Dorey Electric Co.

National Labor Relations Board - Board Decisions

Sep 17, 1993

312 N.L.R.B. 150 (N.L.R.B. 1993)

150
312 NLRB No. 38
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel and the Charging Party filed motions to
strike material submitted by the Respondent to the judge after the
hearing. The judge did not rule on those motions. We grant the mo-
tions to strike, but we note that striking the material does not affect
our decision because, in fact, the filed material is not included as
part of the record before us and because the judge did not rely on
those materials in his decision.
2 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility reso-
lutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing the
judge’s findings.
3 The Respondent’s brief in response to the General Counsel’s ex-
ceptions makes reference to an attached Equal Access to Justice Act
request. The request, however, was not included with the brief filed
with the Board. Thus, the request is not properly before us.
1 All dates are in 1991, unless otherwise indicated.
2 The General Counsel’s motion to correct the record is granted:
the key to craft codes are to be part of G.C. Exh. 2; ‘‘Jerry’’ Krouse
is corrected to ‘‘Sherry’’; and ‘‘Ryan’’ Electric is corrected to
‘‘Varina.’’ In addition, there are many errors in the transcript which
are obvious and do not affect the substance of the testimony. They
are therefore ignored.
Dorey Electric Company and International Brother-
hood of Electrical Workers, Local Union 666,
AFL–CIO. Case 5–CA–22435
September 17, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 17, 1993, Administrative Law Judge James
L. Rose issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs and the Respondent filed answering
briefs.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,1
findings,2 and conclusions and to adopt the rec-
ommended Order.3
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Angela S. Anderson, Esq., for the General Counsel.
Douglas Nabham and M. Peebles Harrison, Esqs., of Rich-
mond, Virginia, for the Respondent.
Charles B. Sweeney, of Richmond, Virginia, and Steven
Stump, of Cincinnati, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me on January 26, 27, and 28, 1993, at
Richmond, Virginia, on the General Counsel’s complaint
which alleged that the Respondent refused to hire certain
named individuals because of their membership in the Charg-
ing Party in violation of Section 8(a)(3) of the National
Labor Relations Act, 29 U.S.C. § 151 et seq.
This was based on a charge filed on December 16, 1991;1
thus the General Counsel acknowledges that by operation of
Section 10(b), any refusal by the Respondent to hire mem-
bers of the Charging Party prior to June 16 cannot be consid-
ered, except as background evidence.
The Respondent admitted that the named individuals ap-
plied for jobs and were not hired. However, the Respondent
denied that its refusal to hire them was based on their mem-
bership in the Charging Party or that it even knew they were
union members.
Following the close of the hearing the parties submitted
briefs and other documents, all of which have been consid-
ered. On the record2 as a whole, including briefs and argu-
ments of counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is engaged in the construction industry as
an electrical contractor, with its principal office at Norfolk,
Virginia, but doing business in several States. The Respond-
ent annually receives directly from points outside the Com-
monwealth of Virginia materials valued in excess of $50,000.
The Respondent admits, and I find, that it is an employer en-
gaged in interstate commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
On the record evidence, I find that the Charging Party,
International Brotherhood of Electrical Workers, Local Union
666, AFL–CIO (the Union), represents employees of employ-
ers engaged in interstate commerce and is therefore a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The Respondent is a large multistate electrical contractor
which does business as a ‘‘merit shop,’’ a euphemism for
operating nonunion. In January 1991, the Respondent began
a large project referred to in the record as the Richmond
Newspaper job.
As explained by Doyle Deaton, the Respondent’s project
superintendent of this job, and a witness whom I found to
be generally credible, in the early spring he began hiring
electricians, helpers, and laborers to supplement the Re-
spondent’s cadre of employees and, from his testimony and
company records, hiring continued throughout 1991, until the
project was completed. Deaton testified that he, and the em-
ployees, worked four 10-hour days on the project, which left
him free to interview prospective employees on Friday of the
weeks when hiring was to be done. Deaton’s procedure was
to have his office staff take applications from anyone inter-
ested in a job and to tell the applicant to come in Friday for
151DOREY ELECTRIC CO.
3 This policy was called into question with the hiring of Robert
Johnson on October 1. Johnson had a journeyman’s card and testi-
fied that he was experienced in the work done by the Respondent.
Deaton testified that he did not think Johnson was qualified as a
journeyman and hired him him as a helper. I found Deaton credible
and do not consider this conflict significant.
an interview, if there was to be hiring that week. If an appli-
cant was not hired, he (or she) would have to repeat the
process, including filing out an application, in order to be
considered in a subsequent round of hiring. Deaton said he
used this procedure, rather than referring to previously filed
applications, because his experience indicated such was more
efficient. Trying to call prospective employees, he found,
was time consuming and often fruitless.
Thus, rather than attempting to call those who had applica-
tions on file, the Respondent ran newspaper ads and would
take applications from those who inquired about a job. The
General Counsel seems to argue that this procedure was
meant to discriminate again the union members, but the evi-
dence shows that all applicants were treated the same. Con-
versely, the Respondent argues that where an application was
filed during a week when the Respondent did not hire, there
could be no discrimination because there was no job avail-
able, citing Falcone Electric Corp., 308 NLRB 1042 (1992).
The application of Falcone here need not be decided, be-
cause I conclude that the General Counsel failed to establish
company knowledge of union membership of the alleged
discriminatees.
In hiring, Deaton principally relied on the recommenda-
tions of foremen and where possible hired former employees
of the Respondent. On one occasion he hired four employees
who worked for another electrical contractor as an accommo-
dation to that contractor and to keep these individuals em-
ployed. However, it appears that by far the majority of the
90 or so employees on the Richmond Newspaper job were
hired through the application/interview process, which, be-
cause of changing workload and turnover, lasted throughout
the project. Deaton testified that he interviewed between 200
and 250 job applicants and hired 80 to 85.
Deaton further testified that as a matter of policy, he
would not hire a journeyman electrician for a helper or la-
borer job. In his experience, when a journeyman is hired at
lower job than his skill, he will quit as soon as he finds a
journeyman position somewhere else.3
B. Analysis and Concluding Findings
1. General
Each of the 11 alleged discriminatees was a member of the
Union, filed one or more applications, and was interviewed,
but none was hired. On the other hand, so far as can be de-
termined from the record, no applicant who was hired was
a union member (a fact which is supported by admissions of
counsel for the Respondent). These facts raise the suspicion
that the Respondent sought to exclude members of the
Union, and the General Counsel so alleged.
However, to establish a violation of the Act, the General
Counsel has the burden of proving the relevant factors by di-
rect evidence, or reasonable inference. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
Proof of suspicious circumstances is not enough.
The General Counsel argues that Respondent’s intent to
discriminate against members of the Union can be imputed
from the fact that it refused to hire union members and hired
only nonmembers. Therefore, one factor which must be prov-
en is the Respondent’s knowledge that the named
discriminatees were in the Union and that the Respondent
knew that those applicants who were hired were not union
members. To prove the disparity of treatment alleged (and
found in Fluor Daniel, Inc., 304 NLRB 970 (1991), on
which the General Counsel relies) the General Counsel must
prove both that those applicants not hired were known mem-
bers of the Union and those hired were known not to be
members.
On this threshold issue, I conclude the General Counsel
failed to sustain the burden of proof. Except as to Thomas
A. Bresco, Ronald Jackson, and Corbin Poh, the evidence of
record simply cannot support an inference that the Respond-
ent (or Deaton) knew the applicants named in the complaint
were members of the Union whereas applicants hired were
not. Bresco and Jackson were named in a charge filed by the
Union on May 9 (which was dismissed). Bresco put his
union status on his applications, as did Poh on a resume at-
tached to his application. During a confrontation in the Re-
spondent’s office on June 14, Jackson asked if his not being
hired was because of his union membership. But nothing on
the applications of the others indicated union membership.
Nor was the Union or union membership mentioned during
Deaton’s interview of any alleged discriminatee.
Citing Fluor Daniel, supra, the General Counsel contends
that the Respondent’s knowledge that each alleged
discriminatee was a union member can be inferred from his
or her application. Because union members were rejected and
nonmembers were hired, it can be inferred that such was not
mere conscience. Thus, it can further be inferred that the rea-
son for this disparity of treatment was their union member-
ship and, therefore, the Respondent violated Section 8(a)(3)
of the Act.
In Fluor Daniel, supra, work for known union employers
and high wages were two factors noted by the administrative
law judge and the Board in concluding knowledge of the ap-
plicants’ union membership. However, it is doubtful whether
such alone would have been sufficient to sustain the General
Counsel’s burden of proof. In Fluor Daniel, most of the ap-
plicants stated they were volunteer union organizers, were
members of the union, and/or listed the union’s business
agent as a reference. Further, 46 of the 48 discriminatees
filed applications en masse under circumstances which would
make the situation unforgettable. Finally, the respondent de-
fended on grounds that as union organizers they were not
bona fide employee applicants, thus implicitly admitting it
knew they were union members.
Finally, in Fluor Daniel the respondent’s managers admit-
ted they knew which area contractors were union and which
were not. Such is not the case here. Deaton creditably testi-
fied that he came to the Richmond Newspaper project from
North Carolina and did not know the local contractors.
Nevertheless, the General Counsel argues that union mem-
bership can be inferred from the applications because each
named individual listed employers ‘‘who were known to be
union’’ and stated wages which were high enough that it
could be surmised that the employer had a contract with the
Union. Such has been rejected by the Board as sufficient to
152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
support the General Counsel’s burden of proof in a case such
as this. Tyger Construction Co., 296 NLRB 29, 37 (1989).
In Tyger, the administrative law judge pointed out that in the
southeastern part of the country, where (as here) most States
have ‘‘right-to-work’’ laws, the fact that one may work for
a ‘‘union employer’’ is not conclusive of union membership.
On the other hand, because the Union here obviously had
no problem with its members working for nonunion employ-
ees, such as the Respondent, the fact that an applicant’s em-
ployment history included work for known nonunion contrac-
tors would not disprove union membership. Therefore it can-
not be inferred that those who listed nonunion previous em-
ployers on their applications were necessarily not union
members—even if Deaton knew which local contractors were
union and which were not.
The General Counsel argues that such knowledge can be
imputed to Deaton because Curtis Williams, who was a part-
time personnel director for the Respondent and participated
to some extent in the interviewing, was very knowledgeable
about the electrical industry in Richmond. I decline to make
such an inference because is rests on the assumption that
Deaton wanted to know which applicants might be union
members, which itself is an element of the General Counsel’s
case. That is, if Deaton aimed not to hire union people, then
he might reasonably inquire as to which were union contrac-
tors. But if he did not care whether an applicant belonged
to the Union, then there would be no particular reason for
him to seek out this information. To infer, against Deaton’s
contrary testimony, that he must have asked who were the
union contractors would require first concluding that he was
embarked on the unfair labor practice alleged.
Although relatively high wages might suggest the work
was for a union employer, application of the ‘‘Davis-Bacon
Act’’ is well known in the construction industry. On certain
projects this law requires an employer to pay the prevailing
wage, which is usually the union scale, regardless of whether
the employees are union members. Thus a high previous
wage is not really proof of union membership. But if it was,
I note that three applicants who were hired listed previous
wages in the $13- to $20-per-hour range—which the testi-
mony suggests was union scale. Finally, although the Re-
spondent’s journeyman wage was generally less, some were
paid $18.75 per hour and the Respondent was nonunion.
Wage rates on an application do not prove much.
In sum, a work history may raise a suspicion that the ap-
plicant is or is not a union member. But such falls short of
being sufficient evidence on which to base a conclusion that
the General Counsel’s burden of proof has been met.
No Board case has held that simply listing union contrac-
tors as previous employers or relatively high wages and/or
having completed a union-sponsored apprenticeship course is
sufficient to establish prima facie that the employer knew the
applicant was a union member. In Tyger it was held that
work history showing union employers was not enough.
Tyger was distinguished in Fluor Daniel because there were
many additional factors proving that the applicants were
union members. And in VOS Electric, 309 NLRB 745
(1992), the General Counsel established company knowledge
of union membership as to those who so stated on their ap-
plications, or who stated they had been trained in a union-
sponsored program, but not as to those who simply named
union contractors as previous employers.
At most, some of the applicants here listed union contrac-
tors among their previous employers (as did other applicants)
and some stated they had been trained in the ‘‘Richmond
Joint Apprenticeship.’’ There is no indication in the docu-
ments available to Deaton, however, that this was in any way
affiliated with the Union, or implied union membership.
I therefore conclude that the General Counsel did not
prove, even prima facie, that the Respondent or Deaton knew
that Terry Pettiford, Harold G. Ross, James T. Stafford,
Henry A. Redford, Thomas Carr, Sherry P. Krouse, Jimmy
Pollard, or David A. Williams was a member of the Union.
As to Bresco, Jackson, and Poh, there is no allegation or
argument that they were in any way discriminated against for
having engaged in protected activity other than being a mem-
ber of the class which the Respondent sought to exclude
from employment. If, as I conclude, the Respondent cannot
be held to have based its hiring decisions on union member-
ship, the mere fact that the Respondent knew these three
were members does not prove an unfair labor practice.
There is no evidence of animus toward the Union by
Deaton or the Respondent nor any statements by any man-
agement personnel which would suggest that the Respondent
sought to discriminate against union members in general.
Deaton credibly testified that he did not care whether a pro-
spective employee was a union member or not. This tends
to be supported by the fact one applicant who was not hired
put on his application, ‘‘I hate the union.’’ If Deaton sought
to insure a nonunion work force, it is reasonable to surmise
this applicant would have been hired.
Along with no evidence of union animus, there is no evi-
dence of how the Respondent would gain by refusing to hire
11 union members in an employee complement of 90.
The Respondent received about 250 applications for jobs
on the Richmond Newspaper project, only a handfull of
which were submitted by members of the Union. If there
were jobs available when an application was received, the
applicnt was interviewed. Most, however, were not hired. On
this record I conclude they were all given the same consider-
ation.
Nor is there evidence that the Respondent sought to dis-
criminate specifically against Bresco, Jackson, or Poh be-
cause of their union membership. Indeed, the Respondent of-
fered persuasive reasons for not hiring Bresco and Jackson.
There is little evidence concerning Poh, who, at the time of
the hearing, was in prison.
2. Thomas A. Bresco
Bresco stated his union membership on his several appli-
cations and wore a union T-shirt to an interview. Knowledge
of his union membership is unquestioned and undenied.
Bresco filed his first application in January, but the Re-
spondent was not then hiring journeymen. He called and sub-
mitted additional information and in March applied for a
helper’s job, but nothing came of this. Then in April he was
told the Respondent was accepting applications for journey-
men and on April 19 submitted another application. He was
interviewed by Deaton, asked about his previous employ-
ment, and was offered a job. Along with others (3 or 4 ac-
cording to Bresco, 11 according to Deaton) he filed out tax
forms and gave a urine sample for drug analysis.
However, neither he nor the others were in fact called to
work. Deaton creditably testified that the material these indi-
153DOREY ELECTRIC CO.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
viduals would have been using did not come in, so he had
to cancel their employment offers.
Though Bresco testified that he had conversations with
William Van Divinder, branch manager of the Respondent’s
Richmond office, in April, it is unclear whether this was be-
fore April 19. It is also unclear when Bresco again applied.
However, the General Counsel alleges that he was first dis-
criminated against when he was not hired on June 23 and
two helpers (Joseph G. Bradfield and Randall K. Foster)
were. (This was his earliest application within the 10(b) pe-
riod, though he had submitted others previously.)
In any event, by June, Bresco had become a fixture at the
Respondent’s office and had, in the words of Deaton, made
himself a nuisance. Such could reasonably explain why
Deaton would not be favorably disposed to Bresco over other
applicants. Clearly the Respondent was not required to hire
Bresco just because he was a union member. The Respond-
ent’s only obligation was not to treat him disparately because
he was. I conclude the evidence is insufficient that the Re-
spondent failed to hire Bresco because of his union member-
ship.
In fact, the Respondent hired Bresco in April. There is no
evidence that such was not a bona fide offer, which was sub-
sequently withdrawn because material did not arrive. Had the
Respondent intended to discriminate against Bresco because
of his union membership it is unlikely that he would have
been offered the job in April. Indeed, the earlier charge,
which presumably included this event, was dismissed.
I believe that the Respondent gave serious consideration to
employing Bresco but when, after time, he made himself a
pest, other applicants prevailed. There is no evidence that
any individual hired when in competition with Bresco was
not competent or as potentially qualified as Bresco. In short,
I conclude that the General Counsel did not make out a case
of discrimination against Bresco.
3. Ronald L. Jackson
Jackson first applied for a job in January, was not hired,
and reapplied in April and thought he was hired, because he
was given a drug test; however, as with Bresco, the job did
not materialize. (As with Bresco this was apparently an event
alleged in the dismissed earlier charge.) When Jackson ap-
plied on June 14, he was told he had to fill out another ap-
plication, which resulted in his being abusive to Becky
Tyree, the Respondent’s then secretary.
Jackson admitted yelling at Tyree when told he would
have to fill out another application, but he testified that in
his opinion such should not have prevented his being hired,
because ‘‘if you’re yelling because you’re right, you could
probably get the job.’’
Although Jackson was considered along with the other ap-
plicants, I conclude that where there was a choice between
him and another, which was always the case, the Respondent
did not exhibit proscribed discrimination in not selecting
Jackson. Again, there is no evidence of union animus or that
anyone hired in competition with Jackson was not at least as
qualified as he.
4. Corbin Poh
Although the Respondent offered no evidence of why Poh
was not hired, because I conclude that the General Counsel
did not establish prima facie that this refusal was unlawful,
none was required.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
This case is dismissed in its entirety.