although they filed
compliant applications, those applications expired for lack of
updating before the Respondent began considering the hiring of
new employees in early July. On cross-examination, DeJong
was asked about the fact that he interviewed Andrews on the
basis of an application that was more than 30 days old:
Q. So you ignored the 30-day period in that instance,
did you not?
A. No, I didn't. I placed a call to him I believe on
August the 7th and I think that [a note indicating such] can
be found on the top of his resume ....
Q. So is it that you start ignoring the 30-day period as
soon as you decide you want to interview them?
A. As soon as we make a contact within a 30-day pe-
riod, yes. If we make the contact, if we make some sort-of
attempt to contact him in 30 days.
36 DeJong's log of applications indicates that he interviewed one "C
Leep" on December 28, and that the Respondent hired Leep on Decem-
ber 31 to start on January 4, 1999. In an appendix to his brief, the
General Counsel asserts that Leep, whose application is in evidence,
was hired as either an apprentice or a journeyman, but DeJong's log
indicates that Leep was hired as an office (off) employee for the Re-
spondent's Grand Rapids office
37 The exceptions are the applications of David Anthony Walker and
John Jamerson. DeJong interviewed Walker on November 17, but he
was not offered a job DeJong interviewed Jamerson on December 18,
and he was offered a job on January 18, 1999, to start on February 3,
1999
ALLIED MECHANICAL SERVICES 1111
DeJong also affirmed elsewhere in his testimony that, if an
applicant is interviewed while the Respondent is hiring, the 30-
day update requirement is suspended. (This testimony is the
basis of my finding above that, had the Respondent considered
Calhoun, Conroy, Hill, Kiss, Rees, and Rowden at any time
within the 30-day period after the submissions of their July 28-
30 applications, those applications would have remained cur-
rent, without any efforts at updating on their parts, throughout
the remainder of 1998.)
DeJong interviewed Andrews on August 11. Although An-
drews had indicated on his application that Ellison would be his
reference, DeJong did not ask Ellison if he would be a refer-
ence for Andrews. DeJong testified that he thought that An-
drews had come well recommended by the Respondent's cur-
rent employees, Chris Goland and Sean Free, but he also did
not speak to Goland or Free (or anyone else) to obtain a refer-
ence for Andrews. DeJong testified that he believed (from an
note on Andrew's resume-application that was received in evi-
dence) that Huizinga had done so. The Respondent hired An-
drews as an apprentice on August 31. (Again, the preceding
sentence is to say that Huizinga made the decision to hire An-
drews and DeJong implemented that decision.)
On direct examination, DeJong was asked about Andrews,
and he testified:
Q. Why . . . is it that Mr. Andrews was selected to be
interviewed?38
A. He worked closely with both Mr. Goland and Mr.
Free at an insulating company that we use as a subcontrac-
tor. He—they also work in a team kind of environment
which is—which is something that we look for. He came
highly recommended by both of these individuals.
Q. BY MR. BUDAY: Any other reasons?
A. Well, he worked around piping and so on by being
part of that insulation company. He had some exposure to
the kind of work we do and he had—he had I believe some
of the skills we were looking for.
Q. Okay. And what skills were you looking for at that
time?
A. An apprenticeship level but not [so] completely
green that they couldn't come in and do some work . . . .
We didn't want everyone to be a first-year apprentice, no
experience.
(DeJong also mentioned apparent ability to work with a "team"
in regard to almost all of the other interviewed, nonunion, ap-
plicants; DeJong acknowledged on cross-examination, how-
ever, that he had no reason to believe that any of the union
applicants would not be able to work with a team. Also, union
applicants Rees, Fuller, Hill, Maichele, Roggow, Falk, Preston,
and Rowden were previous employees, but the Respondent
offered no evidence that their prior employment reflected any
degree of inability to work with others as a "team.")
DeJong has no experience in the industry, and he had only
worked for the Respondent for a few months when the Respon-
dent began considering the hiring of new employees in early
July. DeJong's testimony about the Respondent's needs and
38 Note the passive voice of the question.
the allegedly desirable qualities of applicants, therefore, neces-
sarily rested on what Huizinga had told him. That is, it was
necessarily hearsay.
Although I received evidence of any reports that might be
relevant, Respondent did not ask DeJong to testify whether
Huizinga told him that the qualities that were reflected by An-
drews' application were the reason that Huizinga had decided
that DeJong should interview Andrews. (In fact, the Respon-
dent did not ask DeJong ,to testify whether Huizinga told him
that apparent possession of desirable qualities was the reason
that he decided that DeJong should interview any of the non-
union applicants.) The Respondent also did not ask DeJong to
testify whether Huizinga told him why he decided that Andrews
should be hired. (In fact, :the Respondent did not ask DeJong to
testify whether Huizinga told him why he decided that any of
the nonunion applicants should be hired.)
The Respondent relies heavily on a defense that it hired only
nonunion applicants because they came well recommended by
current employees and supervisors, but that the union appli-
cants listed only union representatives on their resume-
applications. In Andrews' case, however, DeJong admitted that
he did not discuss Andrews with Goland and Free, and the Re-
spondent relies on DeJong's hearsay testimony for propositions
that (1) Huizinga received recommendations for Andrews from
Goland and Free, and (2) Huizinga decided to hire Andrews, at
least in part, on the basis of those recommendations. That is,
although Huizinga made, all decisions about which applicants
DeJong would interview, and although Huizinga made all deci-
sions about which applicants would be offered employment,
there is no evidence (hearsay or otherwise) of why Huizinga
decided that DeJong should interview Andrews, and there is no
nonhearsay evidence of Why Huizinga decided to hire that non-
union applicant.
2. Kerry Blouin, who had little experience in the industry,
filed a resume-application on July 29, and he updated it on
August 11. On August , 31, Blouin also completed an Com-
pany-created application form which he updated on September
30, October 28, and November 10. DeJong interviewed Blouin
on November 10, and the Respondent hired Blouin as an ap-
prentice on November 13. On his August 31 application,
Blouin, like Andrews, listed Ellison as a reference. Elliptically,
DeJong testified that: "Mr. Blouin came recommended to us by
Mr. Ellison," but he did not testify that he spoke to Ellison, and
there is no record testimony that Huizinga did so. There is no
evidence (hearsay or otherwise) of why Huizinga decided that
DeJong should interview Blouin, and there is no nonhearsay
evidence of why Huizinga decided to hire that nonunion appli-
cant.
3. Verden Campbell filed a resume-application on June 23,
and in that application Campbell did not indicate that he knew
any of the Respondent's supervisors. DeJong, however, testi-
fied that, at some undefined point, the Respondent's foreman,
Ricky Sargeant, came to him and stated that he was a "good
friend" of Campbell's. (Again, none of the interviewed appli-
cants testified, and why Campbell would have failed to list his
"good friend" as a reference went unexplained.) Campbell had
very little experience in the industry, and on cross-examination
DeJong admitted that Sargeant told him that he had never
1112

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
worked with Campbell. (Nevertheless, DeJong also testified
that Sergeant told him that Campbell "was a hard worker.")
DeJong further testified that, when he conferred with Huizinga
about whether to interview Campbell, he told Huizinga that
Sargeant knew Campbell; then Huizinga "looked at his resume
and said, 'Well, you go ahead."
On July 7, DeJong did interview Campbell, and on August 3,
DeJong extended to Campbell an offer of an apprentice's posi-
tion. DeJong testified that Campbell told him that he could not
leave his current employer until October 14. DeJong told
Campbell that the offer would remain open; DeJong testified
that he told Campbell this because: "I believe we thought he
would be a valuable employee and we were willing to wait the
time." (Emphasis added.) At some point before October 14,
however, Campbell called DeJong and stated that he was stay-
ing with his current employer.
Although DeJong testified that Huizinga looked at Camp-
bell's resume before telling him to interview Campbell, DeJong
did not testify that Huizinga told him what it was in that resume
(or what Huizinga had learned elsewhere) that caused him to
decide that DeJong should "go ahead" and interview Campbell.
That is, there is no evidence (hearsay or otherwise) of why
Huizinga decided that DeJong should interview Campbell, and
there is no nonhearsay evidence of why Huizinga decided that
DeJong should extend an offer of employment to that non-
union applicant.
4. Orrin Dennis filed a Company-created application form
on November 24 claiming a great deal of job experience, in-
cluding experience in welding. DeJong interviewed Dennis on
November 28; and the Respondent hired him as a journeyman
on December 14. As previously noted, Dennis was one of three
nonunion applicants who were interviewed without having had
any references. Although DeJong testified that he thought that
the Respondent could have used certain welding skills that were
claimed in Dennis' application, DeJong did not testify that
Huizinga told him to interview Dennis, or to extend an offer of
employment to Dennis, for that reason. There is, therefore, no
evidence (hearsay or otherwise) of why Huizinga decided that
DeJong should interview Dennis, and there is no nonhearsay
evidence of why Huizinga decided to hire that nonunion appli-
cant.
5. Michael Doorlag applied on December 7, and was inter-
viewed on December 14; he was offered employment on Janu-
ary 18, 1999, and began working on February 3, 1999. DeJong
was not asked any questions about Doorlag, and it is not known
whether Doorlag was hired as an apprentice or a journeyman.
Doorlag's application states that he knows "James Doorlag,
Ray Bosma" who work for the Respondent, but DeJong's log
bears no indication that Doorlag had any recommendations.
Because DeJong did not testify about Doorlag, and because
Huizinga did not testify at all, there is no evidence (hearsay or
otherwise) of why Huizinga decided that DeJong should inter-
view Doorlag, and there is no nonhearsay evidence of why
Huizinga decided to hire that nonunion applicant.
6. Robert Eifler, who had previously worked for the Re-
spondent and who had become a member of Local 337 during
that employment, filed a Company-created application form on
October 19. DeJong testified that Huizinga had known Eifler
when he had previously worked for the Respondent. DeJong
testified that Huizinga "instructed me go ahead and interview
him immediately." DeJong did so, and the Respondent hired
Eifler on October 26. DeJong was asked:
Q. And why was the decision made to hire Mr.
Eifler?'9
A. He possessed the skills, having worked for us be-
fore. We had a track record of—of what he was capable
of and he was also familiar with a lot of the Upjohn [pro-
ject] work because that is where he had worked before,
and we had a need for additional help at Upjohn.
In this testimony, of course, DeJong is offering the hearsay that
Huizinga made the decision to interview and hire Eifler because
of these qualities. DeJong at first testified that Eifler was a
union applicant that the Respondent had hired, but later he was
forced to admit that he knew that Eifler had renounced his
membership at the time that the Respondent rehired him. Pre-
sumably Huizinga had such knowledge also, but, because Huiz-
inga was not presented as a witness, he was not cross-examined
about that knowledge and whether it could have affected his
decision to hire Eifler. That is, there is no evidence (hearsay or
otherwise) of why Huizinga decided that DeJong should inter-
view Eifler, and there is no nonhearsay evidence of why Huiz-
inga decided to hire that nonunion applicant.
7. Dale Heyboer filed a Company-created application form
on December 11. DeJong was not examined about Heyboer,
but his log indicates that he interviewed Heyboer on the same
day. DeJong's log further indicates that he offered Heyboer a
job on December 22, and that Heyboer actually started working
on January 14, 1999. On his application, Heyboer listed "Sid
H" as someone whom he knew that worked for the Respondent,
and DeJong noted in his log that Heyboer was recommended by
one "Holwerda." Because Heyboer did not testify, and because
DeJong was not examined about Heyboer, there is no precise
record evidence whether Heyboer was hired as a journeyman or
apprentice. The record also does not reflect who "Holwerda"
is. Assuming that "Holwerda" was an employee or supervisor,
the record also does not reflect whether DeJong contacted him
or, as in Blouin's case, Heyboer only listed "Holwerda" on his
application as a reference but "Holwerda" was not contacted by
DeJong. Also, "Holwerda" may have recommended Heyboer
to Huizinga, and Huizinga may have accepted that recommen-
dation as a reason for deciding to hire Heyboer, but there is no
evidence (hearsay or otherwise) of why Huizinga decided that
DeJong should interview Heyboer, and there is no nonhearsay
evidence of why Huizinga decided to hire that nonunion appli-
cant.
8. Robert Holler filed a resume-applicatiun on July 24. Hol-
ler listed as a reference one Don Reed whom DeJong identified
as one of the Respondent's foremen. DeJong interviewed Hol-
ler on August 1, and the Respondent hired him to start as an
entry-level apprentice on August 26. Holler's application listed
no prior experience in the industry, but DeJong testified that
Reed told him that he and Holler had worked together on some
"outside" jobs and that he would be a good employee. Assum-
39 Id.
ALLIED MECHANICAL SERVICES 1113
ing that DeJong reported such to Huizinga, there is no evidence
that Huizinga relied on the report when making his decision
that DeJong should interview Holler or his decision that the
Respondent should hire Holler. That is, there is no evidence
(hearsay or otherwise) of why Huizinga decided that DeJong
should interview Holler, and there is no nonhearsay evidence of
why Huizinga decided to hire that nonunion applicant.
9. Daniel Robert Kilgore, who had no prior experience in
the industry, filed a resume-application on July 23, and DeJong
interviewed him on that date. The Respondent hired Kilgore on
August 12 as an apprentice. DeJong testified that Kilgore had
the recommendation of his father, who was a foreman for the
Respondent, and that Kilgore made a strong impression on him
during the interview. There is, however, no nonhearsay evi-
dence of why Huizinga decided that DeJong should interview
Kilgore, and there is no nonhearsay evidence of why Huizinga
decided to hire that nonunion applicant.
10. Michael Kopenol filed a Company-created application
form on December 23. The form lists no prior experience in
the industry, but it does list as a current-employee reference
"Jason Dykstra." DeJong was not examined about Kopenol,
but, assuming that Dykstra was, in fact, a current employee or
supervisor of the Respondent's, there is no indication that De-
Jong spoke to him about Kopenol, and, certainly there is no
indication that Huizinga did so. DeJong's log further indicates
that Kopenol was interviewed (probably by DeJong) on the
same day that he filed his application. DeJong's log further
indicates that Kopenol had a projected hiring date of December
28, but apparently Kopenol was not put on the payroll until
1999. DeJong's log does not indicate at what position Kopenol
was hired (journeyman or apprentice), but other records show
that it was as an apprentice. There is no nonhearsay evidence
of why Huizinga decided that DeJong should interview Kope-
nol, and there is no nonhearsay evidence of why Huizinga de-
cided to hire that nonunion applicant.
11. Jeffrey Linblom was a nonunion applicant who was nei-
ther hired nor offered a job; DeJong did, however, interview
Linblom, and, according to DeJong's log, DeJong at one point
was "ready to offer" Linblom a job. On brief, the General
Counsel states that DeJong did not offer Linblom a job only
because Linblom became injured; Linblom did become injured,
but DeJong was not asked why he did not offer Linblom a job,
and the matter was not otherwise proved. Nevertheless, none
of the union applicants were even interviewed, and, certainly,
there is no evidence that DeJong was ever "ready to offer" any
of them a job. The testimony of how Linblom got to the "near-
offer stage" (as I shall call it) is therefore relevant on those
points. Also, the testimony about Linblom was offered through
DeJong (again, the Respondent's only witness on the refusal-to-
hire issues), and it does a great deal to demonstrate the credibil-
ity that should be afforded to DeJong's testimony at various
points in the refusal to hire case.
As previously noted on August 1, the Respondent instituted a
policy of requiring applicants to complete Company-created
application forms, and to complete such forms at the Respon-
dent's Kalamazoo office, rather than requiring applicants to
submit resume-applications and allowing such submissions by
mail. As also noted, DeJong logged in all resume-applications
that were submitted by the union applicants after August 1 as
noncompliant, and he sent new-policy letters to those applicants
stating that they must appear at the Kalamazoo office and com-
plete Company-created application forms while there.
On August 5, Linblomr a journeyman pipefitter with exten-
sive experience in the industry, filed a resume-application at the
Respondent's Grand Rapids office. That office faxed the re-
sume-application to DeJong at the Kalamazoo office on the
same date. DeJong did not log in Linblom's resume-
application as noncompliant as he had done with the resume-
applications that were filed by the union applicants after August
1. (When asked on direct examination why he had not logged
in Linblom's post-August 1 resume-application as noncompli-
ant, DeJong replied: "I don't recall why I didn't.") As I find
infra, instead of loggir4 Linblom's post-August 1 resume-
application in as noncomPliant and placing the hard copy with
other noncompliant applications, DeJong: (1) telephoned Lin-
blom and found that Linblom could not, or would not, come to
Kalamazoo to complete n application, (2) agreed to drive 50
miles to meet with LinblOm and present him with a Company-
created application form, (3) did make the drive, (4) did present
the application form to Linblom, but then (5) allowed Linblom
to complete that form wherever he wished.
Before his direct examination, DeJong was called by the
General Counsel as an adverse witness. DeJong then admitted
that on August 11 he called Linblom and scheduled an ap-
pointment with him at a restaurant in Grand Rapids; the pur-
pose of the appointment was to allow Linblom to complete a
Company-created application form and to allow DeJong an
opportunity to interview Linblom. Grand Rapids is 50 miles
from Kalamazoo. The appointment was originally scheduled
for Saturday, August 15 but DeJong did not meet with Lin-
blom on that date because Linblom "had an accident," accord-
ing to DeJong. Further according to DeJong, again as an ad-
verse witness, the appointment was rescheduled to Thursday,
August 27, and DeJong met Linblom at the Grand Rapids res-
taurant on that date. DeJong further testified as an adverse
witness that he brought Company-created application form to
the August 27 meeting with Linblom and:
I recall him filling it out at the Bob Evans [restaurant] with me
at a later, at that 8/27 date.
An application form that Linblom had completed was received
in evidence. At the top of the form, Linblom wrote, in spaces
designated for "Today's date" and "Time": "8/27/98" and "8
PM." Also, at the last part of the application form, Linblom's
signature is dated "8/27/98." DeJong had Linblom's resume-
application before him as he testified. The application form
that Linblom signed is date-stamped as having been received at
the Respondent's Kalamazoo office on "Sep 2 1998." There
were 3 work days between August 27 and September 2 (August
28 and 31, and Septemher 1), and, if DeJong actually had re-
ceived Linblom's application form on August 27, he would
presumably have had it stamped in on his first day back to the
office, or, at least, on the second or third. At any rate, DeJong
obviously would not have waited until September 2, to have
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Linblom's application date-stamped.4° When this became ap-
parent at trial, DeJong testified "I can't explain why that date is
stamped there." DeJong further insisted that his "August 27"
meeting with Linblom was a breakfast meeting and that Lin-
blom's entry on the application form, that it was completed at
"8 PM," was "not correct."
On the day following his appearance as an adverse witness,
the Respondent called DeJong as its witness. The first ques-
tions and answers about Linblom were:
Q. Do you recall who initiated the communication that
resulted in you having an appointment with Mr. Linblom?
A. I believe he called me seeking how he should ap-
ply, sometime before August 11th.
Q. Why do you say that?
A. Because of this notation here [on the resume-
application] that says, "Left message 8/11/98," that would
be my return call to that voice mail message I received
from him.
Q. Okay. What happened after he called you to set up
an appointment?
A. We set up the appointment for 7:30 on Saturday,
the 15th of August up at Bob Evans on 28th Street in
Grand Rapids. I was to bring an application or I was—I
had told him I would bring an application with me ....
Q. Do you recall why you allowed Mr. Linblom to
complete his application at home or wherever he com-
pleted it? I guess not on site?
A. This was like the second application that we had in
our new system and the first one that we had away from
Kalamazoo. And I believe I just allowed him to take it.
This was the first time we had done it away from Kalama-
zoo.
After again explaining that his meeting with Linblom on Au-
gust 15 was postponed because of Linblom's accident, DeJong
was further asked on direct examination, and he testified:
Q. Yesterday when you testified, did you testify that
you met on the 27th of August?
A. Yes, I think—I believe I did.
Q. Why has your testimony changed?
A. I had placed a call to Mr. Linblom last night be-
cause I was
MR. HOWELL: I am going to object to hearsay.
JUDGE EVANS: Overruled. Go ahead.
A. I placed a call to Mr. Linblom last night just to ver-
ify that this, indeed, was how the events progressed . . . .
And Mr. Linblom informed me that he did call me to set
up that appointment after he initially submitted a fax . . .
application. And then he remembers us meeting but he did
not remember the exact date. We talked briefly about the
injury that he had and did recall that we met for breakfast
40 This is especially true since DeJong had made a 100-mile round
trip to get Linblom's application. Also, as quoted-above, DeJong's July
31 interoffice memorandum states that all completed application forms
must be "immediately" returned to him, clearly expressing a strong
sense of urgency in the handling of applications after they are received.
at Bob Evans and that he took the application home with
him to fill out.
Q. BY MR. BUDAY: And yesterday you had testified
that he had filled it out in your presence, correct?
A. Yes, I did. And I was mistaken.
DeJong then identified a Bob Evans restaurant receipt for
"9:53" (apparently a.m.) on August 25, and he testified that he
obtained the receipt on that date after his breakfast with Lin-
blom.
I believe, and find, that the Grand Rapids meeting between
DeJong and Linblom occurred on the morning of August 25
(after being rescheduled from August 15). I further believe,
and find, that it was at that August 25 date that DeJong gave the
Company-created application form to Linblom to complete
elsewhere. I further find that, as indicated twice by Linblom's
entries, Linblom completed the application on August 27 (and
he did so about "8 PM"). I further find, however, that Linblom
mailed the application to the Respondent rather than bringing it
to DeJong at his office in Kalamazoo. If Linblom had brought
the application 50 miles to the Respondent's Kalamazoo office,
rather than mailed it, DeJong would assuredly have so testified.
DeJong's allowing Linblom to complete the form outside of
DeJong's presence, of course, was inconsistent with the Re-
spondent's reasoning for instituting the August 1 policy that
applications had to be completed on the premises because the
Respondent wanted to be sure that the person completing the
application was, in fact, the applicant.41 Allowing Linblom to
mail the form to the Kalamazoo office was even more inconsis-
tent because DeJong did not even require Linblom to affirm in
his presence that it was he who had completed the application
form. DeJong's original testimony was obviously an attempt to
cover these inconsistencies, but he was caught by the inconsis-
tency between his testimony that Linblom completed the form
in his presence at a breakfast meeting and Linblom's entry on
the form that he completed it at "8 PM." DeJong's testimony
that he had initiated a call to Linblom to schedule an appoint-
ment, rather than sending him a new-policy letter as he had
done with the post-August 1 union applicants, also bears an
obvious admission against interest that he treated the union
applicants differently from this nonunion aPplicant. The testi-
mony that DeJong had given as an adverse witness therefore
required restructuring, and the Respondent attempted to provide
such when it called DeJong as its witness during the next day of
trial.
Whether I credit DeJong's revised testimony or not, that tes-
timony proves that he was more than simply "mistaken" when
he gave his original, resolute, testimony that: "I recall him fill-
ing it out at the Bob Evans with me at a later, at that 8/27 date."
DeJong's revised testimony proves that his original testimony
was a conscious attempt to delude the Board into finding that
there was no significant inconsistency between his handling of
Linblom's submission of a resume-application after August 1,
and his handling of the resume-applications that were submitted
by the union applicants after August 1. Moreover, DeJong's
4' As quoted above, DeJong testified that the reason for the require-
ment was: ". we would make sure that the person who was on the
document was the same person that completed the application."
ALLIED MECHANICAL SERVICES 1115
original, false, testimony about watching Linblom sign his ap-
plication form was obviously designed to comport with the
Respondent's theory of the case that it changed its policies on
August 1, to require that application forms be completed at the
Respondent's Kalamazoo office solely to verify that the person
who completed the form was truly the applicant and to see if an
applicant could follow instructions.
DeJong's willingness to lie about seeing Linblom sign his
application impels immediate incredulity about DeJong's other
revised testimony that Linblom initiated the Grand Rapids
meeting when Linblom ". . . called me seeking how he should
apply, sometime before August 1 1 th." Moreover, that revised
testimony simply makes no sense. If Linblom had called before
August 1, DeJong assuredly would have so testified (even
though that would not have explained why DeJong did not log
in Linblom's resume-application as noncompliant when he
received it on August 5). If Linblom called DeJong on or after
August 1, but "before August 11th," he would not have been
"seeking how he should apply" because Linblom had already
submitted his resume-application, and he would have had no
reason to think that that application was inadequate unless
someone had alerted him to the fact.
Linblom's application shows that he would have been an ex-
tremely attractive applicant for a journeyman's position, and it
indicated no union affiliation on his part. I believe, and find,
that it was because of both of these factors that DeJong con-
sciously did not log in the resume-application that he received
from Linblom on August 5, that DeJong initiated a telephone
call to Linblom to tell him to file a Company-created applica-
tion form, and that DeJong drove 50 miles to present the appli-
cation form to Linblom, as DeJong first testified. DeJong then,
however, allowed Linblom to complete the form outside his
presence, contrary to the purpose of the Respondent's August 1
policy, as DeJong admitted when called by the Respondent. On
brief, the Respondent suggests no other resolution of the prob-
lems created by DeJong's revisions of his testimony. In fact,
although the General Counsel entered formidable objections to
the receipt of DeJong's revised testimony (which contained a
great deal of hearsay and which violated the sequestration order
that I had entered), and although I stated that I would not strike
the testimony at the time but would consider the matter when
briefed, the Respondent's only mention of the issue on brief is
to say that: ". . . Mr. DeJong's mistake in allowing an individ-
ual to fill out an application away from the premises of AMS
was due to the fact that AMS had just instituted the new sys-
tem—this was only the second application issued by AMS—
and Mr. DeJong admitted that he simply made an error." (The
name of the "individual" was "Linblom," a name that the Re-
spondent tellingly does not mention on brief.) DeJong, as
quoted above, did give the newness of the system as his reason
for making the off-premises appointment with Linblom (a mat-
ter that will be discussed separately below), but he did not tes-
tify that by doing so he had "made an error." Moreover, any
newness of the system cannot explain how DeJong could have
testified that he witnessed Linblom filling out the application,
and it does not explain why DeJong did not log in Linblom's
August 5 application as noncompliant in the first place.
On neither his resume-application nor on his Company-
created application form did Linblom indicate that he knew any
employees or supervisors who worked for the Respondent, and
DeJong did not testify that Linblom ever received a recommen-
dation upon which he reied before he was "ready to offer"
Linblom a job. There is, therefore, no evidence (hearsay or
otherwise) of why Huizinga decided that DeJong should inter-
view Linblom, and there is no nonhearsay evidence of why
Huizinga decided, at least at one point, that DeJong should be
"ready to offer" employment to that nonunion applicant.
12. James Meeuwse filed a resume-application on April 6,
and he updated it on April 28, May 7, May 22, and June 15.
DeJong interviewed Meeuwse on July 8, and the Respondent
hired him on August 5, 'as an apprentice. Meeuwse listed 4
individuals as references but DeJong did not identify any of
them as current employes or supervisors, and DeJong did not
testify that he (or Huizinga) spoke to any references about
Meeuwse. On direct examination DeJong first testified that
both he and Huizinga kr-Tv Meeuwse personally; then DeJong
testified that he and Huizinga "were familiar with the refer-
ences that he UMeeuwsej listed." Then DeJong again testified
that he knew Meeuwse "personally"; then DeJong testified that:
"I went to the same high school he went to and I am an ac-
quaintance of his brother." Then on cross-examination DeJong
testified that he was at the high school at the same time that
Meeuwse was there. DeJong did not testify that he (or Huiz-
inga) ever talked about Meeuwse with anyone who had ever
worked with Meeuwse. DeJong further testified on cross-
examination that Huizinga "told" him to hire Meeuwse. There
is, however, no evidence (hearsay or otherwise) of why Huiz-
inga decided that DeJong should interview Meeuwse, and there
is no nonhearsay evidence of why Huizinga decided to hire that
nonunion applicant.
13. Kevin Moerman filed a Company-created application
form on November 24; 1?eJong interviewed him on November
29, and the Respondent hired him as an apprentice on Decem-
ber 14. (Other records show that Moerrnan's employment was
terminated on December 17.) As current employees who knew
him, Moerman listed Steve Huizinga and Ryan VanderLugt.
On his log of applications, DeJong listed Steve Huizinga and
one Matt Durian as references for Moerman (but not Vander-
Lugt). DeJong was no asked anything about Moerman on
direct examination; on cross-examination he testified that
Durian and Steve Huizinga, both pipefitters for the Respondent,
were high school classmates of Moerman, but he did not testify
that he spoke to Duriair or Steve Huizinga about Moerman.
Whether John Huizinga spoke to either Steve Huizinga or
Durian about Moerman is unknown. That is, there is no evi-
dence (hearsay or otherwise) of why Huizinga decided that
DeJong should interview Moerman, and there is no nonhearsay
evidence of why Huizinga decided to hire that nonunion appli-
cant.
14. Bennie Oliver filed a Company-created application form
on December 21, and DeJong interviewed him the same day.
DeJong's log indicates that he attempted to offer Oliver a job
(apparently as an apprentice) on January 18, but DeJong testi-
fied on cross-examination that he was unable to contact Oliver
at the telephone numbers that Oliver had listed on his applica-
1116

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion. DeJong testified that Oliver told him that he had been
referred to the Respondent by his high school principal, but
there is no evidence (hearsay or otherwise) of why Huizinga
decided that DeJong should interview Oliver, and there is no
nonhearsay evidence of why Huizinga decided that DeJong
should extend an offer of employment to that nonunion appli-
cant.
15. Richard Raith filed a Company-created application form
on September 4. That application expired without Raith's up-
dating it, but on October 16 (as mentioned in the case of Row-
den, supra), DeJong allowed Raith to complete the first and last
pages of another application form and use that, with his original
application, as a new, compliant application. Also on October
16, after conferring with Huizinga, DeJong interviewed Raith.
DeJong further testified that Raith had the recommendation of
Harold Immekus, a project manager for the Respondent who
reported to DeJong that he had worked with Raith on a "side
job." The Respondent hired Raith as an apprentice, also on
October 16. Although DeJong testified that he spoke to Imme-
kus about Raith, he did not testify that he conveyed Immekus'
recommendation to Huizinga. There is, therefore, no evidence
(hearsay or otherwise) of why Huizinga decided that DeJong
should interview Raith, and there is no nonhearsay evidence of
why Huizinga decided to hire that nonunion applicant.
16. Chris Schewe, who had no experience in the industry,
filed a Company-created application form on August 4, and he
updated it on August 24, September 10, and October 23. De-
Jong interviewed Schewe on November 5, and the Respondent
hired Schewe as an apprentice on that date. DeJong testified
that he knew Schewe's parents, and he testified that he spoke
with pipefitters Durian and Steve Huizinga (who had gone to
high school with Schewe, but who had not worked with him)
about Schewe. DeJong did not testify if he told Huizinga what-
ever he learned from Durian and Steve Huizinga about Schewe,
and there is no evidence (hearsay or otherwise) of why Huiz-
inga decided that DeJong should interview Schewe, and there is
no nonhearsay evidence of why Huizinga decided to hire that
nonunion applicant.
17. Mark Sloan filed a resume-application on May 22
(which application contained no valid driver's license number,
as mentioned above in connection with alleged discriminatee
Rowden's case), and DeJong allowed Sloan to update that
(noncompliant) application on June 15. DeJong interviewed
Sloan on July 9; DeJong testified that, at the time, the Respon-
dent was in need of a journeyman with welding experience.
(Again, such testimony necessarily rests on what Huizinga had
reported to DeJong.) Sloan's application listed one Ken Klein
as a current-employee reference. DeJong did not speak with
Klein about Sloan; he ventured: "I believe John Huizinga talked
with Mr. Klein." The Respondent hired Sloan as a journeyman
on August 3. Although DeJong testified that he thought the
Respondent could use certain welding skills that Sloan listed on
his application, there is no evidence (hearsay or otherwise) of
why Huizinga decided that DeJong should interview Sloan, and
there is no nonhearsay evidence of why Huizinga decided to
hire that nonunion applicant.
18. Joe Stevenson filed a Company-created application form
on August 31 (which application contained no valid driver's
license number, as mentioned above in connection with alleged
discriminatee Rowden's case). That application expired with-
out Stevenson's updating it, but on October 9, Stevenson came
to the Kalamazoo office and DeJong allowed him to complete
the first and last pages of another application form and use his
original application to complete the new application (as also
mentioned in Rowden's case). DeJong first ventured that Ste-
venson found out that his old application had expired by calling
DeJong; then DeJong admitted that he could not recall how it
came about that Stevenson appeared at the Respondent's office
on October 9.42 On the same day, the Respondent hired Ste-
venson as a journeyman pipefitter. DeJong, necessarily relying
on what Huizinga had told him, testified that when the Respon-
dent hired Stevenson it needed a journeyman pipefitter. De-
Jong also testified that, "We have a past history with Mr. Ste-
phenson who was formerly employed by us." There is, how-
ever, no evidence (hearsay or otherwise) of why Huizinga de-
cided that DeJong should interview Stevenson, and there is no
nonhearsay evidence of why Huizinga decided to hire that non-
union applicant.
19. Phil Sullivan filed a Company-created application form
on December 17, and DeJong interviewed him the same day.
DeJong was not asked any questions about Sullivan, but his log
indicates that the Respondent offered Sullivan a job (apparently
as an apprentice) on January 18, 1999, and Sullivan began
working on February 1. Sullivan listed VanIngen as a current
employee-reference; as noted below, VanIngen was hired by
the Respondent on December 14. BecaUse DeJong was not
asked any questions about Sullivan, there is no evidence that he
discussed Sullivan with (3-day) employee VanIngen; certainly
there is no evidence that VanIngen told DeJong that he had ever
worked with Sullivan. That is, there is no evidence (hearsay or
otherwise) of why Huizinga decided that DeJong should inter-
view Sullivan, and there is no nonhearsay evidence of why
Huizinga decided to hire that nonunion applicant.
20. Kenneth Summers, who had no prior experience in the
industry, filed a Company-created application form on October
14, and DeJong interviewed him the same day. DeJong testi-
fied that Huizinga knew Summers personally and that Huizinga
"instructed" him to interview Summers. On October 16, the
Respondent hired Summers as an apprentice. Although DeJong
testified that Huizinga knew Summers personally, that testi-
mony was hearsay, and there is no evidence (hearsay or other-
wise) of why Huizinga decided that DeJong should interview
Summers, and there is no nonhearsay evidence of why Huiz-
inga decided to hire that nonunion applicant.
21. Tom VanIngen filed a Company-created application
form on November 27, listing only "Jeff Matthews" as a current
employee whom he knew. DeJong testified that Mike Welcher
was a foreman who had once worked on a construction site
with Vanlngen, at which time VanIngen was employed by an-
other employer. DeJong testified that "[Welcher] recom-
mended that Mr. VanIngen come in and apply," but whether
42 DeJong was under some understandable personal stress at the time
that he testified, and he needed a break at this point in his testimony
When he was recalled, however, he did not change his testimony that
he could not recall how his meeting with Stevenson came about.
ALLIED MECHANICAL SERVICES 1117
Welcher was ever consulted about VanIngen by DeJong (or
Huizinga) is unknown. The Respondent hired VanIngen on
December 14 as an apprentice, but there is no evidence (hear-
say or otherwise) of why Huizinga decided that DeJong should
interview VanIngen, and there is no nonhearsay evidence of
why Huizinga decided to hire that nonunion applicant.
22. Ryan VanderLugt, who had some pipe-laying experi-
ence, filed a Company-created application form on September
24, and the Respondent hired him as an apprentice on October
14. On his application VanderLugt listed four individuals as
current employees of the Respondent whom he knew, but De-
Jong did not speak to any of them about VanderLugt. DeJong
interviewed VanderLugt on September 29, and the Respondent
hired him as an apprentice on October 2. On direct examina-
tion, DeJong was led to testify that he had made the decision to
hire VanderLugt. On cross-examination, however, DeJong was
asked and he testified:
Q. Is this an individual that Mr. Huizinga told you to
hire?
A. Yes.
Q. So you didn't—This wasn't based on your recom-
mendation?
A. No. We had a discussion. I agreed with his deci-
sion, of course, and we went ahead.
DeJong admitted that Huizinga did not tell him whether he
(Huizinga) had talked to any of the four employees whom Van-
derLugt listed on his application. There is, therefore, no evi-
dence (hearsay or otherwise) of why Huizinga decided that
DeJong should interview VanderLugt, and there is no nonhear-
say evidence of why Huizinga decided to hire that nonunion
applicant.
23. Mark Vlietstra, who had had no prior experience in the
industry, filed a Company-created application form on Decem-
ber 14, and DeJong interviewed him on that date. DeJong ex-
tended to Vlietstra an offer of a job as an apprentice on January
18, 1999 to begin working on February 2, of that year. DeJong
testified he thought that pipefitter Steve Huizinga and appren-
tice pipefitter Paul Visscher knew Vlietstra, because they were
high school acquaintances of Vlietstra's. DeJong acknowl-
edged, however, that he did not talk to either Steve Huizinga or
Visscher about Vlietstra. DeJong first testified that the decision
to interview Vlietstra was "a mutual decision of John Huizinga
and myself," but he later admitted that he interviewed Vlietstra
because Huizinga told him to do so. That is, there is no evi-
dence (hearsay or otherwise) of why Huizinga decided that
DeJong should interview Vlietstra, and there is no nonhearsay
evidence of why Huizinga decided to hire that nonunion appli-
cant.
As noted above in footnote 37, in addition to the 23 appli-
cants whose applications are in evidence, DeJong also con-
ducted interviews of applicants David Anthony Walker and
John Jamerson in 1998. Walker was not offered a job, but
Jamerson was. Jamerson's application is not in evidence to
indicate his union sympathies, but DeJong was asked at trial if
he knew of any union members whom the Respondent had
hired, and DeJong named only Rob Eifler and Mike Trout.
(DeJong later admitted that he knew that Eifler had repudiated
his union membership before being hired in 1998, and DeJong
later admitted that he really did not know that Trout was a un-
ion member. Also, just when Trout was hired went unex-
plained.) I therefore find that Jamerson -was a nonunion appli-
cant when he was hired.
According to DeJong's log, Jamerson filed an application for
employment on November 24, he was offered a job on January
18, 1999, and that began working on February 3, of that year.
The Respondent asked DeJong nothing about Jamerson on
direct examination, but on cross-examination DeJong testified
that Jamerson was hired 0 an apprentice. Along with Jamer-
son's name in DeJong's fog is "(Brownell)," indicating either
that Jamerson mentioned 13rownell on his application as a ref-
erence or that DeJong (or Huizinga) otherwise decided that one
Brownell could be used 0 a reference for Jamerson. DeJong
further testified on cross-examination that Dave Brownell was
the Respondent's shop forleman. DeJong further testified that
Brownell was "an acquaintance of Mr. Jamerson's father" and
that Jamerson received an interview on December 18, for that
reason. DeJong, however, did not testify that he talked to
Brownell about Jamerson's father; DeJong also did not testify
that Huizinga told him that he (Huizinga) had spoken to
Brownell about Jamerson's father. There is, therefore, no non-
hearsay evidence of why Huizinga decided that DeJong should
interview Jamerson, and there is no nonhearsay evidence of
why Huizinga decided to hire that nonunion applicant.
In summary, in 1998, beJong conducted interviews of 25
applicants for journeymen and apprentice jobs. Twenty-four of
those applicants were not members of any union. (Walker's
union status was not proved.) The Respondent hired 21 of
those 24 nonunion applicants, 15 in 1998,43 and 6 in January or
early February 1999.44 Additionally the Respondent offered
employment to one other nonunion applicant who declined
(Campbell); and DeJong testified that he was "ready to offer,"
or "attempted to offer," jobs to the 2 other nonunion applicants
(Linblom and Oliver). Huizinga made all decisions about
which applicants DeJong should interview and which appli-
cants should be offered employment, but the Respondent did
not call Huizinga to testify. Therefore, because the Respondent
offered only the hearsay testimony of DeJong, there is no pro-
bative evidence of the reasons that Huizinga decided that De-
Jong should interview the 24 above-listed nonunion applicants,
and there is no probative evidence of why Huizinga decided
that DeJong should extend offers of employment to every one
of them.
43 These were Andrews, Blouin, Dennis, Eifler, Holler, Kilgore,
Meeuwse, Moerman, Raith, Schewe, Sloan, Summers, Stevenson,
VanIngen, and VanderLugt
44 These were Doorlag, Heyboer, Jamerson, Kopenol, Sullivan, and
Vlietstra. (Actually, Kopenol and Heyboer could properly be consid-
ered as being hired in 1998 because hiring commitments were made to
them in that year The Board gives great weight to such commitments,
for example, the Board recognizes that strike-replacements who receive
such commitments are employees, even though they may not have
actually started working when strikers offer to return to work See,
e.g., JMA Holdings, Inc., 310 NLRB 1349 (1993).)
1118

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. Analysis and conclusions
a. The prima facie case
In Wright Line,45 the Board set forth the test to be employed
in cases where General Counsel alleges 8(a)(1) and (3) viola-
tions that turn on employer motivation. First, the General
Counsel must make a prima facie showing sufficient to support
an inference that known protected employee conduct was a
motivating factor in the employer's action. If General Counsel
does establish a prima facie case, the burden then shifts to the
employer to demonstrate that it would have taken the same
action notwithstanding the known protected conduct of the
alleged discriminatees. Just as the General Counsel must prove
the prima facie case by a preponderance of the evidence, the
Respondent's evidentiary demonstration must be by a prepon-
derance of the evidence; if it is not, a violation will be found.46
Specifically in cases where unlawful refusals to hire employ-
ees are alleged, the required elements of the prima facie case
are as follows: (1) an application by each alleged discriminatee;
(2) refusals to hire each alleged discriminatee; (3) a showing
that each alleged discriminatee was a union member or sympa-
thizer; (4) a showing that the employer knew of or suspected
such membership or sympathy; (5) availability of at least some
jobs for the applicants; and (6) proof of a degree of animus
against the known union membership or sympathy sufficient to
support an inference that protected conduct was a motivating
factor in the employer's action in refusing to consider or hire
each alleged discriminatee.47 The initial inquiry therefore is
whether the General Counsel has presented a prima facie case
that the Respondent unlawfully refused to consider or hire the
union applicants.
(On brief, the Respondent contends that there is an additional
element of a prima facie case and that the General Counsel
failed to establish it. Citing Clock Electric Inc. v. NLRB, 162
F.3d 907, 912 (6th Cir. 1998), the Respondent argues that the
General Counsel was required to show that after the Respon-
dent rejected the union applicants, the positions remained open
and that the Respondent ". . . continued to seek applications
from [other] persons with the [applicants] qualifications." All
of the union applicants, however, had applied at least once
before early July when the Respondent began to consider the
hiring of new employees. Those initial applications were, at
minimum, rejected, and any additional requirement by Clock
Electric has been satisfied. The Respondent's arguments that
the union members' applications should be disregarded because
(1) they originally had not been compliant with its require-
ments, or (2) they had expired under its 30-day rule, or (3)
when they were received, the Respondent had already begun a
process of interviewing only applicants who came recom-
45 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S 989 (1982); approved in NLRB v Transportation
Mgmt Carp, 462 U.S 393 (1983).
46 Wright Line, 251 NLRB at 1087; Roure Bertrand Dupont, Inc ,
271 NLRB 443 (1984)
47 See Hoboken Shipyards, 275 NLRB 1507, 1514 (1985), citing Big
E's Foodland, 242 NLRB 963, 968 (1979), and Pan American Electric,
326 NLRB No. 7 (1999) (not published in Board volumes), citing GM
Electrics, 323 NLRB 126, 128 (1977)
mended by current employees and supervisors, are all matters
of defense, and those arguments will be addressed as such in-
fra.)
The Respondent admits that the 21 alleged discriminatees
filed their applications on the dates indicated above, it admits
that the Respondent did not consider or hire any of those al-
leged discriminatees, and it admits that it hired 15 employees in
1998, after March 31, when Knapp began submitting the appli-
cations of the union members. (And I have found that it hired
six additional employees after their 1998 interviews.) Knowl-
edge of the membership or activities of the union applicants has
also been established. As well as the fact that the envelopes of
the union members' applications showed that they came from
Knapp, and the fact that the applications referred to Knapp and
Union Representative Franz as their references, Huizinga knew,
or knew of, Fuller, Hill, Maichele, Roggow, Falk, Preston, and
Rowden because they were prior employees and they were
discriminatees in the 1997 Sixth Circuit case; also, Rees was a
prior employee who is found to be a discriminatee in this case
because he is one of the 1996 strikers whose March 2 offer to
return to work was unlawfully refused by Huizinga. Therefore,
there is no issue that the General Counsel has established the
first five elements of a prima facie case that the Respondent
unlawfully refused to consider or hire the union applicants.
The Respondent denies, however, that the General Counsel has
established the sixth element of a prima facie case, proof of
animus which would support an inference of unlawful motiva-
tion in the Respondent's refusals to consider or hire any of the
union applicants. I disagree.
It was not until after the 1995 and 1997 orders of the Board
and the Sixth Circuit that the Respondent ceased its unlawful
refusals to reinstate its employees who had offered to return to
work from the 1992 and 1993 strikes, as noted above. This
factor, alone, supplies the required element of animus. More-
over, as I have found infra, the Respondent has refused, in ap-
parent contempt of the Sixth Circuit's order, to reinstate
Kinney, Rees, Bronkhorst, Falk, Fuller, iMaichele, Preston,
Roggow, Rowden, and Titus after their March 2 offers to return
to work from economic strikes. (And, again, the last 8 of these
discriminatees were discriminatees in the Sixth Circuit case.) It
is obvious, therefore, that the Respondent's animus toward its
employees' exercises of their statutory rights continues.
Even without such a labor relation's history, and even with-
out my findings of discrimination against the 1996 and 1997
returning strikers herein, however, I would find that the General
Counsel has proved the Respondent's animus toward the union
applicants.
Although 21 known union members applied for work with
the Respondent, the Respondent admits that it, did not consider
one of them for employment. On the other hand, after the un-
ion applicants had begun applying, the Respondent interviewed
(considered) 24 of 24 nonunion applicants who had applied,
and it hired 21 of them. This extreme ratio clearly demon-
strates animus against the known union applicants. 48
48 Citing San Angelo Packing Co., 163 NLRB 842, 846 (1967), and
Continental Radiator Corp, 283 NLRB 234, 248 (1987), the Board in
Fluor Daniel, Inc., 304 NLRB 970 (1991), found that such a "blatant
1119 ALLIED MECHANICAL SERVICES
Moreover, DeJong essentially admitted that Huizinga told
him not to hire or consider union applicants. DeJong was un-
equivocal in his denials at many other points, but when I asked:
"Did Mr. Huizinga ever tell you not to interview the Union
applicants, directly or in words to that effect?," DeJong replied:
"I don't recall him ever doing that, no." When I asked: "Did he
tell you not to consider their applications?," DeJong replied: "I
don't recall that either." When the General Counsel addition-
ally asked if Huizinga told him not to consider applicants who
were union members, DeJong responded: "I don't recall him
saying that, no." DeJong did not have a background in the
mechanical trades, but he had worked in labor relations for 10
years and he assuredly knew that is against the law to refuse to
consider or hire applicants because of their union memberships.
Therefore, if Huizinga had told DeJong not to interview union
members, DeJong assuredly would have recalled it. On the
other hand, if Huizinga had never said such a thing to DeJong,
DeJong would assuredly have responded with a firm "No" to
each of the questions that were put to him about what Huizinga
had said about interviewing union members. DeJong's do-not-
recall answers, therefore, are incredible. I accordingly find that
Huizinga did tell DeJong not to interview applicants who were
union members. Such instruction is unquestionably a manifes-
tation of animus that supports an inference of unlawful dis-
crimination against the 21 union applicants.
The disparity of Respondent's treatment of the two groups of
applicants further reflects animus.
The most obvious case of disparate treatment is the Respon-
dent's treatment of Rowden as it compares with its treatment of
nonunion applicants Ponicki, Sloan, Raith, and Stevenson.
DeJong testified that he refused to consider Rowden's July 28
application because, although Rowden had entered the first four
digits of his driver's license number, ". . . he just did not finish
completing that." Ponicki, however, did not include his
driver's license number on his application originally, but De-
Jong called him and told him to send it in. (I discredit De-
Jong's testimony that he could not recall whether Ponicki called
him or he called Ponicki; Ponicki would not have known that
he had made the omission and would not have known to call
DeJong about the matter.) Sloan did not include a driver's
license number on his application, and the Respondent hired
him without his ever having done so. DeJong testified that he
had not noticed Sloan's omission until Sloan's application was
showed to him at trial; the obvious response to that testimony is
that DeJong must have been scrutinizing union applications
such as Rowden's much more closely than he was scrutinizing
nonunion applications such as Sloan's. (Moreover, as I find
infra, DeJong did not even notice that Rowden "just did not
finish" his driver's license number for at least 3 months after
Rowden filed his July 28 application.) Also, Raith and Steven-
son were allowed to "complete" their last applications by refer-
ence to their expired previous ones; DeJong admitted that he
had been willing to refer to the expired applications for most of
the information for Raith's and Stevenson's applications but
that he was not willing to refer to the expired May 1 application
disparity" in the selection of applicants supported a finding of a prima
facie case of discrimination.
of Rowden for his driver's license number. DeJong did not
express at trial, and the Respondent does not argue on brief,
that there was a legitimate, reason for DeJong's refusal to afford
Rowden the indulgence that he afforded to Raith and Steven-
son.
The next case of disparate treatment is found in DeJong's
handling of Linblom's application. DeJong admitted that Lin-
blom's August 5 resume-Application was noncompliant because
it was received after the Respondent's August 1 institution of
the policy that Company-created application forms must be
used. Nevertheless, DeJong did not log in that application as
noncompliant and he did not send Linblom one of the new-
policy letters, which is wIl at DeJong did when the union appli-
cants submitted resume-applications after August 1. Instead,
DeJong called Linblom, made an appointment with Linblom
(who would not, or could not, come to the Respondent's Kala-
mazoo office), drove 50 miles to hand him an application, al-
lowed Linblom to complte it as his leisure, and allowed Lin-
blom to mail it in. DeJong testified that he allowed Linblom to
take his application home because his application was one of
the first applications that was received under the Respondent's
"new system," but he did not testify that the "new system"
caused him entirely to fail to log in Linblom's resume-
application. When DeJong was asked why he had not logged in
Linblom's August 5 resume-application as noncompliant, he
responded: "I don't recall why I didn't." DeJong's claim of
memory loss, again, is not credible. Also, although Huizinga
gave final approval to all policy changes, DeJong had necessar-
ily put a lot of thought and work into the drafting of the "new
system" that required applicants to appear at the office, rather
than mail applications in; it is inconceivable that he could have
forgotten the Respondent's new rule, or its reason, before he
drove 50 miles to Grand 1a.pids and agreed to let Linblom com-
plete his (delivered) application form anywhere he wished. In
fact, DeJong's memorandum of July 31 states that all office-
staff members are being informed that: ". . . all applications for
employment must be acquired from me or a designated repre-
sentative, be completed dn site, and be immediately returned to
me or the designated representative." It is unlikely to the point
of firm disbelief that DeJong forgot his own words, or the Au-
gust 1 policy that he drafted (for Huizinga's approval), within 6
days. Indeed, the Resp6ndent's spurious contention that De-
Jong handled Linblom's application as he did because the Re-
spondent's August 1 policy was so new fortifies my conclu-
sions that it was because Linblom's August 5 application re-
flected no union allegiance that DeJong: (1) did not log it in as
I noncompliant, even though it was; (2) drove 50 miles (making,
of course, a 100-mile ronnd trip) to deliver a Company-created
application form to Linblom; (3) allowed Linblom to complete
that form wherever he wished, and (4) allowed Linblom to mail
it to the Kalamazoo office.
I further find that, as Rwell as calling Linblom to tell him to
file a compliant application, and calling Ponicki to tell him that
he had forgotten to enter his driver's license number on his
application, DeJong called Stevenson to tell him that his appli-
cation had expired and that he needed to file a new one. (I
reject DeJong's testimony that he could not recall whether he
called Stevenson or Stevenson called him.) Additionally, De-
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Jong called Andrews the day before his July 9 application was
to expire and told him to come in for an interview. Again, De-
Jong did not call Rowden to tell him that "he just did not finish
completing" his driver's license number, and he did not call any
other union applicant to alert him that his application was about
to expire or that he should come in and file a new one because
his application had expired.
DeJong's treatment of nonunion applicant Campbell is fur-
ther evidence of disparate treatment toward the union appli-
cants. On August 3, DeJong extended a job offer to Campbell.
Campbell refused by responding that he could not leave his
current employer until October 14. DeJong told Campbell that
the offer would remain open until then. That is, the Respondent
afforded Campbell and the other nonunion applicants multitu-
dinous and multifarious indulgences, but it afforded none to the
union applicants.
In summary, the Respondent's animus toward the union ap-
plicants is shown by the Respondent's labor relation's history,
its continuing unlawful discrimination against returning strik-
ers, Huizinga's instruction to DeJong not to interview union
members, and the Respondent's disparate treatment of the un-
ion applicants. I conclude, therefore, that the General Counsel
has presented a prima facie case of unlawful discrimination
against the union applicants, and the Respondent's defenses for
not considering or hiring them must be reviewed to decide if
the Respondent has demonstrated, by a preponderance of the
evidence, that it would have refused to consider, or hire, the
union applicants even absent its knowledge of their member-
ships.
b. The defenses
(1) Calhoun, Conroy, Hill, Kiss, and Rees_
Hill and Rees were journeymen, and on brief the Respondent
argues that they were not considered for that reason. Calhoun,
Conroy, and Kiss were advanced apprentices, and on brief the
Respondent argues that they were not considered for that rea-
son. DeJong, however, did not testify that the Respondent re-
fused to consider Hill or Rees because they were journeymen or
that the Respondent refused to consider Calhoun, Conroy or
Kiss because they were advanced apprentices. Although De-
Jong testified that the Respondent was "primarily" seeking
apprentices from early July through December, he did not tes-
tify that the Respondent rejected any applicant, union or nonun-
ion, because he or she was a journeyman or too advanced as an
apprentice (or had been making too much money while work-
ing for a prior employer, or anything like that). The Respon-
dent's lawyer's argument, therefore, is only that. Moreover, the
Respondent hired, or it at least interviewed, the following non-
union journeymen after Calhoun, Conroy, Hill, Kiss, and Rees
applied on July 28-30: Sloan (hired on August 8); Stevenson
(hired on October 14); Linblom (near-offer after September
14); Eifler (hired on October 26); and Dennis (hired on Decem-
ber 14). Also, DeJong testified that Vanlngen was an appren-
tice when he was hired on December 14, 1998. The record
does not reflect at what rate VanIngen was hired, but one re-
cord does show that, by July 13, 1999, Vanlngen was making
$2.75 per hour more than journeyman Sloan, and only $.25 less
than journeymen Dennis. VanIngen, therefore, must have been
a very advanced apprentice when he was hired.
The defense for not hiring Calhoun, Conroy, Hill, Kiss, and
Rees to which DeJong did testify is encapsulated in this ex-
change during his cross-examination:
Q. Let me—in so many words, you are saying even
though they had timely submitted an application and were
still active, they were too late?
A. I think that is a fair assessment to say, yeah, be-
cause we were into the process already.
JUDGE EVANS: Process of what, now?
THE WITNESS: Of the reference-checking. Checking
with our current employees' status, these other people, and
any other references that we might have checked, schedul-
ing interviews, that type of thing.
DeJong repeated this defense by stating: "I believe when we
were looking for people in August, we were well into the proc-
ess of talking to our employees and finding out about their rec-
ommendations on any individuals that we hired," and "[W]e
had already gotten well into the process of going through
checking with those people that were listed or that we knew,
employees that referred these people." It was only for this
"into the process" defense that DeJong offered testimony; he
did not offer any testimony that the Respondent refused to con-
sider Calhoun, Conroy, Hill, Kiss, and Rees because they were
too skilled or too experienced. Therefore, it is only the Re-
spondent's "into the process" defense that needs to be further
addressed.
When DeJong was asked why the Respondent could not have
also interviewed Calhoun, Conroy, Hill, Kiss, or Rees at the
same time that the Respondent was "into the process" of inter-
viewing and hiring other nonunion applicants, he replied:
"Time constraint, for one. I was in the middle of all—doing all
that. I have a number of responsibilities outside the human
resource function . . . ." The General Counsel then specifically
asked DeJong if he really meant that his reason was that "you
ran out of time?" DeJong, obviously recognizing the feeble-
ness of what he had said, responded: "No, I think—I think the
answer is we had enough viable candidates that we were far
enough along in the process with that we could select." That is,
when the "too busy" answer was exposed for the lie that it was,
DeJong retreated to the defense that the Respondent already
had enough applications to satisfy any needs before Calhoun,
Conroy, Hill, Kiss, and Rees filed their applications on July 28-
30.
By July 28-30, the Respondent did have six applications that
resulted in interviews; to wit: those of Meeuwse, Sloan, An-
drews, Kilgore, Holler, and Campbell. Those six applicants,
however, were obviously not "enough viable candidates" be-
cause the Respondent continued accepting applications, and
continued interviewing those which were filed by nonunion
applicants, well after July 28-30. In 1998, after Calhoun, Con-
roy, Hill, Kiss, and Rees had filed their July 28-30 applica-
tions, the Respondent accepted 19 nonunion applications which
ALLIED MECHANICAL SERVICES 1121
resulted in interviews,49 it hired 11 of those applicants in
1998,5° and it hired 6 of those applicants in early 1999.5'
Moreover, it did not take long after Calhoun, Conroy, Hill,
Kiss, and Rees filed their July 28-30 applications for the Re-
spondent to begin seeking nonunion applicants; DeJong not
only considered Linblom's noncompliant application of August
5, he went to extraordinary lengths to help Linblom file a (fa-
cially) compliant one. Under any theory of the Respondent's
case, therefore, the July 28-30 applications of Calhoun, Con-
roy, Hill, Kiss, and Rees were current, or active, while the Re-
spondent was considering other new applicants, as DeJong
admitted.
The Respondent's pre-August 1 published hiring policy was
that: "When AMS is preparing to hire, we will go over all cur-
rent resumes." The August 1 policy also stated: "When the
need to add to our staff arises, AMS will review all current
applications." The Respondent's October 15 revision of its
stated policy repeated: "When the need to add to our staff
arises, AMS will review all current applications." All underlin-
ings in these quotations are original, doubly emphasizing that
the Respondent's policy was that applications that were com-
pliant and were not expired because of lack of updating, would
be considered. In his testimony, DeJong further emphasized
the primacy of all current applications when he was asked on
direct examination about what happened when Huizinga told
him that new employees were needed:
Q. And what would you look at, what candidates
would you look at?
A. I would look at every one that was active in the
file.
Neither the Respondent's statements of hiring policy, nor De-
Jong's testimony about the Respondent's policy that existed
before Calhoun, Conroy, Hill, Kiss, or Rees applied, contains
any qualification that current applications will not be consid-
ered if the Respondent is already "into the process" of review-
ing the applications that it had already received or if the Re-
spondent was already "into the process" of checking with cur-
rent employees and supervisors to see if they could recommend
other individuals, any other individuals, as new employees.
The Respondent's "into the process" defense, therefore, appears
to have been retroactively concocted for the occasion that com-
pliant applications were filed by Calhoun, Conroy, Hill, Kiss,
and Rees at the very time that it was considering the hiring of
new employees. At any rate, the July 28-30 applications of
Calhoun, Conroy, Hill, Kiss, and Rees were compliant when
they were filed, and they were current when the Respondent
was "into the process" of considering hiring new employees;
therefore, by refusing to consider those current applications, the
Respondent abandoned its repeatedly published, underlined,
policy that "all current" applications will be considered when
49 They were: Schewe, Walker, Stevenson, Blouin, Lmblom, Raith,
VanderLugt, Summers, Eifler, Dennis, Jamerson, Moerrnan, VanIngen,
Doorlag, Heyboer, Sullivan, Vlietstra, Oliver, and Kopertol.
59 They were: Schewe, Stevenson, Blown, Raith, VanderLugt, Van-
Ingen, Summers, Eater, Dennis, and Moerman
51 They were: Heyboer, Jamerson, Sullivan, Vhetstra, Doorlag, and
Kopenol.
the Respondent is seeking new employees. This is the essence
of discrimination.
Even if the evidence of the Respondent's continuing to con-
sider nonunion applicants in 1998 could be disregarded, and
even if the published policy of considering all current applica-
tions could be disregarded, the Respondent has failed to prove
that it considered and hired only nonunion applicants because
they were well recommended and because Calhoun, Conroy,
Hill, Kiss, and Rees were not.
It is not as if the Respondent had two sets of applicants, one
of which was well recommended and another which was not;
DeJong admitted that the applications of Calhoun, Conroy, Hill,
Kiss, and Rees were not even considered. If Huizinga had con-
sidered the applications of Calhoun, Conroy, Hill, Kiss, and
Rees, he would have noted that Calhoun, Hill, Kiss, and Rees
were former employees and that any of the Respondent's cur-
rent supervisors and employees were potential sources of rec-
ommendations for them. DeJong was willing to search out, or
at least accept, recommendations from individuals who were
not listed on the applications of the nonunion applicants, but he
was not willing to do the same for Calhoun, Hill, Kiss, and
Rees. The Respondent does not suggest that those four had had
anything but satisfactory records with it when they were previ-
ously employed, and it dioes not suggest that they would have
received anything but positive recommendations from its cur-
rent employees and supervisors, had they been asked. (On
cross-examination, DeJong testified that the Respondent gave
no preference to former employees; nevertheless he testified
that Stevenson was hired because: "We have a past history with
Mr. Stephenson who was formerly employed by us," and De-
Jong testified that Eifler (who had repudiated his union mem-
bership) was hired because: "He possessed the skills, having
worked for us before.")
On brief, the Respondent argues that: "It simply is not illegal
disparate treatment to favor an applicant whom current em-
ployees highly recommend." I agree, but the "recommenda-
tions defense" is easy to assert, and realistically impossible to
rebut. (Certainly, a beneficiary of unlawful discrimination is
unlikely to testify that hel did not know who had recommended
him, or why.) The Board therefore requires as proof of that
defense more than the hearsay and inveracity that the Respon-
dent offered through DeJong. For example, in Belfance Elec-
tric, Inc., 319 NLRB 945 (1995), the Board accepted the "rec-
ommendations defense," but in that case the individual who
made the decisions to interview and the decisions to hire, one
David Belfance, appeared at the Board hearing and testified
under oath and subject to cross-examination; and decision-
maker Belfance was credited. Similarly, in WACO, Inc., 316
NLRB 73, 78 (1995), cited by the Respondent on brief, one
Kirk Hawk made all hiring decisions based on recommenda-
tions. The Board concluded that there was no prima facie case
in WACO, Inc., and the "recommendations defense" was there-
fore not addressed; but at least Hawk testified. In this case,
however, decisionmaker Huizinga did not testify.
Notwithstanding the leading questions to, and the hearsay
and obfuscating answers by DeJong, the record is clear that it
was Huizinga, and not DeJong, who made the critical inter-
1122

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
viewing and hiring decisions.52 The Wright Line issue, there-
fore, is whether the Respondent has demonstrated by a prepon-
derance of the evidence that Huizinga, in fact, made the critical
decisions because of his personal knowledge of the nonunion
applicants (not DeJong's) or because of the recommendations
that he (not DeJong) received.
There is, however, no nonhearsay testimony that Huizinga
actually made any of the critical interviewing and hiring deci-
sions on the basis of his personal knowledge or on the basis of
recommendations that he received, directly or through DeJong.
Unlike the employer involved in Belfance Electric, the Respon-
dent here did no more than send an emissary (DeJong) to pre-
sent hearsay testimony that Huizinga had made his decisions
because: (1) Huizinga personally knew 2 of the 24 nonunion
applicants who were interviewed in 1998 (Meeuwse and Sum-
mers); (2) although DeJong did not check the references of 12
of nonunion applicants who were hired (Andrews, Sloan,
Blouin, Heyboer, Kopenol, Moerman, Oliver, Sullivan, VanIn-
gen, Jamerson, VanderLugt, and Vlietstra), Huizinga, himself
may have done so; and (3) Huizinga may have accepted De-
Jong's reports of recommendations for the remaining nonunion
applicants (even though Linblom, Meeuwse, and Dennis did
not have even putative references). Huizinga, however, did not
appear to give this critical testimony and make himself subject
to cross-examination. It must therefore be found that the Re-
spondent has failed to demonstrate that the decisions not to hire
or consider the union applicants were made on the basis of the
recommendations that the nonunion applicants received rather
than the antiunion animus that the Respondent has clearly dem-
onstrated.53
Even if DeJong could have offered competent evidence of
how the Respondent acted on the recommendations for the non-
union applicants that it received, his testimony is not worthy of
credit. As well as the obfuscations embodied in his passive-
voice answers, DeJong was specifically shown to be untruthful
by the following:
1. DeJong testified that the Respondent offered
Campbell employment, in part, because Campbell had the
recommendation of the Respondent's foreman Sargeant
who was a "good friend" of Campbell's. On his applica-
tion, however, Campbell did not list his "good friend"
Sargeant as a reference. DeJong further testified (with fur-
ther incredibility) that Sargeant told him that Campbell
was a "good worker" even though Sargeant had never
worked with Campbell. When the General Counsel asked
DeJong how Sargeant could have made such a statement,
DeJong evaded answering.
2. DeJong's testimony about Meeuwse's references
was confusing and contradictory (either DeJong knew
Meeuwse personally, or Huizinga did, or Huizinga was
52 The truth is encapsulated in DeJong's admission. "It is something
that John Huizinga and I talked about when I first came on board, that
he likes to hire people he has knowledge of"
53 DeJong's testimony about what Huizinga had decided was admis-
sible because it would have been corroboration for testimony that Huiz-
inga might have given had Huizinga been called to testify. Standing
alone, however, it was probative of essentially nothing.
familiar with the nonemployee or nonsupervisors whom
Meeuwse listed as references on his application, or De-
Jong knew Meeuwse's brother in high school, or DeJong
knew Meeuwse in high school).
3. DeJong's testimony that he did not recall whether
Huizinga had told him not to interview union applicants
was an insult to the forum.
4. DeJong's testimony that he did not recall why he
did not log in Linblom's noncompliant resume-application
of August 5 is another insult.
5. DeJong's testimony that he recalled seeing Linblom
fill out his Company-created application form was ex-
posed for the lie that it was.
6. DeJong also advanced the lie that Eifler was a un-
ion applicant whom the Respondent hired, but he later
admitted that he knew that Eifler had repudiated his union
membership when the Respondent hired him.
7. When DeJong was asked when the Respondent
went "into the process" of considering only those appli-
cants who were recommended by current employees and
supervisors, he looked at his application log and, obvi-
ously relying on the date of the last application that was
filed before Calhoun, Conroy, Hill, Kiss, and Rees filed
their applications on July 28-30, announced that it was
July 24. When asked if it had really been July 24, DeJong
testified: "That's certainly a possibility." Such evasive-
ness permeated DeJong's testimony.
That is, DeJong was generally an incredible witness, and, even
if he could have given competent testimony about Huizinga's
interviewing and hiring decisions, he did not do so.
All of which is to say that the Respondent's "into the proc-
ess" defense is one of those self-serving, tell-them-anything,
kind of concoctions that the trier of fact is not required to ac-
cept, and I do not.54 Moreover, even if there had been a grain
of truth in the "into the process" defense, it is an admission that
the Respondent changed its procedures of reviewing all current
applications while the applications of Calhoun, Conroy, Hill,
Kiss, and Rees were still active, or current, under the Respon-
dent's hiring policies. DeJong's bare, evasive testimony that
the Respondent had stopped considering any more applications
by the time that Calhoun, Conroy, Hill, Kiss, and Rees applied
on July 28-30 was disproved by the fact that the Respondent
did consider 19 nonunion applicants who filed their applica-
tions thereafter. (I also do not credit DeJong's bare, self-
serving testimony that he also did not consider the July 29 ap-
plication of nonunion applicant Blouin, or the August 4 appli-
cation of nonunion applicant Schewe, "at that time" because the
Respondent was "into the process." DeJong was led to this
answer and it squarely conflicts with his admissions that he
considered the August 5 (noncompliant) application of nonun-
ion applicant Linblom that was also filed "at that time.")
The Respondent therefore has not rebutted General Coun-
sel's prima facie case by a demonstration that, even absent its
knowledge of their union memberships, it would have refused
to consider for employment, and hire, Calhoun, Conroy, Hill,
54 Taylor Machine Products, 317 NLRB 1187, 1213 (1995); enfd in
rel. part 136 F.3d 507 (6th Cir. 1998).
1123 ALLIED MECHANICAL SERVICES
Kiss, and Rees. I accordingly conclude that the Respondent
refused to consider for employment, and refused to hire, Cal-
houn, Conroy, Hill, Kiss, and Rees in violation of Section
8(a)(3).
(2) Rowden
Rowden filed his last resume-application during the same
July 28-30 period that Calhoun, Conroy, Hill, Kiss, and Rees
filed theirs, but the Respondent does not assert its sham "into
the process" defense in answer to the allegations that it unlaw-
fully refused to consider or hire Rowden. The Respondent's
defense for not considering Rowden's July 28 application is
solely that his application was not compliant with its require-
ments for applications because it did not contain the last digits
of Rowden's driver's license number. Consistent with this
defense, appearing on the hardcopy of DeJong's log that the
Respondent placed in evidence, next to Rowden's name and the
date of "7/28/98," in 12-point capital letters, is:
"NONCOMPLIANT INVALID DRIVER'S LICENSE." I do
not, however, believe that DeJong considered Rowden's July
28 application to have been noncompliant when he received it,
and I do not believe that DeJong originally logged it in as such.
Rather, I believe, and find infra, that DeJong originally logged
in Rowden's July 28 application as compliant, and he made the
"NONCOMPLIANT INVALID DRIVER'S LICENSE" entry
into his log well after he received that application, certainly
after October 4.
To most of the nonunion applicants who sent "still inter-
ested" letters to the Respondent, DeJong replied with new-
policy letters that were not prefaced with any references to
when their resume-applications had expired. For cases such as
that of Bennett, Curran, Falk, Fuller, Knapp, Preston, and Rog-
gow, the reason is obvious; they never filed compliant applica-
tions, and their noncompliant applications, by definition, had
never had an expiration date. (Something that was never viable
could never have had an expiration date.) DeJong did, how-
ever, preface his replies to the "still interested" letters of Ma-
ichele and Rowden with references to expiration dates of their
last compliant resume-applications. Maichele filed a "still in-
terested" letter with the Respondent on October 2, and on that
date DeJong replied with a new-policy letter that was prefaced
with: "Please be informed that your application for employment
expired on May 31, 1998." May 31, was 30 days after the Re-
spondent's receipt of Maichele's May 1 application; that appli-
cation was, and DeJong had logged it in as, compliant with the
Respondent's then-outstanding requirements for resume-
applications. Maichele's May 1 application, however, was not
the last application that Maichele had filed; Maichele had filed
another application on August 3. But DeJong, in citing an expi-
ration date to Maichele in his October 2 letter, passed over his
log's notation of Maichele's August 3 application, obviously
because that application had been, and had been logged in as,
noncompliant.55 That is, because Maichele's last application
had been noncompliant, DeJong did not refer to its expiration
55 Maichele's last application was noncompliant because it was a re-
sume application that was received after August 1, when the Respon-
dent started requiring the completion of Company-created application
forms
date because that application had never had an expiration date
because it was not compliant when it was filed. On the other
hand, DeJong did preface his October 4 new-policy letter to
Rowden by referring to the date of Rowden's last application;
to wit: Rowden's application of July 28. (And in his October 4
response to Rowden DeJong decidedly did not refer to the expi-
ration date of Rowden's May 1 application, the last application
by Rowden that the Respondent concedes to have been compli-
ant.) In his October 4 letter, DeJong told Rowden: ". . . your
application for emploptient expired on August 27, 1998."
Rowden's July 28 application, however, would never have had
an expiration date if, when received, it had been noncompliant
with the Respondent's then-outstanding requirements for re-
sume-applications. If DeJong had considered Rowden's July
28 application to have been noncompliant when he received it,
and if DeJong had originally logged that application in as non-
compliant, DeJong would have passed over his log's reference
to that application (as he passed over his log's reference to
Maichele's last application), and in his October 4 letter to
Rowden DeJong would have cited the expiration date of Row-
den's May 1 application (as DeJong's October 2 letter to Ma-
ichele referred to the expiration date of Maichele's May 1 ap-
plication). Instead, in his new-policy letter to Rowden, DeJong
cited the expiration date of Rowden's July 28 application, even
though that application had contained an incomplete driver's
license number.
In summary, it is cleat to me, and I find, that DeJong origi-
nally viewed Rowden's July 28 application as compliant, even
though it had an incomplete driver's license number, and De-
Jong originally logged it in as compliant. Specifically, DeJong
did not originally log in Rowden's July 28 application with
"NONCOMPLIANT INVALID DRIVER'S LICENSE"
(which, being in 12-point type, as well as capitals, would have
been impossible for DeJong to have missed when he was com-
posing his October 4 new-policy letter to Rowden, had it actu-
ally been there). Then, at some point after October 4, DeJong
reviewed Rowden's application searching for any putative de-
fect that the Respondent could advance as a defense to the re-
fusal-to-hire allegations that the General Counsel makes on
Rowden's behalf. It was at that unknown subsequent date, and
not before, that DeJong found that Rowden "just did not finish"
(DeJong's words) completing his driver's license number. It
was then, I find, that DeJong altered his log of applications
correspondingly. Rowden1 's oversight, therefore, was no more
than an afterthought and a pretext upon which the Respondent
has seized to defend its unlawful discrimination against Row-
den. 56
I further find that the Respondent's sole defense for Row-
den's case is pretextual because the Respondent actually does
not have a requirement that its employees have a valid driver's
license. The Respondent rehired Stevenson knowing he did not
have a driver's license. When asked how that could have been,
DeJong replied that the Respondent just would not have as-
signed him to drive company vehicles. That is, not all of the
56 By employing the passive voice and other techniques of obfusca-
tion, DeJong avoided the out-and-out perjury of testifying that he did
log in Rowden's July 28, as noncompliant when he first received it
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent's employees drive company vehicles, and there is
no reason to believe that the Respondent could not have used
Rowden as an employee even if he did not have a valid driver's
license. (Certainly, the Respondent does not contend that when
it previously employed Rowden it relied on him to drive com-
pany vehicles.) Finally on this point, near the first of the appli-
cation form that the Respondent instituted on August 1, is the
preprinted question: "Do you have a valid driver's license? If
so, please provide the number." The optional nature of the
instruction ("If so, . . . ) shows that the Respondent does not
absolutely require its employees to have valid driver's licenses.
(Certainly, the question does not add, as the stated requirement
of the "Certification and Release" paragraph adds: "Failure to
do this will terminate your opportunity to be considered for
employment at Allied Mechanical Services, Inc.")
In summary, the Respondent's treatment of Rowden is a bla-
tant case of discrimination, as I have found above. (Again,
DeJong admitted that he was willing to refer to expired applica-
tions of Stevenson and Raith for the bulk of the information
that was needed for their new applications, but he was not will-
ing to look at Rowden's expired, May 1 application for Row-
den's complete driver's license number, and the Respondent
has made no effort to explain why. When Ponicki forgot to
include his driver's license number, DeJong called him up and
reminded him. When Sloan applied without a driver's license
number, DeJong literally overlooked it.) Rowden was a former
employee of unquestioned ability, but he was also an employee
who had directly suffered the Respondent's animus by its
unlawful refusal to reinstate him for over 2 years after he had
offered to return to work from the 1993 strike (as found by the
Board and the Sixth Circuit). Therefore, the defense that the
Respondent has submitted for its refusal to consider or hire
Rowden is a pretext.
The Respondent therefore has not rebutted General Coun-
sel's prima facie case by a demonstration that, even absent its
knowledge of his union membership, it would have refused to
consider for employment, and hire, Rowden. I accordingly
conclude that the Respondent refused to consider for employ-
ment, and refused to hire, Rowden in violation of Section
8(a)(3).
(3) Bennett, Curran, Falk, Fuller, Knapp, Preston,
and Roggow
For himself and Bennett, Curran, Falk, Fuller, Preston, and
Roggow, Knapp submitted only one resume each. Knapp sub-
mitted these resumes before April 15, at a time when he was
unaware that the Respondent required a signed "Certification
and Release" paragraph with each application. Nevertheless,
after he learned of the requirement in late April, Knapp did not
submit any additional applications on behalf of himself or the
others in this group. Before April 15, union applicants Cal-
houn, Hill, Kiss, Rees, Rowden, Warren, and Wood also sub-
mitted (through Knapp) applications without the "Certification
and Release" paragraph; after April 15, however, they also
submitted (again, through Knapp) applications that contained
the paragraph. On brief, the General Counsel does not question
the validity of the Respondent's requiring the "Certification and
Release" paragraph with each application, and he suggests no
reason why Calhoun, Hill, Kiss, Rees, Rowden, Warren, and
Wood were willing and able to submit second applications that
contained the "Certification and Release" paragraph but Ben-
nett, Curran, Falk, Fuller, Knapp, Preston, and Roggow were
either unwilling or unable to do so. (Indeed, the entirety of
what the General Counsel states in this respect is: "When the
[other] union applicants started including a signed "Certifica-
tion and Release" form, AMS looked for other technical rea-
sons to disqualify them.") Moreover, the files of all 1998 ap-
plicants for employment with the Respondent were made avail-
able to the General Counsel at trial, but the General Counsel
makes no suggestion that any nonunion applicant failed to in-
clude the "Certification and Release" paragraph and was still
considered for employment. An employer has the right to es-
tablish facially union-neutral requirements for its application
processes, and as long as it does not enforce such requirements
disparately, it cannot be held to have violated Section 8(a)(3)
by not considering a union applicant who does not comply.57 I
therefore shall recommend dismissal of paragraph 15 of the
complaint as it applies to Bennett, Curran, Falk, Fuller, Knapp,
Preston, and Roggow.
(4) Maichele, Patterson, Warren, and Wood
Before August 1, the Respondent accepted resume-
applications. On August 1, Respondent began utilizing applica-
tion forms and modified its stated policy to require applicants
to come to the Kalamazoo office to complete them. Maichele,
Patterson, Warren, and Wood filed resume-applications, by
mail, after August 1. The General Counsel contends that, both
by institution of the form and by institution of the requirement
that applicants appear at the Kalamazoo office, the Respondent
violated Section 8(a)(3). Because Maichele, Patterson, Warren,
and Wood did submit their last resume-applications after Au-
gust 1, the General Counsel's contentions bear directly on their
cases.
The Respondent's pre-August 1 policy of accepting resume-
applications was probably the exception rather than the rule.
That is, most employers have their own application forms, and
there is certainly nothing unusual, or unlawful, about an em-
ployer's beginning to require completion of such, even if it
does so because it is receiving a great number of resume-
applications from a union. To hold otherwise is to hold that,
once a union starts a salting campaign, an, employer may not
make any changes in its hiring procedures. Even if there had
been an established collective-bargaining relationship between
the UA locals and the Respondent, such a holding would be
beyond the requirements established by Section 8(d) of the
Act.58 The General Counsel offered no evidence that the union
applicants in this case could not have completed the Company-
created application forms, and he offers no argument that a
requirement of completion of a Company-created application
forms is inherently more burdensome to a union applicant. The
same may be said of the Respondent's August 1 stated re-
See Industrial Construction Services, 323 NLRB 1037 (1997),
where no violation was found because union applicants disregarded an
employer's written, uniformly enforced, hiring policy that "Photocopies
of this form will NOT be accepted."
58 See Star Tribune, 295 NLRB 543 (1989).
ALLIED MECHANICAL SERVICES 1125
quirement that applicants appear at the Kalamazoo office to
complete the Company-created application forms. The General
Counsel does not contend that coming to an employer's office
to complete an application is inherently more onerous on union
applicants, and he makes no argument that the union applicants
could not have come to Kalamazoo to do so. The General
Counsel contends that DeJong's allowing Linblom to complete
his Company-created application form elsewhere is proof that
the requirement was enforced only against union applicants.
Maichele, Patterson, Warren, and Wood, however, received
new-policy letters stating that they needed to appear at the
Kalamazoo office to complete the Company-created application
forms, and they did nothing in response. I do not believe that
the singular exception of Linblom is enough to excuse their
ignoring those letters. Also, although DeJong ignored the Au-
gust 1 changes to secure the application of nonunion applicant
Linblom, the Respondent did have logical reasons, institution-
ally, for wanting (1) consistency of information from appli-
cants, (2) a test to see if the applicants could follow instruc-
tions, and (3) a test to make sure that the person completing the
application was in fact the applicant. Accordingly, I shall rec-
ommend that the Board dismiss the allegations that the Re-
spondent unlawfully instituted hiring requirements that Com-
pany-created application forms be completed by applicants and
that such applications be completed on the Respondent's prem-
ises. I further find and conclude that, because Maichele, Patter-
son, Warren, and Wood made no attempt to comply with these
requirements of which they had actual knowledge (by virtue of
the new-policy letters), the Respondent has shown that it would
have refused to consider or hire them, even absent its knowl-
edge of their union memberships.59
(5) Englehart, Hampton, Newcomb, and West
West filed a compliant resume-application on April 23;
Englehart, Hampton, and Newcomb filed compliant resume-
applications on May 1. The Respondent contends that the ap-
plications of Englehart, Hampton, Newcomb, and West expired
30 days after they were filed, and well before it began to con-
sider the hiring of new employees in early July, because those
four applicants did nothing to update their applications after
filing them. The Respondent's 30-day policy, like the "Certifi-
cation and Release" requirement, was a facially nondiscrimina-
tory policy, and the Respondent had no duty to consider the
applications of Englehart, Hampton, Newcomb, and West when
it started considering the hiring of new employees, if it fol-
lowed its 30-day policy without discriminating against the un-
ion applicants by considering or hiring nonunion applicants
whose applications had expired. As I have found above, how-
ever, Stevenson's August 31 application had expired when
DeJong called him, to the Kalamazoo office to file a new one,
and to be hired. Stevenson may not fairly be considered an
isolated case. Andrews' July 9 application did not expire only
because, the day before it was scheduled to do so, DeJong
59 It is true that the new-policy letters to Maichele, Patterson, War-
ren, and Wood did not contain a reference to the possibility of ap-
pointments, as did the Respondent's full August 1 policy statement
Nevertheless, none of those four union applicants testified that, if he
had known that appointments were possible, he would have responded.
called Andrews to come for an interview and to be hired. Such
extraordinary efforts to excuse the nonunion applicants, while
holding the union applicants to strict compliance with its 30-
day rule, is nothing short of unadulterated, unlawful discrimina-
tion.
The Respondent therefore has not rebutted General Coun-
sel's prima facie case by a demonstration that, even absent its
knowledge of their union memberships, it would have refused
to consider for employment, and hire, Englehart, Hampton,
Newcomb, and West. I accordingly conclude that the Respon-
dent refused to consider for employment, and refused to hire,
Englehart, Hampton, Newcomb, and West in violation of Sec-
tion 8(a)(3).
CONCLUSIONS OF LAW
1. By refusing to reinstate the following-named economic
strikers upon their March 2, 1998, unconditional offers to return
to work, the Respondent violated Section 8(a)(3): Jim Bronk-
horst, Ken Falk, Ted Iuller, Jon Kinney, Grant Maichele,
Marty Preston, Tobin Rees, Max Roggow, Brian Rowden, and
Steve Titus.
2. By refusing to conider for employment, and by refusing
to hire, the following named job applicants because of their
known union memberships, the Respondent violated Section
8(a)(3): Scott Calhoun, Terri Jo Conroy, Eric Englehart, Marty
Hampton, Harold Hill, Jeff Kiss, Rod Newcomb, Tobin Rees,
Brian Rowden, and Randy West.
3. The Respondent lids not otherwise violated the Act as al-
leged herein.
THE REMEDY
Having found that the espondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative actions de-
signed to effectuate the policies of the Act.
The Respondent has been shown herein to have unlawfully
discriminated against two groups: 10 economic strikers who
had offered to return to work on March 2, and 10 employee-
applicants who applied for employment on and after April 23.
(Two individuals, Rees and Rowden, are members of both
groups.) The rights of the 10 strikers to remedy under the Act
vested on the date of their offers to return to work, and that date
was well before the ResPondent began to discriminate against
nonunion applicants by interviewing and hiring only nonunion
applicants. (The first interview that DeJong conducted after
April 23 was his interview of Campbell on July 7, and the first
hiring by the Respondent in 1998 was that of Meeuwse on Au-
gust 5.) Therefore, anY remedy to which the unlawfully re-
jected union applicants are entitled must not prejudice the rights
of the strikers whom the Respondent had previously denied
reinstatement unlawfully.
Inasmuch as the Respondent has failed and refused to rein-
state timely Bronkhorst; Falk, Fuller, Kinney, Maichele, Pre-
ston, Rees, Roggow, Rowden, and Titus upon their March 2
offers to return to work from economic strikes, 1 shall order
Respondent to reinstate them to the jobs that they held when
they went on strike, or if those jobs no longer exist to substan-
tially equivalent positions of employment, dismissing if neces-
1126

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sary any employees hired after March 2, without prejudice to
their seniority or other rights and privileges previously enjoyed,
and make them whole for any losses of earnings or other bene-
fits that they may have suffered because of the discrimination
practiced against them by payment to them of a sum of money
equal to that which they normally would have earned from
March 2, to the date of their reinstatements, with interest.
Inasmuch as the Respondent has unlawfully failed and re-
fused to consider for employment, and hire, Scott Calhoun,
Terri Jo Conroy, Eric Englehart, Marty Hampton, Harold Hill,
Jeff Kiss, Rod Newcomb, and Randy West on and after April
23, it shall be ordered to hire them and make them whole, with
interest, dismissing if necessary any employees hired after the
dates of their applications, provided that in order to satisfy this
obligation the Respondent shall not be permitted or required to
disregard the reinstatement and make-whole remedies provided
herein for Bronkhorst, Falk, Fuller, Kinney, Maichele, Preston,
Rees, Roggow, Rowden, or Titus. As I have found, the Re-
spondent has also unlawfully refused to consider for employ-
ment and hire Rowden and Rees; their remedies as reinstated
strikers, with seniority and other benefits that accrued prior to
their going on strike, are paramount to their remedies as unlaw-
fully rejected employee-applicants. Remedial provisions for
Rees and Rowden as unlawfully rejected employee-applicants,
therefore, shall apply only if on review I am not upheld in my
requirements that they be reinstated and made whole as return-
ing economic strikers.
Backpay shall be computed in the manner prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest as set
forth in New Horizons for the Retarded, 283 NLRB 1173
(1987), minus tax withholdings required by Federal and State
laws.
Because the Respondent has demonstrated a proclivity for
violating the Act (see, e.g., Allied Mechanical Services, 320
NLRB 32 (1995), enfd. 113 F.3d 623 (1997)), and because of
the serious nature of the violations found herein which demon-
strate a general disregard for employees' fundamental rights, I
find it necessary to issue a broad Order requiring the Respon-
dent to cease and desist from infringing in any other manner on
rights guaranteed employees by Section 7 of the Act. Hickmott
Foods, 242 NLRB 1357 (1979).
[Recommended Order omitted from publication.]