Vae Nortrak North America, Inc.

National Labor Relations Board - Board Decisions

Feb 4, 2005

344 N.L.R.B. 249 (N.L.R.B. 2005)

VAE NORTRAK NORTH AMERICA, INC.
344 NLRB No. 12
249
Vae Nortrak North America, Inc. and United Steel-
workers of America, Local 3405. Case 27–CA–
18917–1
February 4, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 31, 2004, Administrative Law Judge James
L. Rose issued the attached decision. The Charging
Party filed exceptions and a supporting brief, and the
Respondent 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 rulings,2
findings,3 and conclusions and to adopt the judge’s rec-
ommended Order dismissing the complaint.
ORDER
The complaint is dismissed in its entirety.

1 The Charging Party has requested oral argument. The request is
denied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 The judge did not apply the framework for analysis of a refusal-to-
hire case that the Board set forth in FES, 331 NLRB 9 (2000), enfd.
301 F.3d 83 (3d Cir. 2002). Although the judge applied slightly differ-
ent standards in assessing the General Counsel’s case, we nevertheless
find that his analysis comports with that of FES, and that the General
Counsel has failed to meet his burden of proof under the FES standards.
See, e.g., ITT Federal Services Corp., 335 NLRB 998, 999 fn. 4 (2004).
3 The judge apparently resolved credibility disputes in favor of the
Respondent’s witnesses. Contrary to our colleague, we find it unneces-
sary to resolve any ambiguities in the judge’s credibility determinations
because we find that the General Counsel has not met his burden of
proving, pursuant to FES, supra, that antiunion animus contributed to
the decision not to hire Sam Pantello. Had the judge credited the testi-
mony of the General Counsel’s witnesses, the testimony demonstrated
antiunion animus attributable only to Plant Manager Craig Fetty. The
record clearly indicates, however, that Fetty was not responsible for the
decision not to hire Pantello, nor did he take any part in that decision.
Indeed, Fetty was not employed by the Respondent at the time the
decision was made. Under these circumstances, we agree with the
judge that any antiunion animus attributed to Fetty would not have
motivated the hiring decision as he had no part in it. See, e.g., JS Me-
chanical, Inc., 341 NLRB 353, 354 fn. 7 (2004).
Member Liebman agrees with the judge that the General Counsel
has failed to meet his initial burden under FES, supra, of showing that
union animus contributed to the Respondent’s decision not to hire
alleged discriminatee Pantello. She relies solely on the judge’s credi-
bility resolutions in favor of the Respondent’s witnesses. She disagrees
with her colleagues’ finding that, even if the judge had credited the
General Counsel’s witnesses, any union animus consequently attributed
to Plant Manager Fetty against Pantello would not be imputable to
Human Resources Director Dillard, who made the final decision not to
hire Pantello.
Donald E. Chavez, Esq., for the General Counsel.
Elmer E. White, Esq., of Birmingham, Alabama, for the Re-
spondent.
Stanley M. Gosch, Esq., of Denver, Colorado, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter was
tried before me at Pueblo, Colorado, on July 20, 2004,1 upon
the General Counsel’s complaint which alleged that on January
14, the Respondent refused to hire Sam Pantello in violation of
Section 8(a)(3) of the National Labor Relations Act (the Act).
The Respondent generally denied that it committed any vio-
lations of the Act and affirmatively contends that it did not hire
Pantello for good cause and not in violation of the Act.
On the record as a whole, including my observation of the
witnesses, briefs, and arguments of counsel, I hereby make the
following
I. JURISDICTION
Vae Nortrak North America, Inc. (the Respondent or Nor-
trak) is a Wyoming corporation engaged in the business of
manufacturing rails and various associated products for sale to
customers in the railroad industry, with a facility at Pueblo,
Colorado. In the conduct of this business, the Respondent will
purchase and receive at its Pueblo facility goods, products, and
materials valued in excess of $50,000 directly from points out-
side the State of Colorado. The Respondent admits, and I con-
clude, that it is an employer engaged in interstate commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, United Steelworkers of America, Local
3405 (the Union), is admitted to be, and I find is, a labor or-
ganization within the meaning of Section 2(5) of the Act.
A. The Facts
In 2003, Nortrak began the process of acquiring the assets of
Meridian Rail Corporation of Pueblo, Colorado. Preliminary to
the acquisition, in early to mid-November, three members of
Nortrak management made an inspection trip to Pueblo, one of
whom was Jeffery Clay Johnson, the Respondent’s human re-
sources manager. Johnson’s job was to inspect, check serial
numbers, and photograph the equipment, to insure that in fact
Meridian’s machines were as stated. He was not to have any
interchange with Meridian employees nor was he to tell them
what he was about (though this would seem to have been obvi-
ous).
Craig Fetty, Meridian’s plant manager (who was subse-
quently hired by the Respondent in that position) took Johnson
on an orientation walk through the plant, and then Johnson was
on his own to do his inspection. While doing this, according to
Johnson, Pantello, whom he did not know, approached him in a
confrontational manner and said, “Who the hell are you?”
“What are you doing?” “What are the pictures for?” While

1 All dates are in 2004, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD250
Pantello agrees that he had a discussion with Johnson, he de-
nied that he was in any way rude or confrontational. In fact
Pantello testified that he offered to help get a serial number off
his machine and had been introduced to Johnson and the other
two Nortrak managers by Fetty. Pantello testified that he even
suggested an Italian restaurant to them for dinner that evening
which, assertions were denied by Johnson and Fetty.
In December 2003, the Respondent was about to acquire Me-
ridian and, thus, began the process of interviewing applicants
(off premises) and making decisions as to whom to send offer
letters. At some point, Johnson told Robert Dillard, the director
of human resources for Pueblo (and two other plants), about his
perception of the incident with Pantello and suggested that
Pantello was not the sort of person the Respondent wanted as
an employee. Though Dillard interviewed Pantello, he had
predetermined not to offer him a job and did not.
According to Dillard, the Respondent hired a total of 62 bar-
gaining unit employees (whereas Meridian had 75 or 76) all but
8 of whom had worked for Meridian. During this process, Dil-
lard had received applications from 80 plus individuals who
had not worked for Meridian but he interviewed only 15. Dil-
lard testified that a couple of Meridian employees he inter-
viewed were hostile and he declined to offer them jobs. He did
agree that Pantello was not hostile during the interview.
Pantello had worked for Meridian and its predecessors 29
years and, as far as the Respondent knew, was a competent
employee. He was also the Union’s president, and had been for
12 years. It was because of his position, the General Counsel
alleges, that he was not hired. The Respondent contends that
the only reason he was not hired was its evaluation of him
based on the confrontation with Johnson.
Since acquiring Meridian, the Respondent has recognized the
Union and they have been in negotiations for a collective-
bargaining agreement, inasmuch as a substantial majority of the
bargaining unit employees had worked for Meridian, and for
many years its predecessors, had recognized the Union. Where
the parties are in negotiations is not in this record.
B. Analysis and Concluding Findings
As a general proposition, when one company acquires the
assets of another, it is not required to hire the predecessor’s
employees. However, the successor company may not lawfully
deny a job offer because of the employee’s activity on behalf of
a labor organization. E.g., Howard Johnson Co. v. Hotel &
Restaurant Employees, 417 U.S. 249 (1974). And, whether the
refusal to hire an individual is unlawful is controlled by Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), which requires the
General Counsel to establish a prima facie case of discrimina-
tion based on the employer’s knowledge of union activity and
evidence of union animus. Then the burden of going forward
shifts to employer to show that the same hiring decision would
have been made even in the absence of union activity.
The refusal to offer Pantello a job is alleged to have been be-
cause of his union activity—specifically, that he was the Un-
ion’s president. The General Counsel argues that the Respon-
dent’s stated reason for not hiring Pantello must necessarily
have been a pretext, since the critical event relied on by the
Respondent did not happen as testified to by Johnson, or, at any
event, it was too trivial to deny employment to an experienced,
competent employee. Therefore, the true reason must have
been the fact that Pantello is the Union’s president.
In arguing that the Respondent had animus against Pantello’s
known and extensive union activity, the General Counsel of-
fered the testimony of two witnesses: Pantello’s uncle and
Pantello’s wife. The uncle testified that at a regular poker
game in January, he asked Fetty if Pantello would be hired and
Fetty told him no, because Pantello was a “troublemaker.”
Fetty denied the comment to Pantello’s uncle.
And in 2001 (or early 2002), at the time Meridian acquired
the plant, following which Pantello was not hired,2 Fetty (who
was then the production manager) told Pantello’s wife (though
they were not married at the time) “he had finally gotten the
union out of the plant, which he had wanted to do for the last
two years. . . .” Somewhat before that, Fetty, according to
Pantello’s wife, said that Pantello had said things to make peo-
ple mad. Fetty was not asked about these statements to
Pantello’s wife, which tends to suggest that he made them.
However, it is difficult to credit alleged statements that Fetty
said he had finally gotten the union out of the plant since in fact
the Union continued to represent the production employees.
Further, the witness testified about an alleged event occurring 2
years before the Respondent acquired the plant and has an ob-
vious stake in the outcome of this proceeding. While I do not
credit her testimony, I conclude that even if true, the facts she
testified to are irrelevant.
There is no evidence tending to disprove the testimony of
Fetty and Dillard that Fetty was not involved in the decision not
to offer Pantello a job or that this decision was made prior to
Fetty himself being offered the position of plant manager. Thus
it is difficult to accept the General Counsel’s argument that
whatever animus Fetty had toward Pantello (whether or not
because of Pantello’s union activity) could be imputed to the
Respondent.
Though there are credibility conflicts, particularly concern-
ing the November incident, which I tend to resolve in favor of
the Respondent’s witnesses, even accepting Pantello’s version I
cannot conclude that he was not hired because of his union
presidency.
First, there is no contention that when Pantello confronted
Johnson (or talked to him in Pantello’s version) that he was
acting on behalf of the Union, in his capacity as president or
otherwise in concert with other employees.
Most importantly, there is no evidence of union animus. The
Union had represented employees of the plant since about 1944
and there is no suggestion that the relationship between the
Respondent’s various predecessors and Union was anything
other than harmonious. While 44 grievances were filed in the
previous 2 years, presumably by employees, such does not
imply that Pantello was so aggressive a representative of em-
ployees that the Respondent would be motivated to deny him
employment. Nor does this tend to prove he was the most ac-
tive member of the Union. As far as this record shows, he had

2 Pantello was ultimately hired, apparently through the grievance
process, though such is not clear on the record.
VAE NORTRAK NORTH AMERICA, INC. 251
been the Union’s president for some years, and participated in
the Union’s affairs as such. This does not imply unusual activ-
ism, or suggest a motive to single him out to be discriminated
against.
Johnson testified that he was aware that if less than 50 per-
cent of the employees hired had not been Meridian employees,
the Respondent would not have to recognize the Union. In fact
about 85 percent of those hired were Meridian employees, in-
cluding the union vice president and other officers of the Un-
ion. Dillard had received some 80 applications from non-
Meridian employees but interviewed only 15 and hired only 8.
The Respondent has recognized the Union and is negotiating
for a collective-bargaining agreement.3 There is no evidence
that Pantello’s activity as the union president (for instance in
processing grievances) was a matter of concern to Meridian, the
plant manager or, more importantly, to the Respondent.
Assuming Pantello was considered a “troublemaker” and
said things to make people mad, such does not imply that these
evaluations were based on Pantello’s union or other protected
concerted activity. While “troublemaker” is sometimes a code
word for “union activist” it can also be literal. In short, the
General Counsel has offered no persuasive rationale for why
the Respondent would single out Pantello to discriminate
against because he was an officer of the Union. Finally,
Pantello was not the only employee of Meridian not to be of-
fered a job with the Respondent, yet he is the only one alleged
to have been discriminated against.
In effect, the General Counsel argues that because Pantello
was the Union’s president, prima facie the Respondent’s failure
to hire him was unlawful. I do not agree that simply refusing to
hire the president of the union representing a predecessor’s

3 In a similar acquisition in Chicago, the Respondent hired about 90
percent of the predecessors employees and has recognized their bar-
gaining representative, though not hiring the union’s president. I reject
the inference argued for by the Charging Party that the Respondent has
a pattern to deny employment to the presidents of local unions of com-
panies it acquires.
employees makes out a prima facie case. The Charging Party
cites Champion Rivet Co., 314 NLRB 1097 (1994), wherein a
successor company’s failure to hire the union president and two
other union activists was found unlawful. In that case, how-
ever, there was substantial evidence of union animus including
the company’s stated desire to operate nonunion as it did at
other facilities. Such facts are simply not present here.
It may well be that the reason given for not hiring Pantello
was trivial and in other contexts might lead to an inference that
the true reason was his union activity; however, such an infer-
ence cannot be made in absence of some evidence that hiring
decisionmaker had some union animus. Here such evidence is
lacking.
I conclude that the evidence is insufficient to support a find-
ing that the Respondent did not hire Pantello because of his
union activity. Accordingly, I shall recommend that the com-
plaint be dismissed.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended 4
ORDER
The complaint is dismissed in its entirety.

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.