D.S.E. Concrete Forms

National Labor Relations Board - Board Decisions

Jul 25, 1991

303 N.L.R.B. 890 (N.L.R.B. 1991)

890
303 NLRB No. 137
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
In App. A of the judge’s decision, the dates May 20 and 28 should be Feb-
ruary 20 and 28.
2 We note that the judge found that the practical effect of the Respondent’s
first three job criteria was to preclude employment of union members at the
jobsite. We agree with the judge on the particular facts of this case, as the
Respondent specifically defended on the ground that union members would not
work nonunion jobs and the General Counsel established that the Union had
waived that restriction only for the particular job involved here.
1 All dates are in 1989 unless otherwise specified.
2 G.C. Exh. 1(a).
3 The record contains extensive testimony about the relationship between
D.S.E. and Dalcan. However, the complaint lists only D.S.E. as a Respondent,
and the General Counsel declined at the hearing to amend the complaint so
as to include Dalcan.
4 The correct spelling may be ‘‘Renaud.’’
5 The pleadings establish that Del Bosque was an agent of D.S.E. and a su-
pervisor within the meaning of the Act.
6 Del Bosque testified: ‘‘I have a Form Superintendent, Carpenter Super-
intendent, and also a Concrete and Rebar.’’ The only other named individuals
were Homer Staton, the Carpenters superintendent who was supplied to D.S.E.
D.S.E. Concrete Forms, Inc. and Carpenters Dis-
trict Council of Houston and Vicinity, Local
551, AFL–CIO. Case 16–CA–14035
July 25, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On January 22, 1990, Administrative Law Judge
Howard I. Grossman issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel 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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, D.S.E. Concrete Forms,
Inc., Houston, Texas, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Robert G. Levy II, Esq., for the General Counsel.
Robert E. Luxen, Esq. and Robert G. Chadwick Jr., Esq.
(Gardere & Wynne), of Dallas, Texas, for the Respondent.
Victor J. Bieganowski, Esq. (Bieganowski & Allen), of Hous-
ton, Texas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
charge was filed on May 10, 1989,1 by Carpenters District
Council of Houston and Vicinity, Local 551, AFL–CIO (the
Union),2 and complaint issued on June 23. It alleges that
D.S.E. Concrete Forms, Inc. (Respondent or D.S.E.), since
about February 20 has refused to consider for employment
at the United States Postal Service facility job project in
Houston, Texas (the Postal Service facility), 45 named indi-
viduals because they are members of or support the Union,
thereby violating Section 8(a)(3) and (1) of the National
Labor Relations Act (the Act).
A hearing was held before me on these matters in Hous-
ton, Texas, on September 11 and 12. The General Counsel
and Respondent subsequently filed briefs, and Respondent
thereafter filed a motion requesting permission to file a short
reply brief. On the entire record, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Texas corporation with a job project and
office located at the Postal Service facility in Houston,
Texas, where it is engaged as a subcontractor providing con-
crete work. During the 12 months preceding issuance of the
complaint, a representative period, Respondent performed
services in excess of $50,000 for customers located outside
the State of Texas, and derived gross revenues in excess of
of $1 million. Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Postal Facility Project
J. W. Bateson Company (Bateson) is the general con-
tractor for the Postal Service facility project, a 700,000
square-foot building in North Houston constructed of con-
crete and iron. Bateson subcontracted the concrete work to
D.S.E. This work includes steel reinforcement of the concrete
(rebar), and the construction of forms for the concrete. Some
of the work is performed inside the building and some out-
side, in connection with a parking lot. D.S.E. had another job
in Houston, at the Veterans Administration Medical Center.
Although D.S.E. had the Postal Service facility subcontract
from Bateson, it entered into a management contract with an-
other firm, Dalcan, Inc., to whom it assigned the responsi-
bility of supervising the Postal Service facility job. Dalcan
and D.S.E. are both based in Dallas.3 Dalcan’s project man-
ager was Jim Renald,4 and the project superintendent was
David Del Bosque.5 The latter had worked for D.S.E. since
February 1988, pursuant to a managerial contract with
Dalcan, and came onto the Postal Service facility jobsite in
about November 1988, where a D.S.E. trailer-office was es-
tablished. Renald (Renaud), based in Dallas, visited the job-
site on three or four occasions during the relevant periods.
Several other individuals worked for D.S.E. at the Postal
Service facility jobsite in apparently supervisory capacities,
including Carpenters Superintendent Homer Staton.6 A part
891D.S.E. CONCRETE FORMS
by Dalcan, and Israel Del Bosque, the ‘‘Concrete Finisher Foreman’’ accord-
ing to his brother David Del Bosque. Israel Del Bosque was not working
under a Dalcan contract.
7 Raul Lopez.
8 David Myers.
9 The first two pages have no dates or days of the week. Midway on the
third page is the day designation ‘‘Wed.’’ and the date of December 7. Mid-
way on the next page a signature is crossed off, and the day ‘‘Monday’’ and
the date December 12, 1988, appear. The crossed-off signature is repeated on
the next line. The date December 13 appears on the same line as a signature.
Three later dates appear on blank lines or at the top of the page, and Decem-
ber 19, 1988, appears on the same line as a partial signature, which is repeated
on the next line. After two later dates, the same thing occurs with respect to
December 28, 1988. After January 3, 1989, appear seven pages of signatures,
by far the greatest number attributed to any one date. The date February 14,
1989, appears in a new column headed by the handwritten word ‘‘Date’’ (R.
Exh. 5).
10 Ibid.
11 Union member Joe Reed, who applied for employment on February 20,
testified that he did so about 3 weeks after Herd had announced the avail-
ability of Postal Service facility jobs. Union members Gary Gardner and
Donnie Hooper heard about it on February 20.
of the dispute between the parties involved the posting of ap-
plicable wage scales. There was conflicting testimony on the
similarities of ‘‘form work’’ performed inside and outside
the building, i.e., in connection with the parking lot. Accord-
ing to Del Bosque, although ‘‘form work’’ was performed
outside the building line, it required less expertise than simi-
lar work done inside the building, and could be done by a
carpenter apprentice rather than a journeyman. Union Busi-
ness Agent James Herd testified that the outside form work
was carpenter’s work, except for an ‘‘expansion joint’’ which
the cement finishers were permitted to install for a ‘‘screed.’’
The record is clear that employees doing ‘‘form work’’ out-
side the building were paid at a lesser rate than those doing
similar work inside the building. According to Union Rep-
resentative Herd, the outside rate accounted for less than 4
percent of the cost of the building.
Carpenter Superintendent Staton testified that Respondent
hired carpenters based if possible on personal knowledge of
the job applicant. On the existence of a job opening, the
‘‘first step’’ was to inquire whether D.S.E. had an available
employee working on another nearby D.S.E. job, such as the
Veterans Administration job. Staton testified that only one
such carpenter was so employed.7 The ‘‘second step’’ was
to call Dalcan’s general superintendent in Dallas,8 to see
whether there were any Dalcan carpenters available for trans-
fer to Houston. Dalcan’s employees were not represented by
a union. If no individuals were available, the next step was
to rely on referrals from employees already working for
D.S.E. Finally, the fourth step was to obtain an applicant’s
name from a ‘‘sign-in roster’’ which, Respondent contends,
it maintained outside its Postal Service facility office since
about November 1988. Staton agreed that he needed skilled
carpenters, and that he preferred to hire applicants that he
‘‘knew.’’ According to Staton, applicants were hired from
the roster on the basis of priority of signing.
Respondent submitted purported copies of 21 sign-in
sheets from the roster, and contended that other sheets had
been lost during a burglary.9
Jerry Oney was a former union member who discontinued
his membership at about the beginning of 1988, and there-
after worked nonunion jobs. He testified that he went to the
Postal Service facility jobsite in mid-November 1988, and
signed an ‘‘application’’ at the Bateson trailer. According to
Oney, the Bateson clerical employee told him that his appli-
cation would be transmitted to D.S.E. Oney also went down
to the D.S.E. trailer the same day and, he asserted, signed
a ‘‘clipboard’’ hanging on the door. He returned about 10
days later and spoke to Staton, who informed him that hiring
would not begin until after the first of the year. Oney said
that he made a third visit after January 1, spoke to Staton
again, and signed the roster a second time. Staton called him
the next morning, said that an employee had quit after they
had ‘‘poured a slab,’’ and asked Oney to come to work. He
then filled out various forms. What purport to be Oney’s sig-
natures appear on the copies of the sign-in roster, on sheets
dated December 12, 1988, and January 3, 1989, respec-
tively.10
Joseph Sloan was a former union member who discon-
tinued his membership in about April 1988, and thereafter
worked nonunion jobs. He testified that he went to the job-
site in November 1988 and filed an application at Bateson’s
office. Sloan did not know what happened to this application.
He returned in December, went to the D.S.E. trailer, asked
Del Bosque for a job, and signed a roster. Oney rec-
ommended Sloan for employment, and he was hired in about
April 1989.
B. The Job Applications by Union Members
1. Summary of the evidence
a. The General Counsel’s evidence
Harold J. Cones Jr., executive secretary of the Carpenters
District Council of Houston, testified that the union constitu-
tion or bylaws prohibited union members from working on
nonunion jobs. However, there were about 100 unemployed
members of the Council in February 1989, and Cones ex-
pressed the opinion that these people needed to work and
support their families. Accordingly, Cones testified, he in-
formed Union Business Representative James Herd that
union members who applied for work at the Postal Service
facility job would not have charges filed against them be-
cause of the nonunion status of the job. Herd corroborated
this testimony, and affirmed that the Union overlooked or
waived the ban on nonunion jobs in particular cases when it
would not be beneficial to the Union to file charges. Herd
announced the availability of Postal Service facility jobs at
‘‘roll-call’’ meetings.11
The evidence is conflicting on the job applications by
union members at the Postal Service facility job, the union
representatives who were present, and the content of con-
versations between union and D.S.E. representatives.
Business Representative Herd testified that he went to the
Postal Service facility jobsite for the first time on February
1, accompanied by Andres Garza, a representative of the La-
borers Union.
According to Herd, his purpose was to obtain a contract
and employment for union members. At that time, Herd had
received from Cones the waiver of the ban on nonunion
work.
Herd testified that he had a conversation at this time with
D.S.E. Project Superintendent Del Bosque at about 8 a.m. He
started to introduce himself to Del Bosque, but the latter in-
terrupted: ‘‘I know who the hell you are, and I don’t have
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 G.C. Exh. 3. See fn. 15, infra.
13 Gardner was uncertain about the date, originally believing it to have been
in March, and dated one of the forms as February 18 (G.C. Exh. 4). However,
Gardner testified that he was at the jobsite with numerous other applicants on
a date clearly established by the record as February 20; the D.S.E. secretary
dated her own signature on Gardner’s startup forms as February 20; and the
parties stipulated that he filed on that date.
14 Gary Gardner, Donnie Hooper, and Joe Reed.
15 The forms consisted of a ‘‘Wage Status Agreement’’ with provision for
a ‘‘building rate’’ or a ‘‘site rate’’; a W-4 form; an employee information and
verification form; an ‘‘employee start-up’’ form; an employee acknowledgment
of receipt of safety and drug policy and authorization for release of medical
information; and a copy of a driver’s license (G.C. Exh. 2). Respondent con-
tended that it had no ‘‘employment application’’ as such, and caused these
forms to be executed after hiring had already taken place.
16 Karen G. Elliot.
17 James L. Bridwell, Delbert Campbell, Jimmie Caudle, Allen Edgworthy,
Steve Conway, David Drake, Warren Faubian, Gary Gardner, Oscar Garza, C.
L. Hammontree, Oscar Hinojosa, Donnie Hooper, Woody Hopkins, Linda
Livesay, Ona Merritt, Ricardo Perales, Calvin Rainwater, Joe Reed, Derrell
Sample, Gino Sirizzotti, and Jay C. Wagner.
18 Gary Gardner, Donnie Hooper, and Joe Reed.
19 Maria James, Earl D. Roach, George D. Parker, Zachary Taylor, Robert
C. Atwood, Rocky A. Laird, and Norman K. Burtt. The latter name appears
as ‘‘Burke’’ in the transcript, but the complaint spells it ‘‘Burtt,’’ which I ac-
cept as correct.
anything to say to you.’’ Herd introduced Garza, said that his
own union had some good carpenters, and offered to sign a
project agreement. Del Bosque replied that it was a nonunion
job, and that he did not want any union people working
there.
Herd then asked whether the prevailing wage rates were
posted. When Del Bosque replied that they were posted in-
side the trailer and Herd asked to see them, Del Bosque ini-
tially refused. He then agreed, and showed Herd the posted
rates. When Herd protested that these were the ‘‘highway’’
rates and were too low, Del Bosque replied that it didn’t
make any difference, because he wasn’t going to have any
carpenters on the job. Del Bosque then pulled the correct
carpenter rate ($16.08) out of a file cabinet, and pinned it on
the board. Herd asked again whether he could send some ap-
plicants out, and Del Bosque replied that he was not going
to use any carpenters on the job. Herd testified that he did
not see a signup roster during this visit, and denied that Del
Bosque said applicants had to sign one.
Laborers Representative Andres Garza corroborated Herd.
Thus, Garza went to the jobsite with Herd on February 1 in
order to obtain work for laborers. After Herd identified him-
self as a member of Carpenters District Council, Del Bosque
replied that he was not going to hire ‘‘those son-of-a-
bitches.’’ There was a dispute about wage rates, and Herd
told Del Bosque that the Davis-Bacon Act required him to
post the correct rates outside the trailer in conspicuous
places. After Del Bosque posted the correct rate inside the
trailer, Herd said that he had ‘‘good professional car-
penters.’’ The union representative added:
I can save you some money. I can get you some ap-
prentices in a ratio with journeymen and save you some
money. Why don’t you think about it? Let me save you
some money.
Del Bosque replied that he was not going to hire union mem-
bers. Garza added that there was no signup roster on Feb-
ruary 1.
The next union visit to the jobsite was on February 20,
when 21 job applications were filed. There is a sharp conflict
in the evidence as to the union representatives on the site at
this time. Herd testified that he was not there and that the
union representatives were (Adolph) Little and (Rusty)
Campbell. Little affirmed that Herd was otherwise busy that
day. Union member Donnie Hooper, who filed a series of
‘‘start-up’’ forms on February 20,12 testified that both Herd
and Little were present. However, union member Gary Gard-
ner, who also filed on February 20,13 did not recall that Herd
was present.
Little testified that he and Rusty Campbell went to the job-
site at about 9 a.m., on February 20. It was raining that day,
and at first Little stood out in the rain. Three of the job ap-
plicants who were present that morning14 also testified that
it was raining. After standing outside, Little saw Project Su-
perintendent Del Bosque and said that he had 38 ‘‘good
men’’ who wanted to file employment applications. Earlier
in the morning, the union members had filed employment ap-
plications at Bateson’s office, according to Little, and began
arriving at the D.S.E. trailer-office in small groups. There
they were given various ‘‘start-up’’ forms.15 Little testified
that some of the applicants may have retained forms. Al-
though Little stated that all of the 45 individuals named in
the complaint except one16 were present on February 20, he
was unable to affirm that all filed applications.
Thereafter, the parties stipulated that 21 individuals17 sub-
mitted such packets of forms on February 20 and were seek-
ing carpenter positions. Business Representative Little testi-
fied that all these 21 individuals (and others) were qualified
to work on carpenter forms. Three of the applicants18 cor-
roborated Little’s testimony. D.S.E. Carpenters Foreman
Staton testified that he himself was a journeyman carpenter,
could perform all kinds of carpenter work including building
forms, and that he assumed that the applicants were members
of the Carpenters Union. Staton also agreed that ‘‘some-
times’’ he would like to have a laborer performing certain
work for purposes of economy.
Little did not know whether there was a signup roster out-
side the trailer, and did not recall that anybody said anything
about one.
Business Representative Herd testified that he returned to
the jobsite on February 28 with additional packets of forms,
or applications, from eight other individuals. However, he
only identified seven of them.19 All of these individuals were
qualified to do concrete form work, in the opinion of Busi-
ness Representative Little.
Herd saw Project Superintendent Del Bosque in front of
the D.S.E. trailer, and started to introduce himself again. Del
Bosque interrupted him and said:
I know who the hell you are, you son-of-a-bitch. You
f––d up my whole day, bringing all of them people out
here. . . . I don’t want any more of that. I don’t want
none of your people. How many times have I got to tell
you that? There’s a sign out front. If anybody wants to
sign up . . . just get them to sign.’’
Herd testified that he had not seen any signup roster during
his February 1 visit to the jobsite and, on February 28, asked
Del Bosque whether this was a new procedure. Del Bosque
replied that it ‘‘didn’t make any difference if it’s new or not,
that’s the way we’re going to do it from now on.’’
893D.S.E. CONCRETE FORMS
20 Moses relied on a ‘‘daily report’’ to fix the date. The date on the ‘‘daily
report,’’ which is partially obliterated, appears to read ‘‘Fr- 12-2-88’’ (R. Exh.
6).
Herd asked Del Bosque whether any of the applicants who
had filed on February 20 were ‘‘qualified and had an oppor-
tunity of working’’ for D.S.E. The project superintendent re-
plied that ‘‘none of them did,’’ and that he did not want
‘‘any of your Union people.’’
The business representative asked Del Bosque whether he
still had the correct wage rates posted, and the latter replied
that it was none of Herd’s business. When Herd told Del
Bosque that the posting was a requirement of Federal law,
Del Bosque allowed him into the trailer, and Herd noted that
the wage rates were not posted. Del Bosque again took them
out of a file cabinet, put them on the ‘‘tag board,’’ and said:
‘‘That’s the reason I don’t want the Union out here, they’re
running my business.’’ He also told Herd, according to the
latter’s testimony, that he was going to instruct Bateson to
stop union personnel from coming to the D.S.E. trailer.
The Union business representative testified that Del
Bosque refused to accept the packets of forms, or employ-
ment applications, that Herd was carrying with him.
Herd affirmed that Laborers Representative Garza again
went out with him to the jobsite on February 28, but was
uncertain whether the latter was present during the conversa-
tion with Del Bosque on that date. Garza averred that he
went with Herd to visit Del Bosque 2 or 3 weeks after the
initial visit on February 1. On cross-examination, Garza was
asked about the conversation with Del Bosque ‘‘that took
place on February the 20th,’’ and responded to the question.
Garza also denied on cross-examination that any union mem-
ber other than he and Herd were present during the second
conversation with Del Bosque.
Garza testified prior to Herd at the hearing in this matter.
Although Herd was uncertain about Garza’s presence during
the second conversation with Del Bosque, Garza testified that
he was there, and attributed to both Herd and Del Bosque
substantially the same statements affirmed by Herd.
Herd went to the Postal Service facility jobsite again on
March 7, accompanied by Adolph Little. He carried the same
seven employment applications. The business representative
first stopped at the Bateson trailer to announce his presence.
As he was proceeding toward D.S.E., Bateson Project Man-
ager Frank Dale stopped him, and told him that he was not
allowed to go to the D.S.E. trailer. If he had any applications
they could be given to Bateson. The union representatives
then left, with Herd still carrying the applications.
b. Respondent’s evidence
D.S.E. Carpenters Superintendent Homer Staton and
Bateson Superintendent Sam Moses Jr. averred that they had
a conversation with Union Business Representative Herd
prior to February 1, but differed as to the date. According
to Staton, it took place in either late December 1988 or early
January, while Moses contended that it took place on De-
cember 2, 1988.20
According to Staton, Herd introduced himself and said that
he was interested in getting work for his union members.
Staton replied that D.S.E. was not hiring any carpenters at
that time, but that the union members were welcome to sign
the signup roster. Staton contended that he encouraged Herd
to get his members to apply. Herd allegedly told Staton that
he needed a ‘‘working agreement’’ in order to permit union
members to work at the jobsite, and Staton replied that Herd
would have to talk to ‘‘the boss in Dallas.’’
Bateson Superintendent Moses testified that his secretary
told him that somebody had signed in and had proceeded to
the D.S.E. trailer. Moses examined the sign-in sheet, ‘‘and
realized he was with the Carpenters Union.’’ Moses then
went to the D.S.E. trailer, where Carpenters Representative
Herd was talking with Staton and ‘‘rebar’’ Foreman Jack
Johnson. The union representative said that he was ‘‘just or-
ganizing,’’ and Moses told him to talk to Bateson’s attorney
in Dallas.
On cross-examination of Business Representative Herd,
Respondent noted the latter’s contention that his first visit to
the jobsite was on about February 1. Thereafter, the tran-
script reads as follows:
Q. Now, isn’t it true that, in fact, the D.S.E. rep-
resentative that you talked to in your first visit to the
site said that they were willing to hire Union contract
. . . or Union carpenters?
A. No.
Q. That was not said?
A. No.
Q. And isn’t it true that your response was I can’t
have my carpenters go to work until we have a con-
tract?
A. No.
Q. Did you ever tell him that?
A. No.
Q. Did you ever indicate in any way, that the car-
penters would go to work without contract?
A. I don’t remember whether I specifically said that
they could or not at that time.
Q. What was your view at that time? Wasn’t it your
view that they could not go to work unless there was
a contract?
A. No. My view was, at that particular time . . . that
I had 150 carpenters unemployed and I needed for them
to go to work.
Q. Now, at that time of your first visit, we hadn’t
had this waiver yet, had we that Mr. Cones talked
about?
A. Yes.
Q. Oh, you had?
A. Yes.
Project Superintendent Del Bosque recalled a conversation
with Business Representative Herd ‘‘in the beginning of Feb-
ruary.’’ At least one other person was with him. On initial
examination by the General Counsel, Del Bosque said that
he did not recognize the names of Garza, Campbell, or Little.
On later examination, Del Bosque stated that he saw Little
in the hearing room and recognized him. Carpenters Foreman
Staton walked in during the ‘‘latter end of the conversation’’
in early February.
Del Bosque testified that Herd wanted D.S.E. to sign a
project agreement, and to use union members exclusively. He
agreed that there was a discussion about wage rates, and that
he did not initially show the rates to Herd, because they were
posted at Bateson’s office. Herd denied that Del Bosque
mentioned any such posting by Bateson. Del Bosque agreed
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that D.S.E. had posted the lower ‘‘highway’’ rate inside the
trailer, but claimed that this posting was a ‘‘mistake.’’ Ac-
cording to Del Bosque, Union Representative Herd had noth-
ing to say about the erroneously posted ‘‘highway,’’ rate. In
fact, he did not even look at it, but saw only the ‘‘right one
that was in the file.’’ Del Bosque denied cursing or telling
Herd that D.S.E. would not hire union members.
Carpenters Superintendent Staton asserted that he entered
Del Bosque’s office the ‘‘first of February,’’ and that the
project superintendent was already in conversation with Herd
about a working agreement. Staton averred that, ‘‘during the
time [he] was in the trailer,’’ Del Bosque did not tell Herd
that D.S.E. would refuse to hire union members.
Del Bosque, Staton, and Bateson Superintendent Moses
contended that Herd was present at the jobsite on February
20, when job applications were filed. However, Del Bosque
testified that he saw Herd on only two occasions—the first
of February and February 20—but admitted that he affirmed
in his pretrial affidavit that Herd returned to the jobsite on
February 28. His memory of these events was better on the
date of the affidavit, according to Del Bosque. He also de-
nied that it was a rainy day when Herd returned to the job-
site a second time. As noted, the General Counsel’s wit-
nesses affirmed that it was raining on February 20, when ap-
plications were filed.
On the date that applications were filed, job applicants
began crowding into the office, and Del Bosque and Car-
penters Foreman Staton assisted in the matter. Finally, Del
Bosque told the ‘‘gentleman that was there’’ to have the
forms completed outside the office. The project super-
intendent denied telling the union representative that D.S.E.
would not hire union members, or that they had caused so
much trouble that he did not want their applications. Del
Bosque both affirmed and denied telling the union represent-
ative that job applicants had to sign a roster outside the trail-
er. Although Respondent contends that Staton was entirely
responsible for hiring carpenters, Del Bosque denied telling
this alleged fact to the union representative.
Del Bosque also denied telling Bateson to prevent union
representatives from visiting the D.S.E. trailer. Bateson Su-
perintendent Moses testified that, before February 20, D.S.E.
asked Bateson to prevent ‘‘anybody’’ from visiting them.
The reason, Moses asserted, was to prevent ‘‘crowds’’ of
people around the D.S.E. trailer. On February 20, according
to Moses, he received a ‘‘call on the radio about trouble up
here.’’ Moses went to the D.S.E. office, and allegedly saw
Herd and a union representative named ‘‘Rusty’’ with a large
number of job applicants. Moses assertedly told the appli-
cants that Bateson was the one ‘‘with the applications at that
time.’’ Asked how he remembered February 20 as a date that
Herd was present, Moses stated that it was ‘‘documented.’’
However, he did not produce the document.
As indicated, Carpenters Superintendent Staton also con-
tended that he saw Business Representative Herd on Feb-
ruary 20. According to Staton’s description of the events on
that date, Herd brought ‘‘several carloads of carpenters to the
jobsite seeking employment.’’ After first stopping at
Bateson’s office where, Staton presumed, they filed applica-
tions, the individuals went to the D.S.E. office and asked to
fill out applications. ‘‘And I told Mr. Herd then, when I
walked in the office and seen all the people, that we had a
sign-up roster that people needed to sign up for employment
. . . go sign up outside.’’ When Herd allegedly demanded
employment applications, Staton gave the applicants ‘‘start-
up’’ forms and ran off additional copies in Bateson’s office.
According to Staton, he accepted all the startup forms,
which he filed in a filing cabinet. During the week of the
filing he looked at the files ‘‘a couple of time just to see if
there was anyone there that I knew’’ but did not examine the
files thereafter. Del Bosque simply stated that the forms were
filed, and that he never checked them. Staton averred that he
‘‘never needed any carpenters from that file,’’ since he had
‘‘plenty of people available prior to that.’’ Staton’s account
of the asserted events of February 20 does not mention Del
Bosque.
As described above, Herd testified that he visited the job-
site on February 28, after his visit on February 1, had a con-
versation with Del Bosque, and attempted without success to
deliver additional job applications, or startup forms. Del
Bosque denied seeing anybody from the Union after Feb-
ruary 20, or receiving such applications. However, he admit-
ted stating in his pretrial affidavit that ‘‘[o]n February 28th,
1989, James Herd returned to the jobsite with the completed
applications.’’ According to the affidavit, Del Bosque accept-
ed the applications, contrary to his own testimony and to
Herd’s affirmation that Del Bosque rejected them. At the
hearing, Del Bosque professed that he had no memory of
these events, and could not explain the presence of the state-
ments in his affidavit.
With respect to Herd’s testimony about his visit to the job-
site on March 7, again with the additional applications,
Bateson Project Manager Frank Dale did not testify.
2. Factual analysis
The General Counsel’s evidence that the Union waived the
constitutional ban on nonunion work for union members is
uncontradicted, and is credited. The exact date that this waiv-
er was announced to union members is unknown. However,
Joe Reed, who applied for work at D.S.E. on February 20,
testified that he did so about 3 weeks after Herd announced
the availability of the jobs at a rollcall, i.e., at about the end
of January. It is possible that prior to announcements had
been made, but unlikely that an extended period of time
elapsed before announcement of the waiver and the job ap-
plications—there were many unemployed union members
who needed work. I conclude that the first announcement
was probably made in the latter half of January.
As noted, Union Representative Herd testified that he went
to the jobsite for the first time on February 1, and then had
a conversation with Project Superintendent Del Bosque. He
wanted a contract and employment for his union members.
However, D.S.E. Carpenters Superintendent Staton and
Bateson Superintendent Moses contended that they had a
conversation with Herd on an earlier date. Staton claimed
that he then encouraged Herd to get his union members to
apply, but that Herd said he needed a contract before this
could be done.
Staton and Moses did not agree on the date of this alleged
conversation. According to Moses’ partially obliterated date
on a ‘‘daily report,’’ it took place on December 2, 1988,
while Staton placed it in late December or early January.
Herd, however, testified that he already had the waiver when
he made his ‘‘first’’ visit to the jobsite, on February 1. There
is no testimony from Staton that his alleged assurances that
895D.S.E. CONCRETE FORMS
union members could work for D.S.E. were repeated on
Herd’s subsequent visits to the jobsite, and Herd was a more
credible witness than Staton. The latter’s claim that Herd de-
manded a contract before allowing union members to work
is inconsistent with the undisputed fact that the Union
waived any such requirement. Accordingly, without making
a specific finding on the date of Herd’s first visit, I credit
his denials, elicited on cross-examination, that D.S.E. told
him that union members were welcome to work at the job-
site, or that he told D.S.E. he would have to have a contract
before permitting them to do so.
There is no question that Carpenters Representative Herd
had a conversation at the jobsite with Project Superintendent
Del Bosque on about February 1, since both agree to this
fact, and Laborers Representative Garza gave similar testi-
mony. Herd’s description of his dispute with Del Bosque
over the wage rate is set forth in detail above. In light of
Del Bosque’s admission that he had made the ‘‘mistake’’ of
posting the wrong ‘‘highway’’ rate inside the trailer, his as-
sertion that Herd had nothing to say about this and only
looked at the ‘‘right rate’’ in the files, is unbelievable. Herd
clearly wanted to see a posted, not a filed, wage rate. He was
corroborated by Garza, and I credit his version of this part
of the discussion with Del Bosque on about February 1.
As noted above, Herd testified that Del Bosque told him
that it was a nonunion job, and that D.S.E. did not want any
union members working there. As Garza put it, Del Bosque
said that he did not want any of ‘‘those son-of-a-bitches.’’
Del Bosque denied making such statements, but he was a
less credible witness than Herd and Garza. Although Car-
penters Superintendent Staton claimed that he did not hear
Del Bosque make these statements, Staton came into the
trailer during the ‘‘latter end’’ of the conversation (according
to Del Bosque), and heard only part of it. Herd and Garza
corroborated each other about the February 1 conversation,
and were more believable witnesses than Del Bosque and
Staton. Accordingly, I credit their testimonies that Del
Bosque then told Herd that he did not want any union car-
penters on the job. I also accept Garza’s testimony that Herd
offered to save D.S.E. money with a favorable apprentice-to-
journeyman ratio.
I credit Herd’s and Garza’s testimonies that there was no
signup roster at the D.S.E. trailer on February 1, and Herd’s
averment that Del Bosque did not require that job applicants
sign such a roster.
As indicated, the parties stipulated that 21 named individ-
uals filed applications for carpenter positions on February 20.
The applications were placed in a file. I credit Super-
intendent Staton’s testimony that he looked at them ‘‘a cou-
ple of times during the week of the filing, just to see if there
was anyone there that [he] knew,’’ but not thereafter. There
is no evidence that Del Bosque ever examined the applica-
tions.
Most of the dispute about February 20 involves the less
significant question of whether Herd was present at the job-
site on that day. Herd, Little, and, to a lesser extent, Gary
Gardner, affirmed that that he was not there, while Del
Bosque, Staton, Moses, and Donnie Hooper declared that he
was. As noted, all the General Counsel’s witnesses agreed
that it was raining that day. The fact that Del Bosque denied
it was raining suggests either that all the General Counsel’s
witnesses were wrong about the weather, or that Del Bosque
saw Herd a second time on some other date. Little’s testi-
mony about standing in the rain was given in great detail,
and was corroborated by three other witnesses. I conclude
that it was raining on February 20, and, accordingly, I find
that Del Bosque did not see Herd on that date. Bateson Su-
perintendent Moses did not supply an alleged document iden-
tifying the date, while D.S.E. Carpenters Superintendent
Staton did not even mention Del Bosque on the day of the
applications, despite the latter’s extensive testimony about his
role in the matter. Hooper, I conclude, was mistaken. Be-
cause it was not raining when Del Bosque, and allegedly,
Moses and Staton, saw Herd and because Herd and Little
were truthful witnesses, I conclude that Business Representa-
tive Herd’s second visit to the jobsite did not take place on
February 20. The union representatives were Little and
Campbell.
Staton contended that he told ‘‘all the people’’ that they
had to sign a roster outside, but had the wrong date and did
not mention Del Bosque. The latter both affirmed and denied
saying anything about a signup roster, while Union represent-
ative Little did not recall that anything was said. This evi-
dence is insufficient to warrant a finding of a statement about
a signup roster on February 20.
As described above, Herd testified that he had a second
conversation with Del Bosque on February 28, but was un-
certain about Laborers Representative Garza’s presence. The
latter, however, affirmed that he went to the jobsite with
Herd 2 or 3 weeks after this initial visit with Herd on Feb-
ruary 1. Garza’s testimony about the conversation with Del
Bosque, given before Herd’s, is strikingly similar in content.
Del Bosque’s pretrial affidavit states that Herd returned to
the jobsite on February 28. Based on the detail of Garza’s
testimony, its similarity to Herd’s, and Del Bosque’s affi-
davit, I conclude that Garza accompanied Herd during the
second conversation which took place on February 28, and
that Herd’s uncertainty about Garza’s presence was the result
of a partial loss of recall.
According to Herd and Garza, Del Bosque, after some pro-
fanity, blamed Herd for ‘‘bringing all of them people out
here,’’ and told him that he did not want ‘‘any of your
Union people.’’ Although Del Bosque denied making such
statements, his denial relates to his position that the con-
versation with Herd took place on February 20, when the ap-
plications were filed. Herd and Garza were more believable
witnesses, and I credit their testimonies that Project Super-
intendent Del Bosque told Herd (and Garza) on February 28
that he did not want any union members working at the job-
site, and that none of the applicants on February 20 was
qualified.
Herd further stated that—on February 28—Del Bosque
told him that job applicants should sign the roster outside.
Neither Herd nor Garza had seen any such roster during their
prior visit on February 1. When Herd inquired whether this
was a ‘‘new procedure,’’ Del Bosque replied that ‘‘it didn’t
make any difference,’’ and that this was the way it was
going to be done ‘‘from now on.’’ Garza corroborated Herd
on this issue. Del Bosque’s equivocal testimony was insuffi-
cient to establish that any such statement was made on Feb-
ruary 20. However, crediting Herd and Garza, I conclude that
Del Bosque did make the statements attributed to him by
Herd and Garza on February 28.
During this conversation, according to Herd, he offered
and Del Bosque rejected the additional applications. Del
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 G.C. Exh. 8.
22 Supra at fns. 17, 19.
23 J. D. Landscaping Corp., 281 NLRB 9, 11 (1986); Service Operations
Systems, 272 NLRB 1022 (1984); National Car Rental Systems, 252 NLRB
159 (1980), enfd. as mod. 672 F.2d 1182 (3d Cir. 1982); Alexander’s Res-
taurant & Lounge, 228 NLRB 165 (1977), enfd. 586 F.2d 1300 (9th Cir.
1978).
24 Supra at fn. 17.
25 Supra at fn. 19.
26 R. Br. at 32.
Bosque’s testimony and pretrial affidavit are contradictory,
and I credit Herd.
I also credit Herd’s testimony that he had another dispute
with Del Bosque on February 28 over wage rates, and that
they were not posted where Del Bosque had put them on
February 1. The project superintendent returned them to the
bulletin board with the statement that that was the reason he
did not want the union—‘‘they’re running my business.’’
I credit Herd’s uncontradicted testimony that he attempted
to return to the D.S.E. trailer again on March 7 with the ad-
ditional applications, but was stopped by Bateson Project
Manager Frank Dale.
C. Responsibility for the Hiring of Carpenters
Carpenters Superintendent Staton asserted that he was re-
sponsible for the hiring of carpenters, carpenters’ helpers,
and laborers. He only supervised carpenters inside the build-
ing and did no outside work. Staton denied that he reported
to Project Superintendent Del Bosque. Instead, Staton
averred, he reported to Dallas-based Project Manager Jim
Renalt (Renaud). Staton agreed that he ‘‘consulted’’ with Del
Bosque if he needed carpenters, but contended that he,
Staton, made ‘‘all the decisions’’ on hiring them. The Car-
penters superintendent denied that Del Bosque ever told him
not to hire union members. According to Staton, Renalt
(Renaud) was also the direct supervisor of Project Super-
intendent Del Bosque, as well as Staton.
As indicated, Del Bosque testified that he was the ‘‘project
superintendent,’’ and declared: ‘‘I have . . . a Carpenter Su-
perintendent’’ (and other supervisors). Nonetheless, Del
Bosque contended that ‘‘only the concrete and rebar enti-
ties’’ were his responsibility. Del Bosque agreed that he
hired ‘‘some’’ of the employees that did outside form work,
a job which Del Bosque defined as ‘‘form setter/paving and
curb.’’ There were only five such employees, and they began
work in May. As noted, Union Representative Herd esti-
mated that the outside work accounted for about 4 percent
of the cost of the building.
Del Bosque asserted that ‘‘the carpenters’ responsibility
belongs to another person.’’ Asked whether he had anything
to do with carpenters, Del Bosque replied, ‘‘Not directly.’’
Asked whether he had anything to do with them ‘‘indi-
rectly,’’ Del Bosque responded, ‘‘Not necessarily.’’ Ulti-
mately, Del Bosque denied having anything to do with car-
penters. Nonetheless, he reviewed payroll records and
changed job classifications, including carpenters’ where re-
quired. Staton did not perform this function. When the union
representative came to the jobsite the second time with appli-
cants for carpenter positions, Del Bosque did not tell him
that Staton handled the carpenter hiring. As indicated, Del
Bosque repeatedly told Herd that he would not hire members
of the Carpenters union.
D. The Hiring of Carpenters and Laborers
Staton testified that he hired about 30–40 carpenters and
carpenters laborers, and discharged about 25. Staton agreed
that there were vacancies for carpenter positions after Feb-
ruary 20, and Respondent’s records show numerous individ-
uals hired after that date.21 None of the union members
whose applications were submitted or proffered22 was hired.
E. Legal Analysis and Conclusions
It is well established that failure to hire a job applicant be-
cause of his union sympathies or activities violates Section
8(a)(3) and (1) of the Act. Copes-Vulcan, Inc., 237 NLRB
1253, 1257 (1978), enfd. as mod. 611 F.2d 440 (3d Cir.
1979). The same principles apply when an employer, for the
same reasons, fails to consider an application for employ-
ment.23
As set forth above, 21 union members filed employment
applications on February 20.24 Further, Union Representative
Herd on February 28 attempted to deliver seven additional
applications to Project Superintendent Del Bosque, who re-
jected them.25 Considering Del Bosque’s repeated statements
to Herd that he would not hire any union members and his
other antiunion remarks, together with the rejection of the
seven applications on February 28, is clear that these union
members legally applied for employment on that date. Pack-
ing House & Industrial Services v. NLRB, 590 F.2d 688 (8th
Cir. 1978), enfg. in part 231 NLRB 735 (1977). There is no
doubt Respondent knew that the job applicants were union
members. None was hired.
Respondent contended at the hearing that the applications
were not ‘‘bona fide,’’ relying upon the Union’s constitu-
tional ban against nonunion work. However, the Union had
waived the ban and wanted work for its unemployed mem-
bers, albeit at the nonunion Postal Service facility job. There
is no credible evidence to support Respondent’s attack on the
bona fides of the applications. Accordingly, this argument
has no merit.
Respondent argues that Del Bosque’s statements do not es-
tablish union animus attributable to D.S.E., because Del
Bosque ‘‘had no involvement in the decision to hire or con-
sider for employment any carpenters.’’26 Respondent cites
Midwest Stock Exchange v. NLRB, 635 F.2d 1255 (7th Cir.
1980), remanding 244 NLRB 1108 (1979). In that case, the
Board had adopted a finding of a discriminatory discharge
based in part on the statement of one supervisor to another
that the employee had been discharged because she was a
‘‘troublemaker,’’ although neither supervisor was the one
who effected the discharge (id., 244 NLRB at 1114, 1119).
The Court of Appeals for the Seventh Circuit concluded that
the administrative law judge had ignored other evidence and
that there was no evidence that the supervisor making the
statement had played a role in the discharge (supra, 635 F.2d
at 1262). The Board reached a similar conclusion in another
case where the supervisor who made a coercive statement
and discharged the employee had previously been ordered by
his own superior to terminate the employee. John J. Hudson,
Inc., 275 NLRB 874 (1985).
The facts in this case appear to be the reverse of those in
Hudson. Thus, in that case the discharging supervisor had al-
897D.S.E. CONCRETE FORMS
27 See also ‘‘Restaurant Horikawa,’’ 260 NLRB 197 (1982).
28 R. Br. 33–34. 29 Supra at fn. 9.
ready been ordered by his own supervisor to terminate the
employee, and there was no evidence of animus on the part
of the superior. In this case, Plant Superintendent Del Bosque
made the coercive statements upon which the General Coun-
sel’s case is based.
As indicated, however, Respondent contends that Del
Bosque had nothing to do with the failure to hire the job ap-
plicants from the Union—it was Carpenters Superintendent
Staton’s responsibility. Respondent’s evidence on its super-
visory hierarchy—which is necessary to support this argu-
ment—is difficult to believe.
Although Del Bosque was the ‘‘project superintendent’’
and testified that he had a ‘‘carpenter superintendent’’
(Staton), nonetheless, Del Bosque, after evasive testimony,
said he had nothing to do with the carpenters. Del Bosque
himself directly supervised only five employees doing out-
side work, representing about 4 percent of the cost of the
building, while Staton hired many more. Both Del Bosque
and Staton, according to Respondent, reported to the same
project manager, who lived in another city and made only
three or four visits to the jobsite during relevant periods of
time. If Respondent’s contention that Staton did not report to
Del Bosque is correct, then D.S.E. had no project super-
intendent on the site for the great bulk of the work. It is es-
tablished Board law that the absence of any admitted super-
vision over employees, or a disproportionately small amount
thereof, constitutes evidence that a particular individual is a
supervisor. The same reasoning applies to Del Bosque’s posi-
tion as project superintendent and his authority over all em-
ployees including carpenters.
Although Staton contended that he made the decisions on
hiring, he admitted that he ‘‘consulted’’ with Del Bosque
about the matter. Del Bosque repeatedly told the Union that
he was not going to hire any union members. Despite Re-
spondent’s position on Staton’s allegedly exclusive authority
over carpenters, Del Bosque never informed Herd of this as-
serted fact during his disputes with the union representative.
Del Bosque, not Staton, corrected payroll job classifications
including those of carpenters. I conclude that Respondent
held out Del Bosque as the hiring authority on carpenters.
Senftner Volkswagen Corp., 257 NLRB 178, 182 (1981),
enfd. 681 F.2d 557 (8th Cir. 1982).27 Accordingly, I find, the
obvious antiunion animus in Del Bosque’s statements is at-
tributable to Respondent.
Respondent next argues that even if Del Bosque’s animus
is attributed to Respondent, none of the union applicants
would have been hired ‘‘in any event’’ because none met
Respondent’s hiring requirements. Thus, none was a former
or existing employee of D.S.E.; none was a former or exist-
ing employee of Dalcan; none had been recommended by a
D.S.E. employee; and the signup roster still had a large num-
ber of applications on it.28
Since both D.S.E. and Dalcan were nonunion, it is un-
likely that transfers from either Employer to the Postal Serv-
ice facility jobsite would have resulted in employment of a
union member. The same reasoning applies to the third cri-
terion—since D.S.E. did not hire union members, it is un-
likely that any D.S.E. employee would recommend one.
Oney, a nonunion employee, recommended Sloan, who was
also nonunion. Thus, the practical effect of the first three cri-
teria was to preclude employment at the jobsite by union
members.
With respect to the signup roster, the credible evidence
shows that none was in place at the D.S.E. trailer-office dur-
ing the union representatives’ visit there on February 1, and
that nothing was said about a roster. As indicated, the evi-
dence is insufficient to warrant a finding that there was any
roster requirement when the union members filed their appli-
cations on February 20—indeed, Del Bosque gave them
‘‘start-up’’ forms in lieu of telling them to sign a roster.
Union Representative Herd’s first knowledge of the roster
was on February 28, when he asked whether it was a ‘‘new
requirement,’’ and Del Bosque replied that it ‘‘didn’t make
any difference’’—that was the way it was going to be done
‘‘from now on.’’
These facts cast doubt on the validity of Respondent’s po-
sition that the roster was in place since November 1988, and
that signing it was the procedure by which an application
was made. Respondent did not request signing of the roster
on February 20, when the first union applications were filed.
In addition, there is ambiguous evidence about the filing of
applications with Bateson.
The roster itself has characteristics which are question-
able—the haphazard dating and interlineations of dates, and
the appearance late in the roster of a new column entitled
‘‘Date.’’29 The roster’s probative value is not enhanced by
the fact that only part of it is in evidence, the remainder as-
sertedly having been lost in a burglary. Although Oney and
Sloan testified that they signed such a roster in 1988, and
Oney again in January, this constitutes evidence only as to
those particular dates. The absence of the roster during the
union representatives’ first two visits in February suggests
strongly that it was not in place at all times prior to Feb-
ruary. Its sudden appearance on February 28, after two prior
union visits, and Del Bosque’s statement that the roster
would be used ‘‘from now on,’’ suggest that Respondent
posted it as a result of the union visits. Because of Respond-
ent’s antiunion animus, it is unlikely that any union member
would have been hired even if he had signed the roster.
These considerations tend to vitiate Respondent’s position
that it hired from the roster as the ‘‘fourth step’’ in this hir-
ing process, and that union members were not ‘‘considered’’
because their names were not on the roster.
Respondent’s statement of its hiring policies in its brief is
not complete. As Carpenters Superintendent Staton testified,
he wanted employees whom he ‘‘knew’’ because he wanted
carpenters who could do a good job. Thus, he looked twice
at the applications filed on February 20, but did not consider
them after the first week because he did not ‘‘know’’ them.
However, he knew that they were members of the Carpenters
union, and, from his own experience as a journeyman car-
penter, that they were qualified to do form work. It is un-
likely that he personally knew every individual supplied by
the first three hiring criteria—yet some were accepted. The
only apparent difference between the validity of the first
three criteria as indicia of competence, and that of journey-
man status of the February 20 applicants, was that the latter
were union members.
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 Supra at fn. 17.
31 Supra at fn. 19. 32 G.C. Br. at 13.
Respondent could not have rejected the applications filed
on February 28 because Staton did not ‘‘know’’ the appli-
cants—he did not even know who they were. Del Bosque re-
fused to accept the applications, the only apparent reason
being the fact that they came from the Union.
Although Staton agreed that carpenters’ laborers were de-
sirable in some kinds of work for purposes of economy, Del
Bosque made no response to Herd’s offer to save D.S.E.
money by means of a favorable ratio of journeymen to ap-
prentices.
For the foregoing reasons, I find that Respondent’s hiring
criteria do not establish that D.S.E. would not have hired the
applicants ‘‘in any event,’’ as Respondent argues. Rather, the
criteria reinforce the General Counsel’s position that the ap-
plications were not considered because the applicants were
union members. The preponderance of the evidence estab-
lishes that Respondent was pursuing a pattern or practice by
which it systematically declined to consider any union mem-
bers for employment.
I, therefore, conclude that, by failing to consider the appli-
cations for employment filed by 21 individuals on February
20,30 and 7 additional individuals on February 28,31 because
of their union sympathies or affiliation, Respondent thereby
committed unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act.
In accordance with my findings above, I make the fol-
lowing
CONCLUSIONS OF LAW
1. The Respondent, D.S.E. Concrete Forms, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Carpenters District Council of Houston & Vicinity,
Local 551, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing since February 20, 1989, and thereafter to
consider the individuals listed on Appendix A hereto for em-
ployment as carpenters at a jobsite in Houston where it was
performing work in connection with a United States Post Of-
fice, because the individuals were members of or sym-
pathized with the above-named Union, Respondent thereby
committed unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act.
4. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom, and to take certain af-
firmative action designed to effectuate the policies of the
Act.
The General Counsel acknowledges that there is ‘‘no way
of knowing at this juncture how many employee job appli-
cants were impeded’’ as a result of Respondent’s unlawful
failure to consider their applications for employment. The
General Counsel argues that ‘‘Respondent should be required
to make whole the employees [named in the complaint] and
leave to compliance how many persons should have been
employed and during what period of time.’’32
In similar circumstances, the Board has approved of a
remedy offering the discriminatee the same or substantially
equivalent employment that he would have received ‘‘absent
discriminatory consideration,’’ plus backpay. Pierce Gov-
ernor Co., 243 NLRB 1009, 1014 (1979). In National Car
Rental System, supra, the employer discriminatorily refused
to consider the transfer of employees from one facility to a
new facility, and the Board ordered the employer to offer
them the same or substantially equivalent jobs which they
would have received ‘‘absent the discrimination against
them,’’ plus backpay and placement on a preferential hiring
list (id., 252 NLRB at 163, 175). Member Penello, dissenting
and citing Pierce Governor, argued that it was ‘‘entirely pos-
sible that for lawful business reasons unit employees would
not in any event have been employed’’ at the new facility
(id., 252 NLRB at 166).
In Service Operations Systems, supra, a contractor was
awarded a contract for janitorial services at a Federal office
building, where there had been a prior contractor. The new
contractor recalled various of its own former employees and
hired new employees, but discriminatorily failed to consider
for employment individuals employed by the prior contractor,
several of whom filed applications. Since it was uncertain
which of the ‘‘incumbent’’ employees would have been se-
lected absent the discrimination, the administrative law
judges recommended that the employer be ordered to hire
those who had filed applications prior to the dates of the va-
cancies based on their seniority with the prior contractor, to
pay them backpay from the date they would have been hired,
and to place the remainder on a preferential hiring list (272
NLRB at 1043).
The Board agreed with further provisions. It stated that the
number of former employees who would have been hired
could be determined by subtracting the number of recalled
employees from the number actually hired. Since the Em-
ployer had unlawfully refused to provide applications to the
incumbent employees and had told them they would not
hired because of their union affiliation and because the union
had filed charges, the Board held that the Employer ‘‘effec-
tively precluded the Board from determining specifically
which individuals would have been hired had access to the
application process not been discriminatorily denied. The ap-
propriate remedy in this circumstance, where the burden of
uncertainty must lie on the wrongdoer, is to require the Re-
spondent to offer by seniority employment to all former in-
cumbent employees, discharging if necessary all other em-
ployees hired on or after (the date of unlawful failure to con-
sider employment),’’ and to place on a preferential hiring list
those for whom positions were unavailable. Member Dennis
dissented in part from the Board’s decision on the ground
that, ‘‘The remedy it provides is for a refusal-to-hire viola-
tion, not for a refusal-to-consider violation,’’ citing National
Car Rental Systems, supra (272 NLRB 1033 fn. 1).
In Blue Cross Blue Shield of Michigan, 286 NLRB 564
(1987), the employer discriminatorily failed to consider unit
employees for a particular position because of their union
status. The Board adopted the administrative law judge’s
remedy that the employer be required to ‘‘consider’’ all ap-
899D.S.E. CONCRETE FORMS
33 In accordance with our decision in New Horizons for the Retarded, 283
NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed
at the ‘‘short-term Federal rate’’ for the underpayment of taxes as set out in
the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior
to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S.C.
§ 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB
651 (1977).
34 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 objec-
tions to them shall be deemed waived for all purposes.
plicants for the position without regard to their union status,
and ‘‘to offer jobs . . . to all applicants [represented by the
Union] who . . . would have been offered such jobs but
for’’ the employer’s discrimination, dismissing, if necessary,
persons hired pursuant to the posting (id. at 587).
In the instant case, unlike those discussed above, the
discriminatees did not have employee status, either with this
Employer or with a predecessor, as in Service Operations
Systems. Accordingly, the discriminatees do not have senior-
ity with any employer to serve as a basis of selecting among
them for vacancies which occurred. The only way to make
such selection is by presentation of evidence of relative com-
petence in a compliance proceeding, or by stipulation. Fur-
ther, there is the possibility that the person actually selected
by Respondent for any such position may have been picked
even if D.S.E. had nondiscriminatorily considered all the
union applicants. This also is a matter for compliance.
The extent to which D.S.E. followed its professed ‘‘first-
come first-hired’’ policy based on roster signatures is un-
known and probably unknowable, because of the absence of
a major part of the roster. In any event, Respondent’s own
statement of its hiring process placed the first three ‘‘steps,’’
or criteria, ahead of the roster. Since the applicants’ journey-
man status provided assurance of competence at least equal
to that of the first three criteria, such status should have had
the same priority, ahead of the roster, absent discriminatory
motivation.
Although the parties stipulated that the applicants applied
for a position as a ‘‘carpenter,’’ the record does not contain
all the startup forms, or applications. Moreover, Del Bosque
told Herd that he was not hiring any ‘‘carpenters,’’ when
clearly he was doing so. The record contains evidence of
changes in job classifications, and of employees working in
jobs other than their purported classifications. The record
does not disclose whether Respondent in all instances em-
ployed an applicant in the same position for which he or she
applied. The precise nature of all applications needs to be de-
termined in a compliance proceeding, as well as Respond-
ent’s method of dealing with them, and whether Respondent
in practice ‘‘did not limit its consideration of an applicant to
the specific positions listed on the application.’’ Alexander
Dawson, Inc. v. NLRB, 586 F.2d 1300, 1304 (9th Cir. 1978),
enfg. 228 NLRB 165 (1977).
Accordingly, I shall recommend that Respondent be or-
dered to offer employment, in the applied for job if available
but to another if the former is unavailable, to every
discriminatee whose name appears on Appendix A and who
filed an employment application on or prior to the date of
a vacancy, where such employment would have been con-
sistent with Respondent’s hiring practices absent its discrimi-
natory policies, and where such discriminatee is superior in
qualifications both to other such applicants and to the em-
ployee selected by Respondent, discharging the latter if nec-
essary.
I shall further recommend that Respondent bear the burden
of proving by a preponderance of the evidence that the em-
ployee whom it actually selected for a particular vacancy had
qualifications superior to those of the union applicant with
the best qualifications. The Board with judicial approval has
shifted to the employer the burden of proving that the em-
ployee would not have accepted a timely offer of reinstate-
ment, had one been made. NLRB v. Trident Seafoods Corp.,
642 F.2d 1148 (9th Cir. 1981), enfg. 244 NLRB 566 (1979).
Since Respondent by its wrongdoing has contributed to the
uncertainty surrounding the identity of the individual who
would have been selected for each vacancy absent Respond-
ent’s discrimination, it is appropriate that it be required to
prove that the individual whom it did select was in fact the
one best qualified for the job.
If the Postal Service facility job has been completed by the
time for compliance, it would be meaningless to require a
job offer at that jobsite. Accordingly, I shall recommend that
such offers include other jobsites where Respondent is per-
forming work, starting with those closest to the Houston,
Texas metropolitan area. Superior Warehouse Grocers, 277
NLRB 18, 27 (1985).
In the event that the union applicant offered such position
refuses same, or fails to respond within a reasonable time,
Respondent shall offer the position to the next best qualified
union applicant, and so on until the list of such applicants
is exhausted. All discriminatees not thus offered positions
shall be placed on a preferential hiring list, and be offered
positions as they become available in the order of the
discriminatees’ relative competence.
In addition to the offers of employment described above,
Respondent shall make whole each applicant whom it would
have selected absent its unlawful conduct by paying him or
her a sum of money equal to the amount he or she would
have earned from the date of the vacancy to the date of such
offer less net earnings during such period, to be computed
on a quarterly basis in the manner established by the Board
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).33
I shall also recommend that Respondent be required to
post appropriate notices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended34
ORDER
The Respondent, D.S.E. Concrete Forms, Inc., Houston,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in Carpenters District Coun-
cil of Houston & Vicinity, Local 551, AFL–CIO, or any
other labor organization, by failing or refusing to consider,
for employment, applicants for same because of their union
activity or sympathies, or by discriminating against them in
any other manner with regard to their hire, tenure of employ-
ment, or terms and conditions of employment.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) In the manner described in the remedy section of this
decision, offer employment in the applied-for job if avail-
able, but to another if the former is unavailable, to every
discriminatee whose name appears on Appendix A and who
filed an employment application on or prior to the date of
a vacancy, where such employment would have been con-
sistent with Respondent’s hiring practices absent its discrimi-
natory policies, and where such discriminatee is superior in
qualifications both to other such applicants and to the em-
ployee selected by Respondent, discharging the latter if nec-
essary. Such offer shall include the Postal Service facility
jobsite in the Houston, Texas metropolitan area, if not com-
pleted, and other jobsites where Respondent may be per-
forming work, starting with those closest to the Houston,
Texas metropolitan area. Discriminatees not thus offered em-
ployment shall be placed on a preferential hiring list and be
offered jobs as they become available.
(b) Make whole all individuals who were unlawfully re-
fused employment, as subsequently determined in a compli-
ance proceeding, in the manner described in the remedy sec-
tion of this decision.
(c) Preserve and, on request, make available to the Board
or its agents, for copying, all payroll records, hiring lists, so-
cial security payment records, timecards, and all other
records necessary to determine the identities of the
discriminatees who were denied employment, and the amount
of backpay due under the terms of this recommended Order.
Such records shall include those at the Postal Service facility
job and at all other jobs where Respondent may have been
performing work contemporaneously with or subsequent to
completion of the Postal Service facility job.
(d) Post at its Postal Service facility jobsite in Houston,
Texas, and at all other jobsites where it may be performing
work copies of the attached notice marked ‘‘Appendix B.’’35
Copies of the notice, on forms provided by the Regional Di-
rector for Region 16, after being signed by Respondent’s au-
thorized representative, shall be posted by Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX A
1. Discriminatees who applied for employment on May 20,
1989:
James L. Bridwell Donnie Hooper
Delbert Campbell Woody Hopkins
Jimmie Caudle Linda Livesay
Allen Edgworthy Ona Merritt
Steve Conway Ricardo Perales
David Drake Calvin Rainwater
Warren Faubian Joe Reed
Gary Gardner Derrell Sample
Oscar Garza Gino Sirizzotti
C. L. Hammontree Jay C. Wagner
Oscar Hinojosa
2. Discriminatees who applied for employment on May 28,
1989:
Maria James Robert C. Atwood
Earl D. Roach Rocky A. Laird
George D. Parker Norman K. Burtt
Zachary Taylor
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discourage membership in Carpenters Dis-
trict Council of Houston and Vicinity, Local 551, AFL–CIO
or any other labor organization, by failing or refusing to con-
sider for employment applicants for same because of their
union activity or sympathies.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer jobs to the best qualified applicants from
the Union who applied for work at the Postal Service facility
jobsite in Houston, Texas, on or before the dates that vacan-
cies appeared there, and whom we would have hired but for
our discriminatory refusal to consider the application of any
union member. These offers will include offers at other
jobsites.
WE WILL make whole all individuals from the Union
whom we would have hired on nondiscriminatory consider-
ation of their applications, by paying them what they would
have earned, plus interest, from the date of the appearance
of a vacancy until the date we offer them employment.
D.S.E. CONCRETE FORMS, INC.