Shell Electric

National Labor Relations Board - Board Decisions

May 29, 1998

325 N.L.R.B. 839 (N.L.R.B. 1998)

839
325 NLRB No. 156
SHELL ELECTRIC
1 In accord with Excel Container, Inc., 325 NLRB No. 14 (Nov.
7, 1997), we shall change the date in par. 2(a) of the recommended
Order from Nov. 19, 1997 (the date of the judge’s recommended
Order) to Nov. 8, 1995, the date of the first unfair labor practice.
2 In finding that the Respondent showed no animus against the
Union by failing to hire five applicants, the judge relied, inter alia,
on the fact that the Respondent had hired a number of union mem-
bers, including Brian Fults. In support of his finding that the Re-
spondent was aware of applicant Fults’ union membership, the judge
relied on Fults’ employment application. There is no such applica-
tion in evidence; Fults testified that the Respondent’s president,
Martell, said that he lost Fults’ application. We correct this factual
error which does not affect the result in this case.
1 In his posthearing brief, counsel for the General Counsel moved
to amend the complaint to remove the names of two alleged
discriminatees, Kevin Keavney and Francis Kirby, since no evidence
was presented to support the allegations concerning them. The mo-
tion is granted.
Shell Electric and International Brotherhood of
Eelectrical Workers, Local Union 24. Cases 5–
CA–25778 and 5–CA–26135
May 29, 1998
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND BRAME
On November 19, 1997, Administrative Law Judge
James L. Rose issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs, and has
decided to affirm the judge’s rulings, findings, and
conclusions and to adopt his recommended Order as
modified below.1
In adopting the judge’s dismissal of the 8(a)(3) alle-
gations, we emphasize his finding that, even assuming
that Daryl Martell, the Respondent’s president, might
be found to have had knowledge that the job applicants
were members of the Union, the record does not con-
tain substantial evidence of antiunion animus or that
the refusal to hire the applicants was motivated by
their union affiliation.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Shell
Electric, Baltimore, Maryland, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order as modified.
Substitute the following for paragraph 2(a).
‘‘(a) Within 14 days after service by the Region,
post at its Baltimore, Maryland facility copies of the
attached notice marked ‘Appendix.’4 Copies of the no-
tice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since November 8, 1995.’’
Steven L. Sokolow, Esq., for the General Counsel.
Joseph T. Mallon Jr., Esq., of Baltimore, Maryland, for the
Respondent.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me at Baltimore, Maryland, on August 20,
1997, on the General Counsel’s complaint which alleged
principally that the Respondent failed to hire, or consider for
hiring, seven1 members of the Charging Party in violation of
Section 8(a)(3) of the National Labor Relations Act (the
Act). It was also alleged that the Respondent committed sev-
eral violations of Section 8(a)(1). The Respondent generally
denied that it violated the Act.
On the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Maryland corporation engaged con-
tracting commercial and residential electrical services, during
the course of which business it annually receives at its Balti-
more, Maryland facility goods, products, and materials val-
ued in excess of $50,000 directly from points outside the
State of Maryland and annually performs services valued in
excess of $50,000 in States other than Maryland. I therefore
conclude that the Respondent is an employer engaged in
interstate commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local
Union 24 (the Union) is admitted to be, and I find is, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Respondent was organized in 1994 and began oper-
ations in January 1995. The Respondent’s president is Daryl
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840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 All dates are in 1995, unless otherwise indicated.
Martell, a journeyman electrician with about 12 years’ expe-
rience. The Respondent’s superintendent is Joseph Stratton.
In addition to these two, the Respondent generally employs
about eight others, including one to four mechanics, helpers,
and office employees.
During 1995,2 from July on, the Respondent periodically
ran ads in the Baltimore Sun for electricians and helpers.
Each of the five alleged discriminatees responded by tele-
phone to one of these ads. Others did also, however except
for five union members who were either hired or offered a
job, the record is devoid of evidence concerning who an-
swered the ads, their union affiliation, if any, and whether
they were considered for hire.
Michael Berg is a journeyman electrician and a member
of the Union. He called in response to an ad in July and
talked to a woman who identified herself as Kim. According
to Berg, she asked if he belonged to a union and he said he
did, to IBEW Local 24. She said someone would call him,
but he received no call. He again responded to an ad in No-
vember and again spoke to Kim. This time she asked him
some trade questions, the employers he had worked for, the
wage he was seeking, and other questions. Then she said
someone would call, but again no one did. Finally, Berg
called again in January 1996, and was asked generally the
same questions, with the same result.
James Loftis is a journeyman electrician and a member of
the Union. He also responded to the July ad and spoke to
a Mrs. Anderson, who asked his wage demand, and previous
employers. He was never contacted by the Respondent. He
again called about the November ad. Someone took his name
and number, but he was not contacted.
Louis Clark is a journeyman electrician and a member of
the Union. He responded to the July ad and talked to a per-
son identifying herself as Renee and then to Martell, who
gave him ‘‘an on-phone application, I guess you’d call it, a
small test, a quiz.’’ Martell also asked about his work experi-
ence and Clark named two to four contractors. Martell said
he would get back to Clark, but never did.
Clark called again in November and was invited in for an
interview. At this he wore either a union jacket or a union
hat. According to Clark, but denied by Martell, Martell asked
if Clark was hired would he refrain from wearing union
clothing. ‘‘Then he went on to ask me, if he hired me, if I
could refrain from speaking about union wages and benefits
on the job to the other employees.’’ On wages, Clark said
he wanted $15 or $16 per hour, but Martell said he could
only offer $6. Clark testified that he agreed, since this was
better than unemployment compensation. And Clark testified
that he had the impression he had been hired, but was not
further called by Martell nor did he go to work for the Re-
spondent. In fact, he was not, as anticipated, laid off from
his current employer (where he was earning $20.10 per
hour).
Martell specifically disputed offering Clark $6 per hour,
stating such a low wage would have been insulting to a jour-
neyman, such as Clark. Clark’s assertion does seem question-
able, since Martell in fact paid journeymen between $12 and
$15 per hour (the rate offered to Brian Fults in July and at
which Brian Shell was hired in December). However, I con-
clude that this particular conflict is not material and need not
be resolved.
Carey Green testified that he answered the Respondent’s
ad in July, was told that the interviewer was not available
and he called back in a couple days. He then talked to
Martell. Martell asked a couple technical questions and asked
what contractors he had worked for. Green gave him the
names of both union and nonunion contractors, but there was
no mention of the Union. The interview ended when Martell
‘‘just basically hung up.’’ Green has had no subsequent con-
tact with the Respondent.
Lawrence Lister also answered the ad in July, talking to
a woman who identified herself as Renee or Rena. She asked
some trade questions, his experience, and the contractors he
had worked for. She asked no questions about his union af-
filiation. Lister called back three times, but was never able
to reach Martell. He apparently has had no subsequent con-
tact with the Respondent.
Brian Fults is a journeyman electrician and a member of
the Union. He also called in response to the ad in July, was
interviewed in person by Martell, and was offered a job at
$15 per hour. Fults declined the offer.
Brian Shell is also a journeyman, having completed the
apprenticeship training program in June, and a member of
the Union. In December he had heard from ‘‘my union
brothers’’ that the Respondent was taking applications, so
Shell went by the shop and put in an application. He first
met the secretary and then Martell. During the course of his
interview with Martell, ‘‘[t]hey [Martell and presumably
Stratton] just made notes that my references were union con-
tractors.’’ Two days later he was called by Martell and of-
fered a job at $15 per hour. Shell worked for the Respondent
3-1/2 weeks before quitting.
B. Analysis and Concluding Findings
1. The alleged discriminatory refusal to hire
To establish a case of discriminatory refusal to hire, cer-
tain elements must be proven, as counsel for the General
Counsel notes: the individual applied for a job opening, was
known, or could reasonably be expected, to be a member of
a union against which the employer had animus and the em-
ployer refused to hire the applicant because of that animus.
It is not, however, a a prima facie violation of the Act where
a nonunion employer fails to hire a union member. There
must be some proof of knowledge, animus, and causal con-
nection. Dorey Electric Co., 312 NLRB 150 (1993).
Unquestionably, the five individuals named in the com-
plaint applied for jobs with the Respondent and were not
hired. The General Counsel asserts that their known union
membership, or support, can be inferred from the fact that
they named union employers in their applications and Martell
must have known those employers were union because he
had worked at the trade in the Baltimore area for 10 years.
While this may be some evidence of company knowledge,
the Board has never held that such is sufficient to establish
knowledge of union membership. See, e.g., Tyger Construc-
tion Co., 296 NLRB 29 (1989), where it was held that nam-
ing union employers on an applications was not enough to
establish knowledge. In Fluor Daniel, Inc., 304 NLRB 970
(1991), relied on by the General Counsel, there were addi-
tional factors, such as a mass filing of applications and state-
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841SHELL ELECTRIC
ments on the applications to the effect that the individual was
a union organizer.
But even assuming that Martell might be found to have
had knowledge that these individuals were members of the
Union, there is no evidence that he harbored animus against
the Union or refused to hire them because of their union af-
filiation.
Animus, of course, may be inferred, as for instance in
Fluor Daniel, where the respondent had knowledge of the
union affiliation of all 48 alleged discriminatees, none of
whom was in called in for an interview, in contrast to those
offered jobs who displayed either weak or nonexistent union
affiliation. There the Board found that ‘‘such a blatant dis-
parity is sufficient to support a prima facie case of discrimi-
nation.’’
But such are not the facts here. Thus Ron Oravecz, Brian
Shell, Todd Muse, and Bob Wagner all indicated on their ap-
plications that they were or had been members of the Union
(or a sister local) and all took jobs with the Respondent dur-
ing the material time. And union member Brian Fults was of-
fered a job which he declined.
Counsel for the General Counsel argues that these facts do
not disprove animus. Since Shell was hired after the charge
was filed, it is argued that the Respondent was attempting to
build a case. Muse indicated on his application that he had
not been a member since 1991 when he went into business
for himself (an argument I reject because the application
does not support this contention). And, Wagner stated in his
application that he was seeking steady employment which
would allow him to relinquish his membership.
While the Wagner and perhaps the Muse applications may
suggest weak union affiliation, such is insufficient to support
the inferences argued for by the General Counsel. Indeed, the
applications of Oravecz, Shell, and Fults show at least as
strong union affiliation as those of the discriminatees. Thus
of the 12 mechanics hired from time to time during the mate-
rial period, four were union members. Another applicant of-
fered a job was a union member. From these facts, the infer-
ence of animus against the Union is not warranted.
Finally, there is no direct evidence that Martell had animus
against the Union or was motivated in his hiring decisions
by the union membership of any applicant. I specifically re-
ject counsel for the General Counsel’s contention that a find-
ing of animus should be made because Martell gave ‘‘mis-
leading and deceptive testimony about the hiring of’’ Muse
and Wagner. (G.C. Br. at p. 13.) I find his testimony con-
cerning the hiring of these individuals consistent with their
applications.
I therefore conclude that the General Counsel did not es-
tablish a prima facie case that the Respondent discriminated
against any of the applicants named in the complaint.
2. The 8(a)(1) allegations
a. Union insignia
As noted above, in July Louis Clark called in response to
an ad, was interviewed by telephone, and then heard nothing.
He called again in November, and this time was invited in
for a personal interview with Martell. At the interview, Clark
wore either his union jacket or hat, or both, and Martell
‘‘asked me, if he did hire me, if I would refrain from wear-
ing my union clothing and I told him it was my normal work
attire, but it wouldn’t be too much a major problem.’’
Though Martell did not specifically address this conversa-
tion, he did deny that he ever requested ‘‘that these employ-
ees or any other employees refrain from wearing union insig-
nia.’’ From the vagueness of Martell’s denial, and specific
assertion of Clark, I conclude that he was asked, if hired, not
to wear union clothing. I make this finding, notwithstanding
my concern about Clark’s testimony that he was offered $6
per hour.
Three days after Brian Shell started working for the Re-
spondent, a person he identified as ‘‘Bob’’ and as the ‘‘fore-
man’’ said, ‘‘I think you should take them [union] stickers
off your lunch box.’’ Shell complied.
Absent ‘‘special circumstances’’ (not shown to be present
here) an employer may not prohibit employees from wearing
or displaying union insignia. Republic Aviation Corp. v.
NLRB, 324 U.S. 793 (1945); and Escanaba Paper Co., 314
NLRB 732 (1994), enfd. sub nom. NLRB v. Mead Corp., 73
F.3d 74 (6th Cir. 1996). And by definition, an applicant,
such as Clark, is an employee. Therefore, I conclude that
Martell violated Section 8(a)(1) by telling Clark he could not
wear union clothing if hired.
However, there is insufficient evidence that Shell was told
to remove the union stickers by a representative of the Re-
spondent. It is alleged, and denied, that Robert Wagner (pre-
sumably the ‘‘Bob’’ testified to by Shell) was a supervisor
and agent of the Respondent. There is no evidence he func-
tioned in any capacity other than a journeyman. There is no
evidence that whoever told Shell to remove the union sticker
from his lunch box had a position of authority with the Re-
spondent. Therefore, I conclude that the allegation concern-
ing Shell was not proven by a preponderance of the credible
evidence.
b. Telling employees not to discuss wages
When Clark was interviewed, Martell also asked ‘‘if he
hired me, if I could refrain from speaking about union wages
and benefits on the job to other employees.’’ This restriction
Martell readily admitted. Similarly, Stratton told Shell not to
discuss wages with other employees. Stratton also admitted
having done so.
Such a restriction on employees amounts to a ‘‘gag order’’
prohibiting them from engaging in clearly protected conduct
and is therefore violative of Section 8(a)(1) of the Act. Cat-
erpillar, Inc., 322 NLRB 674 (1996).
c. Interrogation
In paragraph 8 of the complaint, it is alleged that Martell
interrogated applicants for employment. No evidence was
presented concerning this allegation and it will be dismissed.
REMEDY
Having concluded that the Respondent committed certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
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842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 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
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.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Shell Electric, Baltimore, Maryland, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Prohibiting employees from wearing clothing with
union insignia.
(b) Prohibiting employees from discussing wages and
other terms and conditions of employment among them-
selves.
(c) 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.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
facility copies of the attached notice marked ‘‘Appendix.’’4
Copies of the notice, on forms provided by the Regional Di-
rector for Region 5, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed its facility in-
volved 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 Re-
spondent at any time since the date of this Order.
(b) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
The allegations in the consolidated complaint not specifi-
cally found violations of the Act are dismissed.
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 prohibit our employees from wearing cloth-
ing with union insignia.
WE WILL NOT prohibit our employees from discussing
wages and other terms and conditions of employment among
themselves.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
SHELL ELECTRIC
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