Brown & Root Industrial Services

National Labor Relations Board - Board Decisions

Jun 4, 2002

337 N.L.R.B. 619 (N.L.R.B. 2002)

BROWN & ROOT INDUSTRIAL SERVICES 619
Brown & Root Industrial Services and International
Brotherhood of Electrical Workers, Local Union
No. 995, AFL–CIO, CLC. Case 15–CA–14814
June 4, 2002
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND COWEN
On June 28, 2000, Administrative Law Judge Philip P.
McLeod issued the attached decision. The General Coun­
sel filed exceptions and a supporting brief, and the Re­
spondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
This case involves allegations that the Respondent
unlawfully refused to consider or hire certain applicants
because of their union affiliation or activities. The judge
recommended that the complaint be dismissed in its en­
tirety, correctly finding that the General Counsel did not
establish that the Respondent’s decisions were unlaw­
fully motivated.2
In particular, we agree with the judge that the General
Counsel failed to show a nexus between the Respon­
dent’s hiring decisions at issue and certain statements
made by Robert Swanson, a supervisory foreman at the
Respondent’s Port Hudson/Georgia Pacific project.
Swanson made these statements to Union Business
Agent Clifford Zylks, indicating concern when Zylks
informed him that he was applying for work as an open
“union organizer.” Swanson, however, was foreman only
for the Port Hudson project’s instrument department, and
his role in hiring at that site was limited entirely to the
selection of instrument fitters. All of the alleged dis­
criminatees, including Zylks, applied for work as electri­
cians, and Swanson consequently had no role in process­
ing their applications. The record also establishes that
electrician applications were filed separately from in-
1 The General Counsel has excepted to some of the judge’s credibil­
ity findings. The Board’s established policy is not to overrule an admin­
istrative 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.
2 However, we do not rely on the judge’s characterization of the dis­
tinction between “subjective criteria” and “objective criteria,” or on his
use of those terms, with respect to the General Counsel’s and the
Respondent’s respective burdens of proof, set forth in FES, 331 NLRB
9 (2000).
strument fitter applications, and that Swanson never met
the alleged discriminatees other than Zylks or even knew
of their applications. For these reasons, Swanson’s
statements do not support an inference that the Respon­
dent’s hiring decisions regarding the alleged discrimina­
tees were motivated by union animus. See Brand Mid-
Atlantic, Inc., 304 NLRB 853 (1991); M.A.N. Truck &
Bus Corp., 272 NLRB 1279, 1297 (1984). Having found
no nexus between Swanson’s statements and the Re­
spondent’s alleged unlawful failures to consider or hire,
we need not decide whether those statements expressed
union animus.
ORDER
The complaint is dismissed in its entirety.
Leslie Troop, Esq. and Charles R. Rogers, Esq., for the General
Counsel.
Howard S. Linzy, Esq. and Bethany Brantley Johnson, Esq.
(The Kullman Firm), for the Respondent.
DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. I heard this
case in Baton Rouge, Louisiana, on May 24–28, September 27–
October 1, October 5–8, and October 25–29, 1999.
This case originated with a charge filed on May 1, 1998,1 by
the International Brotherhood of Electrical Workers, Local
Union No. 995, AFL–CIO, CLC (the Union) against Brown &
Root Industrial Services (Brown & Root or Respondent). On
June 23, the Union filed an amended charge. On July 31, the
Regional Director for Region 15 issued a complaint and notice
of hearing alleging that Respondent violated Section 8(a)(1)
and (3) of the National Labor Relations Act (the Act) by refus­
ing to hire or to consider various named individuals for hire at
its Port Hudson and Geismar, Louisiana, jobsites because of
their union affiliation. There are no allegations of any inde­
pendent violations of Section 8(a)(1) of the Act.
This case arises out of the Union’s “salting” efforts. The es­
sence of the complaint and the argument advanced by the Gen­
eral Counsel and the Charging Party is that Brown & Root re-
fused to hire certain applicants who were “voluntary union
organizers” because of this fact.
On August 12, the Respondent filed a timely answer to the
complaint in which it admitted certain allegations, including the
filing and serving of the charges; its status as an employer
within the meaning of the Act; the status of the Union as a labor
organization within the meaning of the Act; and the status of
certain individuals as supervisors and agents of Respondent
within the meaning of Section 2(11) of the Act. Respondent
denied having engaged in any conduct which would constitute
an unfair labor practice within the meaning of the Act.
At the trial herein, all parties were represented and afforded
full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence. In her opening statement
1 All dates herein refer to 1998, unless otherwise indicated.
337 NLRB No. 96
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at the beginning of the trial, then-counsel for the General Coun­
sel Leslie Troop2 advised the court and Respondent that her
theory included allegations of discrimination not just at the
Shell and Georgia Pacific projects, but all projects which were
staffed by Respondent’s Gonzales, Louisiana hiring office.
Therefore, also included were Respondent’s projects with
BASF and Vulcan. She also explained that her theory included
not just journeymen electrician positions, but also electrical
helpers and instrument fitters.
Respondent contended that the case should be limited in
scope to the hiring practices at the two particular jobsites
named in the complaint: the Georgia Pacific jobsite located in
Port Hudson, Louisiana, and the Shell jobsite located in Geis­
mar, Louisiana. Respondent also argued that the case should be
limited to journeyman electrician positions, and not include
electrical helpers and instrument fitters.
While I did so with some reluctance, I allowed counsel for
the General Counsel to put on evidence regarding this expan­
sive theory in order to avoid a possible remand, and further
delay, if it was denied. A substantial part of my reason for do­
ing so was because the Shell/Geismar project was staffed
through Respondent’s personnel office located in Gonzales,
Louisiana, which also served to staff the BASF project and the
Vulcan project, both of which were also in or near Geismer. As
the evidence subsequently showed, the Vulcan project did not
come into existence until 1999. All of the applications at issue
preceded the existence of the Vulcan project and the vast ma­
jority of the applications had been inactive for many months.
In the end, the BASF and Vulcan projects have little signifi­
cance to this case. That is an observation, however, that can
now be made only from hindsight, having received and consid­
ered the evidence as a whole.
Counsel for the General Counsel and Respondent filed
timely briefs which have been duly considered.3 Upon the
entire record in this case, and from my observation of the wit­
nesses, I make the following
2 After the trial was adjourned on May 28 to give Respondent time to
produce the voluminous material subpoenaed by counsel for the Gen­
eral Counsel, Leslie Troop resigned from the Board to enter private
practice. She was replaced by Charles R. Rogers. This change of
counsel resulted in additional delay, as a result of which we were not
able to resume until September 1999.
3 This trial lasted several weeks and produced a voluminous tran­
script, particularly in the number of exhibits introduced. At the conclu­
sion of the trial, I pointed out to counsel and the parties those areas
where I thought their case was weakest and which needed special atten­
tion in their posttrial briefs. No less than three extensions of time for
filing briefs were granted. From Respondent, I received a 300-page
document with proposed findings of fact and conclusions of law
analyzing the transcript in detail and convincingly addressing each of
the areas I called to its attention. From counsel for the General
Counsel, I received a 12-page summary of accusations against
Respondent and an altogether conclusionary argument with little or no
discussion of the actual transcript of this proceeding. Counsel for the
General Counsel did little, if anything, to address the areas I called to
its attention.
FINDINGS OF FACT
A. Background
For about 15 years, Brown & Root contracted to perform a
number of small projects at the Georgia Pacific paper mill in
Port Hudson, Louisiana. Respondent recently obtained con-
tracts to perform considerably more expansive work with
Georgia Pacific, and new contracts with Shell, BASF, and Vul­
can in Geismar, Louisiana. In order to staff these latter pro­
jects, and others it may secure in the general area, Respondent
established a personnel/hiring office in nearby Gonzales.
The Union began its “salting” efforts at the Georgia Pa­
cific/Port Hudson project. On January 19, 1998, nine individu­
als, asserting on their applications that they were affiliated with
Local Union 995, completed applications. One more was filed
on January 21; three more on February 24; and a final one on
March 17, 1998.
At Gonzales, four applications from alleged discriminatees
were filed on January 19; five more on January 20; four on
January 21; five on January 22; six on January 26; and the re­
mainder in mid to late February (5), March (1) and, finally,
June (1).
B. Animus
Counsel for the General Counsel offered evidence regarding
only two incidents that it claims show animus on the part of
Respondent toward the Union. The first is a tape recording
made by Union Business Agent Clifford Zylks of a telephone
conversation with Robert Swanson, foreman of the instrument
department at the Port Hudson/Georgia Pacific project. The
second is Zylks’ testimony regarding an exchange with Louis
Widemire at the Gonzales hiring office during which Widemire
would not let Zylks post a union flyer on Respondent’s bulletin
board.
While not asserting that the telephone conversation between
Zylks and Swanson contains any independent violation of Sec­
tion 8(a)(1) of the Act, counsel for the General Counsel argues
that animus is found in the following exchange:
RS (Swanson): Uh, lets see, let me get my paper work
out. When can you be available for work?
CZ (Zylks): I can come to work right now.
RS How many years you got with instruments.
CZ: Uh, I’ve been doing electrical & instruments right
at 21 years. I’m the union organizer. I’m Cliff Zylks.
RS: Are you.
CZ: And, uh, we do it all over here in Local 995. We
do the instruments and the electrical work.
RS: Yes, what I’m looking for is pretty much a person
who if I throw out there. . . .
CZ: Uh-huh.
RS: They got to do it pretty much on there [sic] own.
CZ: Why sure, that’s what we do.
RS: And you know this is a non-union, you know,
company.
CZ: Right, right, that’s right, right. Non-union com­
pany. I like the opportunity to come out there and organ­
ize your people.
BROWN & ROOT INDUSTRIAL SERVICES 621
RS: No, well, we don’t organize you, well Brown &
Root, uh, a non-union company, you know, we don’t or­
ganize and never have been that way, you know that, you
know and uh . . .
CZ: I’m sure qualified for the job.
RS Well, you know, I’d put you to work but, you
know, you know I’d be more than happy to hire you.
CZ: Okay.
RS: But, I’m going to tell you straight up, you know,
you know, I don’t want any union trouble or anything like
that, you know.
CZ: Right. I’d love to come organize your guys, you
know.
RS: How can you organize a non-union company, you
know . . .
CZ: I’d like to talk to the guys and give them the op­
portunity to join the union.
RS: Yes, but this is a non-union company.
CZ: Right.
RS: And . . .
CZ: I got, I can offer them benefits, retirement and
health & welfare in fact and can offer them a total package
of, uh . . .
RS: Yes, but who’s going to pay for it?
CZ: Well, we like to set down and maybe get all the
guys together and maybe do something about it, you
know.
RS: Yes, uh, I don’t think that’s going to happen.
CZ: Okay.
RS: Cause these are pretty much road hands that
stayed with Brown & Root for years.
CZ: Right.
RS: and, uh, uh you know, we’re as happy as we can
be the way we are.
CZ: Right, I understand.
RS: The company takes pretty good care of us.
CZ: You the foreman out there.
RS: I’m over the instrument department.
CZ: Okay, you the superintendent then?
RS: Well, I’m the General Foreman.
CZ: Oh, okay.
RS: We don’t have a superintendent on this job.
. . . .
CZ: I am the union organizer.
R: Yes.
CZ: Local 995.
RS: Yes, while you’re out here I wouldn’t want to
here that, you know, you know, I just don’t need that trou­
ble, you know what I mean, and uh I can get my people off
another Brown & Root job, you know.
CZ: Right, well I live right here locally and I’d love to
come over and work for you.
RS: Well, I’m going to pull your application and I’ll
take a look at it.
CZ: Okay.
RS: You know, if you came out here, I just don’t need
that kind of trouble, you know what I mean, you know I
know it sounds Greek to you, but it sounds like a pain in
the ass to me cause all my guys are pretty tight they usu­
ally travel together pretty good. But we put out a lot, quite
a few locals too. Matter of fact, last time I was out here
most of my people was local anyway.
CZ: Right.
RS Well, let me pull your application and I’ll see what
I can do.
CZ: Thank you, Bud.
RS: Okay.
CZ: Bye-bye.
I am not impressed with the tape recorded conversation. As
is more fully described below, Swanson played no part in the
decision not to hire any of the alleged discriminatees. Further,
Zylks, a paid union representative and alleged discriminatee,
was obviously trying to bait Swanson. Swanson, the record
shows, had no training regarding Respondent’s personnel and
hiring policies until after he had completed his hiring for this
project. Counsel for the General Counsel does not contend that
in the recorded conversation Swanson in any way violated Sec­
tion 8(a)(1) of the Act.
Even when this conversation is analyzed in a light most fa­
vorable to counsel for the General Counsel, Swanson’s com­
ments are at best ambiguous. While it is true Swanson said, “I
don’t want any union trouble,” it is clear from the context that
he was primarily referring to the likely reaction Zylks would
receive from employees. If there is any doubt about this, it is
made clear just before the end of the conversation when Swan-
son said, “You know, if you came out here, I just don’t need
that kind of trouble, you know what I mean, you know I know
it sounds Greek to you, but it sounds like a pain in the ass to me
cause all my guys are pretty tight they usually travel together
pretty good.” To equate antiunion animus with Swanson’s
statements that “this is a nonunion company” or “we don’t
organize and never have” or “I don’t want any union trouble”
or any combination of those sentiments is to make a significant
and unwarranted leap, particularly in the complete absence of
any violations of Section 8(a)(1) of the Act.
In order to assess its real significance to this case, the con­
versation between Zylkes and Swanson must also be placed in
its proper context. Swanson was only responsible for hiring in
the instrument department at Port Hudson/Georgia Pacific.
Before recruiting or hiring anyone, Swanson first obtained ap­
proval from Project Manager John Brooks to hire additional
personnel. Once hiring was approved, if he had not already
done so, Swanson began to look for people to fill the posi­
tion(s). Because it was common practice for long-term Brown
& Root employees to move from job to job, Swanson regularly
called other Brown & Root jobs to determine if there were any
employees who were going to become available and would be
interested in working at Port Hudson, describing the work, pay,
and expected duration of the job. If he was unsuccessful in
obtaining someone to fill the position, he then canvassed other
managers and foremen on his jobsite to learn of any candidates
that they might recommend. In this manner, Swanson filled
every position in the instrument department with former Brown
& Root employees, people who he knew personally, or some-
one who was recommended by someone else working for
622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Brown & Root. Swanson testified credibly that for reasons
explained below, he never even knew any of the alleged dis­
criminatees had applied for work, and therefore never consid­
ered nor rejected them as applicants.
The only other effort at demonstrating union animus was
Zylks’ contention that at the Gonzales employment office, a
piece of union literature which he placed on a bulletin board
was removed while other non-Brown & Root material re­
mained. The weight of credible testimony on this subject,
however, including Zylks’ own notes, does not support impor­
tant details of his version.
Zylks testified that he posted a union flyer on the bulletin
board hanging on the wall at Respondent’s Gonzales employ­
ment office. Following a conversation with Widemire concern­
ing the advantage of having a union, Zylks told Widemire that
he had posted the union flyer on the wall. According to Zylks,
Widemire then told Zylks the flyer would be removed because
the company did not permit individuals to post anything in the
company’s premises. According to Zylks’ testimony, on the
same bulletin board, there were also ads posted for apartment
rentals and a vehicle for sale, in addition to a large Brown &
Root poster. I have serious doubts about one very important
portion of Zylks’ testimony concerning this incident, which I
am now convinced represents gratuitous embellishment by
Zylks.
Zylks has been a union organizer since 1992, a paid full-time
organizer since July 1995, a veteran of several union salting
classes, and a veteran of numerous unfair labor practice pro­
ceedings, including about 10 Board trials. Zylks had developed
a custom, which he followed on 15 to 20 occasions, of making
a tape recording of his visits or telephone conversations with
Brown & Root personnel throughout 1998. No tape recording
was offered of this conversation with Widemire. Zylks also
made extensive notes. Zylks’ notes of this incident do contain
a reference to posting a union flyer and Widemire saying that
he intended to remove it, but this part of the conversation is
undisputed. Zylks’ notes speak of “a (rental house) (apartment)
(motel room) lease and a job logo chart.” Significantly, there is
no reference, however, to any vehicle for sale.
Widemire testified credibly that he had placed a bulletin
board in the open area close to the front window, where appli­
cants would receive and return applications, for the purpose of
putting advertisements for lodging. Widemire testified credibly
there were “quite a number of people that were coming in from
out of the area, that were looking for a place to stay, trailer
courts, apartments, those types of places, places—people that
had a place to rent.” In late February, Zylks came to the em­
ployment office and told Widemire that he had placed one of
the Union’s flyers on the bulletin board. Widemire said “that
we didn’t allow anything up there besides just places to stay.”
Widemire admits telling Zylks that he would remove it.
Widemire testified that the only persons who were permitted to
place anything on the bulletin board were Widemire and, occa­
sionally, office clerks Tammy Allgood or Rachael Jordan.
Widemire testified credibly that other than Zylks’ union flyer,
there were no other items on the bulletin board which were not
directly related to business. Widemire specifically denied there
was any ad for an automobile.
Scott Marshall, who worked in the same office, testified
credibly and corroborated Widemire that the only postings on
the bulletin board, other than the union leaflet, concerned hous­
ing accommodations for the many transient construction work­
ers who needed some place to live while working in the area for
Respondent. I agree with Respondent that this lodging infor­
mation is clearly job related to a large construction project that
draws hundreds, if not thousands of transient workers.
In conclusion, I find that these two incidents, i.e., Swanson’s
ambiguous remarks to Zylks and Widemire’s taking down the
union leaflet from Respondent’s bulletin board, in the absence
of other independent violations of Section 8(a)(1) of the Act, do
not rise to the level of demonstrating union animus on Respon­
dent’s part. Thus, if animus and discrimination is to be found,
it must be solely from the fact that Respondent did not hire any
of the alleged discriminatees.
C. The Port Hudson/Georgia Pacific Project
On the Georgia Pacific project in Port Hudson, during the
relevant time period, John Brooks was the project administra­
tor; Clifford (Buddy) Partin the electrical foreman; and Robert
Swanson the instrument general foreman.
As described in detail below, at the personnel/hiring office in
Gonzales, which staffed the Shell, BASF, and Vulcan projects,
a conscious effort was made to follow Respondent’s formal
field hiring procedure. At Port Hudson/Georgia Pacific, how-
ever, a much less formal procedure was followed. Prior to
April 1998, neither Partin nor Swanson had any training in, or
knowledge of, this field hiring procedure. For Partin and
Swanson this was their first occasion to hire personnel, and
each relied on their own past experiences with Brown & Root.
Although neither were aware of the formal, written hiring pol-
icy, both were aware of the general practice of hiring former
Brown & Root employees whenever possible. Indeed, both
testified it was very typical for Brown & Root employees to
move from job to job. Although he was a long-term employee,
Partin had never even completed an application for employ­
ment with Brown & Root. Swanson last completed a Brown &
Root application in December 1989, despite being laid off and
rehired by the company multiple times between 1990 and 1997.
It is undisputed that at Port Hudson/Georgia Pacific, Project
Administrator Brooks received job applications and filed them,
but did not participate in either the electrical or instrument de­
partments’ hiring decisions. Partin was solely responsible for
hiring in the electrical department. Swanson was solely re­
sponsible for hiring in the instrument department. Further, it is
undisputed that neither Swanson nor Partin was involved in any
way in hiring for each other’s department. There is not even a
suggestion of union animus expressed by either Brooks or
Partin.
On January 19, 1998, alleged discriminatees Andras Aycock,
Richard Bailey, Benjamin Barnette, Joseph Berthelot, Kelly
Browning, Kelly Gauthreaux, Thomas Gibson, James Loupe,
and Clifford Zylks applied for work at the Port Hudson/Georgia
Pacific project. On January 21, Leslie Carter applied. On Feb­
ruary 24, Mike James, Gregory Lavergne, and Palmer Picard
applied. And on March 17, Ed Smart applied.
BROWN & ROOT INDUSTRIAL SERVICES 623
At both Port Hudson and the Gonzales employment office,
the uniform procedure was to file employment applications
according to the craft indicated in the “Position Applied For”—
“First Choice” block on the application. The applications sub­
mitted by the alleged discriminatees at Port Hudson uniformly
list “electrician” in the “First Choice” block. The uncontra­
dicted and, indeed, unchallenged evidence is that all of the
applications filed by alleged discriminatees at Port Hudson
were filed as electricians—and therefore would have been con­
sidered only by Partin if they had been considered at all.
D. Port Hudson Electrical Department Hires
Dennis Andrews was hired into the electrical department as
an electrical helper on January 19, 1998, by Partin’s supervisor,
the project manager. Andrews was referred by his father-in-
law, who was another of Respondent’s project managers at a
different location. This hiring decision was made before the
first group of alleged discriminatees appeared on January 19.
John (Matt) Walker had worked at Georgia Pacific-Port
Hudson in 1997 as an electrical helper. Walker approached
Partin in the parking lot before mid-January inquiring about a
job. Partin knew Walker from his previous work with Brown
& Root. Partin told Walker to return in a week or two and he
would hire him then as an electrical helper. Partin hired Walker
on January 26 without seeing an application. On January 28,
Partin hired Donald Cavalier as an electrical helper. Partin also
knew Cavalier from previous work with Brown & Root.
Ronnie Temple had been hired December 1, 1997, as a mill­
wright helper for Brown & Root at the Port Hudson facility.
He was going to be laid off when the Brown & Root millwright
general foreman, Dale Parker, learned that Partin could use
another electrical helper. Partin permitted Temple to transfer
into the electrical department on the same day (February 2,
1998) he was laid off from the millwright department.
Wallace Justus was hired by Partin based on a recommenda­
tion from Guy Ainsworth, another Brown & Root supervisor
whom they both know and with whom they had both worked.
Ainsworth recommended Justus after Partin commented that he
needed an electrician. Thomas Ramey, another former Brown
& Root employee, was hired on February 9, 1998, following a
chance meeting between Partin and Ramey at a store on their
way to their separate jobs. Partin, because of his recollection of
Ramey’s history with Brown & Root, namely, having separated
from the Company with a notation about attendance in July
1994, advised Ramey that if he returned to work but “didn’t
have a good attendance record, he would be looking for another
job.” Ramey explained that his previous problem, that of a
difficult divorce, and of which Partin was already aware, had
been resolved.
The second-to-last hire by Partin in 1998 was Deshane Col­
lier, who was recommended by a current Brown & Root em­
ployee, Glenn Ford. Partin hired him as an electrical helper on
February 18, 1998. Scott Houston was the last electrician hired
by Partin. Houston was hired through the recommendation of
Dale Parker, Brown & Root’s millwright general foreman at
Port Hudson.
Partin followed the only practice he knew in hiring person­
nel. Partin’s record of hiring shows that all eight of the persons
he hired, Andrews, Walker, Cavalier, Temple, Justus, Ramey,
Collier, and Houston, were either current or former Brown &
Root employees or were recommended by current Brown &
Root supervision or employees. This pattern parallels exactly
the preferences established under Respondent’s field hiring
procedure, a fact which I find significant as described below.
Partin testified credibly that despite the fact there were some
applications for electricians on file in Brooks’ office, he never
even bothered to look at any applications in making his hiring
decisions. Partin did not even know that there were applicants
who were union supporters.
E. Port Hudson Instrument Department Hires
While Brooks had alleged discriminatees’ applications in the
cabinet drawer in the electrician folder, there were no applica­
tions in the instrument folder. Uncontradicted testimony shows
that at both Port Hudson/Georgia Pacific and the Gonzales
employment office, applications were classified and filed by the
craft of first choice. Because of the way the applications were
filed, none of the alleged discriminatees were known to, or
passed over by, Instrument Fitter Foreman Swanson. Indeed,
Swanson testified credibly that following the taped telephone
conversation with Zylks, described in detail above, he looked
for Zylks’ application but did not find it.
A review of the people Swanson did hire shows that he, like
Partin, followed the common practice of hiring former Brown
& Root employees when available, and, when not, giving pref­
erence to applicants personally recommended to him. Cassan­
dra Shankle-Stimac was hired as an instrument helper on Janu­
ary 29, 1998. Swanson’s boss, Johnny Sepulveda, the project
manager, knew that Shankle-Stimac was a good worker who
had previously worked for Respondent. Thus, Swanson’s first
hire was recommended by his superior.
Marshall Miller was hired on February 19, and Nora Miller,
his wife, on February 9, 1998. Marshall Miller had a long work
history with Respondent. Swanson testified credibly that Nora
was a “package deal” with her husband, and both were offered
jobs as early as Christmas 1997.
Swanson next committed to hire Jason Baker some time in
January 1998. Swanson’s project manager instructed him to
hire Baker, explaining that Baker’s father was a manager for
Brown & Root’s client, Georgia Pacific. Baker had journey-
man experience as an instrument fitter with other contractors,
and Swanson hired Baker. After Swanson hired Baker, he
asked Baker to recommend other instrument fitters in the area,
and Baker promptly recommended John Fortenberry, with
whom he had worked.
Before Swanson was assigned to the Port Hudson job, he
worked at Brown & Root’s Shell-Norco, Louisiana job. Swan-
son made a purposeful effort to meet and observe techs work­
ing at Shell. Kelly Blake impressed Swanson, and he ap­
proached Blake in the first week of January 1998 to work at
Port Hudson as soon as the Shell-Norco job to which he was
assigned was completed. Blake accepted the job offer and, as
was the case with Marshall Miller, was accompanied by his
helper-spouse, Laura Blake. Swanson also knew Laura Blake,
having worked with her in an instrumentation department of
another contractor approximately 5 years earlier. These hires
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were entirely consistent with Swanson’s previous experience,
i.e., hire people with whom you have worked and with whom
you are familiar, or those who are recommended by jobsite
management.
Partin’s and Swanson’s hiring practices both show that even
without specific training regarding Respondent’s formal field
hiring procedures, the common practice was to give first pref­
erence to former Brown & Root employees, and, when they
were not available, to then hire whenever possible someone
who was recommended either by jobsite management or by
another Brown & Root employee. In Swanson’s case, Marshall
Miller, Kelly Blake, and Blair were current or former employ­
ees of Brown & Root. Shankle-Stimac, Nora Miller, Baker,
Laura Blake, and Fortenberry were all recommended by super-
vision or current employees. While Respondent’s formal field
hiring procedure was not consciously in play, all but one of
every hire made by either Partin or Swanson fell into the “pre­
ferred” categories described by this procedure. This evidence
convinces me that Respondent’s practice of giving preference
to certain types of applicants has been in place and applied for
years, having nothing whatever to do with trying to exclude
union applicants, and everything to do with trying to maintain a
reliable core of quality employees upon whom it could depend.
Swanson was asked on cross-examination why, after speak­
ing with Zylks, did Swanson not offer him a job. Swanson
credibly answered: “Because [his] application wasn’t in my
file.” Zylks had completed an application listing “electrician”
as his first choice. Therefore, it was filed with other applicants
for the electrical department. Swanson’s Brown & Root ex­
perience in instrumentation was treated as a wholly different
craft from the electrical department. Swanson testified credi­
bly, answering questions from all parties and the court in a
forthright and deliberate manner. When he testified last, he
was no longer even an employee of Brown & Root, and had no
plan to return to work for Brown & Root.
I find, based on the facts described above, that neither Partin
nor Swanson discriminated in any way based on union activity
in making their hiring decisions.
F. The Gonzales Employment Office
In September 1997, Brown & Root established an employ­
ment office in Gonzales, Louisiana, for the purpose of staffing
various upcoming projects in the area, including Shell, and later
BASF and Vulcan.
In October 1997, Louis Widemire was assigned to run the
Gonzales office. Widemire had considerable experience as a
recruiter for Brown & Root. Before Widemire’s arrival, rela­
tively little hiring had occurred because the Shell project was
just beginning. There were superintendents and management
staff on the job, along with no more than 15 craftsmen. In No­
vember 1997, Widemire began to hire rodbusters, concrete
finishers, and carpenters. By the end of the year, there were
approximately 30 craftsmen on the Shell job. The great amount
of hiring for Shell, over 2000 people, occurred in 1998.
Brown & Root had not had a significant presence in the
Gonzales/Geismar area for at least 5 years before it opened the
Gonzales office. Respondent utilizes multiple resources to staff
its projects, and each one was used in the Gonzales office. The
most common method of obtaining employees was to use two
kinds of supervisor referrals. First, supervisors assigned to the
new project referred people with whom they worked, or knew,
or were recommended by trustworthy sources. The second
were referrals from supervisors at other jobsites. It was com­
mon to recruit former employees who the Company’s computer
showed had been recently laid off at other Brown & Root pro­
jects.
Respondent also used its second most common method of
staffing a project of this size—mass mailings to former em­
ployees. In March 1998, Respondent mailed postcards to all
former Brown & Root employees with a permanent address in
Louisiana, not just to any specific crafts. Approximately
10,000 to 12,000 postcards were mailed out. The decision to
use a mass mailing of postcards at Gonzales was made by Rick
Hopper, corporate personnel director, in consultation with Shell
Project Field Superintendent Andy Johnson, and was based
upon the upcoming work in the Gonzales area. Widemire was
not consulted concerning the need for this mailing, and was
simply notified when the cards were going to be sent.
Along with the other recruiting methods described above,
Respondent also networked with area human resources direc­
tors, attended community job fairs, and contacted the local job
service offices. It used advertisements in newspapers and con­
struction-industry periodicals that list itinerant job opportuni­
ties.
G. Respondent’s Hiring Policy and Procedure
Considerable evidence was offered concerning Respondent’s
field hiring procedure, and the manner in which it was imple­
mented. This policy describes the application process and a
formal system of preferences which Brown & Root accords
various groups of applicants. Pursuant to this policy, Respon­
dent gives preferential hiring consideration to two groups of
employees: (1) current and former Brown & Root employees,
and (2) prospective employees recommended either by supervi­
sors or by other employees. There is no question that this pro­
cedure, and the preferences it accords, is designed to provide
continuous employment opportunities to current and former
Brown & Root employees and to encourage current employees
and supervisors to recommend candidates.
Pursuant to the hiring procedure, the actual practice which
has developed is for job superintendents, general foremen, and
foremen to submit “requisitions for labor” to the person­
nel/hiring office which often have names already filled in for
some or all of the people to be hired for particular openings.
When this happens, any named individual, referred to as a “by-
name requisition,” is offered the position, whether or not they
are a current or former Brown & Root employee. For those
positions that do not already name the person to be hired, pref­
erential consideration called for by the field hiring procedure is
given to former Brown & Root employees.
Scott Marshall testified credibly that when a job requisition
was received in the employment office with someone’s name
already placed on the form, and came that way after having
been approved by the project manager, the personnel office
uniformly offered the person named a job. Counsel for the
General Counsel was asked whether that was an issue which he
BROWN & ROOT INDUSTRIAL SERVICES 625
disputed, and he stated he did not. Counsel for the General
Counsel conceded there is no allegation, no evidence to sug­
gest, and no argument that the priority given to “by-name req­
uisitions” was in any way discriminatory.
Nor does counsel for the General Counsel argue that the field
hiring procedure, and preferences it accords, is per se unlawful.
In addition to the various hiring preferences described in the
field hiring procedure, this procedure also provides, “Applica­
tion files will be reviewed monthly and new hire applications
that exceed the thirty (30) day active status will be pulled and
placed in an inactive file.” The field employment application
itself informs new applicants: “Notice To All Applicants: Ap­
plications will be active for 30 days or duration of project;
whichever is shorter.” Testimony from the Gonzales employ­
ment office staff, including Allgood, Jordan, Marshall,
Widemire, and Chruma, was consistent and credible that this
policy was followed uniformly, except to the limited extent
described below.
First, the rule as spelled out in the field hiring procedure ap­
plies only to “new hire applicants.” The rule does not apply to
former Brown & Root employees, whose applications remain
active throughout the duration of any particular project for
which they apply. Second, the procedure as described does not
direct that the files be purged on a particular day of the week,
or date of the month, or that it be done on the same day of the
week or the same day of each month. Consequently, depending
upon the particular circumstances of each employment office,
some variance occurred. For example, office personnel might
pull applications in early or mid-February and not again until
the end of March, which could permit an application to remain
in the active file almost as long as 60 days. While the applica­
tion remained in the active file, it was reviewed along with all
others in the file without distinction. However, once an applica­
tion was removed to the inactive file, it was not reviewed or
considered again unless the applicant renewed the application.
Reactivation was noted by stamping the application as reacti­
vated and entering the date. If, however, as sometimes did
happen, the applicant returned to reactivate his/her application
and the recruiter made a decision at that time to hire the appli­
cant, no purpose was served to stamp and date the application.
H. Shell Project Hires
“Requisitions For Labor” at the Shell project were generated
from jobsite management listing the number of vacancies in a
particular class code that needed filling. They often named the
specific person whom the department supervisors, with project
manager approval, wanted to be employed. These “by-name
requisitions” were the ones most quickly filled by the Gonzales
employment office because they required much less work than
others did. They eliminated the need to find a candidate and in
effect removed decision making from the employment office.
In early January 1998, the Gonzales employment office was
staffed by Widemire and a clerical. A second clerical was
added, and a recruiter, Scott Marshall, was hired in early Feb­
ruary. Widemire was responsible for employing the great bulk
of the people for the Shell construction project. The project
was to build a polymer plant from the ground up. From January
1, 1998 through May 15, 1999, almost 2300 people would be
hired on this project. This total did not include approximately
875 other individuals who were made offers of employment,
and for a great variety of reasons, did not go on the active pay-
roll. An average of over 190 people per month were hired or
made offers at Shell Chemical.
The first alleged discriminatees applied at the Gonzales em­
ployment office on January 20, 1998. Before that time, four
employees had already been hired and one other had been made
a commitment for the electrical department at the Shell project.
Annie Byers was a “by-name requisition.” Merle Fontenot was
a former Brown & Root employee. Steve Holton was hired to
fill a foreman position as soon as staffing levels permitted.
Jason Burns happened to make a very favorable impression on
Widemire, and was hired when those with preferential, second
or special consideration either were unavailable, had not shown
for an interview when it was scheduled, or, in the case of one,
had created a negative impression in the interview. Michael
Cook, who was offered a position but not able to report until
early February, was referred by a current employee, and thus
qualified for “second consideration” pursuant to Respondent’s
hiring policy.
Almost 300 people applied for work in the first 19 days of
January 1998. More than 60 labor requisitions came from the
field. Electricians, however, were not high priority. Widemire
was concerned with staffing supervisory positions and other
crafts, particularly concrete finishers, carpenters, rodbusters,
clerks, and warehousemen. Of course, he knew there would be
a need for electricians later but, as the requisitions indicated, it
would not be until another 14 requisitions were received, with
41 positions to fill, that the 15th requisition would request an-
other electrician.
On January 19, 32 people applied for work and 15 people
were hired. The following day, 12 people submitted applica­
tions, including alleged discriminatees Berthelot, Gauthreaux,
and Zylks. Widemire was at lunch when those three came in.
On January 21, 27 people submitted applications, including
alleged discriminatees Aycock, Barnette, Beauchamp, Carter,
Chevalier, and Hargrove, each of who identified himself with
the Union.
On January 22, 23 applied. Nine of these were alleged dis­
criminatees: Bailey, Browning, Gibson, Guarino, Loupe,
Picard, Sheehan, Terrio, and Wade. On January 26, 44 appli­
cants arrived including alleged discriminatees Brown, Lovett,
D. Overmier, P. Overmier, T. Overmier, and Stevens. Addi­
tional requisitions had arrived, none for electricians.
Widemire explained that between the commitment to hire
Cook and his actual reporting date scheduled for early Febru­
ary, he spoke to Cook. Cook told Widemire that he had a
friend, James Brady, who was on the same job as Cook, and
Cook wanted Brady to come also. Thus, Brady came in with
Cook on February 10. Widemire looked at Brady’s application,
saw what he considered recent, relevant experience and made
the decision on the spot to hire Brady. Widemire candidly
admits he did not review any of the other applications that
might have been on file—whether or not filed by union appli­
cants. Widemire followed the simple expediency of hiring
someone who came recommended to him, was immediately
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
available, was qualified, and could “fill that spot” without con­
suming any further of his time or effort.
Widemire knew what other applicants were available to him
because he had already looked at the applications and the appli­
cants’ qualifications, mentally scoring them, at or about the
time their applications were received. Widemire testified credi­
bly that as applications arrived, he evaluated every application
before it was filed, although sometimes briefly. Widemire
explained that in evaluating these applications, he was looking
for a certain specific type of experience, i.e., experience in
heavy industrial electrical installation. He was not looking for,
and in fact discounted applicants who had residential, commer­
cial, or nuclear power plant experience because that work was
very different from the kind of duties being performed at Shell.
Widemire Testified:
[W]hat I’m looking for, primarily, besides current Brown &

Rooters that are just coming off of another Brown & Root

project, when I speak the term recent relevant experience, I’m

looking for people who have been doing recently something

that’s the same type of work that is relevant to what they’re

going to be doing here, both for safety and training reasons,

and also for just general knowledge.

. . . .

If they’ve been doing residential work, that doesn’t
mean anything to me; it’s not relevant to what we’re do­
ing.
. . . .
My experience over the past years with Brown &
Root, commercial doesn’t mean anything to me at all. In
fact, it’s a big negative to me personally because some of
the worst—pardon my saying it—butt-chewings I’ve ever
gotten were from hiring commercial people onto a project
. . . .
. . . .
So when I see commercial or residential or nuclear
power experience, it just does not mean a whole lot as a
first choice; it just puts them in a lower category; I down-
grade them mentally. So what I’m looking for is recent
relevant experience that’s heavy industrial electrical work
doing the setting up conduit; putting in cable trays; pull­
ing heavy, heavy wire that’s going to generate thousands
of volts of electricity, not just 110 or 220 or 480—about
7,500 volts or 10,500 volts of electricity; that’s the type of
experience. [Emphasis added.]
Widemire candidly explained the manner in which he ana­
lyzed the applications of alleged discriminatees. On January
20, Joseph Berthelot was among the first to apply at the Gonza­
les employment office. Berthelot reactivated his application
once, on February 20. Berthelot’s application indicates that he
had never worked for Brown & Root, and was not entitled to a
preference under the field hiring procedure. Widemire testified
credibly that while the application shows Berthelot is an elec­
trician with many years of experience, there is nothing to indi­
cate he had any experience doing the type of work being done
by Respondent on the Shell project. Under the “Previous Em­
ployment” section, Widemire did not recognize Louisiana Elec­
tric as a company “doing the same type of work that we’re
doing.” There was nothing on his application which indicated
to Widemire that Berthelot had “been doing heavy industrial
electrical type work in pulp and paper, chemical or petroleum
type plants which is what I’m primarily looking for at this
time.”
Kelly Gauthreaux also applied on January 20, and reacti­
vated his application twice—on February 2 and 26. Gau­
threaux was not a previous Brown & Root employee, and not
entitled to any preference under the field hiring procedure.
Gauthreaux had worked with Buffalo Electric, a company with
which Widemire was not familiar, and at the “G. P. Papermill.”
This fact piqued Widemire’s interest and the length of time
there, February 1997 to January 1998, would be a credit to
Gauthreaux. This was an application of somebody whom he
would favorably consider. The Charging Party asked Widemire
why he did not call Gauthreaux for an interview. Widemire
explained that there was relatively little need for electricians at
that time. As discussed in greater detail below, after January
20, only one electrician position was available in February, four
in March, and one in April. Hiring activity for other crafts,
however, was so frenzied that there was simply no time to in­
terview applicants unless Widemire was trying to fill a specific
opening.
Clifford Zylks also applied on January 20, along with
Berthelot and Gauthreaux. Zylks reactivated his application
numerous times, as discussed in detail below. Zylks applied as
an electrician, and his application was coded as an electrician,
but his employment from June 5, 1995, to the present was
shown as working for “IBEW LU 995.” The previous electri­
cians work history shown was from September 10, 1994, to
June 4, 1995, as “electrician doing electrical work (plant).”
Widemire interpreted the applicant “as not actually being on his
tools” for the previous 2-1/2 years. With a gap of 2-1/2 years
since last being on his tools, Zylks was not “attractive as a po­
tential applicant . . .”
Andras Aycock applied on January 21, and reactivated his
application twice—on February 18 and again on March 2.
Aycock was a former Brown & Root employee, which put him
in the category for preferential consideration. Aycock’s appli­
cation showed that since 1994, he had worked in December
1997 for Gulf Electric Company as a journeyman wireman that,
to Widemire, means “stringing wire between telephone poles.”
Aycock’s work at Quality Electric of Baton Rouge as a jour­
neyman wireman on a trouble truck was equally unimpressive
to Widemire.
Benjamin Barnette applied on January 21, and then reacti­
vated his application on May 1. Barnett was not a previous
Brown & Root employee, and not entitled to any preference
under the field hiring procedure. None of the work shown in
his prior experience was what Brown & Root was doing at
Shell Chemical. Widemire testified credibly that nothing on his
application made Barnette stand out to him as a particularly
impressive candidate, so his application simply went into the
file cabinet with other non-Brown & Root applicants.
Donald Beauchamp applied on January 21, and reactivated
his application once on February 25. Beauchamp was not a
previous Brown & Root employee, and not entitled to any pref­
erence under the field hiring procedure. Widemire saw that
BROWN & ROOT INDUSTRIAL SERVICES 627
Beauchamp worked at a nuclear power plant between October
and November 1997 and at another nuclear power plant from
January 1994 to October 1997. Thus, for the last 4 years, his
experience had been irrelevant to Brown & Root’s needs, and
Widemire looked no further.
Leslie Carter applied on January 21 and never reactivated his
application. Carter was not a previous Brown & Root em­
ployee, and not entit led to any preferential consideration under
the field hiring procedure. In the previous employment section
of the field employment application, Carter indicated that he
was employed from October to December 1997 at Witco in
Harvey, Louisiana, for Fluor Constructors International, Inc.
Widemire testified that he didn’t “really know what Witco is—
that doesn’t ring a bell as any type of company. He was there
for a couple of months as an electrician, but he doesn’t say
what his duties were.” From August to October 1997, Carter
was working for VIS at Rubicon, and indicated on his applica­
tion that he was involved in plant maintenance. At another em­
ployer listed on Carter’s application, “DTEK, Inc., Carter was
working at the Chevron facility in St. James Parish as an
Aelectrician and instrument” in the type of business which is
relevant to Brown & Root’s activities, particularly because the
Chevron plant is a petrochemical facility. Widemire’s assess­
ment of Carter’s application was “this would be somebody I
might consider at a later time, but there is nothing here that
really stands out, piques my interest for consideration at this
time.”
Ronald Chevalier applied on January 21, and reactivated his
application once on March 10. Chevalier was not a previous
Brown & Root employee, and not entitled to any preference
under the field hiring procedure. Chevalier’s application indi­
cated that he was working from October 1997 to the time of his
application for Wye Electric in Livingston, Louisiana, at the
Ligo project. Widemire was not familiar with Wye Electric or
with the Livingston, Louisiana Ligo project, though Chevalier
was running conduit, pulling wire and terminating switch gear
which was similar to what Brown & Root was doing at the
Shell Chemical project. Prior to Wye Electric, Chevalier
worked from August to September 1997 at the nuclear power
plant in St. Francisville, Louisiana, for Stone & Webster. Then,
before the nuclear power plant work, between November 1996
and February 1997, Chevalier worked at the Exxon refinery
running conduit, pulling wire, and terminating, all of which
would make Chevalier “somebody that I definitely might would
consider, . . . Exxon would pique my interest; Stone & Webster
would not with Riverbend Nuclear Power Plant there; and Wye
Electric, I don’t know anything about it. So just looking at it
quickly, it is kind of a mixed bag, but he is certainly somebody
that would be considered.”
Frank Hargrove was the last to apply on January 21.
Hargrove, who never reactivated his application, was not a
previous Brown & Root employee, and not entitled to any pref­
erential consideration under the field hiring procedure.
Widemire’s assessment of Hargrove’s application was that
although he indicated he was working at a paper mill, it was for
less than a month as a “journeyman wireman” for Nevers Elec­
trical Contracting, another company with which Widemire was
not familiar. From the application, Widemire did not know
exactly what kind of work Hargrove was doing at the paper
mill. Thus, Hargrove “didn’t really stand out as somebody that
I would—that would really stand out to me at this time.”
Richard Bailey applied on January 22. He later reactivated
his application on February 23, March 2, April 1, and May 1.
Bailey was “a previous Brown & Root or associated company
employee” having worked for “MidValley Construction—
Georgia Pacific 1970’s.” Widemire testified credibly there was
no record of Bailey in the company’s computer system “and
probably, in that there is no record, he [Bailey] probably would
have ended up filed in the non-Brown & Root file; that is a long
time ago [referring to Bailey’s experience in the 1970’s].”
From July to December 1997, Bailey worked in “Shop B. R.
La.” for Louisiana Electric. Bailey’s job title and duties were
listed as: “Electrician—trouble cause/maintenance.” That de­
scription of work, according to Widemire, did not say anything
about what type of work Bailey had actually been doing, so
Widemire went to the resume which was noted by Bailey as
being attached on the field employment application. There, the
first line under “Work Experience” stated that from 1991 to
present he had been working in “Industrial/Commercial Work
for several area contractors,” and listed those contractors. It
then continued by stating that he was engaged in “Commercial
construction & remodeling for several out-of-state contractors”
and also involved in “Outage work” at a nuclear powerhouse.
Widemire summarized his impressions as follows:
[H]e’s stating that he has worked for us before, so we tried to
look him up and find whether he had a record with us which
we could not find; it [application] shows me five months
working in a shop doing trouble calls and maintenance; and
then on his resume it says industrial work but I don’t see any-
thing there that states that he was working in an industrial
plant like what we are going to be doing; and then he says
commercial construction and remodeling. There is nothing
there that makes him stand out at this time.
Kelley Browning applied on January 22, and reactivated his
application on February 23 and April 3. Browning was not a
previous Brown & Root employee, and not entitled to any pref­
erential consideration under the field hiring procedure. In the
“Previous Employment” section of his application, Browning
first listed that he worked from October to November 21, 1997,
for Babcock & Wilcox at Big Cajun (which Widemire under-
stood to be a nuclear power plant). Prior to that, he worked at
Stone & Webster at the Riverbend Nuclear Power Plant from
September to October 1997. Seeing those two nuclear power
plant experiences, Widemire would not set this application
aside for further review.
Thomas Gibson applied on January 22. He later reactivated
his application on February 23 and March 2. Gibson was not a
previous Brown & Root employee, and not entitled to any pref­
erential consideration under the field hiring procedure. The
only work indicated in the previous employment section of
Gibson’s application was from January to October 1997 for
Stone & Webster at the Riverbend Nuclear Power Plant. As a
consequence, Widemire would have simply put Gibson’s appli­
cation in the file drawer for non-Brown & Root applicants, and
given it no further serious consideration.
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Thomas Guarino applied on January 22, later reactivating his
application three times—February 20, March 23, and May 5.
Guarino was not a previous Brown & Root employee, and not
entitled to any preference under the field hiring procedure.
Guarino’s application showed his most recent employment
being from August to November 1997 with Stone & Webster
Construction Company at the St. Francisville Nuclear Plant.
Considering Widemire’s experience with nuclear power plant
employees, both Brown & Root and non-Brown & Root, as
noted hereinabove, he was not impressed with this recent ex­
perience. Further, Guarino worked between July and August
1997 for Remco Electric Contractors in Detroit, Michigan, but
did not indicate on his application what kind of plant in which
he was working. The work location prior to that was also in
Detroit for Hall Engineering Company where he described his
job title and duties as: “Reworking a power plant.” As
Widemire testified, the work shown on Guarino’s application
was “not close to what we are doing here.” Thus, Guarino
would have been discounted for any further serious considera­
tion.
James Loupe applied on January 22. Loupe was a previous
Brown & Root employee, having worked from September 13 to
September 16, 1994, at the Georgia Pacific-Port Hudson facil­
ity. Thus, even though Loupe’s previous employment was only
for 4 days, he nevertheless was entitled to preferential consid­
eration under Respondent’s field hiring procedure. As was
customary with those individuals indicating previous Brown &
Root employment history, a job summary was printed. Loupe’s
job summary also indicated employment for 2 days in Septem­
ber 1996. As a former “Brown & Rooter,” he was retained in
the Brown & Root file and was given consideration right away.
In reviewing the previous employment activities, however,
Loupe did not impress Widemire since the work described was
for Louisiana Electric as “pole climber.” This description led
Widemire to believe that Loupe had been pulling wires between
telephone poles for almost all of the past 2 years. Between
March and June 1996, Loupe had worked at Earl K. Long Hos­
pital “remodeling offices”—obviously commercial work.
Widemire’s reaction to Loupe’s application was stated as fol­
lows:
So yes, he has worked for Brown & Root before so we
would give him preferential consideration, but there is
only three days on one job and two on another, and every-
thing he has done since then is not anything close to what
we are doing now, so I would put him in with the other
Brown & Root applications to keep them active during the
whole project, but at this time there is nothing there that
would make him more attractive to me at this time.
Palmer Picard applied on January 22, and reactivated his ap­
plication on February 23 and March 2. Picard was not a previ­
ous Brown & Root employee, and not entitled to preferential
consideration under the field hiring procedure. Picard’s appli­
cation lists three companies for which he had worked as an
electrician in Memphis, Tennessee, and Baton Rouge, Louisi­
ana, but there was no indication on the application of what he
had been doing—whether it was residential, commercial, or
industrial—or the type of plants in which he had been working.
As Widemire candidly states, there was nothing on the applica­
tion or the attached resume that would lead Widemire “to take
much of a second glance at it for any type of recent relevant
experience.”
Gerald Sheehan applied on January 22. He later reactivated
his application on March 9 and April 16. Sheehan was not a
previous Brown & Root employee, and not entitled to any pref­
erence under the field hiring procedure. Sheehan listed three
employers in the previous employment section of his applica­
tion, two of which were in St. Louis, Missouri, and none of
which Widemire recognized. The most recent employer was
“Frishhertz Elect” in New Orleans, where Sheehan listed his
job titles and duties as “electrician comm[ercial] & industrial
const.” Widemire testified credibly that this description of job
title and duties, which was the same for the other two employ­
ers, did not tell him what kind of work Sheehan was actually
doing. Therefore, as Widemire candidly admitted, “there is
nothing here to look farther—that tells me to look farther at this
time.” Widemire simply filed the application with other non-
Brown & Root applicants.
Curlin Terrio applied on January 22, and reactivated his ap­
plication on February 17 and March 2. Terrio was not a previ­
ous Brown & Root employee, and not entitled to preferential
consideration under the field hiring procedure. Terrio listed his
most recent job as a boilermaker for Babcock & Wilcox in
December 1997, and for the month prior to that, November
1997, he listed working in New Roads, Louisiana, for Standard
Electric repairing equipment in “precipitator houses.” From
May 1991 to October 1997, Terrio listed employment with
Stone & Webster in Athens, Alabama, and St. Francisville,
Louisiana, both at nuclear power plants. Widemire concluded:
“So I don’t think I would look at Mr. Terrio very seriously for
long at this point in the hiring phase.”
Clarence Wade applied on January 22. Wade, who never re-
activated his application, was not a previous Brown & Root
employee, and not entitled to any preference under the field
hiring procedure. Wade’s previous employment from October
29 to December 24, 1997, was with WA Pope Company in
Rockford, Illinois, but Wade did not describe the kind of work
that he had been doing. Wade also stated he worked for Stone
& Webster from July 1995 through October 1997, with a 4-
month break between February and June 1996. Again, Wade
did not describe his duties other than to say that his job titles
and duties were “electrical work.” As Widemire testified, “I
don’t see anything there that would make him stand out.”
David Brown applied on January 26, and reactivated his ap­
plication once on March 12. Brown was not a previous Brown
& Root employee, and not entitled to preferential consideration
under the field hiring procedure. Brown’s previous employ­
ment in the month of December 1997 was with Nevers Electric
Company at Bogalusa, Louisiana, where Brown “performed
electrical plant construction.” Brown stated that prior to work­
ing for Nevers Electric, he worked for 2 months from Novem­
ber to December 1997 with Fluor Constructors in Laplace,
Louisiana. Widemire presumed this was probably one of the
refineries in Laplace, but Brown did not describe what he was
doing.
BROWN & ROOT INDUSTRIAL SERVICES 629
Garry Lovett applied on January 26, and never reactivated
his application. Lovett was not a previous Brown & Root em­
ployee, and not entitled to any preference under the field hiring
procedure. Lovett is another applicant who worked in Decem­
ber 1997 for Nevers Electric at Bogalusa, Louisiana. Like
many of the other alleged discriminatee applications, he did not
give any detail of the type of work which he was performing,
choosing instead to simply note in the block for job title and
duties: “electrician (union).” Lovett also worked for Standard
Electric in New Roads, Louisiana, and almost 5 years at Baton
Rouge General Hospital which would be “commercial, hospi­
tal-type experience.” There was nothing on Lovett’s applica­
tion that caused Widemire to set it aside as one showing par­
ticular promise.
Daniel Overmier applied on January 26, and reactivated his
application twice—on February 25 and March 23. Timothy
Overmire also applied on January 26, but reactivated his appli­
cation only once on February 27. Neither Overmier was a pre­
vious Brown & Root employee, and thus neither was entitled to
preferential consideration under the field hiring procedure.
Daniel Overmier worked for Nevers Electrical in December
1997 at Bogalusa, Louisiana, where he described his job title
and duties as, “union electrician all types of electrical work.”
Daniel Overmier gave the same description of job title and
duties for his previous employer from August to November
1997, when he was working with VIS Incorporated in Geismar,
Louisiana. For both of these employers, Overmier did not de-
scribe what type of work he had been performing, so it was
impossible for Widemire to determine whether it was relevant
experience. Overmire’s application shows that from January
through May 1997, he worked at Schuylkill Metals Corporation
in Baton Rouge, with job title and duties described simply as
“electrical & instrument tech.” Widemire was not familiar with
Schuylkill Metals Corporation. Timothy Overmire’s applica­
tion was almost identical with regard to previous employment.
Neither application described their actual duties performed in
any detail, and Widemire simply filed them in the appropriate
folder.
Patrick Overmier applied on January 26 and never reacti­
vated his application. Patrick Overmier was not a previous
Brown & Root employee, and not entitled to any preference
under the field hiring procedure. Overmier described his job
title and duties for each of the three companies listed as “jour­
neyman, wireman, or inside wireman electrical work.” Over­
mier’s previous employers were Fluor Constructors from No­
vember 12 to December 3, 1997, at Little Gypsy in Laplace,
which Widemire understood was one of the nuclear power
plants in the area. Overmier’s work for Gibson Electric Com­
pany in Deerfield, Illinois, and Unite Electric Company in Lou­
isville, Kentucky, were with two companies with which
Widemire was not familiar, and in neither instance did Over­
mier “tell me what type of plant it was or what he was doing.”
Marvin Stevens applied on January 26 and never reactivated
his application. Stevens was not a previous Brown & Root
employee, and not entitled to preferential consideration under
the field hiring procedure. Stevens, like several others, worked
in December 1997 for Nevers Electric in Bogalusa, but did not
describe his job title and duties beyond stating: “Electrician.”
In fact, that was the same description he gave for his job title
and duties with the two other employers he mentioned in the
previous employment section of his application, Fluor Contrac­
tors at Little Gypsy and Stone & Webster at Riverbend Nuclear
Power Plant at St. Francisville, Louisiana, both nuclear power
facilities. Widemire concluded that “there is nothing on Mr.
Stevens’ application that would make him stand out at this
time.”
The testimony of both Widemire and Marshall gave a very
detailed explanation of the recruiting and employment process,
and their testimony was not truly challenged. The Charging
Party and counsel for the General Counsel, of course, attempted
to highlight what they regarded as discrepancies, but this was
not a persuasive effort. In fact, both Widemire and Marshall
testified in a forthright and objective manner. Widemire testi­
fied to his assessment of the applications of alleged discrimina­
tees, objectively noting their strengths as well as their weak­
nesses. Widemire used an identical standard and terminology
in assessing the applications of others who are not alleged dis­
criminatees, but who like them were not hired. Further, I take
into account that in the case of Widemire, he last worked for
Respondent in January 1999. Thus, throughout his testimony,
he was no longer employed by Respondent. Further, Widemire
testified credibly that he had no arrangement or expectation of
future employment with Respondent.
At times I questioned the reason for Widemire’s failure to in­
terview “union applicants.” Now that I have had a chance to
consider the entire record, however, I agree that they were
treated no differently than hundreds and hundreds of other ap­
plicants who were not interviewed. When asked why he did not
interview any of the alleged discriminatees when they came in,
Widemire testified credibly:
As I stated in testimony earlier, the first three came in while I
was out to lunch. The next day a large group came in at one
time, and the next day another group came in at one time. I
remember looking at their applications briefly and taking
them all in, but I do not remember interviewing any of them
individually.
After reviewing the record as a whole, it is clear that the
sheer numbers that Widemire was dealing with permitted little
time to interview crafts which he was under no pressure to hire.
At the time the first alleged discriminatees applied, there were
no unfilled requisitions for electricians. The next requisition
for an electrician did not come until February 4, and even then
only one electrician was needed. The record reflects that
Widemire did not interview walk-in applicants at all unless
there was a specific job opening which he was trying to fill. If
there was a specific opening he was trying to fill, he sometimes
met and talked to applicants as they were filling out applica­
tions. Otherwise, the most that he was usually able to do was
review applications at the end of the workday and set aside for
future reference those which, on their face, looked particularly
appealing. In view of the volume of applicant flow and hiring,
the fact that among the “union applicants” only Zylks had any
extended conversation with either Widemire or Marshall is not
surprising at all. Indeed, it is clear from the volume of appli­
cants that interviews were the exception rather than the rule.
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
No electrician was hired from February 11 until March 11.
There was, however, considerable hiring activity during that
same time for positions other than electrician. After the Febru­
ary 4 requisition for one electrician was received, there were
another 24 requisitions received requesting that approximately
140 nonelectrician positions be filled. The great majority of
those requisitions were not “by-name requisitions.” Conse­
quently, the volume of work being done by Widemire and other
people in the Gonzales office remained frenzied with process­
ing applications, recruiting, hiring, and testing. It was during
this same time that the volume of telephone updating had
reached a point as to cause the office staff to become frustrated
with that particular practice. There were days when the volume
of applicant flow was such that neither Widemire nor Marshall
could possibly interview applicants, or even review applica­
tions until the evening. As Widemire testified, there were
many occasions, particularly when individuals came in a group,
that it became impossible for him to interview applicants. In­
terviewing would be reserved for where there were immediate
needs.
Soon after arriving at Gonzales, Widemire learned that his
predecessor had initiated a practice of permitting applicants for
employment to update their applications by telephone. This
practice, at least insofar as Widemire and his predecessor were
concerned, was not unusual, since they had permitted the same
system when both were at another project in Maryland.
Following several months of permitting telephone updating
of applications, in approximately mid-February 1998,
Widemire had a telephone conversation with Rick Hopper,
human resources director at Respondent’s corporate headquar­
ters, who regularly spoke to the recruiting managers that re-
ported to him. During the course of the conversation,
Widemire mentioned to Hopper that the applicant flow had
picked up dramatically and that the clerical staff was a little
flustered and edgy “because of the activity of people calling in
to update applications over the phone.” Hopper informed
Widemire there was no reason to do that, that corporate policy
states applicants should come in person to update applications
Widemire responded, “Great. No problem. We’ll stop it right
now.” Consequently, the practice of allowing applicants to
update their applications by telephone ceased altogether. From
that point on, the Gonzales employment office has followed
official corporate policy that requires applicants to update their
applications in person.
While counsel for the General Counsel suggested during the
hearing that the motivation for this change was improper, there
is no allegation to that effect. Further, while the change in
practice followed applications from union supporters, evidence
shows the practice that had been allowed had become very
burdensome on the staff. When the staff’s grumbling about the
volume of extra work entailed in their pulling applications and
noting updates was mentioned by Widemire to Hopper, the
incorrect practice was immediately ended and the practice
called-for by the field hiring policy was followed. Timing is
the only factor that even suggests that this change might have
been motivated by union animus. In the final analysis, there is
no reason to believe that Respondent’s reason for the change
was anything other than as it was presented, or that it could
reasonably be viewed as preventing any of the alleged dis­
criminatees from reactivating applications.
The next requisitions that included electricians were received
at the employment office on February 19. One requisition
sought three individuals, two of whom were “by-name requisi­
tions,” one a supervisor, and another a helper position. The
third position was for an electrician. The other requisition
sought eight persons, four of whom were electricians and the
others helpers. Widemire had approximately 2 weeks to fill the
first requisition and almost a month to fill the second. Conse­
quently, as Widemire credibly testified, he continued to focus
his primary attention “trying to get rodbusters mainly; that’s the
one craft that stood out big time. We could not find them any-
where.”
During this same time period, five more alleged discrimina­
tees applied for work at the Gonzales employment office. As
he did with other applications, Widemire reviewed them before
they were filed. Barry Curtis applied on February 17, and
never reactivated his application. Curtis was not a previous
Brown & Root employee, and not entitled to preferential con­
sideration under the field hiring procedure. Curtis’s application
did not describe the type of electrical work that he had done at
any of the three places of employment that he identified, Rich­
mond, Virginia; Austin, Texas; and Chicago, Illinois.
Randall Curtis applied on February 25, and like Barry Curtis,
never reactivated his application. Randall Curtis was not a
previous Brown & Root employee, and not entitled to preferen­
tial consideration under the field hiring procedure. While his
most recent place of employment was at the Mobil refinery in
Chalmette, Louisiana, there was no indication as to the type of
duties which he performed there, other than “wireman­
electrical & instrument installation.” Randall Curtis’ two jobs
prior to the Mobil refinery job were at the Little Gypsy Power
Plant and the Riverbend Nuclear Power station. As indicated
above, Widemire considered nuclear power work as not being
relevant to the Shell Chemical project.
James Carroll Carter applied on February 25, and never reac­
tivated his application. Carter was not a previous Brown &
Root employee, and not entitled to preferential consideration
under the field hiring procedure. Despite indicating that he had
worked in Chalmette, Louisiana, at an oil refinery, he did not
describe the duties that he had other than to say: “electrician on
electrical installation.” In reference to his employment prior to
the Chalmette work, from August to October 1997, Carter
wrote that he was working in commercial construction. Prior to
that, from November 1995 to March 1997, he worked for VIS
at the Rubicon Geismar facility, but wrote that his work was
“electrical maintenance,” not the heavy industrial construction
type work which was ongoing at Brown & Root’s Shell Chemi­
cal project.
Gregory Lavergne completed an application on March 5.
Lavergne was a previous Brown & Root employee entitled to
preferential consideration under the field hiring procedure.
Lavergne’s application reflected work for two companies from
June 1997 to February 1998 with Triangle Electric and Chemco
Electric, both in Detroit, Michigan. The description of his job
title and duties with both companies, however, was simply
“journeyman electrician.” Further, the company with whom he
BROWN & ROOT INDUSTRIAL SERVICES 631
had been employed prior to the Detroit, Michigan assignments
was Todd Electric, from February to June 1997, in Baton
Rouge, Louisiana. Again, Lavergne described his job title and
duties there as: “journeyman electrician.” These descriptions
left Widemire not knowing what Lavergne had been doing on
those jobs or what he was building, if anything. On Lavergne’s
application, there was no indication of recent experience rele­
vant to that which would be required at the Shell Geismar pro­
ject, at least none which Widemire could identify. Because he
was a former Brown & Root employee, Lavergne’s application
would have been returned to the file for future consideration for
another position.
John James applied on March 9. James was a former Brown
& Root employee and, as a result, his application remained
active throughout the project. James worked from June until
December 1997 for an employer in Austin, Texas, and de-
scribed his job title and duties for this employer and the other
two employers listed in the previous emmployment section of
the application as: “electrician all duties of an electrician.”
With that type of description of job duties, Widemire was not
able to discern what James had actually been doing for those
employers, whether it was industrial, commercial, or residen­
tial. Widemire could assume that the work from August to
September 1995 at the Georgia Pacific papermill was industrial
but he had no way of knowing what type of work James had
done with Friberg Electric at the papermill. Thus, James, while
being entitled to preferential consideration as a former Brown
& Root employee, did not show on his application any recent,
relevant experience which would have caused Widemire to
want to interview him at that time.
Since time was not of the essence to find electricians,
Widemire was able to simply keep his eye open for people to
fill those positions in the electrical department. He did so al­
most entirely with former Brown & Root employees.
Widemire scheduled Steven Mitchell, Brian Nance, and Embry
Shaw, all former Brown & Root employees who had worked
for Respondent quite recently, for preemployment processing.
Each was scheduled to complete their processing in require­
ments on February 23, but all three were “no shows.”
Consequently, Widemire hired Ellery Brown on March 11.
Brown was a former Brown & Root employee with recent ex­
perience similar to that being done on the Shell project.
Achord, hired March 12, was referred by the electrical superin­
tendent for the Shell Chemical project. Cage, hired March 16,
was also a former Brown & Root employee. Gaona, hired
March 17, was a former Brown & Root employee hired with an
electrician classification but employed as a warehouseman,
with recent experience in a similar position. Buitron, hired
March 25, was also a former Brown & Root employee hired
with an electrician classification but employed as a ware-
houseman, with recent experience in a similar position.
Danny Jones filed an application on February 23 and was
hired March 18. Jones is the only person hired who did not fit
the preferred categories described in Respondent’s field hiring
procedure. Jones arrived on the same day that Mitchell, Nance,
and Shaw were expected, but failed to show. Widemire testi­
fied credibly he happened to be present as Jones filled out his
application and noticed that Jones listed as the first choice for
which he was applying “electrician” and second choice “car­
penter,” two crafts which normally do not go hand in hand.
Widemire also noticed that Jones had obtained an electrical
engineering degree from Nichols State University and, in
speaking to him, observed that Jones was also a minority. A
significant feature of Jones’ application was the length of time
that Jones had worked for Becon Construction, namely from
December 11, 1996 to February 22, 1998, 1 year and 3 months.
Widemire recalled his thoughts at the time and testified:
I did not make him an offer at that time, but his application
stood out to me just because of recent relevant experience, be-
cause I talked to him personally, and he had well over a year
for a competitor, Becon, on one job. We were looking to hire
people that would stay the whole job; this job still had a year
to go at this time. And from all of the applications that I had
seen up to this time, which—February 23 would probably
have been in the hundreds. Most of the people that I had seen,
quite a number of them, did not stay at any particular job or
location for a long period of time. So this one kind of stood
out . . . . So I did not consider him for employment immedi­
ately on that day, enough though I had committed three peo­
ple that day that didn’t show up. But later on, I got to looking
at him, and I got to thinking and I remembered talking to him,
and he made an impression on me as someone that I thought
would be a very good candidate. And so on March 11, I con­
tacted him and left a message and got a hold of him and made
him an offer of employment . . . .
The Charging Party pointed out that alleged discriminatees
Terrio and Daniel Overmier also indicated electrical engineer­
ing studies. Widemire did not interview either Terrio or Over­
mier, but made clear that it was not Jones electrical engineering
educational background that caused Widemire to interview
him. It was merely “in the process of talking to him and re-
viewing his application and interviewing him, that was one
thing that I remembered as standing out.” In addition to re­
membering Jones and believing that he would be a good candi­
date, Widemire went a step further with respect to Jones’ appli­
cation, and spoke with Gerri Willis at Becon Construction.
Widemire did not make an immediate offer to Jones because he
was uncertain, from Jones’ application, whether he was actually
a journeyman. Jones’ application showed that he moved from a
pay rate of $9.50 in December 1994 to $11.50 in December
1995 and $15.50 in February 1998. Those were significant
increases in pay and this became “one of the very rare occa­
sions where I called another company” and verified the appli­
cant’s information. The reference he received from Willis was
“a very, very good recommendation.” As a consequence, on
March 11 Widemire left word at Jones’ home and, when Jones
returned the call, Widemire made him an offer of employment.
Thus, in March 1998, only six electricians were hired. Four
of the six were former Brown & Root employees. A fifth was
referred by the electrical superintendent. The only person hired
who did not fit the preferred categories described in Respon­
dent’s field hiring procedure was Jones, a minority, who hap­
pened to particularly impress Widemire.
It is true that at this time there were four “union applicants”
who were former Brown & Root employees: James, Lavergne,
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Loupe, and Aycock. I agree with Respondent, however, that in
each instance, their applications inadequately described their
duties and/or described duties which did not equal the recent,
relevant experience of the the people Widemire selected, all of
whom except Jones were also entitled to preferential considera­
tion.
The next electrician was not hired until April 27.
Not counting former Brown & Root employees, 23 alleged
discriminatees applied with Respondent in January 1998. After
reviewing their applications, Widemire concluded that all but
three of those were not people he would seriously consider
hiring, either because of what was on their applications (e.g.,
residential, commercial, or nuclear power experience) or be-
cause of what was not on their applications (i.e., little or no
description of the actual duties they had performed). Those
who were in effect rejected are Berthelot, Barnette,
Beauchamp, Hargrove, Bailey, Browning, Gibson, Guarino,
Picard, Sheehan, Terrio, Wade, Brown, Lovett, Daniel Over­
mier, Timothy Overmier, Patrick Overmier, Stevens, and fi­
nally Zylks. Three of the January applicants (Gauthreaux, Les­
lie Carter, and Chevalier) were people who Widemire would
seriously consider at some point in the future because of what
their applications showed.
During February and early March, five more alleged dis­
criminatees applied with Respondent. Two of them, Lavergne
and James, were former Brown & Root employees. The other
three, Barry Curtis, Randall Curtis, and James Carroll Carter
were all people Widemire concluded he would not seriously
consider hiring because of what was, or was not, on their appli­
cations.
By the end of February, the applications of Barnette, Leslie
Carter, Hargrove, Wade, Lovett, Patrick Overmier, and Stevens
were no longer active according to Brown & Root’s field hiring
procedures. None of those individuals were current or former
Brown & Root employees. Even under the loosest procedure
sometimes followed, by the end of March, all seven of those
applications would have been removed to the inactive applicant
file and given no further consideration.
By the end of April, even under the loosest procedure some-
times followed, the applications of Berthelot, Gauthreaux,
Beauchamp, Gibson, Picard, Terrio, Timothy Overmier, Ran­
dall Curtis, Barry Curtis, and James Carrol Carter were also
removed to the inactive applicant file and given no further con­
sideration. Thus, of the three people who Widemire would
have seriously considered hiring besides former Brown & Root
“Union” applicants, only 1—Chevalier—still had an active
application after April 30.
From March 25 until the next electrician was hired on April
27, there were almost 100 requisitions for labor from the Shell
jobsite. Almost 800 applications were received, and more than
200 people were hired. The volume of work for both Widemire
and Marshall and the two office clericals had, if anything, ac­
celerated from the January through mid-March time period. In
addition, during that same March 18 through April 27 period,
another 100 persons were given conditional offers of employ­
ment, but for a variety of reasons, failed to satisfactorily com­
plete their preemployment processing. It is not surprising that
Widemire would be unable to interview many applicants, par­
ticularly when there were scores of applications received on
any particular day. For example, on March 18, 43 applications
were received; on March 19, 28 applications were received; on
March 23, 59 applications were received; on March 30, 56
applications were received; on April 2, 33 applications were
received; and on April 6, 53 applications were received.
Throughout this March 18 to April 27 period, the pressure to
hire carpenters, rod busters, insulators, structural iron welders,
concrete finishers, laborers, and helpers intensified.
From April 27 to May 11, Respondent hired four electri­
cians—all were former Brown & Root employees. Burch was
hired April 27 for the position of expeditor/engineer’s aide, for
which he was recommended by his father, an electrical general
foreman and superintendent. Justus and Houston, hired May 4,
both had recent experience with Brown & Root, and Houston
came recommended by the jobsite superintendent. Williams,
hired May 5, was personally known to Widemire, who had
hired him to work for Respondent in Brunswick, Georgia.
As noted above, counsel for the General Counsel argues in
his posttrial brief that while the preference given to former
Brown & Root employees is not unlawful, in this case Respon­
dent hired some of those people despite poor work records in
order to avoid hiring alleged discriminatees. As counsel for the
General Counsel also notes, Respondent’s field hiring proce­
dures states: “Preferential Employment Consideration will be
given to current or former Brown & Root employees with a
good work history and safety record.” (Emphasis added.) The
case of Wallace Justus is particularly instructive about the day-
to-day application of that procedure, and in particular the im­
plementation of the requirement that the individual have a
“good work history.” Long before “union applicants” appeared
at either Port Hudson or Gonzales in January 1998, Justus,
whose original hire date is January 5, 1976, was hired, laid off,
and sometimes even terminated, and yet rehired again despite
“F” (fair) and “P” (poor) ratings. For example, Justus was ter­
minated for unsatisfactory performance in November 1993 with
a “P” rating, only to be rehired less than 3 months later and to
remain on that job for approximately 2 months before being
laid off with a “G” (good) rating. Justus was then rehired on
June 7, 1994, and was laid off from that job 3 months later with
an “F” rating.
Justus was rehired approximately 8 months later, worked for
almost 2 months, and was again terminated for unsatisfactory
performance. Less than 2 weeks later, however, Justus was
rehired at another Brown & Root project, and worked on that
project for 3 weeks before separating for personal reasons and
receiving another “F” rating. Justus was employed again by
Brown & Root 2 weeks later at a different project, and worked
on that project for a month before he was laid off with a “G”
rating. Since that “G” rating in September 1995, Justus has
received several “G” ratings, another “F” rating and a “P” rat­
ing.
It is abundantly clear that well before any union activity,
Brown & Root implemented the need for a “good” rating very
loosely, if at all. Without regard to any ongoing union activity,
Respondent frequently gave employees multiple opportunities
to return to work and redeem their previous performance. As
Respondent argues, the value of doing this is apparent in that
BROWN & ROOT INDUSTRIAL SERVICES 633
skilled individuals are retained in the work force. Further, as is
obvious from the case of Justus, people working in an itinerant
labor force often perform differently on different jobs, depend­
ing on both the job itself and their personal circumstances at the
time. Finally, some people simply improve when given addi­
tional opportunities under different circumstances, as is appar­
ent from the successive “G” ratings from September 1996
through February 1998 and thereafter for Justus. The evidence
simply does not support counsel for the General Counsel’s
argument that in this case, Respondent deviated from past prac­
tice and hired some people despite poor work records in order
to avoid hiring alleged discriminatees. Rather, the evidence
supports Respondent’s argument that its hiring practice in this
case was consistent with its practice before—and without re­
gard to—any union activity.
In mid-May 1998, Chruma was assigned by Hopper to be the
human resources supervisor for the Gonzales employment of­
fice. Work opportunities for Brown & Root were continuing to
grow in the Geismar/Gonzales office, and Chruma had signifi­
cant experience managing multiple projects. The BASF project
was ready to start. Respondent knew it had an opportunity on
the Vulcan project, along with a year remaining on the Shell
Chemical project. Chruma had 12 years experience in the hu­
man resources field with Brown & Root and considerable hu­
man resources experience in Louisiana. Widemire was retained
with no loss of pay or job title change, but Widemire now re-
ported to Chruma.
Not long after Chruma arrived, the job requisitions for elec­
tricians began to increase, and the record shows that by late
May to early June, Widemire and Chruma were discussing the
diminishing supply of recently laid-off former Brown & Root
electricians. On May 19, the personnel office received a job
requisition for three journeyman electricians and six electrical
helpers, with a “Required Date” of May 26. This requisition
contained no “by-name requisitions.” On May 26, 1 week later,
the personnel office received another requisition for labor with
a “Required Date” of June 1 for another three electricians and
five helpers. On June 18, yet another requisition arrived re-
questing three more electricians and two helpers. And on July
1, there was a request for an additional two electricians and
four helpers. In filling these requisitions, all alleged discrimi­
natees who were former Brown & Root employees were of­
fered jobs. None accepted.
Up to this point, mid- to late June, Widemire and the em­
ployment office had been successful in employing former
Brown & Root employees, including electricians with recent,
relevant experience and individuals who had been referred by
the Shell Chemical project supervision. However, Chruma and
Widemire both testified credibly they knew that requisitions for
electricians would continue to arrive on a steady basis for some
time. With the expected need for additional electricians—and
the number of Brown & Root electricians with recent, relevant
experience or jobsite recommendations declining—Widemire
and Chruma discussed some of the applications that had prior
Brown & Root experience, but whose recent, relevant experi­
ence was “not quite what we had been looking for, up to that
time.” In the short space of a few weeks, as a function of sup-
ply and demand, other former Brown & Root employees with
considerably less, if any, recent or relevant experience, includ­
ing the former Brown & Root “union” applicants, would be
offered employment.
Chruma decided to personally handle contacting the “union
applicants” to make them offers of employment, to insure and
verify that “it was done and done properly.” Applications
reflect, by notations made by Chruma on the reverse side, and
verified by both telephone logs and by letters from Chruma to
particular applicants, that Respondent made attempts to offer
employment to Aycock, Lavergne, Loupe, James, and Wallace
Goetzman on several occasions. Goetzman was the last alleged
discriminatee to apply with Respondent. Goetzman, who ap­
plied on June 2, was a former Brown & Root employee entitled
to preferential consideration under Respondent’s hiring policy.
Counsel for the General Counsel argues that the job offers to
Aycock, Lavergne, Loupe, James, and Goetzman were a hollow
gesture, done only because of the pending unfair labor practice
charges. It must be noted, however, that these job offers were
in fact made before the Charging Party filed its charge alleging
refusal to consider or refusal to hire those individuals through
the Gonzales personnel office. None of the individuals con­
tacted returned Chruma’s phone calls. Chruma eventually
spoke with Goetzman, however, who stated that he was un­
available for work due to an injured leg.
Backgrounds of the people hired in response to the flood of
requisitions for electrician during May and June shows that in
spite of alleged discriminatees failing to respond to job offers,
Respondent did not deviate significantly from its pattern of
preferring former Brown & Root employees. Almost all of the
people hired to fill those positions met that preference.
Mitchell, hired May 19, was a former Brown & Root employee
who Widehmire had tried unsuccessfully to hire on several
occasions during January and February. Flanagan, hired May
26, was a former Brown & Root employee whose name was
called in from the jobsite. Walters and Juarez, both former
Brown & Root employees, were scheduled to be hired on May
26 and 29, respectively, but did not show. Juarez was subse­
quently hired. Carter, hired June 1, and Boyd, hired June 2,
were both Brown & Root employees who transferred directly
from another project.
Gilbert, Elisar, and Hearst, hired on June 9 and 10, were all
“by-name requisitions.” Frazier, hired June 15, was a former
Brown & Root employee. Radtke, hired on June 18, as well as
Barck and LeBlanc, both hired on June 22, were former Brown
& Root employees as well as “by-name requisitions.” Muse,
hired on June 23, was also a former Brown & Root employee.
Burns was rehired on the Shell Chemical project on June 23,
after leaving for 2 months to work for someone else and later
calling Widemire to say he did not like it and wanted to come
back to work for Respondent.
Scott Hudnall completed an application on August 4, 1998,
and was interviewed by Marshall. Marshall noted on the re-
verse of Hudnall’s application, under interviewer’s comments:
“8–4–99—has all tools, no trouble climbing, ABC school two-
year degree. Referred by an employee, also worked for MMR
Radon for about three years. Did some residential, commercial
work.” Widemire and Marshall made a decision on August 4,
when Hudnall applied, to offer him a position, and instructed
634 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
him to return the following day for processing. Hudnall’s most
recent experience, as reflected on his application, was from
January to August 1998 in the commercial business running a
service truck. This was not relevant experience, and not con­
sidered as such by Respondent, but, as Respondent notes,
Widemire and Marshall did not have many former Brown &
Root applications available with or without recent, relevant
experience. By this time, however, none of the non-Brown &
Root union affiliated applications were active, except for
Zylks’, whose case is discussed separately below.
The Charging Party compared Hudnall’s application which
indicated he had “run a service truck” with Loupe who also
indicated running a “service truck.” There is no difference
between the two activities, at least insofar as the applications on
their face indicate, but Hudnall was employed following Mar-
shall’s conversation with him in which Marshall determined
that Hudnall had worked for MMR Radon for about 3 years,
that he had ABC craft training and had worked for Davis Inter-
national doing the same type of industrial work which Brown &
Root does. Loupe, on the other hand, showed no industrial
work except at Stone & Webster working at a nuclear power
plant. Moreover, as the record shows, by August 1998, Loupe
and the other former Brown & Root “union applicants” had
failed to respond to multiple efforts made by Respondent to
contact them.
During September, Respondent hired 10 electricians, with
one of them actually being assigned as a materials expediter,
Chauvin. Of the remaining nine, five were former Brown &
Root employees and three were direct jobsite referrals. Met­
calfe, the ninth, was a “walk-in” who had considerable recent,
relevant experience.
During September and October 1998, Widemire was under
considerable pressure to fill five different job requisitions call­
ing for a total of 16 electricians, only 1 of whom was a “by-
name requisition,” plus 6 helpers. Further, in the usual conver­
sations that Widemire had with Daniels, Widemire knew that
during October Daniels would be requesting another dozen or
more journeymen electricians. At this time, early October
1998, Chruma again called for Aycock, Loupe, James,
Lavergne, and Goetzman in an effort to hire those individuals
to fill the many positions that Daniels was requisitioning.
In October, 15 electricians were hired. Of those, eight were
former Brown & Root employees and three were direct job
referrals. As noted before, however, by this time in October no
alleged discriminatee except Zylks had an active application on
file. The most recent, inactive application was approximately 5
months old. The former Brown & Root alleged discriminatees
had, on multiple occasions, rejected attempts to give them of­
fers of employment. In spite of that, during October, admit­
tedly aware that an unfair labor charge had been filed, Respon­
dent went to the unusual extent of writing each of those alleged
discriminatees, informing them of the efforts to contact them
and reinviting them to renew their interest, if any, in employ­
ment with Brown & Root. None responded.
Thus, the record shows that in June, July, and throughout
October, alleged discriminatees with former Brown & Root
experience were not only considered, but Respondent made
multiple efforts to offer them employment. Exhibits detail
Brown & Root’s continuing efforts to contact Aycock,
Lavergne, Loupe, James, and Goetzman in order to offer them
employment at either the Shell Chemical or BASF projects.
Chruma testified as to his actions with regard to those individu­
als after mailing the October 14 letter offering them employ­
ment:
At that point, I felt that we had tried several times. They had
ample opportunities. None of them were courteous enough to
even call me back so they showed no interest, obviously were
working, and at that point, I decided that that’s—we don’t
need to contact them again. Let’s wait until they contact us.
By October, the only alleged discriminatees whose applica­
tions were still active pursuant to the field hiring procedures
were the former Brown & Root “union applicants” and Zylks.
By the time Hebert was hired for to fill a requisition which was
received in the employment office on October 26, 1998, even
the Brown & Root “union applicants” were no longer being
actively considered, since they had, by not responding to
Chruma’s telephone calls and letters, effectively indicated they
were not interested in employment. Thus, the only “union ap­
plicant” whose application was both active and regularly re-
viewed was applicant Zylks. Widemire and Chruma both testi­
fied as to why Zylks was not offered employment.
I. Zylks
Zylks’ application has, with rare if any exceptions, remained
active from the day he first applied on January 20, 1998. There
was no change in the substance of that application when it was
reactivated on February 16, nor in his March 2 application
when it was updated four times. Widemire explained why
Zylks’ applications were not favorably considered:
When Mr. Zylks—when his original application came
in on January 20, 1998, I looked at it at that time, and I
made a decision at that time that, due to the most recent
experience that he had from June 5, 1995 to the present,
that he had been working full-time for the IBEW 995.
. . . .
I made a decision that Mr. Zylks did not have any re-
cent, relevant experience, and I was not interested in hiring
him at that time.
Mr. Zylks came back in in February and updated the
same application, without making any change, so my deci­
sion stayed the same, that I did not see any recent, relevant
experience and was not interested at that time.
Mr. Zylks came back in in March and put in a new ap­
plication, and the information remained the same, so my
decision remained the same at that time. . . .
On the back of the March 2 application, he reactivates
it on April 1, April 30, June 1, and July 1. In each of those
times he had come in to reactivate his application, we
normally would ask—and I remember on a couple of oc­
casions asking Mr. Zylks—if anything had changed or if
there was anything he wanted to add to his application or
if he had any other work, and he always indicated in the
negative, so my decision at that time remained the same,
up through July.
BROWN & ROOT INDUSTRIAL SERVICES 635
As Widemire notes, up to this point there was absolutely no
indication that during the previous 3 years, Zylks had per-
formed any of the work normally performed on a daily basis by
electricians. Widemire put it more simply—there was nothing
to show Zylks had not done any work “on his tools” since June
5, 1995. Zylks completed a new application on August 18,
which did provide new and different information from his pre­
vious applications. Widemire was asked whether he actually
had occasion to review this new application. Widemire re­
sponded credibly that he did. This August 1998 application,
while containing the same information in the previous em­
ployment section from June 5, 1995, to present as a union or­
ganizer, did include for the first time employment from April 9
to May 9, 1997, for ISC at Texaco. Unfortunately, for this
contractor, Zylks did not explain what his job title and duties
were beyond stating: “Electrician.” In addition, Zylks added
another employer’s name, Westgate, as having employed him
from January 6 to February 6, 1996, at ISC Nitrogen. Again,
the job title and duties described were: “Electrician.” In neither
instance did Zylks explain the type of work that he had been
doing for ISC or Westgate. Widemire testified:
In August, Mr. Zylks comes in and puts a new applica­
tion in on August 18, . . . . He indicates in the referred-by
column that he is updating it for the eighth time, and he
still lists as his first employment that from June 5 of 1995
to the present time, that he is working full-time for the
IBEW.
On this application, there is a change, in that on the
previous applications, there was mention of some work
back in ‘94 and ‘95 and on this application, he puts down
that from April 9 of 1997 to May 9 of 1997 . . . that he
worked for ISC. So for about a month, he worked there as
an electrician . . . at the Texaco plant. And then below that
he puts in that in ‘96 he worked for approximately a month
at the PCS Nitrogen plant for Westgate Electrical.
This application was different than the other applica­
tion. At that time, in August I took a look at it, and I no­
tice that all of a sudden, after . . . seven months of seeing
the same applications steadily, that Mr. Zylks had gone
back and found where he had worked for a month in ‘96
and a month in ‘97 for these companies, and added that to
it.
That—those two one month jobs did not change my
decision at that time. I was suspicious as to why the appli­
cation had been changed, but I did not ask Mr. Zylks why
he had changed his application . . . .
It was considered unusual by both Chruma and Widemire
that, despite having completed applications in January and
March and updating those two applications a total of five times,
Zylks had never described work other than work as a union
organizer. When, on August 18, 1998, Zylks added work for
approximately a month in 1996 and another month in 1997, it
caused Widemire and Chruma to question the validity of Zylks’
applications. Zylks updated his August 1998 application once,
on September 17, without change.
On October 16, Zylks completed a new application that
noted in the section for previous employment “same as other
applications,” but added that he had worked from September 21
to October 7, 1998, for H. B. Zachary at Port Allen, Louisiana.
Zylks again, however, listed his job title and duties merely as:
“electrician” without explaining anything further about his
duties at that place. Zylks did not offer any explanation as to
the specific type of work that he had performed with contrac­
tors since becoming a full-time union organizer in June 1995.
Neither Widemire nor Chruma were convinced by these later
applications that Zylks had recent, relevant experience. Zylks,
of course, was not entitled to any preferential consideration
under the field hiring procedure.
Widemire was asked if he had occasion during the October
and November 1998 period to review Zylks applications and
make a decision as to whether or not he would offer Zylks em­
ployment. Widemire responded :
Mr. Zylks’ applications have been in this file for—at
this time, for many months and in looking through the
whole file, I would have seen Mr. Zylks’ application. I do
not have a specific recollection of pulling it out and look­
ing over it again at this time. [October - November 1998]
I had looked at it previously on almost a regular monthly
basis.
. . . .
October 16, 1998, Mr. Zylks comes back in, fills out a
new application, and then on this one, he states that . . .
under the referred by column, there is a—in my handwrit­
ing, there is a Buddy Partin, and above that is 1/15 of 99
which is also in my handwriting. . . .
This application was reactivated on November 16, on
December 16, and then on January 15 of ‘99, which is also
in my . . . . handwriting. That’s when I made the note that
he said he was referred by Mr. Buddy Partin. On 1/15/99,
I made that note there.
But in looking at the application on October 16, he in­
dicates on the first line, that he had gone to work for H. P.
Zachry on September 21, 1998 on the Port Allen job as an
electrician, and that he worked until October 7, 1998
which is a little over two weeks’ time.
For all of this time, up until this application came in, I
still did not consider Mr. Zylks to have enough recent,
relevant experience for me to consider him at this time,
and this two weeks of work that he did there did not
change my mind, at this time or subsequently when he
came back in, in November or December or January.
Widemire was not convinced that Zylks had recent, relevant
experience and, as Zylks’ applications even in August and Oc­
tober 1998 indicate, his job duties were those of a “electrician.”
There was no indication that Zylks had run conduit, installed
cable trays, pulled wire or the other activities that would have
been relevant to the Shell Chemical project.
J. BASF Project
While Shell was being manned, Brown & Root’s Gonzales
office assumed staffing responsibilities for the BASF project in
April 1998, and the Vulcan Project in early 1999. The number
of persons hired and offered employment on those two projects
636 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
through May 15, 1999, added an additional 3300. This added
an average of another 260 per month beginning in May 1998.
The BASF project “went to the field” and hiring began in
April 1998, and continued through May 15, 1999. Parallel
hiring activities for the BASF job were being conducted at the
same time Shell Chemical project hiring continued. Scott Mar-
shall was the person primarily responsible for hiring on the
BASF job. Widemire was in charge of the office in April 1998,
though Chruma would be assigned there in mid-May. Clericals
Allgood and Jordan were assisting Marshall and Widemire with
the clerical work. Like the Shell startup in 1997 and early
1998, BASF hiring in April 1998 concentrated upon supervi­
sion, clericals, carpenters, concrete finishers, rodbusters, and
helpers in those classifications, as well as laborers.
Tools utilized by Marshall in making any of his hiring deci­
sions included job summaries, applications, terminated em­
ployee reports either from the employment office’s computer or
from other jobsites, reduction of force lists, and of course job
requisitions.
The first requisition for labor from BASF requesting that the
employment office hire an electrician and/or an electrician’s
helper was dated May 26, 1998. The requisition came into the
employment office with three names written in for all three
requested positions: Otis (Randy) McHenry, a foreman; Ed-
ward Iglinsky, a helper; and, David Fredenburg, an electrician.
The notation was also made that “David Fredenburg will report
to personnel office on June 8, 1998.” This requisition required
nothing from Marshall other than to process the identified indi­
viduals when they appeared at the employment office. Freden­
burg, hired June 8, was the first electrician hired on the BASF
project.
The BASF job was well underway by the time McHenry, the
electrical foreman, and Iglinsky, the electrical helper, were
employed. McHenry and Iglinsky were hired on June 1, and
from date of the first BASF hire, April 27, through the end of
May, the BASF project had hired 106 people. In addition, 27
other people, none in the electrical department, had been made
offers of employment, and for one reason or another had not
satisfactorily completed their preemployment processing re­
quirements.
Only a few applications of alleged discriminatees were still
active by May 26 when the first requisition for an electrician at
BASF arrived. There were, of course, those of former Brown
& Root employees Aycock, Loupe, James, Lavergne, and
Goetzman.4 Applications of those who had continued to update
their applications were also still active, namely Zylks, Barnette
(last update May 1), Don Guarino (last update May 5), and
Richard Bailey (last update May 1).
Summaries of people hired for the BASF project show that
“by name requisitions” vastly outnumbered all others. In short,
the record shows that from June through September 1998,
every electrician hired at BASF was a former Brown & Root
employee with recent, relevant experience. The vast majority
of them were “by-name requisitions.”
4 Chruma’s explanation, though, of his efforts to hire Aycock,
Loupe, James, Lavergne, and Goetzman is equally applicable to the
BASF project as to the Shell Chemical project.
During October 1998, most, but not all hires were former
Brown & Root employees, and many were “by-name requisi­
tions.” Respondent admits that in some cases, people were
hired with less than ideal recent, relevant work experience. At
this time, the Gonzales employment office had already gone
through the files of former Brown & Root applicants. While
the BASF job had been staffed to this point with by-name req­
uisitions, Widemire (on the Shell Chemical project) and Mar-
shall (on the BASF project) were now exhausting the Brown &
Root files, and were recruiting from active non-Brown & Root
files, and those candidates who walked in to complete applica­
tions. From November 1998 through May 1999, however, all
of the electricians hired, with perhaps only one or two excep­
tions, were former Brown & Root employees and/or “by-name
requisitions.” By October 1998 there were no alleged discrimi­
natees under “active” consideration who compared more fa­
vorably than those hired.
The unchallenged and credible testimony of clericals All-
good and Jordan, recruiters Marshall and Widemire, and Per­
sonnel Manager Chruma was that at the Gonzales employment
office, applications were coded and filed according to the craft
which the applicant placed in the position applied for first
choice section. Each of the alleged discriminatees applied for
an electrician’s position and noted that in the first choice sec­
tion. A handful of applicants noted, in addition to electrician in
the first choice section such things as “INS” (Zylks’ January
20, 1998 application); “E&I” (Zylks’ March 2, 1998 applica­
tion); and “elect. & inst. tech.” (Randall Curtis’ February 25,
1998 application). Each of the alleged discriminatee’s applica­
tions was filed in the journeyman electrician folder, either
Brown & Root or non-Brown & Root, as appropriate. No al­
leged discriminatees’ applications were ever in the instrument
fitter folder. No instrument fitters were hired on the Shell
Chemical project. Instrument fitters were employed at BASF
only.
The record shows that instrument fitters at BASF were hired
primarily from “by name requisitions” and Brown & Root in­
strument fitters laid off from other jobs. Some were hired as a
result of being referred by supervisors or employees on the
BASF job. The record shows, and Respondent candidly ad­
mits, that none of the alleged discriminatees were ever consid­
ered for instrument fitter positions because the applications
were all coded and filed with first choice being “Electrician.”
K. Vulcan Project
The Vulcan Project “went to the field” and hiring began dur­
ing the last few weeks of 1998. By December 31, 1998, only
five individuals had been staffed on the Vulcan Project. Hiring
for the Vulcan Project was still going on while this trial was in
progress. At all relevant times, the Vulcan Project was staffed
primarily through the Gonzales employment office, where Scott
Marshall, to a great extent, and Patricia Simmons, to a lesser
extent, did the vast majority, if not all, of the hiring.
From the beginning of the project through May 15, 1999,
approximately 37 people were “signed up by the timekeepers”
at the project, and all were “direct hires.” Those employees are
reflected in the Vulcan “Direct Hire” Log, and are primarily
supervisory personnel. Marshall testified that those direct hires
BROWN & ROOT INDUSTRIAL SERVICES 637
were “all just transfers, either out of Houston or from another
Brown & Root job.” The direct-hire requisitions for labor were
completed at the project, were “internal requisitions for the
personnel that they signed up on the job site,” and would never
have been sent to the Gonzales employment office, nor seen by
anyone in the employment office. As a result, no hiring deci­
sions were made by the Gonzales employment office for any of
the hires at the Vulcan Project which are listed on the Vulcan
“Direct Hire” log.
No one was hired in the electrical department at Vulcan until
April 1999. By April, when these electrical hires were made at
Vulcan, none of the alleged discriminatees had active applica­
tions, except, of course, those of the former Brown & Root
employees and Zylks. However, all three of the electrical hires
at the Vulcan Project were either “direct hires” by the project or
“by-name requisitions.” At least until May 1999 when this trial
began, there was no hiring activity at Vulcan for electrical
workers whatsoever by the Gonzales employment office.
Analysis and Conclusions
In its very recent decision in FES (A Division of Thermo
Power), 331 NLRB 9 (2000), the Board examined many of its
past refusal-to-hire cases and defined a specific framework for
analyzing future cases. In relevant part, the Board stated:
To establish a discriminatory refusal to hire, the General
Counsel must . . . first show the following at the hearing on
the merits: (1) that the respondent was hiring . . .; (2) that the
applicants had experience or training relevant to the an­
nounced or generally known requirements of the positions for
hire . . .; and (3) that antiunion animus contributed to the deci­
sion not to hire the applicants. (Relevant footnote discussed
below.) Once this is established, the burden will shift to the
respondent to show that it would not have hired the applicants
even in the absence of their union activity or affiliation. If the
respondent asserts that the applicants were not qualified for
the positions it was filling, it is the respondent’s burden to
show, at the hearing on the merits, that they did not possess
the specific qualifications the position required or that others
(who were hired) had superior qualifications, and that it
would not have hired them for that reason even in the absence
of their union support or activity.
The Board further defines the General Counsel’s burden of
proof as it relates to showing that applicants are qualified. The
Board states the General Counsel’s burden is “limited to show­
ing” applicants meet “facial requirements . . . based on nondis­
criminatory, objective, and quantifiable employment criteria.”
These criteria the Board refers to repeatedly in its decision as
“objective criteria.”
Specific qualifications the position might require, or the em­
ployer might prefer, are defined in the Board’s decision as
“subjective criteria,” regardless of how job related they might
be. Thus, the Board uses the example that so long as the Gen­
eral Counsel shows “journeymen electricians” are applying for
“journeyman” positions, the General Counsel has met its bur-
den of proof.
The Board explains its rationale for assigning “objective cri­
teria” to the General Counsel and “subjective criteria” to the
employer:
[I]t apropriately falls to the General Counsel to show that the
applicants met the objective employment criteria of the posi­
tion at issue. (Footnote omitted.) On the other hand, the em­
ployer alone knows the full range of its subjective and/or
judgemental employment criteria. Further, the employer is in
possession of the information about the qualifications of the
applicants it has hired. It is, therefore, appropriate that the
burden fall to the employer to establish that the applicant did
not meet its spefific criteria for the position, was otherwise
unqualified for the position, or was not as qualified as those
who were hired.
By requiring the General Counsel to show only that appli­
cants meet “facial” qualifications, the Board shifts most of the
burden of proof in refusal-to-hire cases from the General Coun­
sel to the respondent. As a judge, I feel a need to be vigilant of
the fact that the Board catagorizes the General Counsel’s bur-
den of proof, limited as it is, as “objective,” while catagorizing
other necessary or preferred job-related skills as “subjective.”
Certain job requirements and skills are being labeled “objec­
tive” and others “subjective” simply by definition, and not be-
cause of their actual job relatedness or their legitimate interest
to an employer. As the judge, I must continue to look beyond
the fact that certain people who might have been hired were
not, to determine whether there is evidence of disparate treat­
ment (discrimination) caused by unlawful motivation (animus).
In addressing the issue of animus, footnote 8 of the Board’s
decision is particularly worthy of note. In that footnote, the
Board states:
We do not address the nature of proof necessary to show anti-
union motivation, because that was not an issue in this case.
Rather, we adhere to existing law on that issue. Our concur-
ring colleague, Member Brame, insists upon “direct evidence”
of discriminatory motivation. In most cases where 8(a)(3)
violations are found, the conclusion is inferred from all of the
circumstances. We know of no case which eschews this ap­
proach, and we would not abandon it.
Counsel for the General recognizes there is very little evi­
dence of union animus in this case, and there is no allegation of
any independent violation of Section 8(a)(1) of the Act. After
considering all the evidence, I conclude that the two incidents
that are relied on to establish animus fail. I find the taped con­
versation between Union Business Agent Zylks and Instrument
Foreman Swanson contains remarks that are, at best, ambigu­
ous. Moreover, Swanson did not play any role in the decision
not to hire the alleged discriminatees.
Widemire taking down the union leaflet from Respondent’s
bulletin board represents uniform enforcement of a rule which
counsel for the General Counsel does not even argue to be
unlawful. Zylks’ trial version of the other items posted, spe­
cifically the vehicle for sale, was proven incorrect, and there
was convincing evidence that Respondent uniformly enforced
the rule prohibiting anything from being posted on its bulletin
board which was not directly business related.
638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Finally, I find that the change in rule enforcement for updat­
ing applications by telephone in no way establishes union ani­
mus by Respondent. Credible evidence shows that the change,
requiring compliance with Respondent’s official stated policy,
occurred solely because the more lax practice became burden-
some on the clerical staff as hiring at the Gonzales employment
office accelerated. The change was logically explained, and the
new rule was completely benign concerning any applicant,
union-affiliated or otherwise, who wished to update their appli­
cations. There was no evidence submitted by counsel for the
General Counsel or the Charging Party that enforcement of the
correct policy prevented alleged discriminatees from reactivat­
ing their applications.
In the absence of other independent violations of Section
8(a)(1) of the Act, none of these incidents rise to the level of
demonstrating union animus on Respondent’s part. Thus, if
animus is to be found, it must be “inferred from all the circum­
stances,” as the Board says in footnote 8 of its Thermo Power
decision. In the case at hand, if animus is to found it must be
inferred solely from the fact that Respondent did not hire any of
the alleged discriminatees. After considering and analyzing all
the evidence before me, however, I conclude no animus should
be inferred from the mere fact that none of the alleged dis­
criminatees were hired by Respondent. The actual hirings are
entirely explained without reference to any unlawful motiva­
tion.
Regarding the Port Hudson/Georgia Pacific project, the un­
contraverted evidence is that all of the applications of alleged
discriminatees were filed as electricians—and therefore, under
the facts here, would have been considered only by Partin if
they had been considered at all. Partin followed the only prac­
tice he knew in hiring personnel. Partin’s record of hiring
shows that all eight of the people he hired were either current or
former Brown & Root employees or were recommended by
current Brown & Root supervision or employees. This pattern
parallels exactly the preferences established under Respon­
dent’s field hiring procedure. Partin testified credibly that de-
spite the fact there were some applications for electricians on
file in Brooks’ office, he never even bothered to look at any
applications in making his hiring decisions. There was abso­
lutely no evidence submitted to even suggest union animus on
the part of Partin, and Partin did not even know that there were
applicants who were union supporters.
The record shows that because of the way the applications
were filed, none of the alleged discriminatees were known to,
or passed over by, Instrument Fitter Foreman Swanson. In-
deed, Swanson testified credibly that following the taped tele­
phone conversation with Zylks, described in detail above, he
looked for Zylks’ application but did not find it. A review of
the people Swanson did hire shows that he, like Partin, fol­
lowed the common practice of hiring former Brown & Root
employees and applicants personally recommended to him.
Partin’s and Swanson’s hiring practices both show that even
without specific training regarding Respondent’s formal field
hiring procedures, the common practice was to give first pref­
erence (a “subjective criteria” by the Board’s definition) to
former Brown & Root employees, and, when they were not
available, to then hire whenever possible someone who was
recommended either by jobsite management or by another
Brown & Root employee. In Swanson’s case, three people he
hired were current or former employees of Brown & Root, and
five people were all recommended by supervision or current
employees. While Respondent’s formal field hiring procedure
was not consciously in play, all but one of every hire made by
either Partin or Swanson fell into the “preferred” categories
described by this procedure. This evidence convinces me that
eventhough it falls into the Board’s definition of “subjective
criteria,” Respondent’s practice of giving preference to certain
types of applicants has been in place and applied for years,
having nothing whatever to do with trying to exclude union
applicants, and everything to do with trying to maintain a reli­
able core of quality employees upon whom Respondent could
depend. I find, based on the facts described above, that neither
Partin nor Swanson discriminated in any way based on union
activity in making their hiring decisions.
Counsel for the General Counsel does not argue that the field
hiring procedure, and preferences it accords, is per se unlawful.
Pursuant to this policy, Respondent formally establishes prefer­
ential hiring consideration for current and former Brown &
Root employees and those recommended either by supervisors
or by other employees. The actual practice has developed for
jobsite supervisors to submit “requisitions for labor” to the
personnel/hiring office which often have names already filled
in for some or all of the people to be hired for those openings.
The people named, “by-name requisitions,” are offered the
position, whether or not they are a current or former Brown &
Root employee. This too falls into the category of “subjective
criteria” by the Board’s definition. In this case, however, coun­
sel for the General Counsel concedes that it was applied uni­
formly. For those positions that do not already name the person
to be hired, preferential consideration called for by the field
hiring procedure is given to former Brown & Root employees.
Applications expire after 30 days. If not renewed, they are
purged from the files and become inactive. This rule, spelled
out in the field hiring procedure, applies only to “new hire ap­
plicants.” The rule does not apply to former Brown & Root
employees, whose applications remain active throughout the
duration of any particular project for which they apply.
Almost 300 people applied for work at the Gonzales hiring
office in the first 3 weeks of January 1998. Included among
them were the bulk of the alleged discriminatees. During this
same time, more than 60 labor requisitions came from the field.
Few electricians were among these. The Gonzales employment
office hired only 29 electricians for the Shell project between
January and June 23, 1998. Five of those 29 were all hired or
had commitments made to them prior to the receipt of “union
applications.’ Thus, only 25 electricians were hired from the
onset of union “salting” activity at Gonzales until the date
Chruma first made calls to the former Brown & Root “union”
applicants to offer them work.
Widemire testified credibly that as applications arrived, he
evaluated every application before it was filed, although often
near the end of the workday and sometimes briefly. Widemire
explained that in evaluating applications for electricians, he was
looking for a certain specific type of experience, i.e., experi­
ence in heavy industrial electrical installation. He was not
BROWN & ROOT INDUSTRIAL SERVICES 639
looking for, and in fact discounted applicants who had residen­
tial, commercial, or nuclear power plant experience because the
work was not similar to the kind of duties being performed at
Shell.
It is here that one must be very careful in catagorizing Re­
spondent’s preference for heavy industrial electrical installation
experience as “subjective.” The record shows that just as there
are distinctions between lawyers practicing different speciali­
ties, there are similar distinctions between electricians. Resi­
dential and commercial electrical installation deals primarily
with voltages in the 110–220 range and relatively simple wiring
patterns. Heavy industrial electrical installation regularly in­
volves installing complicated wiring patterns and devices that
use voltage measured in thousands of volts. Further, as the
testimony of Widemire and others shows, Respondent was
looking for employees with actual experience doing the same
type of work it was doing. This represents a legitimate busi­
ness interest that minimizes training and supervision and
maximizes efficiency.
At times I questioned the reason for Widemire’s failure to in­
terview “union applicants.” Now that I have had a chance to
consider the entire record, however, I agree that they were
treated no differently than hundreds and hundreds of other ap­
plicants who were not interviewed. The numbers of applica­
tions and hires permitted Widemire little time to interview
crafts that he was under no pressure to hire. The record reflects
that Widemire did not interview walk-in applicants at all unless
there was a specific job opening which he was trying to fill. It
is clear from the volume of applicants that interviews were the
exception rather than the rule. At the time the first alleged
discriminatees applied, there were no unfilled requisitions for
electricians. The next requisition for an electrician did not
come until February 4, and even then only one electrician was
needed. Moreover, no electrician was hired from February 11
until March 11.
Following several months of permitting telephone updating
of applications, in approximately mid-February 1998, this prac­
tice was stopped. From that point on, the Gonzales employ­
ment office has followed official corporate policy, which re-
quires applicants to update their applications in person. The
evidence shows that the practice of allowing applications to be
updated by phone had become burdensome. The incorrect
practice was ended and the practice called-for by the field hir­
ing policy was followed. Timing is the only factor that even
suggests that this change might have been motivated by union
animus. In the final analysis, however, there is no reason to
believe that Respondent’s reason for the change was anything
other than as it was presented, or that it could reasonably be
viewed as preventing any of the alleged discriminatees from
filing or reactivating applications.
There were only six electricians hired in March 1998, one in
April 1998, and five in May 1998. These electricians were a
minuscule part of the overall hiring of other crafts and helpers
in those 3 months. Of the 25 electricians hired between the
time alleged discriminatees applied in January and June 23, all
except 3 of those were former Brown & Root employees enti­
tled to preferential consideration. Of those three, Brady ac­
companied Cook, who had already been made a commitment,
and filled a requisition for labor need that Widemire had at that
very moment. Achord was a jobsite referral both by a current
employee and the electrical superintendent. Jones was the only
person hired during this period from January through June 23,
1998, who did not fall into the preferred categories described in
Respondent’s field hiring procedures. Widemire happened to
be particularly impressed with Jones, an African-American,
who offered an impressive resume. After considering Jones’
application for a number of weeks, and going to the unusual
extent of calling Jones’s most recent employer to determine his
suitability for the position of electrician, Widemire made the
decision to hire him.
From the actual hirings that occurred and Widemire’s credi­
ble testimony, it is clear that from mid-March through June 23,
there was no reason to go to the non-Brown & Root electrical
application folder to find prospective employees. Jones was the
last non-Brown & Root employee hired, and that occurred on
March 18. From March 18 through June 23, no non-Brown &
Root electrician was hired.
By the end of February, the applications of Barnette, Carter,
Hargrove, Wade, Lovett, Patrick Overmier, and Stevens were
no longer active according to Brown & Root’s field hiring pro­
cedures. None of those individuals were current or former
Brown & Root employees. Even under the loosest procedure
sometimes followed, by the end of March those applications
would have been removed to the inactive applicant file and
given no further consideration.
By the end of April, even under the loosest procedure some-
times followed, the applications of Berthelot, Gauthreaux,
Beauchamp, Gibson, Picard, Terrio, Timothy Overmier, Ran­
dall Curtis, Barry Curtis, and James Carroll Carter were also
removed to the inactive applicant file and given no further con­
sideration. By May 1 the only applications of alleged discrimi­
natees which were active were: Browning, updated on April 3;
Barnette and Bailey, both updated on May 1; Guarino updated
on May 5; Zylks, updated virtually every month; and of course
the former Brown & Root applicants. Thus, of the three people
who Widemire would have seriously considered hiring besides
former Brown & Root “Union” applicants, only one—
Chevalier—still had an active application after April 30.
By June 23, or at least by the end of June 1998, all of the al­
leged discriminatees’ applications were inactive and not being
considered, except for Zylks and the former Brown & Root
employees.
The General Counsel’s case, as it ultimately developed, is a
very limited theory of alleged disparate treatment under a law­
ful policy. Counsel for the General Counsel concedes that
preference accorded “by-name requisitions” was consistent and
uniform. Counsel for the General Counsel concedes there is no
issue of unlawful discrimination related to the hiring of “by-
name requisitions.” Rather, counsel for the General Counsel
simply argues that while the preference given to former Brown
& Root employees is not unlawful, in this case Respondent
hired some of those people despite poor work records in order
to avoid hiring alleged discriminatees. In support of this argu­
ment, counsel for the General Counsel points to the fact that
Respondent’s field hiring procedures states preference will be
given to former Brown & Root employees “with a good work
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
history.” The case of Wallace Justus is particularly instructive.
Long before any of the alleged discriminatees applied for work,
Justus was hired, laid off, and even terminated for poor work—
and yet rehired again and again. It is abundantly clear that well
before any union activity, Brown & Root implemented the need
for a “good” rating very loosely, if at all. The evidence sup-
ports Respondent’s argument that its hiring practice in this case
was consistent with its practice before—and without regard
to—any union activity.
From January through August 20, 1998, Widemire had had
the luxury of filling the overwhelming number of job requisi­
tions for electricians from former Brown & Root employees, a
large number of whom were “by-name requisitions.” In addi­
tion, it was not until June 1998 that the volume of job requisi­
tions for electricians accelerated to a point where the number of
qualified Brown & Root former employees with recent, rele­
vant experience was at risk of being exhausted.
Even in June 1998, when the number of Brown & Root ap­
plicants for recent, relevant experience had sunk to such a low
level that the Company resorted to offering employment or
attempting to offer employment to Brown & Rooters without
recent, relevant experience, only fourteen electricians were
hired. Including those 14 electricians, who as it turned out
were all former Brown & Root employees, a total of 166 people
were hired during June.
Widemire testified credibly he analyzed the applications of
each of the alleged discriminatees in the same manner in which
he looked at the applications of others and made a decision with
respect to the majority of the alleged discriminatees that they
did not indicate recent, relevant experience on their applica­
tions. Applications of alleged discriminatees who were former
Brown & Root employees, Aycock, Lavergne, Loupe, James,
and Goetzman, were retained in the Brown & Root file and
have remained active. Those applications were considered as
job requisitions arrived at the employment office without by-
name requisitions. In fact, those people were offered open
positions on more than one occasion. At the same time, how-
ever, I must agree with Respondent that the applications of
those former Brown & Root employees did not indicate recent,
relevant experience such that they were superior to other appli­
cations also entitled to preferential consideration. However, as
Widemire, Chruma, and Hopper testified, the demands for elec­
tricians reached such levels that the supply of available former
Brown & Root employees with recent, relevant experience was
nearly exhausted. Chruma made repeated attempts to hire the
five union-affiliated former Brown & Root employees. None
of them responded affirmatively, and most did not respond at
all.
Respondent made attempts to offer employment to Aycock,
Lavergne, Loupe, James, and Goetzman on several occasions.
Counsel for the General Counsel argues that this was a hollow
gesture, done only because of the pending unfair labor practice
charges. It must be noted, however, that these job offers were
in fact made before the Charging Party filed its charge alleging
refusal to consider or refusal to hire those individuals through
the Gonzales personnel office. None of the individuals con­
tacted returned Chruma’s phone calls. Chruma eventually
spoke with Goetzman, however, who stated that he was un­
available for work due to an injured leg.
In July 1998, only seven electricians were hired, yet all were
former Brown & Root employees. There were 10 electricians
hired in August. All but two were former Brown & Root em­
ployees. In the months of July and August, a total of 383 per-
sons were hired, not including 157 to whom offers of employ­
ment were made.
In short, the level of activity in the employment office con­
tinued to remain at an intense pace, with electrical requisitions
consuming only a small portion of the hiring activities of the
office. None of the non-Brown & Root “union applicants” had
active applications on file by August 1998 except for Zylks.
The Brown & Root “union applicants,” by August 1998, had
failed to respond to multiple efforts at contacting them.
Ten additional electricians were hired in September, with
one of them actually being assigned as a materials expediter,
Chauvin. Of the remaining nine, five were former Brown &
Root employees and three were direct jobsite referrals. Met­
calfe, the ninth, was a “walk-in” who, though had considerable
recent, relevant experience.
In October, 15 electricians were hired. Of those, eight were
former Brown & Root employees and three were direct job
referrals. As noted before, however, by this time in October no
alleged discriminatee except Zylks had an active application on
file. The most recent, inactive application was approximately 5
months old. The former Brown & Root alleged discriminatees
had, on multiple occasions, rejected attempts to give them of­
fers of employment. In spite of that, during October, admit­
tedly aware that an unfair labor charge had been filed, Respon­
dent went to the extent of writing each of the alleged discrimi­
natees who are former Brown & Root employees, informing
them of the efforts to contact them and reinviting them to renew
their interest, if any, in employment. None responded.
During the trial, counsel for the General Counsel pointed to
the fact that Respondent hired some electricians whose applica­
tions were more than 30 days old. From this counsel suggests
that Respondent circumvented its field hiring procedure in or­
der to avoid hiring alleged discriminatees. The record shows
that seven electricians were hired more than 30 days after their
date of application. Widemire testified credibly that two of
them returned to the employment office and, as a result, their
applications were retrieved from the inactive file. They were
then offered positions and promptly processed in the routine
manner. A third, Pottain, returned to the employment office as
shown by his application, was interviewed, and was hired a
week later. Two applications, those of Brignac and Thomas,
were still in the active file after 30 days because the office was
very busy in March 1999 and the staff was late in “purging” the
files. The record shows that 936 applications were received in
February 1999, 1013 applications were received in March
1999, and 74 people were hired for the Shell project and an-
other 424 people were hired for BASF during this 2-month
period. This does not include people who were made offers of
employment but who, for one reason or another, never went on
the active payroll. Obviously the Gonzales employment office
was extremely busy, and as it was credibly explained, during
times like that purging of inactive applications from the files
BROWN & ROOT INDUSTRIAL SERVICES 641
might occur early 1 month and late the next. Two more of the
seven applied, but later became “by-name requisitions.” When
the job requisitions came in with their names, and they reported
to the employment office, their applications were retrieved
from the inactive file, and the normal processing activity was
conducted. Thus, only two situations were actually beyond the
30 day “active” period set for the in the field hiring procedure.
Those two—Brignac and Thomas—are situations which are
readily explained and do not challenge the routine application
of the field hiring procedure.
Respondent also hired 14 electricians at less than the usual
full journeyman pay. Counsel for the General Counsel suggests
this shows that Respondent was willing to hire some people -
but not alleged discriminates—even though they were not ideal
candidates. Eight people were hired as electricians but at less
than the highest rate of pay. As Respondent argues, however,
the record clearly shows that all of these people fit a common
mold that simply does not apply to the alleged discriminatees.
All of the electricians hired at less than top pay had recent ex­
perience in the petrochemical industry doing precisely the kind
of work being done by Respondent, i.e., running conduit, pull­
ing wire and installing cable trays, and had limited time work­
ing and being paid as a journeyman or just ready to “break” out
as a journeyman. This common factor of very recent, relevant
experience clearly set these individuals apart from the alleged
discriminatees, none of whom, according to Widemire’s credi­
ble analyses of their applications, had experience equal to
theirs.
During her opening statement, then counsel for the General
Counsel Leslie Troop theorized that Respondent violated the
Act by failing to offer the alleged discriminatees positions as
electrical helpers. Counsel for the General Counsel’s argument
carries surface appeal because even if Respondent legitimately
looked for and found electricians which it preferred over the
alleged discriminatees, Respondent could easily have consid­
ered them for helper positions. Stated in its simplest form,
Counsel for the General Counsel’s argument is that if the “un­
ion” applicants were not eligible for immediate hiring as
journeymen due to lack of recent, relevant experience, surely
they should be considered for and offered a helper position
because they were far more qualified than any helper hired.
On more than one occasion during the trial, Widemire was
pressed to explain why one of the alleged discriminatees, par­
ticularly, though not exclusively, Zylks, was not offered a
helper’s position. Widemire testified consistently and credibly:
The only times that I would have hired somebody at a
lower electrical rate was if they came in and I spoke to
them personally and in the interview process, determined
that their experience had not been at a full journeyman
rate. Anytime I did that, I also communicated with Mr.
Daniels on those particular applications or applicants that
had come back in, and that decision was made in the inter-
viewing process, between myself and the applicant. I
never went into the files and just offered anybody a lower
rate of pay, unless we discussed it personally.
. . . .
I would not offer an applicant that applied as a jour­
neyman electrician and showed that he had been doing
work as a journeyman electrician at the journeyman wage
rate a helper’s job, unless, in the course of the conversa­
tion, in interviewing that employee, he initiated or indi­
cated in some way that the applicant would be willing to
take a job as a helper.
Respondent readily admits that it did not consider any of the
alleged discriminatees for helper positions. In fact, Respondent
simply did not consider anyone who applied as a journeyman
electrician for a position as helper unless the applicant made it
clear, on his own initiative, that he was interested in a helper’s
job—a downgrade. Carroll Carter was the only alleged dis­
criminatee to put “apprentice” in second choice. The record,
however, shows that once an application was coded as a jour­
neyman electrician, the recruiters never went to that folder to
recruit or select helpers unless the individual applicant made it
clear that he or she was willing to take less than a journeyman’s
position and initiated that conversation.
Widemire explained that an applicant who showed no jour­
neyman experience, generally by job duties and pay levels,
would be considered a helper. Applicants, though, who were in
fact journeymen, as each of the alleged discriminatees were,
and were coded as such, were not considered for helper posi­
tions. None of the alleged discriminatees were coded as help­
ers, and none of them from their previous work or resumes,
where submitted, or pay rates should have been coded as a
helper.
Approximately 170 electrical helpers were hired for Shell
Chemical and 160 were hired for BASF. Most of these appli­
cants and the other, approximately 375 applicants for helpers’
positions who were not hired, indicated on their field employ­
ment Application position applied for first choice—“electrical
helper” or some shorter form. Some people whose experience
showed them to actually be helpers did apply as their “first
choice” for “electrician” positions. The clerical staff or the
recruiters caught most of those and coded them with an appro­
priate electrical helper code, depending upon experience and
pay rates shown. Those people were considered helpers because
they showed no journeyman experience. They are not exam­
ples of Brown & Root coding a qualified journeyman electri­
cian as a helper in order to hire that person.
In conclusion, it must be noted that counsel for the General
Counsel put on no evidence and did not call a single witness to
suggest that any of the alleged discriminatees applied for, was
interested in, or would have accepted an electrical helper posi­
tion. Nevertheless, counsel for the General Counsel argues that
Respondent should have considered alleged discriminatees for
helper positions. While counsel for the General Counsel’s
position has a certain emotional appeal, further analysis, how-
ever, shows that Respondent simply did not hire helpers in the
manner that counsel for the General Counsel argues Respon­
dent ought to have done. In short, Respondent was under no
affirmative obligation to change its hiring practices in order to
give alleged discriminatees preferred consideration for helper
positions.
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
From the time Zylks first applied on January 20, 1998, it was
clear that his continuous employment as an electrician ended on
June 4, 1995. There was no change in the substance of his first
application when it was reactivated on February 16, nor in his
March 2 application when it was updated four times. At least
through July 1998, there was absolutely no indication on any of
Zylks’ applications that during the previous 3 years, Zylks had
performed any of the work normally performed on a daily basis
by electricians.
Zylks completed a new application on August 18, which did
provide some new and different information from his previous
applications. This August 1998 application, while containing
the same information in the previous employment section from
June 5, 1995, to present as a union organizer, did include for
the first time employment from April 9 to May 9, 1997, for ISC
at Texaco. Zylks, however, did not explain what his job title
and duties were beyond stating “Electrician.” In addition,
Zylks added another employer’s name, Westgate, as having
employed him from January 6 to February 6, 1996, at PSC
Nitrogen. Again, the job title and duties were described simply
as “Electrician.” Zylks again updated his August application
on September 17, without change.
On October 16, Zylks completed a new application that
noted in the section for previous employment “same as other
applications,” but added that he had worked from September 21
to October 7, 1998, for “HB Zachary” at Port Allen, Louisiana.
Zylks again, however, listed his job title and duties merely as
“Electrician.”
Zylks’ applications, both individually and collectively,
showed very little, specific relevant experience, i.e., experience
in the petrochemical industry running conduit, pulling wires,
and installing cable trays. Perhaps H. B. Zachry for less than 3
weeks in Port Allen would qualify, but without a description of
which plant or which duties beyond “electrician” that was un­
certain. The October 16 application also showed work for 1
month from April 9 to May 9, 1997, at Texaco but with the
only description of job title and duties as “electrician.” That
application also showed work with Westgate from January 6 to
February 6, 1996, at PSC Nitrogen which might have helped,
but again the only description of job title and duties was “elec­
trician.” Widemire and Chruma remained unimpressed with
Zylks’ qualifications for working at Shell Chemical or BASF.
Zylks, of course, was not entitled to any preferential consid­
eration under the field hiring procedure. In short, Zylks never
offered any explanation as to the specific type of work that he
had performed with contractors since becoming a full-time
union organizer in June 1995. There was simply nothing on
any of Zylks’ applications to establish that Zylks had recent,
relevant experience. There was no indication that Zylks had
run conduit, installed cable trays, pulled wire or the other ac­
tivities that would have been relevant to the Shell Chemical
project. Based on these facts, I conclude that Respondent had
sound, objective reasons, having nothing whatever to do with
Zylks’ union affiliation, to pass over Zylks and hire other peo­
ple who showed more recent and genuinely relevant experience
similar to what Respondent was doing at Shell. I find that Re­
spondent did not discriminate unlawfully in failing to hire
Zylks.
The broad theory articulated in counsel for the General
Counsel’s opening statement included the argument the Re­
spondent discriminated against the alleged discriminatees by
not hiring any of them as instrument fitters. The unchallenged
and credible testimony of clericals Allgood and Jordan, recruit­
ers Marshall and Widemire, and Personnel Manager Chruma
was that at the Gonzales employment office, applications were
coded and filed according to the craft which the applicant
placed in the position applied for first choice section. Each of
the alleged discriminatees applied for an electrician position
and noted that in the first choice section.
While a handful of applicants noted, in addition to electrician
in the first choice section, an interest in instrument technician
positions, each of the alleged discriminatee’s applications was
filed in the journeyman electrician folder, either Brown & Root
or non-Brown & Root, as appropriate. No alleged discrimina­
tees’ applications were ever in the instrument fitter folder. No
instrument fitters were hired on the Shell Chemical project.
Instrument fitters were employed only at BASF. The record
shows, and Respondent candidly admits, that none of the al­
leged discriminatees were ever considered for instrument fitter
positions because the applications were all coded and filed with
first choice being “Electrician.”
Respondent argues the complaint must be dismissed with re­
spect to the job category of instrument fitters because an essen­
tial element of the Government’s proof, namely, application for
the job, is missing. Obviously Respondent’s argument is too
simplistic. Be that as it may, the fact remains that the alleged
discriminatees were not considered for positions as instrument
fitters—not because of their union affiliation—but because of
the simple mechanics of Respondent’s hiring system. Once
again it must be observed that Respondent was under no af­
firmative obligation to change its hiring practices in order to
give alleged discriminatees consideration for open positions.
Accordingly, I find that Respondent did not fail to consider or
hire alleged discriminatees for instrument fitter positions be-
cause of their union affiliation.
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times material, an em­
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
3. The evidence fails to establish that Respondent refused to
consider or hire alleged discriminatees named in the complaint
because of their union affiliation, activities, or sentiments in
violation of Section 8(a)(1) or (3) of the Act, and the complaint
herein will be dismissed.
Accordingly, I issue the following recommended5
ORDER
The complaint is dismissed in its entirety.
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur­
poses.