American Residential Services of Indiana

National Labor Relations Board - Board Decisions

Sep 30, 2005

345 N.L.R.B. 995 (N.L.R.B. 2005)

AMERICAN RESIDENTIAL SERVICES OF INDIANA
345 NLRB No. 72
995
American Residential Services of Indiana, Inc., a Sub-
sidiary of the ServiceMaster Company and
American Residential Services, a Subsidiary of
the ServiceMaster Company d/b/a Modern
Heating & Cooling, Inc. and Sheet Metal Work-
ers International Association, Local Union No.
20 a/w Sheet Metal Workers, International As-
sociation, AFL–CIO. Cases 25–CA–26991–1 and
25–CA–26992–1
September 30, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On May 14, 2002, Administrative Law Judge Karl H.
Buschmann issued the attached decision. The Respon-
dent’s filed joint exceptions and a supporting brief. The
General Counsel and the Charging Party each filed an
answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to adopt the judge’s rulings, find-
ings, and conclusions only to the extent consistent with
this Decision and Order.
I. INTRODUCTION
The judge found that the separate Respondent’s,
American Residential Services of Indiana, Inc. (ARS)
and Modern Heating & Cooling, Inc. (Modern),1 unlaw-
fully refused to hire, and consider for hire, applicants
affiliated with Sheet Metal Workers International Asso-
ciation, Local Union No. 20 (the Union). The judge also
found that Modern unlawfully threatened employees with
job loss if they supported the Union. The Respondent’s
have filed exceptions to the findings. We reverse the
judge’s findings concerning ARS but affirm his refusal-
to-hire and unlawful threat findings concerning Modern.2
II. DISCUSSION
A. The Respondents
Respondent ARS installs and services residential heat-
ing, ventilating, and air-conditioning (HVAC) systems,
and also performs some light commercial HVAC work.
ARS is run primarily by Operations Manager Brad Jelli-
son and Installation Manager Dave Reidel. ARS em-

1 Although the Respondent’s were subsidiaries of a common parent,
the complaints do not allege that they were a single employer, alter
egos, or joint employers.
2 In view of our finding of unlawful refusals to hire, we find it un-
necessary to pass on the judge’s additional finding that Modern unlaw-
fully refused to consider these applicants for hire. See Sommer Awning
Co., 332 NLRB 1318, 1319 fn. 4 (2000). Also, as discussed below, our
finding that Modern unlawfully refused to hire the applicants does not
extend to HVAC service technician positions.
ploys HVAC service technicians, entry-level HVAC ser-
vice technicians (a/k/a apprentices), installers, and help-
ers.
Respondent Modern performs both commercial and
residential HVAC installation and service work. ARS is
run by General Manager Scott Warwick, Service De-
partment Manager Jim Hughes, Commercial Department
Manager Kevin Caplinger, and Residential Department
Manager Rick Jenkins. Modern employs HVAC service
technicians, commercial and residential installers, and
helpers. Modern also has an unskilled duct cleaner posi-
tion.
B. The Union’s Youth-to-Youth Program
The alleged discriminatees were apprentices in the Un-
ion’s 5-year apprenticeship program. The apprenticeship
program teaches participants the skills to perform sheet
metal work and HVAC work. This is accomplished
through a combination of classroom instruction and on-
the-job training with employers who have a collective-
bargaining relationship with the Union.3
The apprenticeship program also features an organiz-
ing component, known as the “Youth-to-Youth Pro-
gram.” The Youth-to-Youth Program has been fully
described by the judge, and in prior Board cases. See
Ken Maddox Heating & Air Conditioning, 340 NLRB 43
(2003); Sommer Awning Co., 332 NLRB 1318 (2000).
For present purposes, it is sufficient to mention that the
Youth-to-Youth Program requires the apprentices, usu-
ally after the third year of their apprenticeship, to take a
leave of absence from their signatory employers and to
seek employment with nonunion employers. The goal is
to organize the nonunion employers from within.
Typically, an apprentice remains with the nonunion
employer for about 6 months, at which time the Union
directs the apprentice to return to his signatory employer
to complete his apprenticeship. The apprentice must
comply because, as the parties put it, he is “indentured”
to the Union. If an apprentice fails to return to the ap-
prenticeship program, he must reimburse the Union for
all the costs of his training to that point.
The present case arose when, from about September
1999 through February 2000, certain apprentices in the
Youth-to-Youth Program sought employment with ARS
and Modern. The Respondent’s did not hire any of them.
C. The Applicable Principles
The applicable principles are set forth in FES, 331
NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). In a
refusal-to-hire case, the General Counsel must establish:
(1) that the respondent was hiring, or had concrete plans

3 These employers are referred to herein as “signatory employers.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD996
to hire; (2) that the applicants had experience or training
relevant to the known requirements of the positions for
hire, or in the alternative, that the employer has not ad-
hered uniformly to such requirements, or that the re-
quirements were themselves pretextual or were applied
as a pretext for discrimination; and (3) that antiunion
animus contributed to the decision not to hire the appli-
cants. A refusal-to-consider case requires proof that the
respondent excluded the applicants from a hiring process
at least in part because of their union affiliation or activ-
ity. In either case, if the General Counsel carries his
burden, then a violation will be found, unless the respon-
dent proves, as an affirmative defense, that it would not
have hired the applicants even in the absence of their
union affiliation for some nondiscriminatory reason.
D. ARS
The judge found that the General Counsel carried his
burden on both the refusal-to-hire and refusal-to-consider
allegations against ARS. We do not share the judge’s
assessment that the General Counsel presented one of the
“strongest” FES cases, as there is little evidence that
ARS Operations Manager Brad Jellison harbored any
personal hostility to the applicants organizing activity.
While Jellison acknowledged that a reason he did not
hire or consider the applicants for employment was their
status as apprentices in the Youth-to-Youth Program,
which includes a requirement that program participants
take 6 months off to engage in union organizing activity,
he said that the applicants would not have been hired or
considered for hire because of their short-term availabil-
ity for employment. Still, we agree that the General
Counsel’s evidence was sufficient to shift to the Respon-
dent its rebuttal burden to show that it would not have
hired the alleged discriminatees without regard to their
union affiliation. Unlike the judge, however, we find
that ARS carried its burden and therefore the complaint
allegations against ARS must be dismissed.4
The Board recently made clear that an employer may
lawfully screen applicants based on their long-term em-
ployment prospects; provided, of course, that the em-
ployer treats similarly-situated union and nonunion ap-
plicants alike. See Quantum Electric, Inc., 341 NLRB
1270, 1280 (2004). The record establishes that ARS had
a policy of seeking new hires with long-term employ-
ment prospects. ARS Operations Manager Brad Jellison
explained not only why ARS seeks long-term employees,
but also how he attempts to achieve that objective. Jelli-
son explained that ARS seeks long-term employees be-

4 However, we find no merit in ARS’s, or Modern’s, argument that
the Youth-to-Youth applicants were not “genuine” or “bona fide” ap-
plicants.
cause it spends significant time and money, approxi-
mately $3000, training each new employee and he em-
phasized that ARS prefers to promote from within by
grooming apprentices and helpers for more-skilled posi-
tions. As a result, he reviews applicants’ employment
histories for indications that they might not be long-term
prospects. While Jellison said he has rehired former em-
ployees, he explained that he does so only after discuss-
ing with each individual why the person left ARS and
why he wanted to come back. Contrary to the judge, we
find that Jellison’s detailed testimony establishes that
ARS had a policy of seeking long-term employees.5
We also find that Jellison, applying this policy, would
have rejected the Youth-to-Youth applicants because of
their short-term availability. The record shows that the
Youth-to-Youth applicants were only on “leaves of ab-
sence” from their signatory employers,6 and that they
were obligated to return to those employers, typically
after about 6 months. The record also shows that Jelli-
son, as a result of a prior industry training seminar he
attended and earlier litigation between ARS and the Un-
ion, was familiar with these aspects of the Youth-to-
Youth Program. Citing the same, Jellison credibly main-
tained that the applicants’ participation in the Youth-to-
Youth Program caused him to believe that the applicants
would not become long-term employees.
The dissent advances the contention, made by the
General Counsel and the Charging Party, that ARS en-
gaged in disparate treatment, in that it did not uniformly
apply its policy to union and nonunion applicants. It
points to evidence that ARS hired certain nonunion ap-
plicants with spotty employment histories. The dissents
underlying assumption, however, that those applicants
were similarly situated to the Youth-to-Youth applicants,
is without merit.
An employer that hires a new employee invests time
and money to train him and orient him to the employer’s
practices and procedures, as well as its supervisors and
employees. That employer risks the possibility that the
employee will quit. If he does, the employer will realize
little or no return on its investment in the employee and
suffer the instability in the working environment which
generally accompanies employee changeover. Conse-
quently, it is not unreasonable for an employer such as
the Respondent, which spends approximately $3000 to

5 Contrary to our colleague, the testimony of Jellison was not simply
why an employer might adopt such a policy but rather why the Respon-
dent did so.
6 Youth-to-Youth applicant Eric Tresslar testified that he had taken a
“leave of absence for six months” from his signatory employer. Appli-
cant James M. Beard agreed that he “took a leave of absence” from his
signatory employer upon entering the program.
AMERICAN RESIDENTIAL SERVICES OF INDIANA 997
train new employees, to attempt to mitigate that risk by
seeking applicants with the potential for long-term em-
ployment. There is nothing in the record to show that the
Respondent hired any applicant with the expectation that
he would be a short-term employee. As Jellison ac-
knowledged, ARS could never be certain that an appli-
cant would become a long-term employee. However, for
non-Youth-to-Youth applicants, the parties at least could
begin with the potential for a long-term relationship.
Even a spotty employment history, while it raises a con-
cern as to the employees’ longevity, does not foreclose
long-term employment. In contrast, there was no such
potential for the Youth-to-Youth applicants because they
are financially obligated to return to the Union’s appren-
ticeship program. Some Youth-to-Youth applicants
might have wanted to stay with ARS for longer than 6
months, but they would have been forbidden to do so on
pain of losing their apprenticeships. In light of these
circumstances, we do not think ARS’s preference for
unencumbered applicants demonstrates disparate treat-
ment based on Section 7 activity.
We disagree with our colleague’s contention that ARS
failed to show that it had a policy of seeking long-term
employees. Jellison’s testimony, recounted above, was
uncontroverted. Further, he explained why an employer
might favor such a policy and by reference to training
costs, promoting from within, and other factors, indicated
why and how ARS effectuated its policy. Similarly, our
colleague’s contention that ARS failed to show the
Youth-to-Youth applicants were not potential long-term
employees is inconsistent with the evidence. Jellison
testified that he was familiar with the Youth-to-Youth
Program and explained how he became familiar with the
program and its requirement that participants return to
their signatory employers after approximately 6
months. It was reasonable for ARS to rely on this
knowledge even if it did not subject each Youth-to-
Youth applicant to detailed questioning on this score.
Last, we find that our dismissal of the complaint
against Respondent ARS on this ground is not inconsis-
tent with Sommer Awning Co., 332 NLRB 1318 (2000).
In that case, the Board adopted the administrative law
judge’s rejection of the employer’s argument that it law-
fully disqualified certain union applicants, who were
participants in the Youth-to-Youth Program, based on its
policy against hiring temporary employees. Id. at 1327–
1328. The judge found the employer’s argument unper-
suasive, essentially because the record did not show: one,
that the Youth-to-Youth applicants were seeking only
temporary employment; and, two, that the employer had
a uniform policy of not hiring temporary employees.
Based on the evidence discussed above, we find that
ARS has presented convincing evidence on both points.
For these reasons, we find merit in ARS’s contention
that it actually would not have hired the applicants, or
considered them for hire, even in the absence of their
union affiliation due to their constrained availability for
long-term employment.7 Accordingly, we shall dismiss
the complaint allegations against ARS.
E. Modern
1. Installer, helper, and duct cleaner positions
In agreement with the judge, we find that Modern
unlawfully refused to hire the applicants for installer,
helper, and duct cleaner positions because of their union
affiliation. As to Modern, the General Counsel presented
a compelling case. The judge found, similar to the evi-
dence presented as to ARS, that Modern Commercial
Department Manager Kevin Caplinger admitted that a
reason Modern did not hire the applicants was their par-
ticipation in the Union’s Youth-to-Youth Program.
Unlike the evidence as to ARS, however, Caplinger’s
testimony was also infused with evidence of his hostility
toward the applicants. Caplinger admittedly regarded the
applicants as troublemakers. As an example, he said that
“if they don’t have any success in organizing then their
obvious responsibilities are to drum up as much trouble
as possible for upper management, the company and
people like myself.” Cf. Knoxville Distribution Co., 298
NLRB 688 (1990), enfd. mem. 919 F.2d 141 (6th Cir.
1990) (employer’s comment that it did not need “trou-
blemakers” evidence of animus).
Further evidence of Modern’s antiunion animus is re-
flected in its hiring for the installer, helper, and duct
cleaner positions. Commercial Department Manager
Caplinger and Residential Department Manager Rick
Jenkins claimed that they disqualified the applicants for
installer positions because none had sufficient (3-5 years)
installation experience, and that the applicants were in-
eligible for the unskilled helper and duct cleaner posi-
tions because none had a referral. However, the record
shows that Modern dispensed with these requirements
for applicants with no known affiliation with the Union.
On January 6, 2000, Modern hired James Caplinger,
who had no relevant installation experience, as an in-
staller.8 With respect to the unskilled positions, Jenkins

7 We express no opinion on how the outcome might differ in cases
involving union organizers not enrolled in the Youth-to-Youth Pro-
gram.
8 Commercial Department Manager Kevin Caplinger testified, and
Modern asserts, that James Caplinger was hired as a helper. However,
Modern’s own personnel record shows that James Caplinger was hired
as an “Installer,” as found by the judge. The Respondent has not as-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD998
actually hired two covert union applicants, Jason Beard
and Richard Draher, without a referral. Modern’s selec-
tive application of its asserted hiring criteria to apparent
union adherents, while relaxing the same criteria to
seemingly nonunion applicants, lends further support to
the judge’s finding of unlawful motivation. See, e.g.,
Action Multi-Craft, 337 NLRB 268, 276–277 (2001)
(relaxing asserted requirements only for seemingly non-
union applicants evidences illegal motive); see also, e.g.,
Starcon, Inc., 323 NLRB 977, 982 fn. 13 (1997), enfd. in
part 176 F.3d 948 (7th Cir. 1999) (waiving “new applica-
tion” requirement for covert union applicant, but not
overt applicants, revealed bias).
Moreover, in agreement with the judge, we find that
Modern failed to establish that it actually would have
refused to hire the applicants even in the absence of their
union affiliation. As ARS Operations Manager Jellison
did, Caplinger claimed that the applicants were disquali-
fied from employment because of their short-term avail-
ability. However, Caplinger’s claim was not persuasive.
Caplinger was unaware of any policy against hiring
short-term employees. Caplinger did not identify any
method he employed to screen out short-term employees.
Further, he provided no information regarding Modern’s
cost of training a new employee to support his assertion
that hiring potentially short-term employees was prob-
lematic. Absent such evidentiary support, we reject
Modern’s claim that it would have refused to hire the
applicants in any event due to their short-term availabil-
ity.9
Last, we agree with the judge’s observation that his re-
fusal-to-hire finding regarding Modern is further sup-
ported by his additional finding, which we adopt, that
Modern unlawfully threatened employees with job loss if
they organized a union. See Yellow Ambulance Service,
342 NLRB 804, 804 (2004) (recognizing that a determi-
nation of actual motive regarding an 8(a)(3) finding may
be supported by related violations committed by the re-
spondent); Howards Sheet Metal, Inc., 333 NLRB 361,
364 (2001) (finding that discriminatory discharge of one
worker was relevant to consideration of contemporane-
ous discharge of a coworker who also engaged in union
activity).

serted that James Caplinger was allowed to bypass requirements be-
cause of any familial relationship with Modern’s management.
9 As the judge found, Modern’s claim that it would have refused to
hire the Youth-to-Youth applicants for unskilled positions because they
lacked referrals is equally unpersuasive. See Nelcorp, 332 NLRB 179,
180 (2000), enfd. mem. 171 LRRM (BNA) 2512 (2d Cir. 2002) (re-
spondent’s deviation from hiring criteria undercut affirmative defense).
2. HVAC service technician positions
We find insufficient evidence to support the judge’s
finding that Modern unlawfully refused to hire Youth-to-
Youth applicants for available HVAC service technician
positions. Unlike the judge, we find that the General
Counsel did not establish that the applicants had the ex-
perience relevant to Modern Service Department Man-
ager Jim Hughes’ established requirements for this posi-
tion. Hughes explained that an applicant for an HVAC
service technician position must have 3-5 years of field
experience as a service technician and pass a written ex-
amination.10 The General Counsel failed to establish that
any of the applicants satisfied these requirements, or that
Modern deviated from the requirements. See Jacobs
Heating & Air Conditioning, 341 NLRB 981 (2004).
The General Counsel contends that applicants Michael
McCormack and Nathan Wheeler each had more than 3
years of “HVAC experience.” However, McCormack
and Wheeler each admitted on cross-examination that he
had never been employed as a residential HVAC service
technician and had no field experience servicing residen-
tial HVAC systems. McCormack’s residential experi-
ence was limited to the Union’s 2-week residential
HVAC training course and performing one or two instal-
lations. Wheeler also took the Union’s 2-week training
course and had installed commercial HVAC systems.
Again, neither had any field experience servicing resi-
dential HVAC units.11
Finally, there is no evidence that Service Department
Manager Hughes, unlike Caplinger and Jenkins, deviated
from the stated requirements for the HVAC service tech-
nician position.
ORDER
A. The complaint against Respondent ARS is dis-
missed in its entirety.
B. The Respondent, American Residential Services, a
subsidiary of the ServiceMaster Company d/b/a Modern
Heating & Cooling, Inc., Indianapolis, Indiana, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing its em-
ployees in the exercise of the rights guaranteed them by
Section 7 of the Act and by threatening employees with

10 Modern instituted the written examination in 1996, well before the
events giving rise to this case.
11 The judge found that there was little difference between servicing
commercial and residential HVAC units. However, it was Modern’s
prerogative to insist on residential experience, so long as it applied this
requirement to union and nonunion applicants alike. See Jacobs Heat-
ing & Air Conditioning, supra at 2. In any event, McCormack’s and
Wheeler’s experience focused on installing, not servicing, commercial
HVAC systems.
AMERICAN RESIDENTIAL SERVICES OF INDIANA 999
job loss if they selected the Union as their collective-
bargaining representative.
(b) Refusing to hire job applicants because they par-
ticipated in the Union’s organizing program or because
of their union affiliation.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Michael B. McCormack, Charles E. Snyder, Jason M.
Strausburg, Eric R. Tresslar, Jason A. Hilton, Nathan M.
Wheeler, Gerald A. Thornell, Chad M. West, Eric L.
Scott, Richard S. Teffertiller, and Jay Bradley Petticord
employment in installer, helper, or duct cleaner positions
for which they applied or, if such positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights and privi-
leges; if necessary terminating the service of employees
hired in their stead.
(b) Make whole all those individuals identified in sub-
paragraph (a) in the manner described in the remedy sec-
tion of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to hire
Michael B. McCormack, Charles E. Snyder, Jason M.
Strausburg, Eric R. Tresslar, Jason A. Hilton, Nathan M.
Wheeler, Gerald A. Thornell, Chad M. West, Eric L.
Scott, Richard S. Teffertiller, and Jay Bradley Petticord
and, within 3 days thereafter, notify them in writing that
this has been done and that the unlawful conduct of the
Respondent will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel 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 Indianapolis, Indiana facility, copies of the attached
notice marked “Appendix.”12 Copies of the notice, on
forms provided by the Regional Director for Region 25,
after being signed by the Respondent’s authorized repre-

12 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National 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.”
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since September 1, 1999.
(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.
MEMBER LIEBMAN, dissenting in part.
If, in fact, Respondent ARS had established that it ac-
tually had a policy of seeking long-term employees, that
it uniformly followed that policy regardless of an appli-
cant’s union affiliation, and that the Youth-to-Youth ap-
plicants were not potential long-term employees, then I
would agree with the majority that there was no unlawful
refusal to hire here.1 But the evidence does not support a
finding that any of these things was true, much less all
three. Thus, this case is indistinguishable from Sommer
Awning Co., 332 NLRB 1318 (2000), where the Board
found a refusal-to-hire violation.
There, the Board rejected the employer’s argument
that it lawfully disqualified similarly-situated Youth-to-
Youth applicants based on a policy against hiring tempo-
rary employees. Id. at 1327–1328. The Board found that
the respondent failed to establish that it actually had a
uniform policy of not hiring short-term employees or that
the Youth-to-Youth applicants were seeking only tempo-
rary employment. The same is true here.
ARS provided scant evidence that it actually had an es-
tablished policy of not hiring temporary employees.
ARS Operations Manager Brad Jellison offered logical
reasons why an employer might adopt such a policy, in-
cluding training costs, but he offered little evidence that
ARS actually had done so. There is no documentation of
the alleged policy, no evidence that it was disseminated

1 I join my colleagues in affirming the judge’s finding that Respon-
dent Modern unlawfully refused to hire the Youth-to-Youth applicants
for the installer, helper, and duct cleaner positions, and unlawfully
threatened employees with job loss if they supported the Union. How-
ever, for the reasons given by the judge, I also would adopt his finding
that Modern unlawfully refused to hire the applicants for available
HVAC service technician positions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1000
within ARS, no evidence that ARS inquired of any
Youth-to-Youth applicant about his desire for long-term
employment,2 and no evidence that ARS ever communi-
cated to any applicant an antipathy toward short-term
employment. See Sommer Awning, supra at 1328. Even
Jellison’s asserted practice of reviewing applicants em-
ployment histories was supported only by his general
observation that “you can look at longevity at other
jobs,” without any specific evidence that he had ever
engaged in such an analysis. The Respondent’s posthoc
effort to explain events is entirely self-serving.
Instead, the record compels the conclusion that ARS
simply did not have a policy of screening out applicants
who appeared unlikely to become long-term employees.
During the relevant period, September 1999 through Feb-
ruary 2000, ARS hired numerous nonunion applicants
whose employment histories suggested they were any-
thing but long-term prospects. ARS rehired former em-
ployees who had quit ARS in the past.3 ARS also hired
applicants who had recently left jobs after short-time
periods.4 This evidence belies the notion that ARS had a
policy of screening out applicants who lacked a com-
mitment to long-term employment. And, even if it did,
Jellison’s demonstrated willingness to hire less-than-
promising nonunion applicants demonstrates that the
policy was not uniformly enforced.
In any event, ARS failed to establish any credible basis
for believing that the Youth-to-Youth applicants were
seeking only short-term or temporary employment.5 The
Board rejected a similar claim in Sommer Awning.
There, the Board emphasized that none of the Youth-to-
Youth applicants indicated a desire only for short-term
employment, and that the employer’s contrary conclu-
sion was based on assumptions and second-hand infor-
mation about the Youth-to-Youth Program.

2 Respondent ARS’s employment application expressly inquired
whether the applicant was interested in full-time or part-time employ-
ment, but said nothing about permanent or temporary employment.
ARS’s employment advertisements did not mention a desire for long-
term employees.
3 The majority observes that Operations Manager Jellison discussed
with these former employees why they left ARS and why they wanted
to return to ARS, as a way to gauge their commitment to long-term
employment. Significantly, Jellison did not provide a single Youth-to-
Youth applicant with a similar opportunity to be heard.
4 As examples, the following list shows nonunion applicants hired by
ARS and the time periods each applicant had been with his last 2 em-
ployers, most recent first: John Ruble, 6 and 11 months; Dominic Ro-
emble, 11 and 8 months; Bobby Elliot, 5 and 2 months; Jeff Dunn, 1
and 12 months; Anthony Stout, 7 and 8 months; and Travis Lee, 3 and
6 months.
5 The judge made a similar finding in rejecting the Respondent’s ar-
gument that the Youth-to-Youth applicants were not “bona fide” appli-
cants.
Similarly, none of the Youth-to-Youth applicants told
ARS he was interested only in temporary employment,
likely because the Union did not strictly limit the time
period an apprentice could work for a nonunion em-
ployer, especially if his organizing efforts showed signs
of success. ARS’s position that the Youth-to-Youth ap-
plicants would resign after 6 months ignores the possibil-
ity that its employees might actually embrace the Union.
Moreover, Operations Manager Jellison did not bother
to ask a single Youth-to-Youth applicant about his avail-
ability for or commitment to extended employment,
though Jellison assertedly discussed such matters with
former nonunion employees. In the end, Jellison had no
credible basis on which to exclude the Youth-to-Youth
applicants as temporary employees.6 Indeed, all Jellison
actually knew was that the Youth-to-Youth applicants
were organizers. His failure to make further inquiries
more directly reflects that an awareness of the applicants
participation in the Youth-to-Youth Program was all he
needed to know. Accordingly, I dissent from the major-
ity’s dismissal of the complaint as to ARS.
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 employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities
WE WILL NOT threaten employees with job loss if they
select the Union as their collective-bargaining represen-
tative.
WE WILL NOT refuse to hire job applicants because
they are participating in the Union’s organizing program
or because they are members of a union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

6 As the majority observes, the record suggests that there has been
prior litigation between ARS and the Union. However, Jellison did not
provide any details of that litigation. His knowledge of the litigation
was based only on reports from other company officials.
AMERICAN RESIDENTIAL SERVICES OF INDIANA 1001
WE WILL, within 14 days from the date of the Boards
Order, offer immediate full employment to Michael B.
McCormack, Charles E. Snyder, Jason M. Strausburg,
Eric R. Tresslar, Jason A. Hilton, Nathan M. Wheeler,
Gerald A. Thornell, Chad M. West, Eric L. Scott, Rich-
ard S. Teffertiller, Jay Bradley Petticord in installer,
helper, or duct cleaner positions for which they applied
or, if such positions no longer exist, to substantially
equivalent positions without prejudice to their seniority
or other rights or privileges that they would have enjoyed
had they been hired.
WE WILL make the named individuals whole for any
loss of earnings and benefits that they have suffered as a
result of our unlawful refusal to hire them, less any net
interim earnings, plus interest.
WE WILL remove from our files any and all references
to the unlawful refusal to hire the named individuals and
notify them in writing that this has been done and that
our unlawful refusal to hire them will not be used against
them in any way.
AMERICAN RESIDENTIAL SERVICES A
SUBSIDIARY OF THE SERVICEMASTER
COMPANY, D/B/A MODERN HEATING &
COOLING, INC.
Walter Steele and Derek A. Johnson, Esqs., for the General
Counsel.
Todd M. Nierman,1 Esq. (Baker & Daniels), of Indianapolis,
Indiana, for the Respondent.
Neil E. Gath, Esq. (Fillenwarth, Dennerline, Groth & Towe), of
Indianapolis, Indiana, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This case
was tried on December 11–14, 2000, and on January 29–30,
2001, in Indianapolis, Indiana. A charge was filed on March
16, 2000, by Sheet Metal Workers International Association,
Local Union No. 20, a/w Sheet Metal Worker’s International
Association, AFL–CIO (the Union), and the complaint issued
on July 27, 2000, in Case 25–CA–296991–1 against American
Residential Services of Indiana, Inc., a subsidiary of the
ServiceMaster Company (Respondent or ARS or American
Residential Services). Another charge was filed on March 16,
2000, by the Union and a complaint issued on August 28, 2000,
in Case 25–CA–26992–1 as amended, against American Resi-
dential Services, a subsidiary of the ServiceMaster Company,
d/b/a Modern Heating & Cooling, Inc. (Respondent or Mod-
ern), and (Modern and American Residential Services) jointly
referred to as the Respondent.
The complaints allege as violations of Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act), that the Respon-

1 The Respondent’s notice to substitute Counsel of Record requested
the appearance of Todd M. Nierman in lieu of Philip J. Gibbons.
dent, ARS, refused to hire or consider for hire the following
eight applicants on various dates in September and November
1999:
Jason A. Hilton September 22, 1999
Nathan M. Wheeler September 22, 1999
Eric L. Scott November 4, 1999
Richard S. Teffertiller November 4, 1999
Jason M. Strausburg November 9, 1999
Eric R. Tresslar November 9, 1999
Charles E. Snyder November 10, 1999
Kenneth Stewart November 10, 1999
and (b) that the Respondent, Modern refused to hire or consider
for hire the following 11 applicants at various dates in Septem-
ber, October, and November 1999:
Michael B. McCormack September 20, 1999
Charles E. Snyder September 20, 1999
Jason M. Strausburg September 20, 1999
Eric R. Tresslar September 20, 1999
Jason A. Hilton October 1, 1999
Nathan M. Wheeler October 1, 1999
Gerald A. Thornell October 22, 1999
Chad M. West October 22, 1999
Eric L. Scott October 29, 1999
Richard S. Teffertiller October 29, 1999
Jay Bradley Petticord November 3, 1999
The complaint also alleges as a violation of Section 8(a)(1)
(a) that Respondent ARS told applicants that the reason that
their telephone messages were left unanswered was because
they were union members; and (b) that on January 18, 2000,
Respondent Modern threatened its employees with the loss of
jobs if they selected the Union as their collective-bargaining
representative.
The Respondent’s filed timely answers in which the jurisdic-
tional allegations were admitted and in which the Companies
denied that they had committed any violations of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Party, and the Respon-
dent’s, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent’s, ARS and Modern, are corporations en-
gaged in the installation, service, and repair of heating, ventilat-
ing, and air-conditioning systems, with offices located in Indi-
ana, including an office and place of business in Indianapolis
where they annually purchase and receive goods valued in ex-
cess of $50,000 directly from points outside the State of Indi-
ana. The Respondent’s are admittedly employers engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. FACTS
The Respondent’s, ARS and Modern, are subsidiaries of
ServiceMaster Company. ARS, a nonunion company, is pri-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1002
marily engaged in residential service, repair, and installation
service of heating and air-conditioning equipment, as well as
light commercial work. Its operations manager is Bradlee Jelli-
son. Three supervisors report to him: Mark Flashkamp, Mike
Puckett, and Chris Key. The installations manager for ARS is
David Riedel.
The Respondent, Modern, also a nonunion company, is en-
gaged in commercial and residential repair, service and installa-
tion of heating, ventilating, and air-conditioning systems. Scott
Warwick is the general manager. Reporting to him are Jim
Hughes, manager of the service department; Kevin Caplinger,
manager of the commercial department; and Rick Jenkins, man-
ager of the residential department.
ARS employs approximately 30 service technicians who di-
agnose and service residential furnaces and air-conditioners,
and about 30 installers and apprentices who install new equip-
ment. Modern has approximately 12 technicians, as well as
about 20 installers and helpers.
Between September 1999 and February 2000, ARS and
Modern hired a number of service technicians, installers, and
helpers. The Respondent’s refused to hire any of the 19 union
applicants who made determined efforts to gain employment
with ARS and Modern.
The union applicants at ARS and Modern were enrolled in a
5-year apprenticeship program with their Union, Local 20. The
apprenticeship includes a 6-month tour of duty known as
“Youth-to-Youth Program.” The participants were trained in
all phases of sheet metal work, including theoretic instructions,
teaching drafting, reading blueprint, and layout. The training
included practical experience involving the tearing down and
rebuilding of heating and cooling systems. The participants
gain experience in air-conditioning and heating systems by
working for a participating employer. In the third year of their
apprenticeship, the candidates take a 6-month leave of absence
to become employees of the Union as organizers, in an effort to
pursue the Union’s goal to organize the unorganized workers in
the trade. During this time, the candidates solicit positions with
nonunion employers. The usual duration of employment with a
nonunion employer is 6 months, but it may last longer, so that
some apprentices worked for more than 2 years for a nonunion
employer and thereafter returned to complete their apprentice-
ship.
In order to obtain employment with a nonunion company the
applicants apply “overtly” or “covertly.” Those who applied
overtly usually displayed a baseball cap and other insignia
showing their union affiliation. They often apply in groups.
Their employment applications revealed the Union as an em-
ployer. The covert applicants, on the other hand, did not dis-
close their union affiliation during the application process. In
all cases, the applicants were under orders of the Union to work
hard and to do a good job during their employment.
The Local 20 Youth-to-Youth Program has been the subject
of a prior Board decision in a similar refusal-to-hire case.
Sommer Awning Co., 332 NLRB 1318 (2000). Other cases
involving the same Union and the same program under factual
circumstances similar to those involved here, have been de-
cided by administrative law judge’s.2
The ARS Applicants
Eight union applicants applied overtly at ARS. Nathan
Wheeler and Jason Hilton, wearing their union hats, went to the
ARS offices and spoke to the receptionist on September 22,
1999. She told them that she believed that ARS was hiring.
Wheeler and Hilton filled out applications and submitted them
complete with their resumes to the receptionist. She indicated
that she would give the applications to Brad Jellison, a man-
ager. Yet the applicants were never contacted by the Company.
Eric Scott and Richard Teffertiller visited the ARS office on
November 4, 1999. They completed the applications, noting
that they were union organizers. They submitted the applica-
tions and their resumes to the receptionist. She said that Kathy
Todd would look at the applications and get in touch with them.
Yet they were not contacted by ARS.
Jason Strausburg and Eric Tesslar, wearing union hats ap-
plied in person at ARS on November 9, 1999. The receptionist,
Roxanne Smith, told them that ARS was hiring, and that they
should speak to Brad Jellison about an interview. They submit-
ted their applications and resumes. They also left a voice mail
message with Jellison. But he did not contact them. Strausburg
made another attempt to apply at ARS in December 1999 with-
out success.
Charles Synder and Kenneth Stewart applied at ARS on No-
vember 10, 1999. They completed the applications and en-
closed their resumes. Stewart wore a union hat and a union
jacket. The applicants disclosed on their applications that they
were union organizers. Sandy, the receptionist, indicated that
the Company was accepting applications for HVAC positions.
Yet, ARS did not contact these applicants.
The two applicants, Strausburg and Tresslar, as well as
Wheeler, went to ARS offices again on December 1, 1999, to
renew their applications. They noticed a posting in the parking
lot with the message: “Now hiring HVAC Service Techs.”
Tresslar then spoke with the receptionist named Sandy, who
revealed that ARS had recently hired an employee. She also
said that the reason for their inability to obtain an interview
may have been “because you’re union and ARS isn’t a union
company.”
In sum, the record shows that eight union applicants who had
applied at ARS overtly and who had revealed their union af-
filiation were never contacted by the Respondent, in spite of
their subsequent efforts to check on the status of their applica-
tions.
During the same time from September to December 1999
when the overt union applicants submitted their applications,
two covert applicants were not only interviewed by ARS man-
agement but offered employment. Jason Beard, a union mem-
ber, submitted his application on October 19, 1999, without
revealing his union background or affiliation. Brad Jellison

2 See decisions by administrative law judge’s in Dial One Hoosier
Heating & Air Conditioning Co., JD–5–01 (Jan. 16, 2001); Ken
Maddox Heating & Air Conditioning, JD–76–98 (June 15, 1998);
Supplement Decision, JD–163–00 (Dec. 8, 2000); Kelly Construction
of Indiana, Inc., JD–52–99 (May 11, 1999); Tradesmen International,
JD–131–00 (Oct. 6, 2000).
AMERICAN RESIDENTIAL SERVICES OF INDIANA 1003
interviewed Beard on the same day and informed him that ARS
would contact him if a job vacancy occurred. On December 1,
1999, Beard received a call from David Riedel, new construc-
tion manager, for an interview. Following the interview on
December 1, 1999, Riedel offered Beard a job (Beard did not
accept the position because he was already employed at Mod-
ern). Similarly, Jamison Clark, a member of Local 20, applied
covertly on December 6, 1999. The receptionist referred him to
David Riedel for an interview on the same day. On the follow-
ing day, December 7, 1999, Riedel called Clark with a job offer
as an installer.
The Applicants at Modern
The Indianapolis Star News carried an advertisement in Sep-
tember 1999, soliciting applications for HVAC installers with
at least 3 years experience. Several members of Local 20 re-
sponded. Michael McCormack, a member of Local 20, applied
on September 20, 1999, at Modern. He wore his union hat and
also noted his status as union organizer on his application. His
application showed that he had at least 3 years experience.
Even though he had repeatedly called Respondent’s contact
person, Rick Jenkins, the Respondent failed to consider his
application.
Charles Synder, Jason Strausburg, and Eric Tesslar also vis-
ited Modern’s facility on September 20, 1999, in search of
work. They spoke to Heather Broderdorp, who stated that she
would refer their applications to Rick. The applicants wore a
union hat and noted on their applications their union connec-
tions. The Respondent did not respond to their applications.
The applicants followed up on their efforts to obtain employ-
ment. On October 11, 1999, Tresslar called Modern’s offices
and left a message. On about October 19, 1999, Tresslar and
Strausburg visited Respondent’s office and spoke to the recep-
tionist. A week later Strausburg was able to speak to Rick Jen-
kins. He told them that the Company was not hiring any in-
stallers. Snyder returned to Modern’s offices on November 3,
1999, to inquire about his pending application. Tresslar called
the office on November 10, 1999, and Strausburg called the
office again in December 1999. Yet Synder, Strausburg, and
Tresslar’s attempts ended without success.
Nathan Wheeler and Jason Hilton submitted their applica-
tions on October 1, 1999. Like other overt applicants, Wheeler
and Hilton wore their union hats. They had responded to the
advertisement in the Indianapolis Star. Their applications dem-
onstrated that they had more than 3 years of HVAC experience.
Yet, the Respondent failed to respond to their applications.
Wheeler and Tresslar who had previously applied went again to
the Respondent’s offices on November 30, 1999. They spoke
to the receptionist, named Heather, to check on their applica-
tions. They offered to renew their applications, but their efforts
to get hired remained without success.
Gerald Thornell and Chad West went to Modern on October
22, 1999, to apply. They too had seen the advertisement in the
Indianapolis papers. The applicants wore union hats and
showed on their applications that they were union organizers.
Thornell and West had over 3 years of HVAC experience.
They spoke to the receptionist, Bonita Gobel. She asked them
whether they were interested in service work or installer work.
When Thornell replied that he was interested in both jobs,
Gobel said that he had to take a service test. On October 26,
1999, he took the test. Thornell returned on the following day
to the Company’s office to get his jacket, which he had left
behind. He then noticed a sign stating, “Not accepting applica-
tions for installers at this time.” Thereafter, Thornell called the
office repeatedly. He was once able to reach Jim Hughes.
Their attempts to get a job remained fruitless.
Eric Scott and Richard Teffertiller visited Modern’s office
on October 29, 1999, in the hope of finding a job. Both appli-
cants filled out applications. They also took a service test. Jim
Hughes who had told them to take the test also indicated that
the Company was not hiring at that time. They were never
contacted about the outcome of their tests nor invited for an
interview at any time thereafter.
Synder who had applied at Modern on September 20, 1999,
returned to the facility on November 3, 1999. He brought with
him Jay Bradley Petticord. The receptionist, Heather Broder-
dorp, informed Synder that his application was current and she
told Petticord that he needed to take a test. Porticort completed
the test and submitted his application. Neither applicant was
hired.
In sum, Respondent Modern, refused to consider any of the
11 union applicants and completely ignored their applications.
On the other hand, the union applicants who applied covertly
were offered employment.
Richard Draher, a union member, applied on October 15,
1999, without disclosing his union affiliation. Within hours of
his application, Modern’s manager, Kevin Caplinger, inter-
viewed Draher and hired him as a helper in the commercial
department. Caplinger told Draher that the Company was
really busy and that they were hiring. Caplinger encouraged
Draher to refer other applicants for jobs at Modern.
James Beard, also a member of Local 20, applied at the sug-
gestion of Draher at Modern on October 21, 1999. Beard also
did not reveal his union status, nor did he refer to Draher as a
reference. Within a week, Beard was interviewed and hired as
a helper.
During the same time, the applications of Thornell and West
who applied overtly were ignored.
On December 1, 1999, Jason Hilton decided to apply cov-
ertly—he had earlier applied overtly on October 1, 1999, with-
out any success. Hilton’s covert attempt proved successful
after he submitted an application, which was silent as to his
union affiliation. The Respondent hired him as a helper in
December 1999.
Ultimately, after they had worked for 3 months, the Respon-
dent learned that Beard and Draher were union organizers. On
January 18, 2000, the Respondent’s manager of the commercial
department, Kevin Caplinger, held a meeting with the employ-
ees about the Union’s organizing efforts. Caplinger disclosed
to the group that Beard and Draher were union organizers who
are committed to convince the employees to join the Union.
Caplinger further stated that if Modern became union, it would
end up going “belly up.” Rick Warwick who with his brother
Scott Warwick, were prior owners of the Company also at-
tended the meeting. He underscored Caplinger’s remark and
similarly stated that the employees “could possibly loose [their]
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1004
job if [they] joined the Union.”
Analysis
Here, the record contains the testimony of the 19 members of
Local 20, as well as copies of their applications complete with
their resumes showing the qualifications of each applicant. The
record shows that the applicants correctly followed Respon-
dent’s application procedure and that they went to great lengths
to keep the applications active by repeatedly following up on
the status of their applications, which, according to the Respon-
dent, were kept active in the Companies’ files for 60 days. It is
also uncontroverted that the applicants did not hide their union
affiliations during the application process, but that they openly
and intentionally revealed their status as union organizers and
participants in the Youth-to-Youth Program, so that the Re-
spondent’s had ample knowledge of their union affiliation. The
evidence also shows conclusively that the Respondent’s did not
respond to any of the 19 applications submitted by members of
Local 20 who had applied overtly. Finally, the evidence shows
conclusively that during the same time, the Respondent’s not
only responded to the applications submitted covertly, but that
the covert applicants who possessed the same or lesser qualifi-
cations were hired by the Respondent’s. The conclusion is
accordingly compelling that the Respondents’ failure to re-
spond to any of the union applicants was related to their union
affiliations.
The Respondent’s have defended its actions by raising a
number of issues, i.e. (a) General Counsel’s witnesses are in-
competent to testify because they were paid by the Union or
had an interest in the outcome of this proceeding; (b) the al-
leged discriminatees are not bona fide applicants for employ-
ment; (c) the applicants are not entitled to the protection of the
Act, because of the Youth-to-Youth Program; and (d) the Gen-
eral Counsel failed to make out a prima facie case, because the
applicants were not qualified.
The Board has addressed these issues with specific regard to
the practice of “salting” and the Youth-to-Youth Program. The
practice of salting by paid union organizers has been analyzed
by the Board involving the same Union, Local 20, in Sommer
Awning Co., 332 NLRB 1318 (2000). There, the Board found
that Local 20’s Youth-to-Youth Program, which promoted the
applicants efforts to seek employment with nonunion compa-
nies, did not remove them from the definition of Section 2(3) of
the Act as employees. Moreover, as decided by the Board,
program participants are considered bona fide applicants for
employment and are entitled to the protection of the Act.
The Board also rejected the Respondents’ argument that the
union applicants are temporary employees who would leave
active employment at the end of the 6 months and should there-
fore not be considered bona fide applicants. There, as here,
none of the applicants testified that they were interested in tem-
porary employment. Moreover, they are free to leave the pro-
gram and remain employed beyond 6 months. And, contrary to
the Respondents’ argument that the “alleged discriminatees had
no intention of accepting employment with Modern or ARS,”
the consistent and unequivocal testimony of all applicants was
that they would have accepted any employment if the Respon-
dent’s had offered it. The Union not only expected them to
work hard and do a good job for their employer, but the work
records of the covert employees (Beard, Draher, and Clark)
showed that they were held in high regard by their employers.
To suggest that the testimony of the union witnesses was
tainted, because they were paid by the Union or had a financial
interest in the outcome of the case is tantamount to an attempt
to disqualify most witnesses. The Respondents’ elicited testi-
mony that the discriminatees who were subpoenaed by the
Board and who testified in this proceeding were paid by their
Union for the time spent as witnesses, including parking ex-
penses. The Respondent’s, however, did not offer any testi-
mony about its witnesses as to whether their efforts in appear-
ing as witnesses were compensated or not. In any cases there is
no evidence to suggest that the applicants compromised their
testimony in any way, and I reject the Respondents’ argument.
The status of salts in a similar scenario was recently ad-
dressed in Hartman Bros. Heating v. NLRB, 280 F.3d 1110 (7th
Cir. 2002), where the court held that (a), “the fact that the ap-
plicant is” a salt does not entitle the employer to infer that he
wont be a bona fide employee,” and (b), a lie on a job applica-
tion is not material “at least if [the] lie concerns merely his
status as a salt, union organizer, or union supporter and not his
qualifications for the job.”
Similar to Local 20’s practice, the court defined salting as
follows:
“Salting” is the practice whereby a union inserts its or-
ganizers into some employer’s workforce in the hope that
they will be able to organize it. Though salts do not intend
to remain in the company’s employ after the plant or other
facility is organized, the Supreme Court has held that they
are employees within the meaning of the National Labor
Relations Act, implying that to fire or refuse to hire other-
wise qualified salts merely because they are salts is an un-
fair labor practice because on the assumption that they are
qualified the employer’s motive must be the forbidden one
of discriminating against employees on the basis of their
being union supporters. NLRB v. Town & Country Elec-
tric, Inc., 516 U.S. 85, 87 (1995).
Considering the Respondents’ unmeritorious defenses to the
decisions of ARS and Modern not to hire and not to consider
for hire any of the 19 union applicants, the testimonies of Kevin
Caplinger and Brad Jellison are particularly relevant to the
Respondents’ discriminatory conduct. According to their un-
equivocal testimony, the applicants were excluded because of
their association with Local 20’s Youth-to-Youth Program. For
example, Brad Jellison, operations manager for ARS, who is in
charge of the hiring policy at ARS, testified that he saw all the
applications (including those of Stewart, Tresslar, Scott, Hilton,
and Wheeler) and that they failed to meet his requirements
because they were “part of the Youth-to-Youth Program for
Local 20” (Tr. 766–769). Similarly, Kevin Caplinger, contract
department manager at Modern who testified about his leading
role in the hiring process at Modern, candidly admitted that the
union applicants were not qualified for consideration by Mod-
ern because as organizers they are temporary employees.
These are excerpts of his testimony (Tr. 293, 298, 299):
AMERICAN RESIDENTIAL SERVICES OF INDIANA 1005
That is why he was going to be temporary, is because
he was an organizer. I didn't hire him because he was an
organizer, I hired him because he was going to be a tem-
porary employee—I couldn't hire him because he was go-
ing to be a temporary employee.
. . . .
I have a friend who is in Local 20 who I have had sev-
eral discussions about the organizers, the apprenticeship
program, the training the apprentices have and then also
this process they have to go through as far as the organ-
izer, where they go around and apply as organizers. Es-
sentially their responsibility is to—
. . . .
It is not my opinion, it is a fact. They come in, they
make every attempt they can to organize the union and if it
doesn’t work—if they don’t have any success in organiz-
ing then their obvious responsibilities are to drum up as
much trouble as possible for upper management, the com-
pany and people like myself. At the end of their six-
month period they go back to their regular jobs.
The admissions by each of the Respondents’ top managers
provide the true motives behind the Respondents’ discrimina-
tory conduct, and an implicit recognition that the Companies
were hiring at the time. Without further elaboration, I find that
the Respondent violated the Act by refusing to consider for hire
union applicants because: (1) the Respondent excluded them
from the hiring process; (2) antiunion animus contributed to its
decision not to consider the applicants; and (3) as shown below,
the Respondent has failed to show it would not have considered
the applicants even in the absence of their union activity or
affiliation. FES, 331 NLRB 9, 15 (2000). See also Sommer
Awning Co., supra.
Significantly, the Board requires that the refusal-to-hire is-
sues relating to ARS and Modern must comply with FES, su-
pra. There, the Board restated the elements that the General
Counsel must establish to meet its burden of proof in a dis-
criminatory refusal-to-hire case as follows: “(1) that the re-
spondent was hiring, or had concrete plans to hire, at the time
of the alleged unlawful conduct; (2) that the applicants had
experience or training relevant to the announced or generally
known requirements of the position for hire, or in the alterna-
tive, 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 discrimination; and (3) that
antiunion animus contributed to the decision not to hire the
applicants.” (331 NLRB 9, 12 (2000).)
ARS. The evidence is overwhelming that the Respondent
was hiring and had plans to do so. Initially, several applicants
(Wheeler, Hilton, Tresslar, and Strausburg) testified that the
Respondent’s receptionist indicated to them that the Respon-
dent was hiring service technicians. In addition, in early De-
cember 1999, when two union applicants visited the office to
check on their applications, they observed a sign, stating “Now
hiring HVAC service techs.” Moreover, in early December,
ARS offered positions to two covert applicants James Clark and
Jason Beard, positions as an installer and a helper, respectively.
In addition, ARS hired approximately 18 new workers between
September 1999 and February 2000.3 They are as follows:
James Gibson September 27, 1999 Service Technician
Jeremy Fonseca October 21, 1999 Helper
Travis Lee October 22, 1999 Installer
Thomas Shoemaker October 18, 1999 Service Technician
Todd Wiley October 14, 1999 Helper
Jamison Clark December 9, 1999 Helper
Michael Edmonson December 17, 1999 Helper
David Puckett November 18, 1999 Service Technician
John Ruble December 13, 1999 Service Technician
Jesse Hunter December 30, 2000 Installer
Jeffery Dunn December 13, 1999 Apprentice
Chris McFadden December 16, 1999 Warehouse
Bobby Elliot January 13, 2000 Helper
Robert Hansen February 14, 2000 Service Technician
John Pendleton February 7, 2000 Service Technician
Dominic Roembke February 9, 2000 Service Technician
Anthony Stout February 9, 2000 Service Technician
Harry Conlin February 28, 2000 Installer
The General Counsel has satisfied the first requirement in
FES, that ARS was hiring and had concrete plans to hire, by a
showing not only what management had said, but also by what
it did during the time the eight union members applied for jobs,
i.e., ARS hired two covert union members and the 18 nonunion
employees listed above.
The record also shows that the applicants had the experience
and training relevant to the positions. Initially, the testimony of
Brad Jellison reveals that for certain positions, namely entry-
level service technicians or for apprentice or helper jobs no
experience was necessary. Also the warehouse position was
filled with an employee who had no prior service or installer
experience. The evidence clearly shows that ARS had at least
five available helper or apprentice positions and one warehouse
job, which could have been offered to the union applicants.
Jellison and David Riedel, installation manager at ARS, stated
that the Company expected at least 2 years of experience for a
diagnostic service technician and 3 to 5 years experience for an
installation crew leader position. The application of union
applicant Wheeler showed “HVAC Installer” experience from
1995 to 1999. Yet he was not even interviewed. Hilton’s ap-
plication listed HVAC experience. Teffertiller stated in his
resume that he has installed heating and cooling units and air
handling units and that he has a “Class B CDL license,” neces-
sary to handle refrigerant materials. The other candidates had
similar backgrounds and certainly demonstrated skills in sheet
metal work. Beard and Clark whose backgrounds were similar
to those of the overt union applicants were offered jobs, Beard
as helper and Clark as installer. They were not referred by
anyone from ARS. Clearly, there was no reason, other than
those admittedly expressed by Jellison, why the Respondent
failed to consider or hire any of the eight applicants. I have
reviewed the applications of the five or six employees hired by
the Respondent as either helpers, as entry level service techni-
cians or as warehouse employees, and I find that their back-
grounds are not superior. To the contrary, the union applicants
had the experience and background more suited to the Respon-

3 The applicants renewed their applications as late as December
1999, which kept them active for 60 days.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1006
dent’s business than the employees actually employed. Clearly,
the eight discriminatees had the necessary qualifications and
experience relevant to the positions. The fact that covert appli-
cant Clark became a successful employee as an installer shows
that the overt applicants would not only have been eminently
qualified as helpers or entry level positions, but also for the
more skilled position as installer.
The General Counsel has also demonstrated the third ele-
ment in FES, that union animus contributed to the decision not
to hire the applicants. This element was clearly established by
Jellison’s candid testimony identifying the applicants’ affilia-
tions with the Union’s Youth-to-Youth Program. Moreover,
the statistical evidence standing alone, that none of the eight
applicants received a response from ARS, that the equally
qualified applicants who kept their union affiliation a secret
were promptly interviewed and offered a employment and that
the other employees hired had no union connection whatsoever,
reveals Respondent’s antiunion motive. Finally, of significance
was the observation—overheard by several applicants—made
by the receptionist Sandy Horton, that ARS is a nonunion em-
ployer and that the applicants’ union affiliation may have been
the reason for the Respondents’ failure to respond their applica-
tions.
While I disagree with the General Counsel’s argument that
Horton acted as an agent of the Respondent and therefore ex-
pressed company policy, I find that her statement was an obser-
vation made by a person associated and familiar with the Re-
spondent’s hiring policies. The record shows that Horton func-
tioned as a receptionist who handled the first stage in the appli-
cation process. Her remarks were more in the nature of a per-
sonal opinion rather than a reflection that she either knew or
expressed company policy. The evidence reveals that she was
familiar with the routine of the application process but the re-
cord does not support a finding that she created the impression
of an agent or that she had the authority of an agent. I therefore
dismiss the 8(a)(1) allegation in the complaint. And I find that
her remarks reflected a personal observation from her vantage
point, albeit a hearsay statement, which, under the circum-
stances of this case, may be considered as corroboration of
Respondent’s antiunion animus.
I accordingly find that the General Counsel has demonstrated
a prima facie case of an 8(a)(1) and (3) violation. I further find
that the Respondent has failed to show that it would not have
hired the applicants even in the absence of any union considera-
tions. The Respondent tried to show that employees were hired
pursuant to referrals or that applicants were only considered if
they had residential HVAC experience. Yet, the Respondent
hired numerous employees without referrals, certainly Beard
and Clark as well as others, such as Anthony Stout, Jeffrey
Dunn, and others. Residential experience was certainly not
required for helper or entry-level service positions. Again,
Clark and Beard were offered employment, they also demon-
strated that the other union applicants who had similar back-
grounds would have became good and valuable employees.
Indeed, as already stated, several of the discriminatees showed
on their resumes some residential experience. Finally, to sug-
gest that the employees hired were superior, would ignore the
evidence showing that same of them had a criminal history
(Anthony Stout, and John Ruble), that some had bad driving
records, such as suspended licenses, no licenses or traffic in-
fractions (Jeremy Fonseca, Thomas Shoemaker, and James
Gibson). Finally, the General Counsel has shown that ARS
rehired employees who had previously quit their employment,
ARS can therefore not claim that it avoided the hiring of indi-
viduals who lacked a long-term commitment. In sum, the Re-
spondent was candid enough to admit that it refused to consider
for hire and in fact failed to hire any of the eight union mem-
bers because of their union affiliation, but the Respondent was
less than candid by arguing that none of the union applicant
were qualified. I am convinced that the Respondent intention-
ally ignored the union candidates and their qualifications.
Modern. The record shows conclusively that Respondent
Modern was hiring and had concrete plans to hire. Initially, it
is uncontested that Modern had placed advertisements in the
local paper, Indianapolis Star, at various times from September
1999 to March 2000, in search of HVAC installers, technicians,
and HVAC service representatives. For example, the adver-
tisement for HVAC installer and HVAC service technician
appeared from the beginning of October 1999 to the end of
November 1999. The record shows that most of the 11 union
applicants submitted their applications to Modern in response
to the ads. In addition, the record shows that the Respondent
hired three covert union members, Draher and Hilton were
hired as helpers in October 1999 and Beard was hired as an
installer helper in December 1999. Draher testified that Cap-
linger had informed him on the day he applied at Modern that
the Company was busy and was looking for employees. Cap-
linger subsequently approached Draher on the job wanting to
know whether Draher knew anybody interested in employment
at Modern. According to Beard and Draher, Caplinger in-
formed the employees at weekly meetings that the Company
needed additional employees. They also recalled that Modern
actually hired employees during their tenure at Modern (Draher
from October 1999 to February 2000; Beard from November
1999 to February 2000). Draher testified that approximately
six or seven new employees were hired in his section, the
commercial department (Tr. 624):
There was, I believe, Terry Bailey got hired on while I
was there, Jason Beard and Jason Hilton both got hired on
after I was there. There was a guy named Rick, a guy
named Martin, and I know John Taylor—He worked there
before I got there, but he got fired and then rehired while I
was there. That’s about all I can remember.
Beard testified as follows and similarly recalled the names of
six new employees (Tr. 861):
Seemed like every meeting Kevin was talking about
how busy they was, how undermanned they was and he
was always talking about undermanned, even asked the
employees if they [knew] anybody, to bring them down if
they had a drivers license.
The Respondent’s list of employees hired between Septem-
ber 20, 1999, and January 2, 2000, include Melissa Gillespie,
who had less than 3 years residential experience, as installer;
Carl Riggs on October 20, 1999, Mark Broderdorp on Novem-
AMERICAN RESIDENTIAL SERVICES OF INDIANA 1007
ber 30, 1999, as well as Draher, Beard, and Hilton, all in helper
positions; Peggy Disney, as duct cleaner on November 18,
1999; and James Caplinger on January 6, 1999, as installer.
The Respondent also admits that “record evidence that suggests
Modern may have hired certain other employees, but their dates
of hire are unknown” (R. Br. p. 14).4
Based upon the overwhelming record evidence showing that
the General Counsel has satisfied the first requirement in FES
that Modern was hiring, I now turn to the second requirement,
that the applicants had the training and qualifications for these
jobs.
Clearly each of the discriminatees would have qualified for
the seven-helper and entry-service jobs, which the Company
filled with nonunion applicants and the three covert union em-
ployees. Moreover, Modern had a need for employees during
the relevant times that it interviewed people with less than the
desired 3 years experience. Applicants’ Wheeler and Hilton
had almost 4 years HVAC experience. Indeed, the record
shows that the typical Local 20 applicants had accumulated up
to 3 years experience in the HVAC field, so as to qualify for the
more skilled openings. Typical was the testimony of Local 20
applicant Michael McCormack who explained his qualifica-
tions (Tr. 427–428):
A. Actually you get a wide range, you have your lay-
out where you actually go out to the shop and layout fit-
tings. You have drafting, which helps you create and also
read blueprints. Also along with that we do have CAD,
also you do have—how shall I put this, text book learning
which you indicate what would be standards of how to do
things and what not to do, what happens if corrosive
would contact with this, if you could weld like galvanized
and aluminum together. Stuff like that, knowledge infor-
mation.
Q. And as part of this program did you receive any
training in residential HVAC prior to applying at Modern
Heating?
A. Yes, we did.
Q. What was that?
A. Actually you have two-week program where you
actually tear down and rebuild heating and cooling sys-
tems as if it was in a residential home.
Q. Does this involve setting up gas lines?
A. Yes, it does.
Q. Connecting electric lines?
A. Yes.
Q. And did you have any on-the-job residential ex-
perience?
A. Yes, I did.
. . . .

4 The General Counsel objected to my order limiting the use of four
documents (GC Exhs. 67–70) showing the names of additional employ-
ees hired (Tr. 1160–1161). I believe that the record fully discloses a
certain number and the qualifications of employees hired during the
relevant time period in order to make a prima facie showing under FES.
The Employer had employed a number of nonunion employees in posi-
tion for which the 11 union applicants were qualified.
Q. As part of the residential HVAC training you had,
did you receive any certifications?
A. Yes.
Q. What was that?
A. Certification Classifications 1 and 2, through the
EPA for recovery of Freon.
Q. What does that entitle you to do?
A. It entitles me to work on any cooling systems other
than chillers.
Q. Give us an example of what you mean?
A. It could be a window unit, it could be a central air
unit, it could be a refrigerator, things like that.
All applicants had at least 3 years of sheet metal or duct in-
stallation experience, they had been trained in HVAC at a local
college and in a 2-week program with the Union. Although the
Respondent was emphatic in stressing that the Respondent was
only interested in residential HVAC experience, the evidence
showed that there is very little difference in servicing commer-
cial units or residential units. The record supports a clear find-
ing that all 11 applicants were more than qualified for any of
the helper or entry service positions and that several of the ap-
plicants possessed skills and HVAC experience sufficient to
qualify as installers.
The Respondent’s argument that applicants especially those
with little or no prior experience were hired pursuant to a refer-
ral policy, is belied by the record and the testimony of one of its
supervisors, Rick Jenkins. He testified that he could recall only
one referral in the year and a half while he was in charge of
hiring as residential production manager. Moreover, the two
covert applicants’ Draher and Beard, as well as other employ-
ees were hired without referrals. And those who were hired
pursuant to referrals did not support the Respondent’s argument
that they were better workers. Norman Pelfry, Mark Broder-
dorp, Carl Riggs, and Kevin Caplinger lasted no more than 2 or
3 months. Clearly, the Respondent did not adhere to its referral
policy and relied on it for the purpose of excluding applicants
with a union background. Respondent’s next argument that the
union applicants were unqualified because they lacked residen-
tial experience. However, the Respondent conceded that the
helper and entrance level service technician positions required
no prior experience. Obviously, the applicants from Local 20
demonstrated on the applications and resume more relevant
training and experience than that of any of the employees who
filled those jobs. The Respondent’s managers who testified
appeared sufficiently able to realize that individuals who had
completed 3 years of training under the supervision of the Un-
ion in a relevant field would quickly mature into reliable and
competent HVAC service technicians and installers in the resi-
dential or the commercial arena.
I further find that the General Counsel demonstrated by
overwhelming evidence the final element that antiunion animus
contributed to the decision of Modern not to consider for hire
and not to hire any of the 11 Local 20 applicants. Caplinger’s
testimony, admitting that their association with the Union’s
Youth-to-Youth Program was the reason, provided conclusive
evidence of Respondent’s motivation. Also relevant is the
statistical basis that none of the union applicants were consid-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1008
ered or hired except the ones who had hidden that information
and that none of the successful candidates had a union back-
ground.
The complaint alleges three instances of 8(a)(1) violations,
as additional evidence of Moderns antiunion animus in hiring
practice.
First, Modern changed its hiring practice by placing a sign in
its facility stating that it was not hiring even though it hired
several applicants. Second, Modern required applicants to take
a test as part of the application in order to screen out union
applicants.
In this regard, the record shows that in October 1999 union
applicant Thornell noticed a sign stating: “Not accepting appli-
cations for installers at this time.” The Respondent does not
dispute the posting of the sign, but argues that the Respondent
actually did not hire any installers after that date and that it
continued to accept applications for other positions such as
helpers and service technicians. It is also clear that none of the
union applicants were prevented from submitting their applica-
tions and that Modern continued to hire employees to fill helper
positions or service technicians. The record shows that Caplin-
ger was hired as an installer in January 2000, months after the
appearance of the sign. Under these circumstances, I cannot
find that the sign had any connections with the Union. I ac-
cordingly dismiss this allegation.
I make the same finding with respect to the allegation that
the Respondent’s testing requirement was discriminatory. The
record shows that several applicants had to take a test entitled
“Modern Heating and Cooling Pre-Qualification Test for Ser-
vice Technicians.” The General Counsel suggests that the six
union applicants who applied prior to October 1999 were not
required to take the test, but that the others (Thornell, Scott,
Teffertiler, and Petticord) who applied in October or thereafter
were required to take the test. Jim Hughes, service department
manager, testified that the test had been in use since 1997 for
all service technician positions, and that only those scoring
above 50 percent were considered. The record does not contain
any corroborating, documentary evidence that the test had been
in use prior to October 1999. However, Hughes testimony was
not controverted. The mere fact that some applicants were
tested and others were not does not give rise to an inference
that this test was used to screen out union applicants.
However, the 8(a)(1) allegation that management threatened
the employees with the loss of their jobs is supported by the
record.
On January 18, 2000, the Respondent assembled the em-
ployees at a meeting of the commercial department. The meet-
ing was called after covert applicant Beard had disclosed his
union membership. Beard testified as follows about the re-
marks made by Caplinger (Tr. 867):
Kevin Caplinger got up. He read the fax that Local 20
sent to him saying that Rick Draher and Jason Beard were
Local 20 organizers. Read through it all and then told the
people that was up there that we had done a good job for
them, don’t let this bother you, but there might be some
things that they might pass out brochures or handbill or
whatever, but I don’t want them talking about the union on
my time, they can talk about it on breaks and lunch, but
what they do on my time I don’t what them to talk about
it. And he told us—told the people not to sign anything
and then he said, if Modern was to be union, it’d be detri-
mental to the company and we’d end up going belly up.
Rick Warwick, who with his brother Scott Warwick were
prior owners, and whose brother was still president, also spoke
(Tr. 867):
He got up and basically said that—echoed that Kevin
Caplinger said, that, if we was to go union, it would be
detrimental and we’d end up going belly up because we do
so many different types of work. . . .
Draher similarly recalled the remarks made by Caplinger and
Warwick. According to Draher, Warwick said that the Union
would not be good for Modern that it would be unable to com-
pete with union contractors and that “his father, and his brother
had worked long and hard to keep Modern no-union and that’s
the way it should stay” (Tr. 632). Despite Warwicks testimony
denying that Caplinger made the “belly-up” statement, he did
not deny the statements attributed to him, nor did Caplinger
deny having made the statement.
The Respondent strongly objects to the allegation that War-
wick was an agent of the Company. I have no difficulty finding
such an agency relationship. Having been a prior owner still
employed at Modern, he was obviously perceived by the em-
ployees as speaking on behalf of management, especially
where, as here, he addressed a group of assembled employees
in the presence of the admitted supervisor, Caplinger. Warwick
invoked the names of his father as former owner, and his
brother, the latter still highest executive. He was clearly per-
ceived to be speaking on their behalf. Under these circum-
stances, I fully credit the testimony of Draher and Beard and
find that the Respondent’s remarks to the employees was an
unlawful threat of a loss of jobs if the employees joined the
Union. Caplinger’s statement although not specifically alleged
in the complaint was closely related to the allegation in the
complaint and reinforced Warwicks remarks. The scenario
interfered with the Section 7 rights of the employees with
unlawful threats. I accordingly find that the Respondent vio-
lated Section 8(a)(1) of the complaint.
This violation provides additional evidence of antiunion mo-
tivation in the Respondent’s refusal to consider for hire and its
failure to hire the union applicants.
As already stated, short of the defenses already discussed,
the Respondent provided no convincing evidence that Local 20
members would have been rejected for employment even in the
absence of any union considerations.
Any further discussions as to the Respondent’s defenses
would be repetitive, especially, where as here, Respondent ARS
made similar arguments. Clearly this is one of the strongest
refusal-to-hire and refusal-to-consider cases, based upon pri-
marily uncontested evidence, including the consistent and thor-
oughly credible but often repetitious testimony of the job appli-
cants, and well briefed and persuasively argued by the General
Counsel and the Charging Party.
AMERICAN RESIDENTIAL SERVICES OF INDIANA 1009
CONCLUSIONS OF LAW
1. The Respondent’s, ARS and Modern, are employers en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The union organizers are bona fide employees within the
meaning of Section 2(3) of the Act.
4. Respondent Modern violated Section 8(a)(1) of the Act
by threatening its employees with job loss if they selected the
Union as their collective-bargaining representative.
5. Respondent ARS violated Section 8(a)(3) and (1) of the
Act by engaging in the following conduct:
By refusing to hire and consider for hire the following appli-
cants on the following dates:
Jason A. Hilton September 22, 1999
Nathan M. Wheeler September 22, 1999
Eric L. Scott November 4, 1999
Richard S. Teffertiller November 4, 1999
Jason M. Strausburg November 9, 1999
Eric R. Tresslar November 9, 1999
Charles E. Synder November 10, 1999
Kenneth Stewart November 10, 1999
6. The Respondent, Modern, violated Section 8(a)(3) and (1)
of the Act by engaging in the following conduct.
By refusing to hire and consider for hire the following appli-
cants on the following dates:
Michael B. McCormack September 20, 1999
Charles E. Snyder September 20, 1999
Jason M. Strausburg September 20, 1999
Eric R. Tresslar September 20, 1999
Jason A. Hilton October 1, 1999
Nathan M. Wheeler October 1, 1999
Gerald A. Thornell October 22, 1999
Chad M. West October 22, 1999
Eric L. Scott October 29, 1999
Richard S. Teffertiller October 29, 1999
Jay Bradley Petticord November 3, 1999
REMEDY
Having found that the Respondent’s have engaged in certain
unfair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that Respondent ARS refused to hire and con-
sider for hire Jason Hilton, Nathan Wheeler, Eric Scott, Richard
Teffertiller, Jason Strausburg, Eric Tresslar, Charles Snyder,
and Kenneth Stewart, and having found that Respondent Mod-
ern refused to hire or consider for hire Michael B. McCormack,
Charles E. Snyder, Jason M. Strausburg, Eric R. Tresslar, Jason
A. Hilton, Nathan M. Wheeler, Gerald A. Thornell, Chad M.
West, Eric L. Scott, Richard S. Teffertiller, and Jay Bradley
Petticord in violation of Section 8(a)(3) and (1) of the Act, I
shall recommend that the Respondent’s be ordered to immedi-
ately offer these individuals full employment at rates paid to the
individuals hired by the Respondent’s for the positions to which
they applied or for which they would have been qualified to
perform or, if such positions no longer exist, to substantially
equivalent positions without prejudice to their seniority or any
other rights and privileges; and if necessary, terminating the
service of employees hired in their stead, and to make the
aforesaid individuals whole for wage and benefit losses they
may have suffered by virtue of the discrimination practiced
against them computed on a quarterly basis as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), less any interim
earnings, with the amounts due and interest thereon computed
in accordance with New Horizons for the Retarded, 283 NLRB
1173 (1987).
Considerations regarding the remedy and the specifics of the
relief granted the job applicants which the Respondent’s re-
fused to hire or consider for hire must wait until the compliance
stage of the proceeding, see Eldeco, Inc., 321 NLRB 857, 858
(1996).
[Recommended Order omitted from publication.]