Smith & Johnson Construction

National Labor Relations Board - Board Decisions

Oct 31, 1997

324 N.L.R.B. 970 (N.L.R.B. 1997)

970
324 NLRB No. 153
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent’s motion to strike the General Counsel’s brief is
denied as without merit.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In adopting the judge’s finding that the Respondent engaged in in-
terrogation of employee applicants, Chairman Gould finds it unnec-
essary to rely on Rossmore House, 269 NLRB 1176 (1984), enfd.
sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985).
3 We shall modify the judge’s recommended Order to reflect the
revisions to the remedy, discussed herein, and to comport with our
decision in Indian Hills Care Center, 321 NLRB 144 (1996).
We grant the General Counsel’s exception to the portion of the
judge’s recommended Order requiring the Respondent to offer em-
ployment to discriminatees. The recommended Order misspells two
of the discriminatees’ names and fails to require that the
discriminatees be offered employment in the job classifications that
they formerly occupied unless the Respondent no longer employs
anyone in those job classifications. We shall correct these errors. 4 Sec. 10(c) of the Act states in part:
Smith and Johnson Construction Company and
Transport Workers Union of America, Local
525, AFL–CIO. Case 12–CA–16987
October 31, 1997
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
DECISION AND ORDER
On March 12, 1996, Administrative Law Judge Wil-
liam N. Cates issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed exceptions and a brief in support
of the exceptions and the judge’s decision, and the Re-
spondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs1 and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions and to adopt the rec-
ommended Order as modified and set forth in full
below.3
1. In adopting the judge’s finding that the Respond-
ent, at its ground maintenance operations at Cape Ca-
naveral, is a successor to U.S. Contracting Company,
we note that the judge made the requisite finding, al-
beit not as part of his successorship analysis, that the
18 U.S. Contracting employees who the Respondent
unlawfully refused to hire would have constituted a
majority of the Respondent’s 26-person work force. In
making this finding, the judge properly included
among the 18 U.S. Contracting employees five who
were on layoff status from U.S. Contracting, with con-
tractual recall rights, at the time they applied for em-
ployment with the Respondent. See Derby Refining
Co., 292 NLRB 1015 (1989), enfd. sub nom. Coastal
Derby Refining Co. v. NLRB, 915 F.2d 1448, 1454–
1455 (10th Cir. 1990); Cincinnati Bronze, 286 NLRB
39, 45–46 (1987).
2. We agree with the judge that the Respondent was
obligated to recognize and bargain with the Union on
and after March 1, 1995, the date that the Respondent
began its ground maintenance operations at Cape Ca-
naveral. The judge found that Local Union President
Hill, in his telephone contacts with the Respondent,
implicitly demanded recognition. While we agree with
his finding, in our view it is not a necessary one. Rath-
er, under the circumstances here, no bargaining de-
mand was necessary, as the Respondent’s unlawful re-
fusal to hire all but one of its predecessor’s employees
rendered any request for bargaining futile. See Triple
A Services, 321 NLRB 873, 877 fn. 7 (1996); Preci-
sion Industries, 320 NLRB 661, 711 (1996) (‘‘The
[r]espondent may not now claim that the Union did not
officially demand recognition. Its calculated effort to
destroy the representational status of the Union by vir-
tue of an unlawful hiring process rendered any such ef-
fort a futility.’’). It would be incongruous to require
the Union to request the Respondent to recognize it
when the work force the Respondent actually em-
ployed, by virtue of its discriminatory hiring process,
included only one former U.S. Contracting employee.
3. The General Counsel excepts to the failure of the
judge’s recommended Order to require that the Re-
spondent rescind any unilateral changes it made and to
make employees whole for any economic loss they
suffered as a result of such changes. The General
Counsel contends that when a successor employer un-
lawfully discriminates in hiring to avoid a bargaining
obligation, the successor employer is not free to set
initial terms and conditions of employment unilaterally.
The General Counsel further contends that, although
there is no evidence that the Respondent changed
terms and conditions of employment from those that
were in effect at the time that U.S. Contracting ceased
operation, we nevertheless should provide a remedy for
such unilateral changes because such changes will like-
ly be discovered in the compliance phase of this pro-
ceeding.
We agree with the legal principle cited by the Gen-
eral Counsel that a successor employer that unlawfully
discriminates to avoid a bargaining obligation is not
free to set unilaterally initial terms and conditions of
employment. We, however, find no basis for applying
that principle in this case, because, as the General
Counsel admits, there is no evidence that the Respond-
ent changed terms and conditions of employment from
those that were in effect at the time that U.S. Contract-
ing ceased operation. It is axiomatic that we cannot
order a remedy for a violation that has not been estab-
lished.4 Although our decision in U.S. Marine Corp.,
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971SMITH & JOHNSON CONSTRUCTION CO.
If upon the preponderance of the testimony taken the Board
shall be of the opinion that any person named in the complaint
has engaged in or is engaging in any such unfair labor practice,
then the Board shall state its findings and shall issue and cause
to be served on such person an order requiring such person to
cease and desist from such unfair labor practice, and to take
such affirmative action including reinstatement of employees
with or without backpay, as will effectuate the policies of this
Act.
293 NLRB 669 (1989), enfd. 944 F.2d 1305 (7th Cir.
1991)(en banc), found that it was unnecessary for a
complaint to allege an 8(a)(5) unilateral change viola-
tion when the complaint did allege that the successor
employer’s refusal to recognize and bargain with the
Union violated Section 8(a)(5), it did not go so far as
to find that no evidence of the unilateral change need
be shown at hearing. Unlike U.S. Marine Corp., in the
present case no unilateral changes were shown to have
occurred. Accordingly, we find that the General Coun-
sel’s exception is without merit.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Smith and Johnson Construction Com-
pany, Cape Canaveral, Florida, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively
with Transport Workers Union of America, Local 525,
AFL–CIO as the exclusive collective-bargaining rep-
resentative of its employees in the following appro-
priate unit:
All full-time and regular part-time lawn mainte-
nance employees, including equipment mechanics,
tractor operators, laborers, full-time temporary la-
borers, and lead persons; but excluding all other
employees, managerial employees, clerical em-
ployees, guards and supervisors as defined in the
Act.
(b) Refusing to hire or otherwise discriminating
against employees in their hire or tenure of employ-
ment because they are members of Transport Workers
Union of America, Local 525, AFL–CIO or any other
labor organization.
(c) Interrogating employee applicants about their
union membership, activities, and sympathies.
(d) Impliedly threatening employee applicants with
reprisals because of their union membership, activities,
and sympathies.
(e) Directing its employees not to talk to anyone
about the Union.
(f) Directing its employees to report communications
from any individuals concerning the Union to the
Company.
(g) Informing its employees it refused to hire appli-
cants because of their membership in, activities on be-
half of, and sympathies for the Union.
(h) In any like or related manner interfering with,
restraining, 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
full employment to Donald Brands, Walter Brooken,
William B. Chapman, Tim Claiborne, Derrick Fowler,
Craig Graham, James Guy Jr., Melvin Haynes, Ken-
neth L. Kellem, Frank H. Major, John Monseur, Thur-
man Purdiman, Floyd D. Rachels, Charles Reed, Joel
Reed, Edwin Robles, Kevin Rocha, and Samuel E.
Smith in the job classifications that they formerly oc-
cupied for U.S. Contracting, or if the Respondent no
longer employs employees in those job classifications,
in substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges pre-
viously enjoyed, discharging if necessary employees
hired in their place.
(b) Make whole Donald Brands, Walter Brooken,
William B. Chapman, Tim Claiborne, Derrick Fowler,
Craig Graham, James Guy Jr., Melvin Haynes, Ken-
neth L. Kellem, Frank H. Major, John Monseur, Thur-
man Purdiman, Floyd D. Rachels, Charles Reed, Joel
Reed, Edwin Robles, Kevin Rocha, and Samuel E.
Smith for any loss of pay they may have suffered as
a result of discrimination against them in the manner
described in the remedy section of the judge’s deci-
sion.
(c) Recognize and, on request, bargain collectively
with Transport Workers Union of America, Local 525,
AFL–CIO as the exclusive collective-bargaining rep-
resentative of the employees in the bargaining unit de-
scribed in paragraph 1(a) above, and, if an agreement
is reached, embody that agreement in an executed writ-
ten contract.
(d) Within 14 days from the date of this Order, re-
move from its files all references to its unlawful re-
fusal to hire the discriminatees named above for its
Cape Canaveral Air Force Station Florida operation
and within 3 days thereafter notify them in writing that
this has been done and that the refusal to hire them
will not be used against them in any way.
(e) 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 pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(f) Within 14 days after service by the Region, post
at its office and place of business at Cape Canaveral
Air Force Station Florida copies of the attached notice
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972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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.’’
1 See, e.g., NLRB v. Staten Island Hotel, 101 F.3d 858, 862 (2d
Cir. 1996), enfg. 318 NLRB 850 (1995); Galloway School Lines,
321 NLRB 1422, 1428 (1996); Sierra Realty Corp., 317 NLRB 832,
836 (1995); State Distributing Co., 282 NLRB 1048 (1987); Love’s
Barbeque Restaurant, 245 NLRB 78 (1979).
marked ‘‘Appendix.’’5 Copies of the notice, on forms
provided by the Regional Director for Region 12, after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the Respondent and main-
tained 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 al-
tered, 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 current employees and former employ-
ees employed by the Respondent at any time since
March 10, 1995.
(g) 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.
MEMBER FOX, dissenting in part.
Contrary to my colleagues, I find merit in the Gen-
eral Counsel’s exception regarding the judge’s failure
to order the Respondent to rescind any unilateral
changes it has made since its unlawful refusal to rec-
ognize and bargain with the Union on and after March
1, 1995, and to make whole its employees for any eco-
nomic losses they may have suffered as a result of
such changes. My colleagues and I agree that the Re-
spondent, as a successor employer that unlawfully dis-
criminated in hiring to avoid a bargaining obligation,
was not free to set initial terms and conditions of em-
ployment unilaterally. My colleagues refuse, however,
to order the Board’s traditional remedy-that the succes-
sor reinstate the predecessor’s terms and conditions of
employment and make the employees whole for any
detrimental changes to their employment conditions1-
because there was no evidence introduced at the hear-
ing to establish that the Respondent made any unilat-
eral changes.
My colleagues have confused the General Counsel’s
obligation to introduce evidence in support of the com-
plaint allegations with the Board’s obligation to fash-
ion a remedy which fully restores the status quo ante
prior to the Respondent’s commission of unfair labor
practices. At the hearing establishing a successor’s bar-
gaining obligation, the General Counsel is required to
introduce evidence of unilateral changes only where he
has alleged the unilateral changes as separate unfair
labor practices in addition to the successor’s general
obligation to recognize and bargain with the union.
The absence of such complaint allegations or evidence
introduced at the hearing, however, in no way affects
the successor’s legal obligation to restore the status
quo ante by reinstating the predecessor’s terms and
conditions of employment or the Board’s obligation to
include such a provision in its order. This point was
made expressly by the Board in U.S. Marine Corp.,
292 NLRB 669, 672 (1989), enfd. 944 F.2d 1305 (7th
Cir. 1991) (en banc), in which it stated that the Love’s
Barbeque remedy requiring reinstatement of the prede-
cessor’s terms and conditions of employment need not
‘‘rest on a separate finding that the Respondents com-
mitted a separate unfair labor practice by unilaterally
changing employment terms. The illegality of such
changes is subsumed in the broader Section 8(a)(5) and
(3) allegations and violations found in this case.’’
Accordingly, to fully remedy the Respondent’s un-
fair labor practices and restore as nearly as possible the
situation that would have prevailed but for the Re-
spondent’s unfair labor practices, I would modify the
judge’s recommended Order to require that the Re-
spondent, on the Union’s request, reinstate its prede-
cessor’s terms and conditions of employment and
make the unit employees whole for any detrimental
changes to their employment conditions.
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
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to recognize and bargain col-
lectively with Transport Workers Union of America,
Local 525, AFL–CIO as the exclusive bargaining rep-
resentative of our employees in the following appro-
priate unit:
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973SMITH & JOHNSON CONSTRUCTION CO.
1 All dates hereinafter are 1995 unless I specify otherwise.
2 The complaint traces from an original unfair labor practice
charge filed by Transport Workers Union of America, AFL–CIO,
Local 525 on March 10 and amended on April 24, May 26, June
19 and 27, and July 14.
3 In its posttrial brief the Government moved to withdraw from the
complaint the name of Michael St. Jean based on a lack of evidence
Continued
All full-time and regular part-time lawn mainte-
nance employees, including equipment mechanics,
tractor operators, laborers, full-time temporary la-
borers, and lead persons; but excluding all other
employees, managerial employees, clerical em-
ployees, guards and supervisors as defined in the
Act.
WE WILL NOT refuse to hire or otherwise discrimi-
nate against job applicants to avoid bargaining with the
Union.
WE WILL NOT interrogate employee applicants about
their union membership, activities, and sympathies.
WE WILL NOT impliedly threaten employee appli-
cants with reprisals because of their union member-
ship, activities, and sympathies.
WE WILL NOT direct you not to talk to anyone about
the Union.
WE WILL NOT direct you to report communications
from any individuals concerning the Union.
WE WILL NOT inform you that we refused to hire
applicants because of their membership in, activities on
behalf of, and sympathies for 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 from the date of the
Board’s Order, offer full employment to Donald
Brands, Walter Brooken, William B. Chapman, Tim
Claiborne, Derrick Fowler, Craig Graham, James Guy
Jr., Melvin Haynes, Kenneth L. Kellem, Frank H.
Major, John Monseur, Thurman Purdiman, Floyd D.
Rachels, Charles Reed, Joel Reed, Edwin Robles,
Kevin Rocha, and Samuel E. Smith in the job classi-
fications that they formerly occupied for U.S. Con-
tracting, or if we no longer employ employees in those
job classifications, in substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed, discharging if nec-
essary employees hired in their place.
WE WILL make Donald Brands, Walter Brooken,
William B. Chapman, Tim Claiborne, Derrick Fowler,
Craig Graham, James Guy Jr., Melvin Haynes, Ken-
neth L. Kellem, Frank H. Major, John Monseur, Thur-
man Purdiman, Floyd D. Rachels, Charles Reed, Joel
Reed, Edwin Robles, Kevin Rocha, and Samuel E.
Smith whole for any loss of earnings and other bene-
fits resulting from our failure to hire them, less any net
interim earnings, plus interest.
WE WILL recognize and, on request, bargain with
Transport Workers Union of America, Local 525,
AFL–CIO and put in writing and sign any agreement
reached on terms and conditions of employment for
our employees in the bargaining unit described above.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
our refusal to hire the individuals named above, and
WE WILL, within 3 days thereafter, notify each of them
in writing that this has been done and that our refusal
to hire them will not be used against them in any way.
SMITH & JOHNSON CONSTRUCTION
COMPANY
David S. Cohen, Esq., for the General Counsel.
Leo P. Rock Jr., Esq., for the Respondent.
Richard Siwica, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. In this un-
fair labor practice prosecution the General Counsel (the Gov-
ernment) of the National Labor Relations Board (the Board)
alleges that Smith & Johnson Construction Company (the
Company) violated Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act (the Act). All allegations relate to
or are intertwined with the Company’s being awarded busi-
ness previously performed by U.S. Contracting Company
(U.S. Contracting) which provided grounds maintenance
services at the United States Air Force Station (Air Force)
located at Cape Canaveral, Florida (Cape).
On July 28, 1995,1 the Regional Director for Region 12
of the Board acting in the name of the General Counsel
issued a complaint and notice of hearing (complaint) against
the Company.2 I heard the case in trial in Rockledge, Flor-
ida, on September 21, 22, and 26.
The complaint, as amended at trial, alleges in the inde-
pendent 8(a)(1) counts that the Company through two spe-
cifically named agents on or about mid-February unlawfully
interrogated employee applicants; on or about mid-February
impliedly threaten employee applicants with unspecified re-
prisals; on or about mid-March and mid-April directed its
employees to report to the Company any communication
from any individuals concerning the Union; on or about mid-
March and mid-April directed its employees not to talk to
anyone about the Union; informed its employees in mid-
March that it refused to hire applicants because of their
membership in and activities on behalf of the Union; directed
its employees in late May—early June to report to the Com-
pany any communications from any individuals concerning
the Union; directed its employees in late May or early June
not to join the Union; and informed its employees it had re-
fused to hire applicants because of their membership and ac-
tivities on behalf of and sympathies for the Union. The
8(a)(3) counts in the complaint, as amended, alleges that on
or about March 1, the Company failed and refused to con-
sider and/or hire 19 applicants who submitted job applica-
tions to the Company in February.3 It is alleged the Com-
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974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that St. Jean ever applied for a position with the Company. I grant
the Government’s request with respect to St. Jean.
4 This individual is also referred to in the record as Rocha.
5 Certain other trial or pretrial admissions by the Company will be
set forth elsewhere in this decision.
6 The complaint alleges, the evidence establishes, the Company ad-
mits and I find it is an employer engaged in commerce within the
meaning of Sec. 2(2), (6), and (7) of the Act.
7 The complaint alleges, the evidence establishes, the parties admit,
and I find the Union is a labor organization within the meaning of
Sec. 2(5) of the Act.
8 The Company acknowledges it continued the predecessor’s busi-
ness without interruption or substantial change; that its employees
are performing the same jobs with the same working conditions as
the predecessor and that the predecessor’s project manager was hired
as its project manager with day-to-day supervisory control. The
Company acknowledges it purchased most of the equipment of the
predecessor employer and utilizes the same major parts suppliers that
its predecessor did. The evidence establishes, the Company admits,
and I find, it is a successor employer to the U.S. Contracting.
9 The most recent collective-bargaining agreement between U.S.
Contracting and the Union at Appendix A sets forth the following
job classifications: equipment mechanics, tractor operators, laborers,
full-time temporary laborers, and leadpersons.
10 Potts is the president and owner of D. M. Potts Corporation
headquartered in Melbourne, Florida. D. M. Potts Corporation pro-
vides grounds maintenance services for the Air Force at Patrick Air
Force Base which is located a few miles south of the Cape. It is
admitted that at all times material, Consultant Potts was an agent of
the Company within the meaning of Sec. 2(13) of the Act.
11 U. S. Contracting chose not to bid for a renewal contract with
the Air Force.
12 As noted elsewhere in this decision the awarding of the contract
by the Air Force was, for reasons not fully explained on this record,
delayed until February 28.
pany failed and refused to consider for hire or to hire
the following specifically named job applicants in
order to discourage employees from joining the Union
or engaging in protected concerted activities and to
avoid a bargaining obligation with the Union. The job
applicants named in the complaint are:
Donald Brands Frank H. Major
Walter Brooken John Monseur
William B. Chapman Thurman Purdiman
Tim Claiborne Floyd D. Rachels
Derrick Fowler Charles Reed
Craig Graham Joel Reed
James Guy Jr. Edwin Robles
Melvin Haynes Kevin Rochen4
Kenneth L. Kellum Samuel E. Smith
The 8(a)(5) count in the complaint, as amended, alleges the
Company has since on or about March 1, failed and refuse
to recognize and bargain with the Union as the exclusive col-
lective-bargaining representative of employees in a specifi-
cally described unit.
The Company’s answer to the complaint in conjunction
with admissions5 made at trial and/or in its posttrial brief es-
tablishes the Board’s jurisdiction is properly invoked6 and
that the Union is a labor organization7 within the meaning
of the Act.
I have studied the entire record, the parties posttrial briefs,
and legal authorities cited there. Based on that study and my
assessments of each witnesses testimony, I reach the follow-
ing findings and conclusions, including the ultimate conclu-
sion, that the Company committed unfair labor practices, for
the greater part, as alleged in the complaint.
I. THE FACTS
A. Background and Overview
The Company is a disadvantage minority business enter-
prise headquartered in Columbus, Ohio, and is primarily en-
gaged in heavy highway (bridge, culvert, and roadway exca-
vation as well as installation of guard rails) construction in
Ohio, Indiana, Kentucky, and West Virginia.
In its answer to the complaint and at trial the Company
denied it is a successor employer to U.S. Contracting—the
employer previously performing grounds maintenance serv-
ices at the Cape and other geographic areas along the eastern
coast of Florida. However, in its posttrial brief the Company
acknowledges it is the legal successor to U.S. Contracting.8
U.S. Contracting performed grounds maintenance services
at the Cape from 1990 until February 28, 1995. On Septem-
ber 10, 1991, the Board (Region 12) certified the Union
(Case 12–RC–7450) as the collective-bargaining representa-
tive of U.S. Contracting employees in an appropriate unit.
U.S. Contracting and the Union entered into collective-bar-
gaining agreements the most recent of which was executed
on August 11, 1994, and by its terms is effective from Octo-
ber 1, 1994, until September 30, 1997. The parties acknowl-
edge, as alleged in the complaint, that the following employ-
ees of the Company constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act.
All full-time and regular part-time lawn maintenance
employees, including equipment mechanics, tractor op-
erators, labors, full-time temporary labors and lead per-
sons; but excluding all other employees, managerial
employees, clerical employees, guards and supervisors
as defined in the Act.9
The Air Force gave notice in March 1994 to all interested
parties, including U.S. Contracting, the incumbent contractor,
that it intended to open the contract for grounds maintenance
services at the Cape. The Air Force issued a solicitation for
bids for the grounds maintenance services in question on
June 27, 1994. Among other items the bid solicitation pack-
age contained a copy of the collective-bargaining agreement
between U.S. Contracting and the Union.
U.S. Contracting’s contract with the Air Force expired on
September 30, 1994; however, it was extended on a month-
to-month basis until February 28.
The Company hired David Potts as a consultant (Consult-
ant Potts) to assist it in formulating its bid package for the
grounds maintenance services at issue here.10 The Company
submitted its bid package to the Air Force on November 22,
1994.11 The Company’s bid was for a performance period
from January 1, 1995, until September 30, 1999, inclusive.12
On February 3, the Air Force awarded its grounds mainte-
nance services contract for the Cape to the Company here.
On either February 3 or 4, Company Vice President Jeff-
ery Johnson (Company Vice President Johnson) telephoned
Consultant Potts and advised him the Company had been
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975SMITH & JOHNSON CONSTRUCTION CO.
13 It is admitted that at all times material, Gremonprez was an
agent of the Company within the meaning of Sec. 2(13) of the Act.
Gremonprez became the project manager at the Cape for the Com-
pany here on or about March 1; however, he remained project man-
ager for D. M. Potts Corporation at Patrick Air Force Base.
14 Company Vice President Johnson and U.S. Contracting Presi-
dent Brands both testified regarding a meeting between them in Feb-
ruary in Florida. According to Johnson, Brands again mentioned the
580–D tractor operators that worked for U.S. Contracting. Brands
testified:
We talked about the equipment, about purchasing some of the
equipment. And I spoke to him, also, about the possibility of
hiring some of the employees, specifically Kirt Gopel, Derrick
Fowler, and Frank [Major].
15 Potts explained he felt uneasy, because he considered personnel
files to contain privileged information.
16 U.S. Contracting President Brands testified no one from the
Company sought permission to interview the U.S. Contracting em-
ployees at U.S. Contracting’s facilities.
17 Menga described his duties, in part, as making random unan-
nounced inspections of the grounds at the Cape and handling Air
Force complaints, if any, regarding grounds maintenance services.
18 Menga testified Blotti identified himself as the Company’s secu-
rity and quality assurance representative.
19 Derrick Fowler was the mound mower operator for U.S. Con-
tracting.
awarded the contract. Potts was given complete authority to
hire employees for the Company at the Cape and to oversee
the day-to-day operations of the contract.
Company Vice President Johnson testified he did not give
Consultant Potts any instructions regarding hiring.
On or about February 3 or 4 Potts delegated all hiring au-
thority for the Company to his Project Manager David
Gremonprez (Project Manager Gremonprez).13
B. Hiring a Work Force for the Cape
During the first full week in February, Consultant Potts
and Project Manager Gremonprez began the process of hiring
a work force for the Company. On or about February 8, Potts
formulated an advertisement for applicants which was placed
in the Florida Today newspaper starting on February 10 run-
ning through February 12. The advertisement reads as fol-
lows:
Grounds maintenance (Cape Canaveral Air Station and
Patrick AFB). Local contractor will be accepting appli-
cations on Feb. 13–15 during the hours of 8:00–12:00
noon at building 958, Patrick AFB, FL. Previous expe-
rience required. We offer attractive wages, paid holi-
days, and profit sharing. Become part of our team.
E.O.E drug free workplace.
According to Project Manager Gremonprez the first ad-
vertisement was incomplete; therefore, the newspaper
ran the advertisement again on February 17, 18, and 19.
The second advertisement specified the positions of
‘‘Grounds Laborer, Tractor Operators, and Mechanics’’
and listed interview dates of February 21–22, otherwise
the second advertisement was identical to the first one.
Company Vice President Johnson testified U.S. Contract-
ing President Brands (U.S. Contracting President Brands)
telephoned him sometime around February 3 and expressed
an interest in selling U.S. Contracting’s equipment to the
Company herein. Johnson also stated U.S. Contracting Presi-
dent Brand specifically mentioned the 580–D tractor opera-
tors stating they were good workers. Johnson, however, stat-
ed that was not the focus of their telephone conversation.14
On February 8 Consultant Potts and Project Manager
Gremonprez met with U.S. Contracting President Brands to
look at the equipment Brands was interested in selling. After
they examined the equipment Brands offered to show Potts
and Gremonprez all of U.S. Contracting’s books and records
including the personnel files of its employees. Potts testified
Brands ‘‘mentioned something about the employees . . .
which one’s were good and which one’s . . . I can hire,
which one’s I shouldn’t.’’ Potts said he did not accept
Brands’ offer to examine the personnel files because that was
not the purpose of his visit and that he ‘‘just kinda shrugged
[Bands] off when he talked about those [personnel] files be-
cause [he] felt a little bit uneasy just somebody mentioning
personnel files.’’15
U.S. Contracting President Brands testified that neither
Consultant Potts nor Project Manager Gremonprez asked him
to tell the U.S. Contracting employees when, where, or even
that the Company would be interviewing applicants for hire.
U.S. Contracting employees learned of the interviews from
the newspaper advertisements, talking with each other, and
as testified to by U.S. Contracting employee Kenneth
Kellum, a copy of one of the newspaper advertisements was
placed on the chalk board at U.S. Contracting.16
Air Force Quality Assurance Evaluator for Grounds Main-
tenance at the Cape Bart Menga17 testified he served in that
capacity during the last 8 months of the U.S. Contracting
contract with the Air Force. Menga testified that during the
‘‘start up phase’’ (February 28 to March 1) for the Company
here, he spoke with various Company representatives, name-
ly, Potts, Gremonprez, and Mark Blotti.18 Menga said he
welcomed Consultant Potts and offered to answer any ques-
tions Potts might have regarding his Company’s servicing of
the contract. Menga testified Consultant Potts asked if U.S.
Contracting had performed the contract satisfactorily. Menga
told Potts they had. Menga testified he took Project Manager
Gremonprez on a tour of the Cape ‘‘and looked at all the
different areas . . . we talked about cutting here . . . cutting
there . . . getting in there . . . getting in here . . . .’’
Menga said he talked with Gremonprez and Blotti specifi-
cally about the operator of the mound mower. Air Force
Quality Assurance Evaluator Menga said, ‘‘[T]he mound
mower was a pretty important person in a grounds mainte-
nance contract . . . at [the] Cape.’’ According to Menga,
Project Manager Gremonprez asked if U.S. Contracting had
a mound mower and Menga told Gremonprez they did.
Menga said he specifically told Company Quality Assurance
Representative Blotti that if the Company was going to pick
up any employee from U.S. Contracting it should be the
mound mower person, ‘‘because of his experience and his
. . . special mowing techniques.’’19
On or about February 13 the Company reached an agree-
ment to purchase grounds keeping equipment from U.S. Con-
tracting. The Company purchased: ‘‘six large tractors’’
equipped with ‘‘bat wings’’ that have ‘‘15 foot’’ cutting
stands; ‘‘two tractors . . . 580–D’s’’; ‘‘[a] welder, a torch
. . . some jacks, miscellaneous shop tools . . . a drill press
. . . [and] . . . one trailer.’’
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976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 Hill testified he knew Consultant Potts’ Company had a contract
to do grounds maintenance services at Patrick Air Force Base.
21 According to Consultant Potts the Company’s Ohio office had
provided him with Local Union President Hill’s telephone number
but he had never found time to call Hill.
Local Union President Eddie Hill testified that approxi-
mately during the second week in February he received a
telephone call from Air Force Labor Relations Advisor Jesus
Pernas-Giz (Air Force Advisor Pernas-Giz) that the Company
had been awarded the grounds maintenance services contract
at the Cape. Hill testified he learned the Company was
headquartered in Ohio and through directory assistance ob-
tained the Company’s telephone number. Hill telephoned the
Company on February 13, according to telephone company
produced records. Hill said he spoke with a male person. Hill
explained to the male person that he was president of the
Local Union that represented the employees at the Cape. Hill
testified:
I asked him to hire the existing Union work force.
I gave him several reasons why I thought it was not
only good for me, but good business for him. Among
those reasons Dennis Brands very early in his career
had put a great deal of effort into making sure that he
had a good work force.
And prior to the Union coming in, culling people
that he didn’t consider appropriate workers. And he had
put a great deal of effort into it and there was a really
good work force out there. And I told him that.
I also talked to him about security clearances, experi-
ence, knowledge of the area, and all those reasons that
I thought that he should hire the Union work force.
And the phone call was very cordial. He was friend-
ly. He said, yes, I understand those things. He told me
that Smith & Johnson is certainly not an anti-union
Company, but they had—the decision for hiring had
been placed in the hands of a what he referred to as
local hiring authority, and he would direct the local hir-
ing authority to get in contact with me to discuss these
things with me. And he took my name and phone num-
ber. And I waited for the local hiring authority to con-
tact me.
President Hill testified that when the Company did not, as
promised, contact him he on February 27 again telephoned
the Company at its Ohio headquarters and spoke with a male
person whose name he did not ascertain. Hill testified:
I said, this is Ed Hill, I’m the President of Local
525, Transport Workers Union, who represents the peo-
ple on the grounds maintenance contract at Cape Ca-
naveral Air Station that I talked to you about hiring be-
fore. And you had told me that you had a local hiring
authority and that the local hiring authority would con-
tact me. And I have received no contact from the local
hiring authority.
They then said something—They answered me back
by saying, well, let me give you his number and you
contact him. At that time he told me that the local hir-
ing authority was D. M. Potts. And he gave me a
phone number.
Hill testified he telephoned Consultant Potts whom he al-
ready knew20 and told Potts he was the president of the
Local Union representing the employees on the existing
grounds maintenance services contract at the Cape. Hill told
Potts he had telephoned Ohio and had been expecting a call
from Potts.21 Hill testified, ‘‘I asked him . . . to hire the ex-
isting union work force in this contract.’’ Hill testified:
Mr. Potts told me that the hiring decision had al-
ready been made. And I asked him then, did you hire
the existing Union work force. And he said, I believe
we hired one of them. And I asked him who they hired.
And he said, I believe we hired the mechanic. And I
said, you mean you hired the only guy out there who
is not a member of the Union.
And I asked him what criteria they used for selecting
people. He told me that they hired the best people
based on experience and the interview. And I said, you
mean to tell me that you found people in this area that
are more experienced at cutting the Cape than the peo-
ple who’ve been doing it for the last several years. And
he said, well, we are in the fortunate position in this
area that we have a great deal of unemployment, so,
therefore, when I put ads in the paper, I got—I think
he said over 200 applications. So I had a wide selection
of people to select from.
Company Vice President Johnson testified he received a
telephone call in February from an individual who identified
himself as Eddie Hill, president of the Local Union, ‘‘and he
wanted to know what our labor plans were.’’ Johnson told
Hill that Consultant Potts was doing the hiring and Hill told
Johnson he knew Potts. Johnson testified that when Hill
started telling him the benefits of being union he told Hill
‘‘we’re Union in Ohio’’ ‘‘we’re signatory to several collec-
tive bargaining agreements.’’ Johnson testified this was the
only telephone call he had from Hill, and he never told Hill
he would have Consultant Potts telephone him. Johnson testi-
fied he never thereafter heard from or received anything from
the Union.
Consultant Potts testified he received a telephone call from
Local Union President Hill who wanted to know if the Com-
pany was going to hire the predecessors’ employees. Potts
told Hill the hiring decisions had already been made. Hill
wanted to know why the experienced U.S. Contracting em-
ployees had not been hired. Potts told Hill the U.S. Contract-
ing employees had received applications and had been inter-
viewed. According to Potts, Hill seemed ‘‘up set or dis-
turbed’’ ‘‘as to why we didn’t hire any of the [U.S. Contract-
ing] employees.’’ Potts further testified:
And from that point on I told him that we had re-
tained counsel. I believed I heard at that time about the
possibility of a strike. And I said I didn’t have any
more to say or discuss.
Air Force Quality Assurance Evaluator Menga testified he
spoke on numerous occasions during the phase-in period
with Company Security and Quality Assurance Representa-
tive Blotti. He said they ‘‘primarily’’ discussed ‘‘badging’’
or obtaining security clearances for the Company’s employ-
ees. Menga explained that all employees needed a ‘‘badge’’
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977SMITH & JOHNSON CONSTRUCTION CO.
22 The exact number of applications distributed and applicants
interviewed is not completely clear on this record. It appears, for ex-
ample, that some parents returned applications for applicants and it
is not clear whether Gremonprez questioned any parents about the
applicants qualifications. I find it unnecessary to determine the exact
number of applications distributed or applicants interviewed in order
to dispose of the issues herein.
to be admitted to the Cape and that those employees that
were ‘‘required to perform grounds maintenance services in
restricted or controlled areas’’ would be required to obtain
security clearances. Menga said he explained to Blotti that if
the Company hired U.S. Contracting employees the Com-
pany would simply need to supply a letter to the Air Force
identifying those employees ‘‘since they already had their se-
curity badges . . . [and] already had their investigations
completed and they already had access to restricted and con-
trolled areas.’’ Menga told Blotti that if the Company hired
the U.S. Contracting employees it would just be a matter of
changing the employees names on their badges and security
passes. Menga said he also explained to Blotti that if the
Company hired employees that did not already have security
clearances, time consuming background investigations would
be conducted on those employees by the Air Force.
C. The Interviewing Process
Project Manager Gremonprez conducted all interviews at
D. M. Potts Corporation facilities, Patrick Air Force Base.
Gremonprez made notes contemporaneously with or imme-
diately after interviewing each applicant. Each interview
lasted approximately 3 to 5 minutes. It appears Gremonprez
distributed approximately 205 applications and interviewed
approximately 183 applicants22 including the 18 former U.S.
Contracting employees named in the complaint. The 18
former U.S. Contracting employees are Donald Brands, Wal-
ter Brooken, William B. Chapman, Tim Claiborne, Derrick
Fowler, Graig Graham, James Guy Jr., Melvin Haynes, Ken-
neth L. Kellum, Frank H. Major, John Monseur, Thurman
Purdiman, Floyd D. Rachels, Charles Reed, Joel Reed,
Edwin Robles, Kevin Rochen, and Samuel E. Smith. (Al-
though Michael St. Jean is listed in the complaint his name
was amended out of the complaint by the Government.)
At the time U.S. Contracting concluded its work at the
Cape it had 13 bargaining unit employees on its payroll and
6 additional employees (including Michael St. Jean) who for
1 year had contractually provided recall rights.
Project Manager Gremonprez testified he considered cer-
tain criteria in selecting which applicants to hire:
Appearance, the way they carried themselves. In
other words, did they look at me when I was speaking
with them. Their demeanor, were they courteous, their
experience level.
Gremonprez state he considered ‘‘proper appearance’’ to be
a ‘‘neat’’ appearance with shirts ‘‘tucked in’’ and ‘‘buttoned
up.’’ Gremonprez further testified:
We’re looking for people who are polite, who are neat,
who are clean-cut, who speak well, who just in general
portray the image that we want . . . .
Gremonprez explained his interview process as follows:
It was not my intention for this to be an extensive
interview. It was my intention for this to be initial
interview, to look at their applications, look at their—
at whatever resumes they brought in or letters of rec-
ommendation. And if I had questions, I would ask
questions.
The other purpose of the interview was for me to
physically look at them, physically meet them, see how
they carried themselves, were they neat, how did—were
they—did they speak well. I mean, in other words, did
they carry themselves well. General demeanor, general
appearance.
Did they look at their feet when they were talking
to me. Did they look at me in the eye. And back to
the old, you know—I shook hands with all of them. So
I suppose . . . that may have played a part in my
thought process, too, what kind of handshake did they
have.
Gremonprez testified he gave the following weight to an
applicant’s ‘‘experience’’:
Well, it [experience] fit in with the other five or six
factors that I was looking at. It [experience] wasn’t nec-
essarily the determining factor. It wasn’t given any
greater weight than anything else.
When you’re looking for laborers, which is the biggest
majority of the people out there, experience on a lawn
maintenance crew would obviously be helpful because
the equipment would be very, very similar.
Primarily when you’re looking for a tractor driver,
you’re not looking for a lawn maintenance person.
You’re looking for somebody who’s got tractor experi-
ence. And that lends itself more to agriculture. The AG
experience would have been very important in trying to
find tractor drivers.
All 18 (Charles Reed, John Monseur, Samuel E. Smith,
James Guy Jr., William B. Chapman, Floyd D. Rachels,
Thermon Purdiman, Melvin Haynes, Craig Graham, Tim
Claiborne, Joel Reed, Kenneth L. Kellum, Frank H. Major,
Kevin Rochen, Derrick Fowler, Edwin Robles, Walter
Brooken, and Donald Brands) of the U.S. Contracting bar-
gaining unit employees on active payroll or layoff status as
of February 28 made application with and were interviewed
by Gremonprez during February 13 to 15.
As noted elsewhere in this decision, Project Manager
Gremonprez made brief notes during or immediately follow-
ing his interview of each applicant. Gremonprez noted on 16
of the 18 predecessor employees the fact they had been em-
ployed by U.S. Contracting. On the two remaining individ-
uals Gremonprez noted that Donald Brands was U.S. Con-
tracting President Brands’ brother and that William Chapman
was President Brands’ brother-in-law.
D. The Interview with and Experience of the U.S.
Contracting Employees
On his application for employment with the Company
Donald Brands listed, among other experience, 3 years of
grounds maintenance work at the Cape. Brands submitted a
letter of reference that reads in part:
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978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Donald does the JDMA site in 1-1/2 to 2 days by him-
self, where in it takes 2 individuals 2 full days to ac-
complish the very same task. This is inclusive of mow-
ing, trimming, weed eating, spraying, fertilizing, etc.
He’s a perfectionist whose work is immaculate or he is
not satisfied.
Florida Annex’s supervisor for Johnson Control World
Services, Inc. R. W. Bell’s letter of reference for Brands
reads:
Donald has the responsibility of overseeing and main-
taining the grounds for the Florida Annexes. Donald
has performed his duties in a most proficient, profes-
sional manner and is an asset to any organization.
Another letter of reference regarding Brands’ grounds
keeping duties at the Cape reads:
Don has consistently gone beyond the call of duty to
get the job done. He is highly motivated, intelligent,
and experienced . . . .
On his employment application Walter Brooken listed a
year (1994 to 1995) of grounds maintenance 220–D tractor
operator experience at the Cape.
William Chapman listed 5 years of grounds maintenance
experience at the Cape with tractor operator experience on a
Ford tractor equipped with ‘‘bat wing’’ mowers, as well as
experience on the 580–D tractors. Chapman also noted he
had a Air Force secret security clearance with escort capa-
bilities that allowed him to escort other employees, ‘‘into all
major areas of the Cape.’’
Tim Claiborne listed 7 years of grounds maintenance ex-
perience on his application with the most recent 4 years
being at the Cape for the predecessor employer, U.S. Con-
tracting, where he served in various capacities from a
grounds maintenance crew member to the ‘‘leadman’’ of a
1–6 person team. Claiborne listed a ‘‘secret’’ security clear-
ance with authorization to escort fellow employees into var-
ious restricted areas at the Cape. Claiborne provided two let-
ters of reference, one of which was prepared by Robert
P. Chapman. In his letter Chapman noted he had observed
Claiborne since 1993 and,
[d]uring that time he [Claiborne] had been the crew
leader of the grounds crew maintaining CX–17 at Cape
Canaveral Air Force Station. In my capacity as Super-
intendent of Facilities I have observed both the results
of his work and the way he handles his crew and his
customer. His performance in all these areas has been
outstanding.
Chapman, ‘‘highly’’ recommended that Claiborne be em-
ployed.
On his application for employment Derrick Fowler listed
approximately 8 years of grounds maintenance experience
with the most recent 4 years being at the Cape for U.S. Con-
tracting. Fowler’s application reflects he operated a 580–D
tractor and was familiar with diagnostic problems related to
that particular piece of equipment. Fowler also noted he had
mowed the grass on and maintained ‘‘ordinance mounds’’ at
the Cape with the Ford 1520 and 1320 tractors. Prior to
working for U.S. Contracting Fowler maintained the grounds
at La Cita Country Club, Titusville, Florida. Fowler provided
a letter of reference from Project Supervisor Arthur Huelke
which reads in part:
In regards to Derrick Fowler and his employment
with U.S. Contracting . . . that started on 10/22/90
. . . [h]e has shown us that he can learn to operate any
piece of equipment we have . . . 220–D Toro Riders,
322–D Toro Riders, 1520 Tractor Ford and many other
pieces of equipment. . . . The machinery which the
Company uses his ability on is the 580–D, 15’ finish
cut. . . . This piece of equipment is a $50,000 unit and
is only operated by two people, one of them is Derrick.
You would be very wise to let this type of employee
become a part of your work force. . . .
Craig Graham listed grounds maintenance services experi-
ence with U.S. Contracting, as well as among other duties,
his grass cutting experience with a former employer from
1989 to 1992.
James Guy Jr. listed approximately 2 years’ work experi-
ence as a ‘‘crew leader’’ for U.S. Contracting at the Cape
where he indicated his job duties included ‘‘mak[ing] sure
that all job sites’’ were completed.
Melvin Haynes listed approximately 18 months of grounds
maintenance services experience with U.S. Contracting where
he performed weeding and lawn maintenance including oper-
ating riding mowers, weed eaters, and edging equipment.
On his application for employment Kenneth Kellum listed
3 years’ grounds maintenance services experience with U.S.
Contracting as a machine operator.
Frank Major listed approximately 4 years’ grounds mainte-
nance services experience with U.S. Contracting including
operating the 580–D tractor. Major also listed 4 years of
grounds maintenance services at La Cita Country Club,
Titusville, Florida, where, among other grounds keeping
services, he worked as a tractor operator.
John Monseur listed approximately 4 years’ grounds main-
tenance services experience with U.S. Contracting at the
Cape where he operated the Ford 6610 tractor with 15’ ‘‘bat
wing’’ mowing decks.
Thurman Purdiman listed approximately 18 months of
grounds maintenance services at U.S. Contracting. Floyd Ra-
chels listed approximately 4 years grounds maintenance serv-
ice experience including experience as a Ford 6610 ‘‘bat
wing’’ tractor operator covering the ‘‘entire Cape area.’’ Ra-
chels indicated he has an ‘‘indefinite’’ security clearance for
all areas at the Cape. Rachels provided a letter of reference
from U.S. Contracting Project Manager Gopel (who also be-
came the assistant project manager for the Company herein)
which reads in part that Rachels ‘‘diligently worked his way
up the ranks to become a heavy tractor operator, which re-
quires, skill, good judgment, and the ability to follow instruc-
tions to the letter.’’ Gopel’s letter continued:
This 3,000 plus acre project required constant input
from my operators to meet Air Force standards. Mr.
Rachels provided that coupled with his honesty, de-
pendability and punctuality made it a pleasure to have
him as a valued team member.
It would be my pleasure to work with or for Mr. Ra-
chels in the future.
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979SMITH & JOHNSON CONSTRUCTION CO.
23 It appears the 27th employee was Robert Birnie, an employee
of D. M. Potts Corporation who worked as a mechanic for the Com-
pany for 30 days with the understanding he would, as he did, return
to his employment with D. M. Potts Corporation at the end of his
30-days with the Company.
24 Brooks was terminated by D. M. Potts Corporation on that day
because Brooks intended to compete against D. M. Potts Corpora-
tion for grounds maintenance services contracts with the Air Force.
On his application for employment with the Company
Charles Reed listed approximately 18 months of grounds
maintenance services experience operating ‘‘any and all
equipment.’’
Joel Reed listed 4 years’ grounds maintenance services ex-
perience with U.S. Contracting, noting he had worked as a
6610 tractor operator. Reed also listed approximately 6 years
of grounds maintenance services with David Kemerer Grass-
cutters providing lawn care services.
Edwin Robles listed approximately 4-1/2 years’ grounds
maintenance services experience with U.S. Contracting.
Kevin Rochen listed 2 years’ grounds maintenance serv-
ices experience and indicated he had operated various types
of groundskeeping equipment.
Samuel E. Smith listed 4 plus years of tractor operator ex-
perience with U.S. Contracting and 1 year of like experience
with Laidlaw Tree Service mowing grass along Interstate 95
in Florida. Smith also provided letters of reference. For ex-
ample, Florida Annexes Supervisor for Johnson Controls
World Services Inc., R. W. Bell wrote in part:
Sam Smith, who is presently employed by U.S. Con-
tractors . . . has the responsibility of overseeing and
maintaining the grounds for the Florida Annexes. Sam
has performed his duties in a most proficient, profes-
sional manner and is an asset to any organization.
Air Force Facilities Manager Phillips Laboratory Malabar
Site, George Nemetz wrote about Smith, ‘‘You have consist-
ently demonstrated versatility and dedication’’ and Nemetz
extended his ‘‘satisfaction on your contribution to the dedi-
cated service you have offered to the Malabar Facilities.’’
E. Those Hired by the Company
The Company hired approximately 2623 employees for the
startup of services on March 1. For its initial crew the Com-
pany hired two U.S. Contracting employees, namely, Ted
Richenbach and U.S. Contracting Project Manager Kirt
Gobel. Gobel assumed the duties of Assistant Project Man-
ager for the Company here. The Company offered five then
current (February 28) D. M. Potts Corporation employees
the opportunity to permanently transfer to the Company here.
The five accepted the offer and commenced working for the
Company on March 1. The five were laborers Sean
Williamson, Rebecca Turner (O’Brien), Riley Massey, and
Roger Brown along with Tractor Operator Brent Swanson.
Charlie Brooks was hired as a tractor operator by the Com-
pany on March 1. Brooks had, for an extended time, until
July 19, 1994,24 worked for D. M. Potts Corporation.
The Company hired three additional tractor operators ef-
fective March 1, namely, Kenneth Willoughby, Donald
Humphrys, and Richard Lundquist.
Willoughby listed operating experience on ‘‘all lawn
equipment’’ and supervisory experience on ‘‘all facets of
lawn business’’ for Florida Lawn Specialist from January to
March. Willoughby listed 6 months of experience in 1994 as-
sisting in the construction and maintenance of a 123-acre 18-
hole golf course in Southport, North Carolina, where he su-
pervised a crew of 10 involved in pesticide and fertilized ap-
plication. Willoughby listed experience from August 93 to
June 94 with the Great Outdoors training and supervising 10
employees in a large sod and drainage project and indicated
that from April 92 to August 93, he was involved in the
maintenance and operation of an 18-hole golf course in New
Smyrna, Florida. From October 1988 to April 1992
Willoughby performed all facets of maintenance and machine
operations for The Great Outdoors.
Humpreys listed experience in fruit grove mowing from
April to August 1992.
Lundquist listed no grounds maintenance equipment expe-
rience on his employment application; however, he indicated
he was familiar with landscaping and lawn equipment such
as mowers, tractors, and edgers.
The Company hired Jeffrey Russell, Harold Milton, Debo-
rah (Robinson) Gregory, Michael Brooks, Jason Minteer,
Robert Martinolich, Chris Senft, Ronald Culleny, and Nick
Hatfield as laborers for the start of operations on March 1.
Russell listed experience operating lawn mowers, tractors,
front-end loaders, and dump trucks from September 1978 to
February 1981 for the town of Melbourne Beach, Florida.
Milton listed grounds maintenance experience including
mowing, weed eating, edging, and trimming trees for Ameri-
cana Resort, Rockledge, Florida from May 1990 to July
1991. Milton listed commercial and residential lawn care ex-
perience for Tropical Lawn & Maintenance, Melbourne
Beach, Florida, from September 1989 to April 1990. Milton
listed all phases of apartment and grounds maintenance for
Richton Square Management Company, Richton Park, Illi-
nois, from December 1987 to August 1989. From May 1989
to December 1989 Milton work for Brent Vanbever Lawns,
Melbourne, Florida, doing all phases of commercial and resi-
dential lawn services.
Gregory listed work experience at Crestview Villa’s from
October 1985 to May 1986, caring for grounds, picking up
trash, mowing, weed eating, cleaning, and trimming palm
trees. Gregory indicated she worked for Good Earth Enter-
prises from May 1986 to February 1995 where her ‘‘duties
were to go to jobs, mow, weed eat, clean, pick up trash,
weeds, trim shrubs and trees every week as needed.’’
Brooks listed work experience with Bill Strong Enterprises
‘‘transplanting palm trees, grading and sod’’ work from No-
vember 1993 to December 1994 and mowing experience at
Turtle Creek Gulf Club utilizing various kinds of mowers be-
tween September 1991 and May 1993. Brooks also listed ex-
perience in ‘‘removing trees and transporting to Melbourne
Dump’’ for Atlantic Tree Service from April to August 1991.
Minteer listed work experience at Wright Patterson Air
Base ‘‘summer job only,’’ cutting grass, weed eating, and
trimming along softball fields from June 1990 to October
1991.
Minteer also listed 16 hours a week part-time lawn care
for a private individual from May to August 1994.
Martinolich indicated on his application that he owned and
operated a lawn maintenance service from August 1988 to
April 1992 and managed Ron Martinolich Landscape Inc.
from August 1993 to August 1994.
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980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 Other records of his experience would indicate that it was some-
time prior to 1989.
26 Bourne Co. v. NLRB, 332 F.2d 47 (2d Cir. 1964)
27 The Bourne test has been cited with approval by various Cir-
cuits. For a partial listing of those circuits see Teamsters Local 633
v. NLRB, 509 F.2d 490 fn. 15 (D.C. Cir. 1974).
Chris Senft listed weed eating, edging, and cutting experi-
ence with Wright Brother’s Lawn Maintenance from April
1992 until May 1994.
Ronald Culleny listed tractor mowing, weed whacking,
and tree trimming experience with Lloyds Lawn Care from
some point in 1989 until 1995.
Nick Hatfield listed trimmer and grounds maintenance ex-
perience at Davey Tree Company; however, he did not re-
flect a date for his experience.25
The Company hired seven full-time temporary laborers ef-
fective March 1, namely, Judson Cason, John Lowe, Keith
Davis, Christopher Driggers, Shane Sainz, Walstien
Daughtry, and Kevin Gallant. Cason, Lowe, Davis, and
Driggers did not list any grounds maintenance services expe-
rience on their applications.
Sainz indicated he owned and operated Potters Lawn Serv-
ice, Melbourne, Florida, from January 1993 to February
1995.
Daughtry listed experience with the United States Army
Military Police in Germany from September 1987 to Septem-
ber 1992 where his major duties were performing mowing
and edging details, watering, raking, and providing grounds
labor.
Gallant listed 7-1/2 years of landscape experience but
failed to provide the dates he acquired such experience.
II. THE INDEPENDENT ALLEGATIONS OF UNLAWFUL
CONDUCT
I shall next address the independent allegations of unlaw-
ful conduct attributed to various supervisors and agents of
the Company.
A. Monsuer’s Interview
U.S. Contracting tractor operator Monseur testified he
learned the Company would be conducting job interviews as
a result of the Company’s newspaper advertisement. Monseur
testified he was the first applicant interviewed by Project
Manager Gremonprez on February 14. Monseur said he
handed his completed application to Gremonprez, while they
were alone in his office, Gremonprez ‘‘looked up at me and
said, you all are union out there, aren’t you.’’ Monseur re-
sponded, ‘‘Yes, sir, the union went into effect October of
1992.’’ After a few other comments Gremonprez told
Monseur the Company would be conducting further inter-
views on February 21 and 22.
Project Manager Gremonprez denied asking applicants
questions regarding their union status, affiliation, or sym-
pathies. Gremonprez explained that when the word union or
references to union sympathies appeared in his contempora-
neous interview notes it was as a result of the applicant
bringing the Union up during the interview.
The Company argues it had no need to question applicants
of U.S. Contracting about the Union, because it knew its
predecessor was unionized.
On the basis of his demeanor and the full record, I am
convinced, Project Manager Gremonprez was not fully can-
did when he testified about interviewing applicants for em-
ployment. Monseur, on the other hand, impressed me as at-
tempting to testify truthfully. Although I am mindful of his
interest in the outcome of these proceedings, I nonetheless
found Monseur to be a believable witness. Accordingly, I
credit him.
In deciding whether interrogation is unlawful, I am gov-
erned by the Board’s decision in Rossmore House, 269
NLRB 1176 (1984), enfd. sub. nom. Hotel Employees &
Restaurant Employees Union v. NLRB, 760 F.2d 1006 (9th
Cir. 1985). In Rossmore House, the Board held the lawful-
ness of questioning by employer agents about union sym-
pathies and activities turns on the question of whether
‘‘under all circumstances, the interrogation reasonably tends
to restrain or interfere with the employees in the exercise of
rights guaranteed by the Act.’’ The Board in Rossmore
House noted the Bourne26 test was helpful in making such
an analysis. The Bourne test factors are as follows:
1. The background, i.e. is there a history of employer
hostility and discrimination?
2. The nature of the information sought, e.g. did the
interrogator appear to be seeking information on which
to base taking action against individual employees?
3. The identity of the questioner, i.e. how high was
he in the Company hierarchy?
4. Place and method of interrogation, e.g. was em-
ployee called from work to the boss’s office? Was there
an atmosphere of ‘‘unnatural formality’’?
5. Truthfulness of the reply.27
I find, as alleged in the complaint, that Project Manager
Gremonprez’ questioning Monseur about the Union violated
Section 8(a)(1) of the Act. In Active Transportation, 296
NLRB 431 (1989), the Board found that questions of appli-
cants about their union sympathies violates the Act even
though the interviewer knew from the applicants’ job appli-
cations they had previously worked at a unionized employer.
The Board at footnote 3 in Active Transportation observed:
First we note the interrogation occurred during [the ap-
plicant’s] job interview. The Board has long recognized
that, under the totality of the circumstances test, an ap-
plicant may understandably fear that any answer he
might give to questions about union sentiments posed
in a job interview may well affect his job prospects.
B. Fowler’s Interview
U.S. Contracting tractor operator, union steward, and job
applicant Derrick Fowler testified that when he was inter-
viewed by Project Manager Gremonprez on February 15,
Gremonprez read his resume and:
At some point he stopped. He said, who’s the shop
steward up there. I said, I am. He said, well, I don’t
see anything here on your resume, what, you’re not
very proud of that.
I said, I didn’t think it was a job requirement. He
said, you’re right. It’s not going to be on this job.
After that, he was still looking at my resume. He
said, well, how did you get roped into that job any-
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981SMITH & JOHNSON CONSTRUCTION CO.
28 As noted elsewhere in this decision, Gremonprez explained that
anytime there was reference to the Union in his interview notes it
was because the applicant had brought up the subject.
29 Cason stated on cross-examination that Gremonprez told them
to report any contacts about the Union ‘‘either during work hours
or on our own time.’’ Cason acknowledged on cross-examination he
was aware that an employee name Debbie had reported she had been
approached by the Union during a time when she was suppose to
be working and it was at about this time that Project Manager
Gremonprez met with the employees.
30 The document Cason, without contradiction, testified he re-
ceived from Potts was the second amended charge in the instant case
which is dated May 26, and bears a fax transmission date imprinted
thereon of May 30.
ways. I said, well, I guess they wanted somebody with
a level head to represent them.
Project Manager Gremonprez’ interview notes regarding
Fowler reflect ‘‘U.S. Contracting 580–D Operator, shop
steward,28 young man, clean cut, would not use bad ATTI-
TUDE.’’ Gremonprez denied asking applicants about the
Union.
I credit Fowler’s account of his interview with
Gremonprez. Fowler did not include his job steward position
on his application; therefore, I find unlikely he would have
volunteered that fact to Project Manager Gremonprez during
the interview.
Did Gremonprez’ comments violate the Act? Yes, for a
number of reasons. First Fowler was a known union sup-
porter (steward) at U.S. Contracting, but as the Government
contends he was not an open union adherent in the context
of his job interview seeking employment with the Company
herein. No valid reason exists for such an inquiry during a
job interview. Furthermore, Gremonprez’ telling Fowler that
even though the predecessor employer had a union and union
steward, ‘‘this job’’ for which he was interviewing was not
going to have a steward. While statements that an employer
is, or has, a nonunion work force may sometimes be merely
descriptive and lawful, in the instant context, Gremonprez’
comments had a reasonably foreseeable coercive impact. The
Company knew the predecessor employees’ were unionized
and by Gremonprez saying it was not going to be a job re-
quirement on their project he was conveying the message
that regardless of the circumstances his Company would not
deal with the Union. Furthermore, Gremonprez’ comments
implicitly invited a response from Fowler concerning wheth-
er he had any objections to such working conditions. The
Board has recognized that statements of this nature made
during employment interviews constitute coercive interroga-
tion even in the absence of threats. See, e.g., Royal Midtown
Crysler Plymouth, 296 NLRB 1039 at fn. 4 (1989). Accord-
ingly, I find Gremonprez’ comments constituted unlawful in-
terrogation as alleged in the complaint.
C. Clairborne’s Interview
U.S. Contracting Crew Leader and job applicant Tim Clai-
borne testified he was interviewed on February 15 by Project
Manager Gremonprez. Claiborne testified:
Well, I was waiting my turn to come in after the last
interview behind the door. And when I knew that per-
son was gone, I came out and I handed my resumes—
resume, application, and, I think, two letters of—letters
of recommendation.
He was jotting stuff down. He said he’d be with me
in a second. He looked over my application and my let-
ters of recommendation. And he asked me what I did
at the Cape. And I told him that I was a crew leader
and I took care of semi-improved areas. And I in-
cluded—I specified and said I did 40 and 41, Complex
40 and 41 out there.
He asked me if I was still employed out there. And
I said yes. Then he made the statement, well, there’s
a lot of people out there fixing to lose their jobs, aren’t
there. And I said, yes, I guess so.
He told me they were going to be running the adver-
tisement again and taking applications the 21st and
22nd and they would go from there. And that was pret-
ty much the end of the interview.
Gremonprez’ interview notes regarding Claiborne state:
‘‘U.S. Contracting employee NOT BAD, but not good either.
Crew Leader out areas. Probably would not use.’’
Gremonprez did not specifically deny Claiborne’s account
of the interview. I credit Claiborne.
I am persuaded that, taken in the context of an employ-
ment interview, Gremonprez’ statements made it clear to
Claiborne the Company would not be hiring the U.S. Con-
tracting employees. Gremonprez told Claiborne, a lot of peo-
ple out there, where Claiborne indicated he was still working,
would be losing their jobs. I note Claiborne and those work-
ing for U.S. Contracting were the only ones in this setting
with jobs to lose. The implicit, albeit unstated, reason for the
threat was the union affiliation of the predecessor employees.
I find, as alleged in the complaint, that this constitutes an un-
lawful threat of reprisals against employee applicants because
of their union affiliation.
D. Gremonprez and Potts Statements
Former Company employee Judson Cason testified that
Project Manager Gremonprez spoke with he and other full-
time temporary laborers after they were hired in March.
Cason testified, ‘‘a couple’’ of them had long hair and ‘‘a
few’’ of the ‘‘male’’ employees had ear rings. According to
Cason, Gremonprez wanted the ones with long hair to have
it cut and those with ear rings not to wear them at work.
Cason testified that during the first week he was employed
at the Company Project Manager Gremonprez told all the
employees assembled at the Grounds Maintenance Building
at the Cape, ‘‘not to associate or talk with anyone with the
Union’’ ‘‘not to talk with anyone about the Union or discuss
anything with anybody about the Union.’’ Cason further ex-
plained Gremonprez, ‘‘stated that if we . . . employees had
heard any comments about the Union, to come forth and let
him know and try to find out the individual’s name and
badge number to give it to him.’’29
Cason testified Consultant Potts came to the grounds
maintenance shop at the Cape around May and ‘‘had some
information about some of the rumors that we were hearing
about the Union suing them.’’ According to Cason, Potts
handed out copies of a lawsuit30 and Project Manager
Gremonprez stated, ‘‘the Union wouldn’t be able to do any-
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982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 Rebecca O’Brien corroborated Gremonprez’ testimony to the ex-
tent of knowing that an employee had complained about being ap-
proached by someone about the Union.
32 Pernas-Giz was not 100-percent sure, but, said it made sense
that he would have explained Air Force policy to Gremonprez.
33 Employees Walstien Daughtry, Jeffrey M. Russell, and Donald
B. Humphrys testified that Project Manager Gremonprez did not tell
employees they could not talk about the Union nor tell them the
Company had refused to hire applicants from U.S. Contracting be-
cause they were Union.
34 I am not unmindful of certain employee witnesses, namely,
Daughtry’s, Russell’s, and Humphrys’ testimony to the contrary;
however, they impressed me as witnesses overly anxious to state
facts most favorable to the Company and their personal employment
interests rather than to recall with accuracy Gremonprez’ comments.
thing for us, they wouldn’t get—save our jobs or get us any
more money, and that they were just trying to save their
members’ jobs.’’ Cason said a majority of the employees
asked questions about the lawsuit including whether or not
it could have been avoided if the Company had just hired a
few of the predecessor employees. Cason said questions were
also asked about the length of the Company’s contract and
that Consultant Potts told them it was just for one year and
then would be up for rebidding. Cason said someone asked
if the Union was successful in its law suit and the Company
had to hire the predecessor employees what positions would
they get. According to Cason, Potts stated some of the prede-
cessor employees were operators and they would be after
their original positions, others were crew leaders and they
would be after their original positions and added that some
of the employees he had hired would have to leave the Com-
pany to make room for the predecessor employees to come
in. Cason testified Potts said he did not want to hire the
union people ‘‘because they were Union.’’
Project Manager Gremonprez testified that soon after
March 1 (some time in the first or second week of March)
it was brought to his attention by employee Debora Robinson
that while she was working near the R & D hanger at the
Cape she was approached by a man who wanted to talk
about the Union.31 Gremonprez testified he contacted an Air
Force Contracting Officer who told him the Air Force would
handle it. Gremonprez testified Air Force Labor Relations
Advisor Pernas-Giz thereafter telephoned him and ‘‘advised’’
him of an Air Force regulation that it was ‘‘unlawful . . .
for our people to be contacted during working hours, and
that in the future if it happened we were to get a badge num-
ber, a license plate on the truck, a name, and go through the
channels like I had before.’’
Air Force Labor Relations Advisor Pernas-Giz testified he
was advised by an Air Force Contracting Officer that
Gremonprez had complained about an incident where the
Union had approached one of the Company’s employees
while at work and offered information on union activities and
how to organize if the new employees wanted to do so.
Pernas-Giz said he became concerned because he had not re-
ceived a request from anyone to conduct organizing activities
at the Cape. Pernas-Giz said he contacted Project Manager
Gremonprez and told him that without a name, badge num-
ber, or vehicle number to help identify the person who sup-
posedly was attempting to organize there was little the Air
Force could do. Pernas-Giz said he may have explained32 Air
Force policy on union activities to Gremonprez. Pernas-Giz
testified:
I would have told him that with no name and no in-
formation that would pinpoint who this person was,
there was really no action we could take, and that if
such incident was to take place in the future, that it was
important to get a name, a badge number, a vehicle
number or anything that would give us the ability to
tract who that person was.
I would have told him basically, that in order for the—
any Union to conduct an organizing activity on Air
Force premises they would have to first write and ask
for permission and, obviously, be granted that permis-
sion.
Number two, that their president—their presence on
the Air Force installation could not create a safety or
any type of a commotion, problem, that the organizing
would have to be restricted to a neutral area where it’s
obviously not the employer’s work area, and it could
not be conducted during employee working hours.
Project Manager Gremonprez testified:
After I talked to Jesus, [Pernas-Giz] in a morning
meeting, I told those people—I told my people out
there that in the future that if they were contacted dur-
ing working hours by somebody from the Union want-
ing to talk about the Union, then I needed more con-
crete confirmation of who they were, whether it be a
badge number, whether it be a name, whether it be a
truck, a license number, so that we could pin it down,
and then I would go through channels with it.
[By Company Attorney Mr. Rock:] Did you tell the
employees or explain to them what you meant when
you said, ‘‘working hours?’’
[Answer by Gremonprez] No, sir. I told them what they
did on their own time is their business. But, I didn’t be
specific about working hours.
In other words, I didn’t go into their breaks and their
lunch specifically.
Project Manager Gremonprez denied telling employees
they could not talk with anyone about the Union or that the
Company refused to hire U.S. Contracting employees be-
cause they were union members.33
Cason impressed me as an unreservedly honest witness
and, as such, I credit his testimony. According, I find, as
Cason testified, that Project Manager Gremonprez instructed
employees in March not to associate with or talk with any-
one with the Union.34 I find Gremonprez’ instructions for
employees not to associate with or talk with anyone that was
with the Union to violate Section 8(a)(1) of the Act as al-
leged in the complaint. In so concluding I note that at the
time Project Manager Gremonprez instructed employees not
to associate with or talk with anyone associated with the
Union he also directed employees to report the identity of
anyone approaching them about the Union. In that regard
Project Manager Gremonprez testified, ‘‘I told my [employ-
ees] . . . that in the future that if they were contacted during
working hours [emphasis added] by somebody from the
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983SMITH & JOHNSON CONSTRUCTION CO.
Union wanting to talk about the Union, then I needed more
concrete confirmation of who they were.’’ While
Gremonprez stated, ‘‘I told them what they did on their own
time is their business’’ he nevertheless added he wasn’t
‘‘specific about working hours . . . I didn’t go into their
breaks and their lunch [times] specifically.’’ I find
Gremonprez limited reporting contacts with employees to
ones made by or about the Union and that his instructions
covered ‘‘working hours.’’ Simply stated Gremonprez’ in-
structions on reporting contacts were aimed strictly at con-
versations, associations, or contacts with or about the Union
as opposed to other forms of association contacts or con-
versations. Further Gremonprez, in his orally promulgated
rule, failed to clearly differentiate between whether employ-
ees associating with, talking to, or making contacts with
union personnel were doing so on nonworking times or in
nonwork or nonrestricted areas. Such restrictions on em-
ployee activities are presumptively invalid and unlawful. See,
e.g., Our Way, Inc., 268 NLRB 394 (1983). Simply stated
the Company’s no-talking and reporting rule, as announced
by Gremonprez, is overly broad and discriminatorily aimed
solely at union activities and as such violates Section 8(a)(1)
of the Act, and I so find. I reject the Company’s contention
it was merely enforcing Air Force labor policy on solicita-
tions and contacts. Whatever the Air Force’s policy is, and
I need not decide, the policy announced by Project Manager
Gremonprez in March violated the Act.
Consultant Potts testified he spoke to all employees in the
presence of Project Manager Gremonprez and Assistant
Project Manager Gopel at the Cape about the Union on a
Monday morning in July. Potts said he brought along ‘‘cop-
ies of this complaint’’ which he identified as the second
amended charge filed by the Union in the instant case. Potts
said, ‘‘I told them that the . . . ex-employees and the Union
have filed the unfair labor practice charge . . . [a]nd that the
employees . . . the remedies that they were seeking were to
be hired back and back wages’’ Potts further testified:
I told them that a complaint had been filed. I may
have read portions of the complaint. And that a 10–J
injunction was requested, and that possibly a hearing
could have been conducted within the next 30 days.
I told them that I would let them know when the
hearing—if, in fact, the hearing had been scheduled and
I would keep them updated as to what would transpire
at that hearing if it would have occurred.
And told them that they had—You know, I just left
it up to their questions if they had any questions con-
cerning the charges.
Consultant Potts denied telling the employees they could
not join the Union or telling the employees not to join the
Union. Consultant Potts also said he did not direct employees
to report conversations they had with anyone about the
Union because Project Manager Gremonprez ‘‘had covered
that.’’
With regard to credibility I note the following: On direct
examination Company employee Keith Davis testified that
when Consultant Potts spoke with the employees he did not
tell them the Company did not hire U.S. Contracting employ-
ees because they were Union. On cross-examination Davis
could not recall Potts speaking with the employees about the
charge or complaint the Union had filed against the Com-
pany. Davis’ recollection was that Project Manager
Gremonprez read through the charge. Company employee
Walstien Daughtry first testified Consultant Potts and Project
Manager Gremonprez spoke to the employees in either June
or July but then stated, ‘‘[i]t was in the earlier part of the
contract.’’ Daughtry said Potts read from General Counsel
Exhibit 24 (the second amended charge) and distributed cop-
ies to the employees. Daughtry stated Consultant Potts did
not say the Company had refused to hire U.S. Contracting
applicants because they were union members. Company em-
ployee Donald Humphrys testified he was present at the
meeting when Consultant Potts spoke about and distributed
copies of the second amended charge that had been filed by
the Union against the Company. Humphrys was not asked
and did not testify in detail about the meeting but did state
Consultant Potts did not say the Company had refused to hire
applicants from U.S. Contracting because they were members
of or supported the Union. On cross-examination Humphrys
said Project Manager Gremonprez told the employees the
Company was a nonunion Company but he was not certain
which employee meeting Gremonprez made those comments
at. Company employee Jeffrey Russell testified that in late
May or early June, Consultant Potts met with and told the
employees that complaints had been made against the Com-
pany by the Union and gave the employees copies of the
complaint.
I credit Cason’s testimony that Consultant Potts told the
employees in late May or early June that he did not want
to hire the union people, because they were Union. I credit
Cason’s testimony for a number of reasons. First Potts did
not deny making such a statement. Potts acknowledged dis-
cussing the charge and perhaps reading portions of it to the
employees and acknowledged the meeting turned into a ques-
tion-and-answer session. Potts did not give details about the
questions asked or answers provided. Potts did acknowledge
on cross-examination that he told the employees that they
might lose their jobs if the Union was successful in its ef-
forts to require the Company to hire the predecessor employ-
ees. I am unwilling to place reliance on Company employee
Davis’ testimony that Potts did not make the statement in
question, because Davis recalled Gremonprez being the one
explaining or reading through the charge rather than Consult-
ant Potts. Neither do I place reliance on Company employees
Daughtry’s and Humphrys’ denying Potts made such a state-
ment. I note that neither Project Manager Gremonprez nor
Assistant Project Manager Gopel, whom Potts stated were
present, denied Potts made the statement attributed to him by
Cason. In summary, and for the reasons noted, I credit
Cason’s testimony as outlined above. I am persuaded the
meeting was in late May or early June because not only did
Cason place that as the time but Company employee
Daughtry also placed the meeting early in the contract. It is
acknowledged that Consultant Potts handed out the second
amended charge at the meeting which charge was filed on
May 26 and had a fax date of May 30 imprinted on it at
the time it was handed out. I note that by the beginning of
July the charge had been amended a third and fourth time
and served on the Company. I am persuaded that if the meet-
ing had been in July the latest dated amended charge would
have been distributed by Potts. I am persuaded, as alleged in
the complaint, that the Company acting through Consultant
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984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 Rebecca Turner and Rebecca O’Brien are the same person.
36 O’Brien stated Project Manager Gremonprez was also present.
Potts violated Section 8(a)(1) of the Act when he told em-
ployees in late May or early June he did not want to hire
the union people, because they were union.
Former Company employee Rebecca Turner O’Brien35 tes-
tified she was employed by D. M. Potts Corporation from
March 1, 1992, until February 28, 1995, at which time she
transferred (effective March 1) to the Company herein.
O’Brien testified that in February, during the time Project
Manager Gremonprez was hiring employees for the Cape, he
asked her while they were alone if she would like to transfer
from D. M. Potts Corporation at Patrick Air Force Base to
the Cape, that it would be more money for her. O’Brien told
Gremonprez she would and ‘‘I asked him how many of the
old people [U.S. Contracting employees] at Cape Canaveral
Air Station would be remaining and he said none of them.’’
O’Brien testified she transferred to the Company at the
Cape on March 1 and worked until she quit her employment
on May 19. O’Brien testified that sometime during her em-
ployment at the Company she attended at an employee meet-
ing at which Consultant Potts spoke.36 O’Brien testified:
Mr. Potts informed us that we were having problems
with the Union and that if we did go Union, that he
would not carry the contract any longer.
O’Brien could not recall if it was at this same meeting or
another occasion when Project Manager Gremonprez asked
the employees, ‘‘why did we need the Union because we al-
ready had our jobs. And why should we pay for a job that
we already had.’’
O’Brien stated on cross-examination that Consultant Potts
also told the employees the Union had filed unfair labor
practice charges against the Company and that the Govern-
ment might seek injunctive relief.
Consultant Potts denied ever having a discussion with
O’Brien at the Cape regarding the Union. Potts further de-
nied telling O’Brien that if the employees went union he
would pull the contract or walk away from the contract.
O’Brien testified in a calm, relaxed, articulate, and com-
prehensive manner. No valid reason was advanced to suggest
she had any motive to misstate the truth. I note she appar-
ently was a good employee of D. M. Potts Corporation who
was offered and accepted an opportunity to transfer to the
Company with better pay. I am not unmindful that she left
her employment with the Company; however, the cir-
cumstances of her leaving are not detailed on this record. In
crediting O’Brien’s testimony I am fully aware of a number
of factors. For example the meeting about which she testified
regarding Consultant Potts’ speaking to the employees could
not have been a later employee meeting at which Potts and
Gremonprez spoke to the employees (that is set forth in de-
tail elsewhere in this decision) because that other meeting
took place on or after May 30, as reflected on the second
amended charge Potts distributed at that later meeting.
O’Brien was no longer working for the Company on or after
May 30, and would not have been present at any such em-
ployee meeting. Thus in crediting O’Brien I must conclude,
as I do, that Consultant Potts spoke to the employees herein
about the Union on at least two occasions.
To tell employees, as I find Consultant Potts did, that if
the employees went union the Company would walk away
from its contract with the Air Force constitutes an unlawful
threat in violation of Section 8(a)(1) of the Act, and I so
find. See, e.g., Wiljef Transportation, 299 NLRB 710 at fn.
1 (1990).
E. Certain Interview Notes of Gremonprez
The Government and Union contend that in addition to
noting which applicants worked for the unionized prede-
cessor employer, U.S. Contracting, Project Manager
Gremonprez’ contemporaneously written applicant interview
notes also reveal the Company’s sentiments regarding union-
ization. For example, Gremonprez wrote regarding applicant
number 120 ‘‘last eleven yrs. at Cape, asked about Union,
probably not a good prospect.’’ Gremonprez’ notes about ap-
plicant number 200 reflect, ‘‘Lots of experience, all Union,
some what of a bad attitude.’’ Gremonprez’ notes regarding
applicant number 102 reads, ‘‘U.S. Contracting, 580–D oper-
ator, shop steward, young man, clean cut, would not use bad
ATTITUDE.’’ Gremonprez noted regarding applicant number
154, ‘‘U.S. Contracting . . . employee, nice kid, did not join
the Union.’’ Project Manager Gremonprez wrote regarding
applicant number 10, ‘‘Good appearance, not much experi-
ence, owned his own business, clean cut, worked as a SCAB,
on strike by EGG employees, may use.’’
III. ANALYSIS DISCUSSION AND CONCLUSIONS
Did the Company refuse to consider for employment and
refuse to hire the employee applicants of the predecessor em-
ployer listed in the complaint, because the employees were
affiliated with the Union and in order to discourage employ-
ees from engaging in such activities and to avoid a bargain-
ing obligation with the Union? Before going into the specif-
ics of answering the above, it is helpful to review certain
legal principles.
A. Legal Principles
It is well established that a failure to hire a job applicant
because of his/her union sympathies or activities violates
Section 8(a)(1) and (3) of the Act. The same principle ap-
plies when an employer, for the same reason, fails to con-
sider an applicant for employment. See, e.g., D.S.E. Concrete
Forms, 303 NLRB 890, 896 (1991), and Vos Electric, 309
NLRB 745, 759 (1992). A newly selected successful contract
bidder (such as the Company here) is not obligated to hire
its predecessor’s employees, but may not refuse to hire the
predecessor workers solely because they were represented by
a union or to avoid having to recognize a union. NLRB v.
Burns Security Services, 406 U.S. 272 (1972); Howard John-
son’s v. Detroit Local Joint Executive Board, 417 U.S. 249
(1974). As was noted by Judge Steven Davis, in his analysis
in Laro Maintenance Corp., 312 NLRB 155, 161 (1993), an
employer is only required to consider and select its prede-
cessor’s employees on the same lawful basis utilized with re-
spect to others it considered and either selected or rejected.
In other words were all applicants for employment judged by
the same standards, with the failure to hire the alleged
discriminatees reflecting no more than an equal application
of those standards. The Board in U.S. Marine Corp., 293
NLRB 669, 670 (1989), listed a number of factors that tend
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985SMITH & JOHNSON CONSTRUCTION CO.
to establish whether a new employer has violated the Act in
refusing to hire employees of the predecessor. It is noted in
U.S. Marine Corp.:
The Board has held that the following factors are
among those that establish that a new owner has vio-
lated Section 8(a)(3) in refusing to hire employees of
the predecessor: Substantial evidence of union animus;
lack of a convincing rationale for refusal to hire the
predecessor’s employees; inconsistent hiring practices
or other acts or conduct evidencing a discriminatory
motive; and evidence supporting a reasonable inference
that the new owner conducted its staffing in a manner
precluding the predecessor’s employees from being
hired as a majority of the new owner’s overall work
force to avoid the Board’s successorship doctrine.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); ap-
prove in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), the Board set forth its causation test for
cases alleging violations of the Act that turn, as does the
case herein, on employer motivation. First, the General
Counsel must make a prima facie showing sufficient to sup-
port the inference that protected conduct was a ‘‘motivating
factor’’ in the employer’s decision. Once this is established,
the burden shifts to the employer to demonstrate that it
would have taken the same action even in the absence of the
protected conduct. An employer cannot simply present a le-
gitimate reason for its actions but must persuade, by a pre-
ponderance of the evidence, that the same action would have
taken place even in the absence of the protected conduct.
The classic elements commonly required to make out a
prima facie case of union discriminatory motivation under
Section 8(a)(3) of the Act are union activity, employer
knowledge, timing, and employer animus. As to the latter
element, the Board, under certain circumstances, will infer
animus in the absence of direct evidence. Such a finding may
be inferred from the record as a whole. See, e.g., Fluor Dan-
iel, Inc., 304 NLRB 970, 971 (1991). In the Fluor Daniel,
Inc. case, which involved refusals to hire, the Board con-
cluded that where all applicants who revealed some indica-
tion of union membership on their applications were not con-
tacted or called in for an interview or hired while applicants
who uniformly displayed weak or nonexistent union ties
were, it was reasonable to infer it was not just coincidental
and that such disparity, standing alone, was sufficient to sup-
port a prima facie case of discrimination.
In AMI, Inc., 319 NLRB 536 (1995), the Board relied, in
great part, on the following factors to establish a prima facie
case: statements by the employer’s representatives that em-
ployees of the predecessor were being denied job applica-
tions, because they had worked for the predecessor employer,
and the consistent refusal by the employer’s officials to
speak with union officials despite the union’s repeated at-
tempts. Furthermore, in AMI, Inc., the Board placed reliance
on the fact the employer failed to show that any of the pred-
ecessor employees were not hired for lawful reasons. In fact
in AMI, Inc., the Board concluded that the evidence estab-
lished the employer had predetermined not to hire any of the
predecessor employees and ‘‘carried out its plan to near per-
fection.’’ The Board in AMI, Inc. noted that the employer’s
refusal to hire the predecessor’s employees was part of its
plan to avoid an obligation to recognize and bargain with the
Union and thereby violated the Act.
B. The Prima Facie Case
Based on the facts herein I find the Government estab-
lished its initial burden under Wright Line of demonstrating
that the union membership of U.S. Contracting employees
was a motivating factor in the Company’s failure to employ
them.
It is undisputed that the Company, and more particularly
Company Vice President Johnson, Consultant Potts, Project
Manager Gremonprez, and Assistant Project Manager Gopel
all knew of the unionized status of the predecessor employ-
ees. The status of U.S. Contracting as a unionized employer
was, for example, revealed to the Company in the bid pack-
age the Air Force provided to all potential bidders including
the Company here. Assistant Project Manager Gopel served
in a supervisory position for the unionized predecessor em-
ployer U.S. Contracting.
The Government’s evidence of the Company’s antiunion
animus and its unlawfully motivated hiring practices follows.
First, even though the Company was aware of the unionized
status of the predecessor employees, Project Manager
Gremonprez, for no valid reason, unlawfully asked the first
U.S. Contracting applicant he interviewed on February 14, if
(U.S. Contracting) was unionized. Second, Project Manager
Gremonprez asked U.S. Contracting shop steward and appli-
cant, Derrick Fowler, during his interview, about his job
steward status at the predecessor employer and, after ridicul-
ing Fowler about his job steward position, informed Fowler
such would not be a job requirement with the Company here.
Gremonprez in his contemporaneously prepared interview
notes on Fowler noted he was a ‘‘clean cut’’ ‘‘young’’ trac-
tor operator, but he would not use Fowler noting Fowler was
a ‘‘shop steward’’ and had a ‘‘bad attitude.’’ Third, Project
Manager Gremonprez impliedly threatened U.S. Contracting
employee and job applicant Tim Claiborne during his inter-
view when Gremonprez told Claiborne on February 15, that
‘‘a lot of people out there fixing to lose their jobs, aren’t
there.’’ It is noted that Gremonprez told Claiborne this well
before the second series of interviews had been conducted,
thus leaving the clear indication that the unionized U.S. Con-
tracting employee applicants were not going to be considered
for and more importantly, left out of the hiring process by
the Company. Furthermore, Project Manager Gremonprez
told D. M. Potts Corporation employee Rebecca O’Brien,
when she was asked about transferring from D. M. Potts
Corporation to the Company herein, that none of the U.S.
Contracting employees would be remaining at the Cape with
the Company here. Fourth, Project Manager Gremonprez
noted in his contemporaneously prepared interview notes that
each of the U.S. Contracting employee applicants had in fact
been employed by the unionized predecessor employer but
he did not note the prior employers of other non U.S. Con-
tracting applicants. Fifth, Project Manager Gremonprez’ in-
terest in the union sympathies of applicants is set forth in
certain of his interview notes: on applicant number 10,
‘‘good appearance, not much experience . . . worked as a
SCAB on strike . . . may use him’’; applicant number 200,
‘‘lots of experience, all union, somewhat of a BAD ATTI-
TUDE’’; applicant 154 ‘‘nice kid,
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986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 See generally AMI, Inc., 319 NLRB 536 (1995).
38 The admittedly appropriate unit is:
All full-time and regular part-time lawn maintenance employ-
ees, including equipment mechanics, tractor operators, laborers,
full-time temporary laborers, and lead persons; but excluding all
other employees, managerial employees, clerical employees,
guards and supervisors as defined in the Act.
did not join the Union’’; applicant 120 ‘‘asked about Union,
probably not a good prospect.’’ It is clear just from these
notes that Project Manager Gremonprez looked on applicants
with antiunion sentiments as favorable candidates for em-
ployment but viewed employees with prounion sentiments
just the opposite in that they had bad attitudes and were un-
acceptable applicants for employment. Sixth, the Company
failed to hire any of the jobsite experienced predecessor em-
ployees, with one exception, that being the only employee of
the predecessor work force that had not joined the Union.
The Company continued to demonstrate its antiunion bias,
unlawfully motivated hiring practices, and its preoccupation
with the Union even after it had commenced performing the
services called for in its grounds maintenance contract with
the Air Force. For example, Project Manager Gremonprez
told employees during the first week of their employment
‘‘not to associate or talk with anyone with the Union.’’ Con-
sultant Potts highlighted the Company’s hiring policies and
practices by telling employees he did not want to hire the
predecessor employer’s work force, because they were
Union.
The Company’s strong antiunion bias, coupled with its de-
termination not to become unionized is clearly indicated by
Consultant Potts’ statement to employees sometime between
March 1 and May 19 that the Company was having problems
with the Union, ‘‘and that if we did go Union, he would not
carry the contract on any longer.’’
There are other indications the Company predetermined
not to hire the unionized work force of its predecessor. I note
the Company never availed itself of the opportunity to re-
view the personnel files of the predecessor employees even
though the Company was offered full access to such files by
U.S. Contracting President Brands. I likewise note the Com-
pany failed to consider the experience levels of the U.S.
Contracting employees and the many reference letters con-
tained in their applications that were provided to the Com-
pany.
All the above establishes, as contended by the Government
and Union, a very strong prima facie case that the Company
predetermined not to hire any of the U.S. Contracting em-
ployees because of their membership in the Union and in
order for the Company to avoid a bargaining obligation with
the Union.
C. The Company’s Burden
I find the Company failed to demonstrate it would have
taken the same hiring actions it did in the absence of the
predecessor employees’ union affiliations. First, the Com-
pany failed to present evidence to demonstrate that any of
the predecessor employees were not hired for lawful reasons.
The Company said it was looking, for example, for clean cut,
neat employees; however, Project Manager Gremonprez ac-
knowledged that many of the predecessor employees were
courteous, and exhibited good appearances, yet none, except
the one nonunion applicant, was hired by the Company. The
evidence is clear the Company did not uniformly apply its
interpretation of a clean cut, neat appearance in that Project
Manager Gremonprez asked some of those he had already
hired to cut their hair and directed that certain of the male
employees not wear ear jewelry while working. Further, al-
though it conceded experienced tractor operators were need-
ed, it bypassed the experienced and highly recommended
pool of tractor operators among the predecessor employees.
Additionally the Company ignored, without adequate expla-
nation, the fact the predecessor employees had the necessary
security clearances to work at the Cape. In this regard I note
the Company had a very short time frame in which to hire
a work force and it had been advised it would take time to
obtain security clearances for employees other than the pred-
ecessor employees.
Simply stated, I find the Company unlawfully refused to
employ the former U.S. Contracting employees because of
their affiliation with the Union. Such violates Section 8(a)(3)
and (1) of the Act and I so find.
D. Recognition and Bargaining Obligation
That the Company is a successor employer to U.S. Con-
tracting was acknowledged by the Company in its posttrial
brief, and as I have noted elsewhere in this decision, the evi-
dence supports such an admission. Accordingly, I find the
Company is a successor employer to U.S. Contracting.
The Board noted in American Press, 280 NLRB 937, 938
(1986),37 ‘‘When a successor has discriminated in hiring, it
can be inferred that substantially all the former employees
would have been retained absent the unlawful discrimina-
tion.’’ Any uncertainty must be resolved against the wrong
doer for to do otherwise would allow an employer to benefit
from its own wrong doing. Thus I conclude and find that ab-
sent its unlawful hiring practices the Company would have
hired substantially all, if not all, of the predecessor’s work
force, namely, the 18 individuals specifically named in the
complaint and noted elsewhere in this decision.
The Company hired 26 employees as of March 1, which
constituted a substantial and representative complement of its
work force. The 18 predecessor employees that the Company
unlawfully refused to hire would constitute a majority of the
Company’s work force in an admittedly appropriate unit.38
The Board in Control Services, 319 NLRB 1195 (1995),
observed: ‘‘It is well settled that a successor employer is ob-
ligated to recognize and bargain with the collective-bargain-
ing representative of its predecessor’s employees when the
predecessor’s employees comprise a majority of its work
force and the collective-bargaining representative demands
bargaining in an appropriate unit. Fall River Dyeing Corp.,
482 U.S. 27 (1987).’’
As noted above, but for the Company’s unlawful discrimi-
natory hiring practices, it would have hired, as a majority of
its work force, the unionized employees of its predecessor.
An appropriate bargaining unit is admitted thus the only
remaining question is did the Union demand bargaining? The
Union, Local Union President Hill in particular, did not spe-
cifically make a bargaining demand of the Company. I am
persuaded however, that Hill did, by his actions, implicitly
demand recognition and when taken in conjunction with the
Company’s unlawful acts, and the Union’s amended charge
alleging the Company refused to recognize and bargain with
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987SMITH & JOHNSON CONSTRUCTION CO.
39 Clearly after the fourth amended charge was filed there could
be no doubt as to the Union’s position.
it, no more need be required of the Union in order to obli-
gate the Company to recognize and bargain with it as the
employees’ collective-bargaining representative.
Local Union President Hill learned during the second
week in February that another contractor had been awarded
the work previously performed by U.S. Contracting. He also
learned from an Air Force representative that it was the
Company here and that the Company was headquartered in
Ohio. With location assistance from the telephone company
Hill telephoned the Company at its Ohio headquarters. Hill
told a Company representative that he, Hill, was president of
the Local Union that represented the employees currently
working under the contract at the Cape and ‘‘asked him [the
Company representative] to hire the existing work force.’’
Local Union President Hill was told by the Company rep-
resentative the Company was ‘‘certainly not an anti-Union
Company’’ but hiring decisions had been placed in the hands
of a local hiring authority in Florida, ‘‘and he [the Company
representative] would direct the local hiring authority to get
in contact with [Hill] to discuss these things with [Hill].’’
The Company’s local hiring authority did not contact Hill.
Hill again contacted the Company’s Ohio offices on Feb-
ruary 27 and told a Company representative he was president
of the Local Union that represented the grounds maintenance
employees at the Cape and he had spoken with them earlier
about hiring the existing work force. Hill told the Company’s
representative he had never received a telephone call, al-
though he was assured one would be forth coming, from the
Company’s local hiring authority. The Company’s represent-
ative gave Hill Consultant Potts name and telephone number.
President Hill telephoned Consultant Potts that same day
(February 27) and told Potts he was president of the Local
Union that represented the employees under the existing con-
tract and asked Potts ‘‘to hire the existing Union work
force.’’ Potts told Hill the Company’s Ohio office had asked
him to call Hill, but Potts said he had not had time to do
so. Potts told Hill the hiring decisions had already been
made. Hill asked if the Company hired the existing unionized
work force and was told the Company only hired one the
mechanic. Hill responded, ‘‘you mean you hired the only
guy out there who is not a member of the Union.’’
The above actions and in actions of the Company dem-
onstrates it was attempting to avoid contact with Local
Union President Hill. Hill made it clear to the Company he
was the president of the Local Union that represented the
unit of employees in question, and he wanted the Company
to hire the existing unionized work force. The Company did
not, as promised, get in touch with Hill before its hiring de-
cisions had been finalized. It is implicit in Hill’s comments
and actions that he was asking the Company to hire the ex-
isting work force and recognize and bargain with the Union.
Any ambiguity that could conceivably have existed on that
point was cleared up when on June 26, the Union filed a
fourth amended charge, alleging the Company had failed and
refused to recognize and bargain with the Union. As the
Board in Williams Enterprises, 312 NLRB 937, 938 (1993),
noted it has held ‘‘that an 8(a)(5) charge, standing alone, can
constitute a demand for recognition [footnote omitted].’’ The
Board in Williams Enterprises also concluded that an 8(a)(5)
charge can also serve to clarify remarks that might otherwise
be too vague to constitute a demand for recognition.39
Based on all the foregoing, I find the Company was obli-
gated to recognize and bargain with the Union on and after
March 1.
CONCLUSIONS OF LAW
1. Smith and Johnson Construction Company is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Transportation Workers Union of America, AFL–CIO,
Local 525 is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. All employees employed at Smith and Johnson Con-
struction Company at Cape Canaveral Air Force Station Flor-
ida, as successor to U.S. Contracting, engaged in full-time
and regular part-time lawn maintenance employees, including
equipment mechanics, tractor operators, laborers, full-time
temporary laborers, and lead persons; but excluding all other
employees, managerial employees, clerical employees, guards
and supervisors as defined in the Act constituted a unit ap-
propriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. At all times material, the Union has been the exclusive
representative of all the employees in the above-described
unit for the purpose of collective bargaining within the mean-
ing of Section 9(a) of the Act.
5. Smith and Johnson Construction Company is a succes-
sor employer to U.S. Contracting at Cape Canaveral Air
Force Station Florida and, by since on or about March 1,
failing and refusing to recognize and bargaining with the
Union as the exclusive collective-bargaining representative of
the employees in the above described unit, the Company vio-
lated Section 8(a)(5) and (1) of the Act.
6. By failing and refusing to hire the employees named in
paragraph 2(a) of this Order, because of their union affili-
ation, the Company in each instance engaged in unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act
by interfering with the exercise of their rights guaranteed in
Section 7 of the Act and by discriminating in regard to their
hire and tenure of employment thereby discouraging mem-
bership in a labor organization.
7. By interrogating employee applicants about their union
membership, activities, and sympathies; by impliedly threat-
ening employee applicants with reprisals because of their
union membership, activities, and sympathies; by directing
its employees not to talk to anyone about the Union; by di-
recting its employees to report communications from any in-
dividuals concerning the Union to the Company and, by in-
forming its employees it had refused to hire applicants, be-
cause of their membership in and activities on behalf of and
sympathies for the Union, the Company violated Section
8(a)(1) of the Act.
8. These unfair labor practices affect commerce within the
meaning of Section 2(6) (7) of the Act.
REMEDY
It having been found that the Company has engaged in
certain unfair labor practices, it is recommended that it be or-
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988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dered to cease and desist therefrom and take certain affirma-
tive action designed to effectuate the purposes of the Act.
I shall recommend the Company be required to offer the
employees named in paragraph 2(a) of the Order employ-
ment in their former jobs or, if those jobs no longer exist,
to substantially equivalent positions without prejudice to their
seniority, and other rights and privileges previously enjoyed,
discharging if necessary, employees hired from sources other
than U.S. Contracting to make room for them and make them
whole for any loss of earnings they may have suffered due
to the discrimination against them from March 1, 1995, until
proper offers of employment are made, less net interim earn-
ings as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), interest thereon shall be computed in accordance with
the formula approved in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Further I shall recommend the Company be required to
recognize and bargain with Transport Workers Union of
America, AFL–CIO, Local 525 in the appropriate bargaining
unit and, if agreement is reached, to reduce the agreement to
a written contract. In addition it is recommended the Com-
pany be ordered to remove from its files any reference to its
unlawful refusal to hire the discriminatees named in para-
graph 2(a) of the Order for its Cape Canaveral Air Force Sta-
tion Florida location and notify them in writing that this has
been done and that the refusals to hire them will not be used
against them in any way. I also recommend the Company be
ordered to post an appropriate notice to employees copies of
which are attached hereto as ‘‘Appendix,’’ for a period of 60
days in order that employees may be apprised of their rights
under the Act and the Company’s obligation to remedy its
unfair labor practices.
[Recommended Order omitted from publication.]
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