Interstate Builders, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 2001

334 N.L.R.B. 835 (N.L.R.B. 2001)

INTERSTATE BUILDERS 835
Interstate Builders, Inc. and International Association
of Bridge, Structural, Ornamental & Reinforc-
ing Iron Workers Local 48, affiliated with In-
ternational Association of Bridge, Structural,
Ornamental & Reinforcing Iron Workers.
Cases 17–CA–19586, 17–CA–19620, and 17–CA–
19683
July 31, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE AND WALSH
On February 3, 1999, Administrative Law Judge Rich-
ard H. Beddow Jr. issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the judge’s
decision. By notice dated June 14, 2000, the Board in-
vited the parties to file supplemental briefs addressing
the framework for analysis of refusal-to-consider and
refusal-to-hire violations set forth in the Board’s May 11,
2000 decision in FES, 331 NLRB 9. The Respondent
and the General Counsel thereafter filed supplemental
briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.
We agree with the judge that the Respondent violated
Section 8(a)(3) and (1) of the Act by initially refusing to
hire and by later terminating employee John Norman,
and refusing to hire2 applicants John Buntin, Derrick
Haggard, Wesley Stillsmoking, and Floyd Woods as
ironworkers because they were members of or sympa-
thizers with the Union.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 36
2 (3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In his Conclusion of Law 5, the judge found that the Respondent
violated Sec. 8(a)(3) and (1) by “refusing to employ or consider for
employment” the applicants in question. As discussed below, we con-
clude that, under the FES framework, the evidence establishes a re-
fusal-to-hire violation. It is thus unnecessary to decide whether the
Respondent also violated Sec. 8(a)(3) and (1) by unlawfully refusing to
consider the applicants for hire, because the remedy for such a violation
would be subsumed within the broader remedy for the refusal-to-hire
violation. See Sommer Awning, Co., 332 NLRB No. 136, slip op. at 2
fn. 4 (2000); Budget Heating & Cooling, 332 NLRB No. 132, slip op.
at 2 fn. 3 (2000). The judge’s conclusion of law is modified accord-
ingly.
In FES, supra, the Board restated the elements that the
General Counsel must establish to meet its burden of
proof in a discriminatory refusal-to-hire case as follows:
(1) That the respondent was hiring, or had concrete
plans to hire, at the time of the alleged unlawful con-
duct; (2) that the applicants had experience or training
relevant to the announced or generally known require-
ments of the positions for hire, or in the alternative, that
the employer has not adhered uniformly to such re-
quirements, or that the requirements were themselves
pretextual or were applied as a pretext for discrimina-
tion; and (3) that antiunion animus contributed to the
decision not to hire the applicants.
Although the judge decided this case before the issu-
ance of FES and applied slightly different standards in
assessing the General Counsel’s case, we nevertheless
find that the General Counsel has met his burden of
proof regarding the initial refusal to hire Norman, and
the later refusal-to-hire Buntin, Haggard, Stillsmoking,
and Woods, under the standards set out in FES.
The facts are as follows. On February 22 and May 10,
1998,4 the Respondent advertised in a local newspaper
for “certified welders or iron workers.” The Respondent
stipulated that it hired 59 ironworkers between February
23 and September 15. On February 23, John Norman, a
journeyman ironworker and union organizer, filled out a
job application at the Respondent’s facility. The Re-
spondent’s general superintendent Tom Young asked
Norman the meaning of the “organizing stuff” listed on
his application. Norman answered that in addition to
organizing, he had been an ironworker since 1970 and fit
the requirements of the advertised positions. Holding his
index finger close to his thumb, Young told Norman that
the Respondent had come “that close” to signing an
agreement with the Union, and refused to hire him. On
March 17, however, the Respondent offered Norman a
3 We also agree with the judge that the Respondent violated Sec.
8(a)(1) of the Act by coercively interrogating applicants and employees
about their union membership and union activity, creating the impres-
sion that employees’ union activities were under surveillance, threaten-
ing to impose more onerous working conditions, and implying that
support of a union would be futile, and Sec. 8(a)(3) and (1) by impos-
ing more onerous working conditions on and laying off employee
David Hibdon.
In adopting the judge’s findings, we find it unnecessary to rely on
NLRB v. Great Dane Trailers, 388 U.S. 26 (1967); and J. E. Merit
Constructors, 302 NLRB 301 (1991).
4 Unless otherwise noted, all subsequent dates are in 1998.
334 NLRB No. 104
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 836
job, and he began work on March 24. He was terminated
on March 30.5
On May 12, in response to the second advertisement,
Buntin, Woods, Haggard, and Stillsmoking, accompa-
nied by Norman, went to the Respondent’s offices to
apply for positions as ironworkers, bringing with them
completed job application forms. Each of these appli-
cants was an experienced journeyman ironworker, with
training and experience relevant to the advertised posi-
tion. Norman told Tom Young that he had four indi-
viduals who wished to submit applications in response to
the newspaper advertisement. Young asked if the indi-
viduals were “union” ironworkers, and Norman replied
that they were. Young then asked Norman if the Union
had received a letter from the Respondent, stating that it
did not recognize the Union as the representative of its
employees. When Norman responded that the Union had
received the letter, Young reiterated that the Respondent
did not want union representation. Norman replied that
the individuals were not there for “union representation,”
but were seeking to fill the advertised jobs, and asked if
the four employees could submit applications. Young
refused, and, as Norman unsuccessfully attempted to
hand him the completed applications, stated that the Un-
ion should “go file another goddamn complaint.”6
We find that the General Counsel has successfully es-
tablished each element of the FES standards for a refusal-
to-hire violation. With respect to element (1), the news-
paper advertisements seeking ironworkers and the Re-
spondent’s stipulation that it hired 59 ironworkers be-
tween February 23 and September 15 demonstrate that
Respondent was hiring at the time of the alleged unlaw-
ful conduct in February and in May, and that it continued
to hire employees after refusing employment to Norman,
Buntin, Woods, Haggard, and Stillsmoking.7 With re-
spect to element (2), the fact that the Respondent eventu-
ally hired Norman demonstrates that it viewed him as
having experience and training relevant to the position,

5 The judge found that both the Respondent’s initial refusal to hire
Norman and Norman’s subsequent termination violated Sec. 8(a)(3)
and (1) of the Act.
6 The judge found that the Respondent’s refusal to hire Buntin,
Woods, Haggard, and Stillsmoking violated Sec. 8(a)(3) and (1) of the
Act.
7 Thus, we find this case distinguishable from HVAC Mechanical
Services, 333 NLRB No. 24 (2001). In HVAC, the Board remanded the
case to the judge for further proceedings in light of FES, because the
Board found that the General Counsel failed to satisfy FES’s require-
ment that “If the General Counsel is seeking a remedy of instatement
and backpay based on openings that he knows or should have known
have arisen prior to the commencement of the hearing on the merits, he
must allege and prove the existence of those openings at the unfair
labor practice hearing.” FES, supra, 331 NLRB at 14. In this case, the
General Counsel has demonstrated the existence of such openings.
and the record establishes that Buntin, Woods, Haggard,
and Stillsmoking were also experienced journeyman
ironworkers.8 With respect to element (3), Young’s hos-
tile reaction to the attempts by Norman on February 23,
and by Buntin, Woods, Haggard, and Stillsmoking on
May 12, to submit applications, especially his query
whether the applicants were “union” ironworkers and his
statement that the Union should file another complaint,
provide ample evidence that union animus contributed to
the decision to deny the applicants employment. Thus,
we are satisfied that the parties litigated, and the General
Counsel successfully established, each element of the
prima facie case of a discriminatory refusal to hire under
FES, supra.
Under FES, once the General Counsel has established
a prima facie case, the burden shifts to the respondent to
show that it would not have hired the alleged discrimina-
tees even in the absence of their union activities or af-
filiation. Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir.1981), cert. denied 455 U.S. 989
(1982). We agree with the judge that the Respondent has
failed to meet its Wright Line burden of showing that it
would not have hired the discriminatees even in the ab-
sence of their union activity. In this regard, we note that,
with respect to the applications of Buntin, Woods, Hag-
gard, and Stillsmoking, the Respondent does not contend
in its exceptions and supplemental brief that its rebuff of
these employees’ attempt to gain employment had any
other basis than the fact that they were accompanied by a
union representative. Rather, the Respondent asserts that
it refused to hire these employees based on its rule that
applicants for employment “speak for themselves” and
not through union representatives. We agree with the
judge, for the reasons he states, that this argument is
without merit. With respect to Norman, the Respondent
has offered no explanation as to why it initially refused
to hire him.
Accordingly, we conclude, in agreement with the
judge, that the Respondent violated Section 8(a)(3) and
(1) of the Act by initially refusing to hire John Norman,
8 We find this case distinguishable from Merit Contracting, Inc.,
333 NLRB No. 64 (2001). In Merit, the Board remanded the case to
the judge for further findings of fact with respect to the applicants’ job
qualifications. In that case, the respondent attempted to demonstrate
that it would not have hired the applicants in the absence of their union
activities, but the judge precluded exploration of whether the respon-
dent there would have hired the applicants, and quashed the respon-
dent’s subpoena seeking details of the applicants’ training and qualifi-
cations. Here, by contrast, the Respondent actually hired Norman after
initially refusing him a job. With respect to the May 12 applicants, at
the hearing the Respondent explored the job histories of Woods, Bun-
tin, Haggard, and Stillsmoking on cross-examination. Moreover, the
Respondent does not contend here that the applicants were not qualified
or would not have been hired.
INTERSTATE BUILDERS 837
and by refusing to hire John Buntin, Derrick Haggard,
Wesley Stillsmoking, and Floyd Woods.9
ORDER
The National Labor Relations Board orders that the
Respondent, Interstate Builders, Inc., Oklahoma City,
Oklahoma, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating applicants and employees about their
union membership and union activity.
(b) Creating the impression that employees’ union ac-
tivities are under surveillance.
(c) Threatening to impose more onerous working con-
ditions.
(d) Implying that support of a union would be futile.
(e) Imposing more onerous working conditions be-
cause of or in retaliation for engaging in union activity.
(f) Laying off or terminating employees because of or
in retaliation for engaging in union activity.
(g) Refusing to employ job applicants for the position
of ironworker because they are members of or sympa-
thizers with the Union.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
John Buntin, Derrick Haggard, Wesley Stillsmoking, and
Floyd Woods instatement in positions for which they
applied, or if such positions no longer exist, to substan-
tially equivalent positions, without prejudice to seniority
or any other rights and privileges they would have en-
joyed absent the discrimination against them.
(b) Make whole John Norman and those individuals
identified in subparagraph (a) above for any loss of earn-
ings and other benefits suffered as a result of our unlaw-
ful refusal to hire them, in the manner described in the
remedy section of the decision.
(c) Within 14 days of the date of this Order, offer
David Hibdon and John Norman full reinstatement to
their former positions or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
(d) Make whole David Hibdon and John Norman for
any loss of earnings and other benefits suffered as a re-

9 Chairman Hurtgen notes that there is some evidence that the Un-
ion’s actions were motivated by a desire to put the Respondent out of
business. He finds, however, that there is not enough evidence in this
record to warrant the conclusion that the job applicants at issue were
not bona fide applicants.
sult of the unlawful layoff of Hibdon and the unlawful
termination of Norman, in the manner described in the
remedy section of the decision.
(e) Within 14 days from the date of this Order, remove
from its files the following: any reference to the unlawful
refusal to hire John Norman, John Buntin, Derrick Hag-
gard, Wesley Stillsmoking, and Floyd Woods; any refer-
ence to the unlawful layoff of David Hibdon; and any
reference to the unlawful termination of John Norman;
and within 3 days thereafter, notify the employees in
writing that this has been done and that the unlawful
conduct of the Respondent will not be used against them
in any way.
(f) Preserve, and within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payments
records, including an electronic copy of such records if
stored in electronic form, timecards, personnel records
and reports, and all other records necessary to analyze
the amounts of backpay due under the terms of this Or-
der.
(g) Within 14 days after service by the Region, post at
its Oklahoma City, Oklahoma facility copies of the at-
tached notice marked “Appendix.”10 Copies of the notice,
on forms provided by the Regional Director for Region
17, shall be posted by the Respondent 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since February 2, 1998.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 838
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated 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 interrogate you about your union
membership or union activity.
WE WILL NOT create the impression that employees’
union activities are under surveillance.
WE WILL NOT threaten to impose more onerous
working conditions on you because of or in retaliation
for engaging in union activities.
WE WILL NOT imply that support of a union would
be futile.
WE WILL NOT discriminatorily lay off or terminate
you because of or in retaliation for engaging in union
activity or other protected concerted activities.
WE WILL NOT impose more onerous working condi-
tions because of or in retaliation for engaging in union
activity, or other protected concerted activities.
WE WILL NOT refuse to employ job applicants for
the position of ironworker because they are members of
or sympathizers with the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days of the date of the Board’s
Order, offer employment to John Buntin, Derrick Hag-
gard, Wesley Stillsmoking, and Floyd Woods in the posi-
tions for which they applied or, if such positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges that they would have enjoyed had they been
hired.
WE WILL make whole John Buntin, Derrick Haggard,
John Norman, Wesley Stillsmoking, and Floyd Woods
for any loss of earnings and other benefits that they may
have suffered as a result of our unlawful refusal to hire
them, less any net interim earnings, plus interest.
WE WILL, within 14 days of the date of the Board’s
Order, offer David Hibdon and John Norman full rein-
statement to their former positions or, if those positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make whole John Norman and David Hib-
don for any loss of earnings and other benefits that they
may have suffered as a result of the unlawful layoff of
David Hibdon and the unlawful termination of John
Norman, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order,
remove from our files the following: any reference to the
unlawful refusal to hire John Norman, John Buntin, Der-
rick Haggard, Wesley Stillsmoking, and Floyd Woods;
any reference to the unlawful layoff of David Hibdon;
and any reference to the unlawful termination of John
Norman; and WE WILL, within 3 days thereafter, notify
the employees in writing that this has been done and that
our unlawful conduct will not be used against them in
any way.
INTERSTATE BUILDERS, INC.

Frank A. Molenda, Esq., for the General Counsel.
Charles Ellis, Esq., of Oklahoma City, Oklahoma, for the Re-
spondent.
Loren Gibson, Esq., of Oklahoma City, Oklahoma, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge.
This matter was heard in Oklahoma City, Oklahoma, on Sep-
tember 23 and 24, 1998. Subsequent to an extension in the
filing date, briefs were filed by the General Counsel and the
Respondent. The proceeding is based on an initial charge filed
March 2, 1998,1 by International Association of Bridge, Struc-
tural, Ornamental & Reinforcing Iron Workers Local 48, affili-
ated with International Association of Bridge, Structural, Or-
namental & Reinforcing Iron Workers. The Regional Direc-
tor’s further consolidated complaint dated June 22, 1998, al-
leges that Interstate Builders, Inc. (Respondent), of Oklahoma
City, violated Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act) by unlawfully creating the impression
of surveillance, threatening employees with discharge, more
onerous working conditions and out of town assignments; inter-
rogating employees; informing them that it would be futile to
select the Union; assigning more onerous work assignments;
refusing to consider for hire or to hire named job applicants;
laying off David Hibdon on February 25; and discharged John
Norman on March 30 because of their union or other related
protected, concerted activities.

1 All following dates will be in 1998, unless otherwise indicated.
INTERSTATE BUILDERS 839
Upon a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged as a steel erection contractor in the
construction industry in the Oklahoma City area. It annually
purchases and receives goods and materials valued in excess of
$50,000 directly from points outside Oklahoma and it admits
that at all times material has been an employer engaged in op-
erations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also admits that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent employs persons in the operating engineer
and the iron workers crafts and it has a collective-bargaining
agreement with the Operating Engineers Union covering its
operators but it does not have any collective-bargaining agree-
ment covering its ironworker employees. In late January 1998,
Iron Workers Union organizer, John Norman, visited Respon-
dent’s jobsites and enlisted the aid of Jan Coleman, an operat-
ing engineer and an employee of the Respondent, who agreed
to help organize ironworker employees. Coleman then circu-
lated authorization cards among Respondent’s employees at the
end of January and in early February.
David Hibdon, one of Respondent’s employees, signed a un-
ion card on January 29. Hibdon testified that on February 2, he
attended a group meeting conducted by Respondent’s foreman,
Ronnie Wehr. During the meeting, Wehr said he knew who
signed union cards and said that if they went union, they would
be sent home if they didn’t have their tools or equipment, or if
they were late for work. Wehr also said the employees would
work out of town and would not work in Oklahoma City if they
signed with the Union. He said that he would have to quit if the
Union came in because he would owe $3000 in back dues.
Hibdon identified himself as a card signer and said that he
signed a card for long term benefits. Wehr answered that he
would not get any more money than he was getting then.
For the remainder of that day, and in the days that followed,
Wehr assigned Hibdon duties which included carrying heavy
pipes, which could have been moved on a forklift and set time
limits on his work, telling him it had to be done in 2 hours time.
On February 3, Coleman was called into a meeting with
General Superintendent Tom Young at Respondent’s facility.
Young asked if Coleman was trying to “unionize” the com-
pany, and if he was trying to get cards signed and asked what
kind of cards were involved. Coleman showed him a card and
Young asked specifically which ironworkers had signed.
Young concluded by telling Coleman that Respondent was not
going to be union. A few days later, Young approached Cole-
man and asked if anybody else had signed the union authoriza-
tion cards.
On February 11, Union Organizer Norman and Union Busi-
ness Agent John Hunter met with Bill Napier, Respondent’s
owner, at a restaurant in Oklahoma City. They asked Napier to
recognize the Union as collective-bargaining representative for
the Respondent’s ironworkers. Napier asked for time to con-
sider the matter but eventually turned down the Union.
Journeyman ironworker Jerry Griffith is president of the Lo-
cal Union but still works actively in the trade. After hearing of
Respondent from Norman, he went to Respondent’s office on
March 20 (while he was on layoff from his previous job),
turned in an application and met with Tom Young. Young
knew Griffith, who had worked in the past with his brothers.
He took the application, they spoke for a minute and Young
said he didn’t like the treatment the Union was giving him, he
thought it was unfair. A notation on Griffith’s application
(made by Young) said:

Told Jerry hire him in the morning at $16.00, no benefits. He
said he wasn’t sure he could work without benefits. He
would think about it. I said it was up to him.

Griffith remembers that Young said no benefit and they spoke
of coming back in the morning but he was unsure of whether he
was told he was going to be hired or not. He did not go back
the next day as he was recalled by a former employer.
On Sunday, February 22, an ad appeared in the Sunday
Oklahoma newspaper in which the Respondent sought “certi-
fied welders or iron workers.” The next day Norman went to
Respondent’s facility and filled out an application. After a few
minutes, Superintendent Tom Young came out holding the
application. He pointed at the document and asked what the
“organizing stuff” was all about (Norman’s description of his
union job). He asked what Norman had been doing besides
organizing and Norman replied that he’d been an ironworker
since 1970, that he fit the bill for Respondent’s newspaper ad
and he asked for the job. When Young said no, Norman asked
if Young wanted to talk about it. Young then held his index
finger and thumb close together and said Respondent owner
Napier had been that close to signing a (union) contract. Nor-
man asked again if the Respondent would hire him. Young
repeated the answer, no. After leaving Norman wrote contem-
poraneous notes described as “contact sheets” memorializing
the conversation.
On February 24, Hibdon was questioned by his supervisor,
Wehr, who asked whether the Union had called Hibdon. The
employee acknowledged that he had received a call. Wehr
asked what they wanted and Hibdon answered that the Union
wanted to know if he would go to work at a jobsite in Watonga.
At the end of the day, Wehr told Hibdon that he wouldn’t be
needing any more and should talk to the owners the next morn-
ing. Hibdon met with Harry Young the following morning and
was told he would not be working that day. He was sent home
and never returned to Respondent.
On March 17, Norman received a call from Respondent of-
fering him employment. He was unable to report immediately
but started work on March 24. He was assigned to work at
Tinker Air Force Base in the Oklahoma City area. He worked
with employee Richard Hopper welding handrails and
guardrails and during the workday, he spoke with Hopper about
the Union. On March 27, a rain day, Norman worked at the
union hall and saw Hopper come in to join the Union and then
learned that the Union sent him to work for a union contractor.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 840
On March 30, Norman returned to work at the jobsite. Fore-
man Harry Young asked where Hopper was and Norman told
him that Hopper would not be there because he had signed him
up with the Union. Norman told Young that he needed another
ironworker to help him on the job because there was too much
for one man. Young asked why, because Norman would just
organize them. Norman said that was his job, to give the Union
story to people. Norman also said the job was worth $22.57 an
hour and that’s what he wanted to make instead of the $16 he
was receiving. Young said he wasn’t putting up with “this shit”
and told him to get his check. Norman said he would work for
the $16 an hour but Young told him to go to the office, repeat-
ing that he would not put up with it. At the office he met with
Tom Young who was drawing up Norman’s final check. Nor-
man asked about the $22.57 an hour and asked why Respondent
would not give that to him. Tom Young said that pushers and
foreman got that rate and added that Norman had agreed to $16
an hour and that was what he would get. Norman relented and
said he had agreed to work for $16 and would work for that,
however, Young got Norman’s check and he was terminated.
By letter dated April 6, to Napier, Union Business Agent
John Hunter sent the Respondent five applications of members
who were journeyman ironworkers with 4 or more years of
experience seeking work “at the same terms extended to other
employees.” The letter also assured the Respondent that any
“protected activity” would be conducted in strict accordance
with Board guidelines and would not interfere with their effi-
ciency and productivity as employees.
By letter dated April 9, Owner Napier advised Business
Agent Hunter that the Company did not recognize the Union as
the representative of any of its employees and that it deals di-
rectly with applicants and not through representatives, that
Respondent did not accept applications mailed in by the Union
but rather applicants were invited to come to the office for an
interview. The letter also said the Respondent wasn’t hiring but
it would keep applications on file for a reasonable period of
time and would consider them when it was hiring.
On May 10, Respondent ran another ad seeking ironworkers.
Norman spoke to ironworkers John “Gib” Buntin, Floyd
Woods, Derrick Haggard, and Wesley Stillsmoking who were
at the union hall looking for work and asked if they were inter-
ested in applying for work at Respondent at $16 an hour. When
they arrived, Norman told Tom Young that he had four guys
who wanted to fill out applications for employment in response
to the newspaper ad. Young asked if they were union iron-
workers. Norman said that they were and Young asked if the
Union got “the letter” (a reference to a April 9 letter sent by
Napier). Norman said he had and Young replied that they did
not want union representation. Norman said they were not
“union representation” but were there to fill the jobs that were
run in the newspaper ad. Buntin asked about the newspaper ad
and Young replied that they did not need any help. Norman
asked if Respondent would let the four ironworkers put in ap-
plications. Young said, “no” and as the men left Norman tried
to hand in the previously filled out applications. Young re-
jected them and said, “go file another goddamn complaint.”
During the time period between Norman’s initial application
for employment on February 23 and the rejection of the four
ironworkers on May 12, Respondent hired 38 employees of
which 32 were ironworkers. Between May 18 and September
15, the Respondent hired 35 more employees, including 27 in
ironworkers positions.
III. DISCUSSION
The proceeding involves the Respondent’s apparent failure
to hire union affiliated applicants for positions as ironworkers,
its discharge or layoff of two union activists, as well as certain
related Section 8(a)(1) unfair practice allegation including al-
leged threats, interrogations, and surveillance.
A. Refusal to Hire Criteria
The Board endorses a causation test for cases turning on em-
ployer motivation, see Wright Line, 251 NLRB 1083 (1980);
approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), however, the foundation of 8(a)(1) and (3)
“failure to hire” allegations rest on the holding of the Supreme
Court that an employer may not discriminate against an appli-
cant because of that person’s union status, Phelps Dodge Corp.
v. NLRB, 313 U.S. 177 (1941).
Based on the test set forth in Fluor Daniel, Inc., 304 NLRB
970 (1991), and KRI Constructors, 290 NLRB 802, 811 (1988),
and case cited therein, it is found that in a case of this nature the
General Counsel is required to meet an initial burden of proof
and establish that (1) an individual files an employment appli-
cation, (2) the employer refused to hire the applicant, (3) the
applicant is or might be expected to be a union supporter, (4)
the employer has knowledge of the applicant’s union sympa-
thies, (5) the employer maintains animus against union activity,
and (6) the employer refuses to hire the applicant because of
such animus. In order to rebut the General Counsel’s case, the
employer must establish that for legitimate reasons the appli-
cant would not have been hired absent the discriminatory mo-
tive. The qualifications of job applicants may be an expected
element of why an employer might refuse to hire any individual
and, accordingly, it is customary in relation to criteria (1) that
the record be developed to show that an applicant has the basic
job experience or training to match up with the position for
which the employer is seeking or accepting applications. How-
ever, there is no requirement that the General Counsel show (at
this stage of the proceeding) that an applicant has superior
qualifications that would mandate his selection for employ-
ment. Therefore, a resolution of an applicant’s total qualifica-
tions beyond his basic suitability for the position involved is
not an issue relevant to the basic criteria necessary to prove a
violation of the Act. This approach is consistent with the ap-
proach taken to discrimination claim under the Civil Rights Act
of 1964, compare Walker v. Mortham, 158 F.3d 1177 (11th Cir.
1998), and Patterson v. McLean Credit Union, 491 U.S. 164,
(1989), cited therein.
The Respondent’s defense must relate primarily to the rele-
vant criteria and information or evidence placed into the record
should relate to the criteria involved in a material and relevant
manner. Otherwise, it is inappropriate to pursue collateral or
tangential matters that have no direct bearing on the immediate
INTERSTATE BUILDERS 841
decision directed to the scope of the proper allegations of the
Regional Director’s complaint.
B. Procedural Matters
On brief the Respondent challenges my ruling at the start of
the hearing which substantially granting the Charging Party’s
petition to revoke Respondent’s subpoenas and it argues that in
order for any decision on relevancy, materiality, or credibility
to be made, the decisionmaker must have the subpoenaed
documents before him and that this was not possible without
requiring the production of the documents and the opportunity
for knowledge of the contents of those documents. The Re-
spondent’s subpoena requests the following documents:

1. The current constitution of the International Union
2. The current by-laws of Local 48
3. All current collective-bargaining agreements to
which Local 48 is a party.
4. The following records generated between January
1, 1998 and the present relating to Jerry Griffith, John
Buntin, Wesley Stillsmoking, Floyd Woods and/or Derrick
Haggard;
a. Records of the payment of dues and other financial
contributions to the International Union or Local 48.
b. Records of the payment of pension and other retire-
ment benefits made by the International Union or Local
48.
c. Records of referrals for work to any employer
through any hiring hall or other referral system operated
by Local 48.
d. Records of work performed for any employer.
e. All letters, memoranda, notes and reports relating to
the activities or status of such persons as members of the
International Union or Local 48.
5. All minutes of meetings of the membership of Lo-
cal 48 from January 1, 1998 to present.
6. All minutes of meetings of any committee of Local
48 from January 1, 1998 to the present.
7. All resolutions passed by Local 48 from January 1,
1998 to the present.
8. All manuals or other instructional material relating
to means and methods to organize employees for the pur-
pose of collective bargaining including so-called “salting”
initiatives.
9. All newsletters and other publications of general
distribution to the membership of the International Union
and Local 48 from January 1, 1997 to the present.
10. Documents and other material generated by, or
for, John Norman relating to his schedule of work and du-
ties as an employee of Local 48 including, but not limited
to, calendars, time slips, appointment books for the period
of March 23, 1998 to April 3, 1998.
11. All written reports or notes of any oral reports
submitted by John Norman between January 1, 1998 to the
present in his capacity as an employee of Local 48.
12. All letters written or received by Local 48, notes,
memoranda or other material referring to or relating to In-
terstates Building, Inc.

At the start of the hearing, I entertained the Union’s argu-
ment in support of its motion to quash the subpoena and exten-
sive argument by the Respondent in support of its position,
including the citation of decisions by two administrative law
judges. The Union responded citing the Board’s decision in M.
J. Mechanical Services, 324 NLRB 812 (1997). I then cited
two decisions of my own in which I had ruled on subpoena
issues similar to those involved here and I then granted the
Union’s motion to revoke except for items 9 and 10. I also
stated that most of the material sought was too speculative in
nature and that it was a fishing expedition type of subpoena. I
then stated that:

If some things come up during examination of the witness
that would tend to indicate the presence of documents that are
relevant to some issue that will be decided here, then I will en-
tertain any subsequent motion by the Respondent for the pro-
duction of those documents.

Among the witnesses called by the General Counsel were
Union Organizer John Norman, Local President Jerry Griffith,
and Local Executive Board Member John Buntin. On cross-
examination Bunton was asked about the makeup and duties of
the Board and about any reports to the Board or at member-
ships’ meetings about organizing activities. Over the Union’s
objection the witness was allowed to answer and he spoke
about verbal reports but indicated there were no written reports.
Griffith was cross-examined about any union rules against
members working for nonsignatory employees (he was unaware
of any). Norman was asked a similar question on cross-
examination as well as questions about the Union’s goal in
organizing the Respondent, the Union’s referral system, the
contact sheet document he filled in (which was produced), and
about any notes or reports of his activities.
The Respondent made no further request for the production
of documents as a result of its cross-examination, and no such
request was made after the General Counsel rested his case. In
the presentation of its own case, the Respondent called Union
Business Agent Hunter as a witness and questioned him about
the Local Union’s affiliation with the International, the Union’s
constitution and bylaws, whether either the Local or Interna-
tional Union published newsletters, and whether the involved
charges were the subject of any article.
As indicated above, after quashing the Respondent’s sub-
poena with respect to items 1–8 and 11, I provided an invitation
for any subsequent motion for production of documents, if
something indicative of relevant information arose during ex-
amination of witnesses. No such motion or request was made
and, even on brief, no further, specific request is made except
to argue generally about information about the nature of the
Union’s “salting” program. Otherwise, the Respondent had an
opportunity to examine or cross-examine the union business
agent, organizer, president, and an executive board member and
I find absolutely no basis for any possible finding that it some-
how was prejudiced by my rulings.
Under these circumstances, I conclude that there is no rea-
sonable basis for finding that the additional material sought in
the subpoena would be relevant to or led to the admission of
material evidence that would contribute to the development of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 842
the record necessary for evaluation and resolution of the issues
raised in the Regional Director’s consolidated complaint.
While the Respondent asserts that the description of the ma-
terial sought in Respondent’s subpoena was carefully drafted to
respond to the issues raised in the formal documents, it appears
to be general in nature and similar to other subpoena requests
generated as a common response in many refusal to hire or so
called “salting” proceedings. Essentially, it appears to be a
fishing expedition or, at best, an attempt at pretrial discovery,
which is not allowed by the Board. Otherwise, I find that the
nature of the material sought in the subpoena was adequately
made known by the description in the subpoena or is generally
made apparent by the context of counsel’s statements, and I
find, that is not relevant or material to any issue bearing on the
Respondent’s conduct in this case dealing with its interactions
with the job applicants. In this connection, it is noted that the
Respondent’s request would appear to be a collateral attack on
the Union’s organizing practices or “salting” program and the
likelihood of it producing any information that would tend to
relate to any material fact in dispute is so remote that it is an
unjustified burden on the parties and the procedures of the
Board. There is no reasonable basis for thinking that a tangen-
tial critique of the information sought would aid in the devel-
opment or evaluation of the record and, accordingly, my ruling
at the hearing is affirmed.
Alleged 8(a)(1) and (3) violations
Employee Hibdon signed an authorization card on January
29 and then attended a gathering of employees on February 2 at
which Foreman Wehr spoke to four or five employees. Wehr
said that he told them that when he was in the Union there were
good things and a lot of things he didn’t agree with and that he
then quit. He spoke about dues, waiting for jobs, and that a
union contractor would not tolerate the attendance habits of
some of Respondent’s present employees and would get a re-
placement from the union hall and that they would be sent
home from a union job if they came to the job without their
tools. He also agreed that he spoke about being referred to out-
of-town jobs but denied that he made any observation about the
owner’s views about unions.
As noted, Hibdon testified that Wehr said he knew who
signed union cards, what would happen to the employees if
they went union (would be sent home if they didn’t have their
tools or equipment, or if they were late for work, that employ-
ees would not work in Oklahoma City if they signed with the
Union). Wehr said he would have to quit if the Union came in
because he owed $3000 in dues, and told Hibdon he would not
get any more money with the Union than he was getting then.
The foreman’s alleged statement that he knew who signed
union cards, stands unrebutted and it clearly creates the impres-
sion that the Respondent had a source of knowledge of the em-
ployees union activities (Hibdon had signed a card only 4 days
previously), and that their activities were under surveillance.
This is a violation of Section 8(a)(1) of the Act, as alleged.
Moreover, it colors the climate under which his other remarks
must be viewed and, contrary to the Respondent’s claim, it
tends to substantiate the coercive effect of Wehr’s other re-
marks. Hibdon testified that he admitted to Wehr that he had
signed a card because Wehr had said that he already knew who
had signed. I find Hibdon’s demeanor to be credible and I fur-
ther find that his understanding of what Wehr said should be
credited over the similar but somewhat sanitized version of-
fered by Wehr. Wehr thereafter gave Hibdon (who weighs 140
to 147 pounds), more than usual supervision, time limits, and
assigned him to moving by hand 120 pound steel poles a dis-
tance of 300 feet, a task that usually would be done with a fork-
lift. Although Wehr testified that they did not have a forklift on
the job, that Hibdon did it on his own without being told to, and
denied that he gave him harder task or time limits, I find Hib-
don’s testimony to be more believable, especially in view of the
timing of these actions after Wehr’s coercive remarks and after
Hibdon’s identification as a card signer, and I credit Hibdon’s
testimony regarding this occurrence.
I find that Foreman Wehr’s statements also threatened em-
ployees with changes and more onerous working if the com-
pany recognized the Union. In keeping with his threats, Wehr
began to more strictly supervise Hibdon and made him perform
physically demanding duties. I find that the Respondent has
not persuasively shown that this was done for legitimate rea-
sons. Under these circumstances I find that this occurred be-
cause of Hibdon’s admitted union sympathies, and I find, that
the Respondent did threaten and impose more onerous working
condition in violation of Section 8(a)(1) and (3) of the Act as
alleged.
On February 3, Coleman was called into a meeting with
General Superintendent Tom Young at Respondent’s facility.
Young asked if Coleman was trying to “unionize” the com-
pany, and if he was trying to get cards signed and asked what
kind of cards were involved. Coleman showed him one and
Young asked specifically which ironworkers had signed the
union cards. Young concluded by telling Coleman that Re-
spondent was not going to be union and later asked Coleman if
anybody else had signed the union authorization cards. This
conduct was not refuted by Young and Young thereafter told
union applicants they would not be considered and to “go file
another goddamn complaint.” I therefore conclude that the
Respondent is shown to have interrogated employees and indi-
cated that union organization would be futile in violation of
Section 8(a)(1) of the Act as alleged.
Near the end of the day on February 24, Wehr asked Hibdon
if the Union had called him and when he said, “Yes,” Wehr
questioned what they wanted and Hibdon admitted that they
were offering him a job with a contractor in Watonga. This
questioning about Hibdon’s union affairs constitutes interroga-
tion in violation of Section 8(a)(1) of the Act and at the end of
the day (after apparent contact with the owner), Wehr told him
he wouldn’t be needed at the airport anymore because they
were trying to cut cost and that he should report to the owners
the next day. He then reported to Harry Young who told him
he wasn’t needed that day and to call the next morning.
Wehr admitted that the airport job lasted for another 2 weeks
but asserts that he sent him to the office because, in the steel
erection business, you “tend” to need less people at the end of a
job. Wehr, however, did not independently testify as to the
latter fact but agreed to the Respondent’s counsel wording in a
leading question asked on direct examination. Harry Young
INTERSTATE BUILDERS 843
was called by Respondent as a witness but he was not asked
about the events of February 24 and 25.
The series of events involving Hibdon’s employment and the
Union’s efforts to organize the Respondent show that the Re-
spondent was aware of and opposed to the Union’s efforts and
it specifically was aware that Hibdon had signed up and had
received an offer for a job with an apparent union contractor. It
also engaged in other illegal conduct, discussed above, and, in
addition, the timing of Hibdon’s layoff, right after his unlawful
interrogation by his foreman is sufficient to support an infer-
ence that the employees’ protected activities were a motivating
factor in Respondent’s subsequent decision to layoff or termi-
nate him. Accordingly, the testimony will be discussed and the
record evaluated in keeping with the criteria set forth in Wright
Line, 251 NLRB 1083 (1980), see NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983), to consider Respon-
dent’s defense and whether the General Counsel has carried its
overall burden.
As pointed out by the Court, in Transportation Management
Corp., supra, an employer cannot simply present a legitimate
reason for its action but must persuade by a preponderance of
the evidence that the same action would have taken place even
in the absence of the union or protected concerted activity.
Here, the Respondent provided no specific, independent, per-
suasive reason for Hibdon’s layoff other than the counsel’s
bland suggestions about the nature of the steel erection busi-
ness. Under these circumstances, I am not persuaded that Hib-
don would have been laid off on February 24, in the absence of
the union activity and, accordingly, I conclude that the General
Counsel has met his overall burden and shown that the Respon-
dent violated Section 8(a)(1) and (3) of the Act in this respect,
as alleged.
After Norman started work on March 24, he worked with
employee Richard Hopper welding handrails and guardrails and
spoke with Hopper about joining the Union. On March 27, a
rain day, Norman worked at the union hall and saw Hopper
come in to join the Union and then learned that the Union sent
him to work for a union contractor. On his return to work at the
airbase jobsite, Foreman Harry Young asked where Hopper was
and Norman told him that Hopper would not be there because
he had signed him up with the Union. Norman told Young that
he needed another ironworker to help on the job because there
was too much for one man. Young asked why, because Nor-
man would just organize them. Norman said that was his job,
to give the union story to people.
The Respondent called witness John Dyer, a manager for the
general contractor at the airbase jobsite, who saw the above
conversation. Dyer recalled Norman adamantly saying that he
heard the job was a prevailing wage job and that although he
had said he would work for $16 an hour, since he learned it was
a prevailing wage job he wanted $22 an hour. Dyer said he did
not hear the rest of the conversation.
I credit Norman’s testimony that Young then told him that he
wasn’t putting up with “this shit” and told him to get his check.
Norman said he would work for the $16 an hour but Young told
him to go to the office, repeating that he would not put up with
it. At the office he met with Tom Young who was drawing up
Norman’s final check. Norman again asked about the $22.57
an hour and asked why Respondent would not give that to him.
Tommy Young said that pushers and foreman got that rate add-
ing that Norman had agreed to $16 an hour. Norman then
agreed that he said he would work for $16 and would work for
that, however, Young got Norman’s check and he was termi-
nated.
The Respondent knew of Norman’s position as a union or-
ganizer and initially has refused to consider him for hire. It
appears that it again became annoyed with him after leaving
that his coworker had left for a union job. For the reasons
noted above, I again find, that the General Counsel has made a
Wright Line showing and that the Respondent is required to
persuasively show that it would have taken the same action
even in the absence of the union activity.
Respondent’s defense is based on an argument that it was
“privileged” in refusing to (continue to) employ Norman be-
cause of his “demand” for a $22 an hour wage rate and it argues
that Norman voluntarily quit because the Company would not
agree. Although witness Dyer said Norman’s tone was ada-
mant, he also said Norman did not say he would quit if he
didn’t get the raise.
Here, I credit Norman’s testimony that he separately told
both Harry and Tom Young that he would continue to work for
the previously agreed on rate. On brief the Respondent alludes
to Norman’s attendance record, yet it is clear that Norman was
not told and was not terminated for any attendance problem,
and I find, that this contention indicates pretext on the part of
the Respondent rather than a contrived plan by Norman to
“quit” in order to pursue his other union duties, as suggested by
the Respondent.
Otherwise, a request for increase pay (because Norman ap-
parently learned it was a prevailing wage job), does not support
the Respondent’s speculative conclusion that Norman implied
that he would quit if the Respondent didn’t comply. First,
Norman credibly testified that that he separately told both
Youngs that he would continue to work for $16 an hour (the
mere fact that Norman did not refer to this in his contempora-
neous notes does not mean that it did not occur and Norman
specifically testified that his “contact sheets” generally cover
what events occurred he feels to be relevant and that he does
not attempt to include a “complete” description of an event).
Secondly, there is no indication that either Harry or Tom
Young directed Norman to work or that Norman refused any
such direction. Instead, Harry Young clearly express his irrita-
tion with Norman by commenting that Norman would just or-
ganize any new helper (and induce him to leave as Hopper did),
said he wouldn’t put up with “this shit,” and he then terminated
him by telling Norman to get his check.
Under these circumstances it is clear that Norman was fired
because Young would not put up with Norman’s organizing
efforts. Otherwise, the Respondent has failed to persuasively
show that Norman would have been terminated even in the
absence of his union activities and I conclude that the General
Counsel has shown that the Respondent’s conduct violates
Section 8(a)(1) and (3) of the Act, as alleged.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 844
C. Refusal to Hire or Consider Union Applicants
As noted above, the test set forth in Fluor Daniel, supra, re-
quires that the General Counsel must establish that (1) an indi-
vidual files (or attempts to file), an employment application, (2)
the employer refused to hire or to consider the applicant, (3) the
applicant is or might be expected to be a union supporter, (4)
the employer has knowledge of the applicant’s union sympa-
thies, (5) the employer maintains animus against union activity,
and (6) the employer refuses to hire the applicant because of
such animus. In order to rebut the General Counsel’s case, the
employer must establish that the applicant would not have been
hired absent the discriminatory motive. The qualifications of
job applicants may be an expected element of why an employer
might refuse to hire any individual, and, accordingly, it is cus-
tomary in relation to criteria (1) that the record be developed to
show that an employer is seeking or accepting applications.
However, there is no requirement that the General Counsel
show (at this stage of the proceeding), that an applicant has
superior qualifications that would mandate his selection for
employment. Here, the applicants indicated they were qualified
journeyman iron workers with 4 or more years of experience
and the fact, when one applicant, Norman, subsequently was
hired he worked successfully without any challenge or question
as to his job skills.
On the second day of this hearing Richard Hopper was called
by the Respondent and testified that after he worked several
union jobs no new referrals were available and Norman and
Hunter asked him to go back to the Respondent and help the
Union by reporting back any safety (OSHA type) violations he
observed. He also testified that Norman said they were “going
to make everybody go union with all their power” and that “if
they can’t be a union company then we’ll want to get them out
of business.” Hopper testified he went back to the Respondent
(where he had worked fairly regularly for 15 years) but did not
call back to the Union. After 4 months, he then made the fore-
man and crane operator mad after he spray painted the inside of
the Respondent’s crane (red on white) and was too afraid or
embarrassed to try to go back to work. After a month of sleep-
ing in his truck and doing odd jobs in the Dallas area, he re-
turned to Oklahoma and was rehired by the Respondent on
September 23 (the day the hearing opened in this proceeding),
Norman was not questioned about his alleged remark by either
party, however, he was asked on earlier cross examination by
the Respondent about the “ultimate goal” of the Union and he
answered that it was to “sign them to a union contract.”
Based on Hopper’s testimony the Respondent asserts that the
Union was motivated by a desire to run the Company out of
business and that the “salting” was a subterfuge which deprives
the applicants of their status as employees.
While serious, Norman’s singular remark was the latter part
of a statement which first emphasized the Union’s desire to
make the company “go union.” This “threat” was not conveyed
to the company by Hopper and I am not persuaded that the
remark was anything more than braggado in view of Norman’s
specific testimony, that the “ultimate goal” was to get the Com-
pany “to sign a union contract.” Otherwise, I find that the Re-
spondent’s speculation about the Union’s motivation does not
adversely affect on the status of the job applicants and, accord-
ingly, I find that consistent with the Board and the Supreme
Court’s decision in NLRB v. Town & Country Electric, 516
U.S. 85 (1995), all the alleged applicant-discriminatees are
bona fide applicants.
Turning to a review of the specific criteria in Fluor Daniel,
supra, I find that it is clear that (1) John Norman, Jerry Griffith,
John Buntin, Derrick Haggard, Wesley Stillsmoking, and Floyd
Woods all filed or attempted to file applications with the Re-
spondent and (2) that except for Griffith, the Respondent re-
fused to consider or hire these applicants, although it did re-
verse its initial decision to refuse to hire Norman. When Nor-
man first applied on February 23, Superintendent Tom Young
twice answered “no” when Norman asked if the Respondent
would hire him and he was not called and offered a job until
March 17, shortly after the initial charge was filed in this pro-
ceeding.
(3) The applicants also clearly identified themselves as union
members and organizers and (4) the Respondent knew from its
other contacts with the Union that each of the applicants was a
union journeyman and union supporter.
It appears that the Respondent initially considered the possi-
bility of recognizing the Union and signing an 8(f) agreement
and the Respondent argues that Tom Young was indifferent to
Norman’s union affiliation and harbored no animus during his
conversation with Griffith. These assertions, however, are
belied by the fact that Young already had engaged in violations
of Section 8(a)(1) of the Act in his interrogation of Coleman on
February 3 and the Respondent, through Foreman Wehr, also
had interacted with employee Hibdon in a manner that violated
the Act, as discussed above. Young also gave Norman a point
blank refusal without concurrent or subsequent explanation that
might have indicated that he had some other or legitimate rea-
son for not considering him for hire. Other violations of the
Act occurred during this time frame and Foreman Harry
Young’s demeanor (I’m not putting up with this “shit”) at the
time Norman was terminated are factors that also are indicative
of animus. I conclude that the record is sufficient to show ani-
mus, and I also find, that animus otherwise is implicit in the
Respondent’s discriminatory practices and could be found here
even without specific proof of antiunion motivation, see J. E.
Merit Constructors, 302 NLRB 301, 304 (1991), and Great
Dane Trailers, 388 U.S. 26, 34 (1967).
Lastly, (6) I find that the record is sufficient to support an in-
ference that the Respondent’s antiunion animus was a motivat-
ing factor in its decision to not hire or not accept applications
from the alleged discriminatees, even as it was running want
ads seeking ironworkers and even at a time, between February
23 and May 12 when it hired 32 ironworkers and between May
18 and September 15, when it hired 27 more employees in iron-
worker positions.
The Respondent, in addition to the other arguments noted
above, asserts that Young’s reason for not hiring Norman ini-
tially was because he had requested the union scale of $22.57
an hour, a scale above the range of $12 to $16 an hour it usually
paid. This reason was not given to Norman, and I find, it to be
pretextual. Moreover, Young made no effort to discuss or ne-
gotiate wages as was the situation in GM Electrics, 323 NLRB
125 (1997), a case cited by the Respondent and, otherwise, a
INTERSTATE BUILDERS 845
Respondent cannot, without more, merely presume that a union
affiliated applicant would not work at the wage level paid by
the company, see Norman King Electric, 324 NLRB 1077,
1085 (1997).
With respect to the “group” applications on May 12, the Re-
spondent contends that Norman’s presence with the applicants
was only as their collective-bargaining representative (he did
most of the talking) and that it means that the applicant’s were
dealing with the Respondent through the Union, contrary to the
Respondent’s right to not recognize the Union. Here, on April
6, Union Business Agent Hunter sent five applications to the
Respondent under his cover letter and in response, on April 9,
owner Napier rejected them and advised the Union that it
would only deal with applicant’s who came to its office for an
interview. This policy is not challenged in the allegations
herein, however, when four applicants did come to the office, in
response to the Respondent’s May 10 ad seeking iron workers,
they were told the Respondent didn’t need any help and super-
intendent Young angrily rejected their attempt to hand in their
prepared applications.
The Respondent asserts a right to do as it did because the ap-
plicants were accompanied by a union representative and be-
cause the Respondent lawfully did not “recognize” the Union,
however, the right to not recognize the Union does not equate
with a right to reject union affiliated applicants merely because
they may be accompanied by a union agent. This would appear
to be especially true in the construction industry where unions
and employers can exchange proposals and can reach 8(f)
agreements. Norman’s presence and his participation in intro-
ductory remarks does not act to disenfranchise the individuals
who sought to apply in person, in accordance with the Respon-
dent’s own policy noted in its letter sent shortly before it ran
new want ads.
A union organizer/representative has the right to pursue his
union duties and to interact with others when he aids unem-
ployed union members in seeking employment or when they
jointly pursue organizing activities, including “salting” pro-
grams. Here, Norman and the applicants engaged in a courte-
ous and non disruptive effort to submit application and, other-
wise, the Respondent made no effort to ask Norman to leave or
ask that it be allowed to see or interview the applicants alone.
Instead, it asked if they were union workers, it adamantly stated
it did not want union representation, it rejected any explanation
that they were there only to seek the jobs offered in the news-
paper, it pretextually told them it didn’t need any help (when it
was hiring other ironworkers), and, with a display of rancor, it
rejected an attempt to leave applications for consideration.
Under these circumstances, I find that the Respondent has
failed to persuasively rebut the General Counsel’s showing of
unlawful motivation and, accordingly, I find that the General
Counsel has met its overall burden and shown that the Respon-
dent’s failure and refusal to consider and hire the discriminatees
named below violated Section 8(a)(3) and (1) of the Act, as
alleged.
Lastly, I find that the Respondent’s dealings with applicant
Griffith are not shown to be the same as those discussed above.
His contact with the Respondent occurred in February prior to
some of the other events and although Young made a comment
about not liking the treatment the Union was giving him, he
apparently had no personal animosity towards Griffith and
accepted and discussed his application and terms of employ-
ment. The record is somewhat ambiguous but either an offer of
employment was on the table or was held open until the next
morning. Griffith admits that he was unsure of his status but it
is clear that he did not pursue the open offer to come in the next
day and, under these circumstance, it cannot be found that the
Respondent refused to consider or hire him as an ironworker.
Accordingly, this portion of the complaint will be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an Employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By interrogating applicants and employees about union
membership and activity, creating the impression that an em-
ployee’s union activities were under surveillance, threatening to
impose more onerous working conditions, and implying that
support of a union would be futile; Respondent has interfered
with, restrained, and coerced employees in the exercise of the
rights guaranteed them by Section 7 of the Act, and thereby has
engaged in unfair labor practices in violation of Section 8(a)(1)
of the Act.
4. By discriminatorily imposing more onerous working con-
ditions and by laying off or terminating employees because of
and in retaliation for engaging in union activity or other pro-
tected concerted activities, the Respondent has violated Section
8(a)(3) and (1) of the Act.
5. By refusing to consider for employment or refusing to
employ job applicants for the position of ironworker because
they are members of the Union or for their union sympathies,
Respondent discriminated in regard to hire in order to discour-
age union membership in violation of Section 8(a)(3) and (1) of
the Act.
6. Except as found here, Respondent otherwise is not shown
to have engaged in conduct violative of the Act as alleged in
the complaint.
REMEDY
Having found that Respondent engaged in certain unfair la-
bor practices, I shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action set
forth below to effectuate the policies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that the Respondent be ordered to make employees
David Hibdon and John Norman whole for any loss of benefits
they may have suffered because of the discrimination practiced
against them by their premature layoff and termination by pay-
ment to them a sum of money equal to that which they nor-
mally would have earned it accordance with the method set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with in-
terest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987), and to offer them full reinstatement to their
former jobs, see Norman King Electric, 324 NLRB 1077, 1078
(1997).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 846
It having been found that the Respondent unlawfully dis-
criminated against job applicants John Norman, John Buntin,
Derrick Haggard, Wesley Stillsmoking, and Floyd Woods, it
will be recommended that Respondent offer the latter four ap-
plicants employment and make all of them whole for any loss
of earnings they may have suffered by reason of the failure to
give them nondiscriminatory consideration for employment, by
payment to them of a sum of money equal to that which they
normally would have earned in accordance with the method set
forth in Woolworth, supra, and New Horizons for the Retarded,
supra.2
Other considerations regarding the Remedy and the specifics
of the relief granted must wait until the compliance stage of the
proceeding, see Fluor Daniel, Inc., 304 NLRB 970, 981 (1991),
and Dean General Contractors, 285 NLRB 573, 574 (1987).
Otherwise, it is not considered necessary that a broad Order be
issued.
[Recommended Order omitted from publication.]

2 Under New Horizons, interest is computed at the “short term Fed-
eral rate” for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621.