A & A Insulation Services

National Labor Relations Board - Board Decisions

Feb 28, 2005

344 N.L.R.B. 322 (N.L.R.B. 2005)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
344 NLRB No. 27
322
A & A Insulation Services, Inc. and Local 32, Heat
and Frost Insulators and Asbestos Workers.
Case 22–CA–24669
February 28, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On August 2, 2002, Administrative Law Judge Steven
Davis issued his decision and recommended Order in this
proceeding in which he recommended that the Respon-
dent be ordered to make whole discriminatees James
Cunningham, Ken Johnson, and Keith Wagner for any
loss of earnings and other benefits suffered as a result of
the Respondent’s discrimination against them. No ex-
ceptions were filed to the judge’s decision and on Octo-
ber 4, 2002, the National Labor Relations Board issued
an Order adopting the findings and recommendations of
the judge and directing the Respondent to take the action
set forth in the judge’s decision and recommended Order.
On April 30, 2003, the United States Court of Appeals
for the Third Circuit entered an unpublished judgment
enforcing the Board’s Order.1
A controversy having arisen over the amount of back-
pay due the discriminatees under the Board’s Order, the
Regional Director for Region 22 issued a compliance
specification and notice of hearing on May 20, 2004,
identifying the amounts of backpay due under the
Board’s Order, and notifying the Respondent that it was
required to file a timely answer complying with the
Board’s Rules and Regulations. On June 10, 2004, the
Respondent filed an answer.
By letter dated September 14, 2004, the General Coun-
sel advised the Respondent that its answer was defective
under Section 102.56 of the Board’s Rules and Regula-
tions in that it failed to specifically admit, deny, or ex-
plain each and every allegation of the compliance speci-
fication. The letter notified the Respondent that if it
failed to correct the deficiencies in its answer by Sep-
tember 28, 2004, a motion for summary judgment would
be filed. The Respondent failed to file an amended an-
swer.
On November 5, 2004, the General Counsel filed with
the Board a Motion for Summary Judgment. The Gen-
eral Counsel asserted in that motion that there are no
genuine issues of material fact regarding the allegations
and calculations set forth in the compliance specification.
The General Counsel contends that the Respondent failed
to address a number of allegations in the compliance
specification. The General Counsel further maintains

1 Case No. 03-1605.
that the answer constituted a general denial that was defi-
cient under Section 102.56(b) and (c) of the Board’s
Rules and Regulations because it did not specify the ba-
sis for the disagreement with the backpay computations,
offer any alternative formula for computing backpay,
furnish appropriate supporting figures for amounts owed,
or adequately explain its failure to do so. The General
Counsel moved that the Board deem all the allegations of
the compliance specification to be true and grant the
General Counsel’s Motion for Summary Judgment.
On November 10, 2004, the Board issued an Order
transferring the proceeding to the Board and a Notice to
Show Cause why the General Counsel’s motion should
not be granted. The Respondent failed to respond to ei-
ther the General Counsel’s Motion for Summary Judg-
ment or the Board’s Notice to Show Cause. The allega-
tions in the motion are therefore undisputed.
Ruling on the Motion for Summary Judgment
Section 102.56(b) and (c) of the Board’s Rules and
Regulations states:
(b) Contents of answer to specification.—The an-
swer shall specifically admit, deny, or explain each
and every allegation of the specification, unless the
respondent is without knowledge, in which case the
respondent shall so state, such statement operating as
a denial. Denials shall fairly meet the substance of
the allegations of the specification at issue. When a
respondent intends to deny only a part of an allega-
tion, the respondent shall specify so much of it as is
true and shall deny only the remainder. As to all
matters within the knowledge of the respondent, in-
cluding but not limited to the various factors enter-
ing into the computation of gross backpay, a general
denial shall not suffice. As to such matters, if the re-
spondent disputes either the accuracy of the figures
in the specification or the premises on which they
are based, the answer shall specifically state the ba-
sis for such disagreement, setting forth in detail the
respondent’s position as to the applicable premises
and furnishing the appropriate supporting figures.
(c) Effect of failure to answer or to plead specifi-
cally and in detail to backpay allegations of specifi-
cation—If the respondent fails to file any answer to
the specification within the time prescribed by this
section, the Board may, either with or without taking
evidence in support of the allegations of the specifi-
cation and without further notice to the respondent,
find the specification to be true and enter such order
as may be appropriate. If the respondent files an an-
swer to the specification but fails to deny any allega-
tion of the specification in the manner required by
A & A INSULATION SERVICES 323
paragraph (b) of this section, and the failure so to
deny is not adequately explained, such allegation
shall be deemed to be admitted to be true, and may
be so found by the Board without the taking of evi-
dence supporting such allegation, and the respondent
shall be precluded from introducing evidence con-
troverting the allegation.
The gross backpay calculations of the compliance
specification are based on a replacement employee for-
mula. The compliance specification alleges that appro-
priate replacement employees are employees hired on or
after May 15, 2001, the date the Respondent unlawfully
refused to hire the discriminatees. The hours claimed on
behalf of the discriminatees are the actual hours worked
by the replacement employees on a weekly basis.
In its answer to the compliance specification, the Re-
spondent disputes the General Counsel’s allegation in
paragraph 2 that Camilo Guzman is an appropriate re-
placement employee for discriminatee Ken Johnson. The
Respondent contends that because Guzman had previ-
ously worked for the Respondent, he had seniority over
Johnson, and therefore, Johnson would not have received
the work that Guzman was assigned. The Respondent
maintains, therefore, that reimbursement for the period
from January 5 to February 9, 2002, based on Guzman’s
earnings should not have been included in backpay cal-
culations for Johnson. In support, the Respondent at-
tached to its answer Guzman’s payroll records from
1991, 1996, 1997, 1998, and 1999 showing that Guzman
had previously worked for the Respondent. Thus, the
Respondent avers that $840, plus interest (representing
70 hours of work) should be deleted from Johnson’s pro-
posed reimbursement. The Respondent does not dispute
any of the other calculations or premises in the compli-
ance specification.
We find that the Respondent’s answer complies with
the requirements of the Board’s Rules and Regulations
with respect to the portion of paragraph 2 of the compli-
ance specification alleging that Guzman is an appropriate
replacement employee for Johnson. It adequately states
the basis for its disagreement with the compliance speci-
fication allegations, sets forth the Respondent’s position
as to the applicable formula, and furnishes the appropri-
ate supporting data. Accordingly, we find that the an-
swer is sufficiently specific under the Board’s Rules and
Regulations to warrant a hearing on the appropriateness
of the use of Guzman as a replacement employee for
discriminatee Johnson and the proposed inclusion of
Guzman’s earnings from January 5 to February 9, 2002.
Cf. Sneva’s Rent-A-Car, 270 NLRB 1316, 1317 (1984)
(summary judgment granted where respondent failed to
set forth alternative premises or supporting details). For
these reasons, we shall deny the General Counsel’s Mo-
tion for Summary Judgment with respect to those issues.
The Respondent’s answer does not, however, address
any other allegation in the compliance specification.
Thus, the Respondent has failed to deny those allegations
in the manner prescribed in Section 102.56(b), or to ex-
plain its failure to do so. Because those allegations are
uncontroverted, we deem them to be admitted as true,
and we grant summary judgment as to them.
Accordingly, we shall grant the General Counsel’s
Motion for Summary Judgment with respect to all issues
except those relating to the use of Guzman as a replace-
ment employee for discriminatee Johnson and the inclu-
sion of Guzman’s earnings from January 5 to February 9,
2002, in Johnson’s proposed reimbursement. We con-
clude that the amounts due discriminatees Cunningham
and Wagner are as stated in the compliance specification,
and we shall order payment by the Respondent of those
amounts, plus interest accrued to the date of payment.
We shall also order a hearing limited to the issues relat-
ing to the use of Guzman as an appropriate replacement
employee for Johnson.
ORDER
It is ordered that the General Counsel’s Motion for
Summary Judgment is granted in part and denied in part.
IT IS FURTHER ORDERED that the Respondent, A & A
Insulation Services, Inc., Hazlet, New Jersey, its officers,
agents, successors, and assigns, shall make whole the
individuals named below, by paying them the amounts
following their names, plus interest as set forth in New
Horizons for the Retarded, 283 NLRB 1173 (1987), and
minus tax withholdings required by Federal and State
laws:
Keith Wagner $14,322
James Cunningham 6,000
TOTAL $20,322
IT IS FURTHER ORDERED that this proceeding is re-
manded to the Regional Director for Region 22 for the
purpose of issuing a notice of hearing and scheduling a
hearing before an administrative law judge for the pur-
pose of taking evidence concerning the issues relating to
the use of Camilo Guzman as a replacement employee in
the calculation of the backpay due to discriminatee Ken
Johnson.
IT IS FURTHER ORDERED that the administrative law
judge shall prepare and serve on the parties a supplemen-
tal decision containing findings of fact, conclusions of
law, and recommendations based on all the record evi-
dence. Following service of the administrative law
judge’s decision on the parties, the provisions of Section
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD324
102.46 of the Board’s Rules and Regulations shall be
applicable.
Bernard S. Mintz, Esq., for the General Counsel.
Paul A. Stamoulis, Esq., of Hazlet, New Jersey, for the Re-
spondent.
Francis Pykon, Esq., of Newark, New Jersey, for the Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based upon a
charge filed on July 2, 2001, by Local 32, Heat and Frost Insu-
lators and Asbestos Workers (Local 32), a complaint was is-
sued on January 31, 2002, against A & A Insulation Services,
Inc. (Respondent).
The complaint alleges that James Cunningham, Ken John-
son, and Keith Wagner applied for employment with the Re-
spondent and it refused to hire them because they were mem-
bers of a union and intended to engage in lawful activities in
support of Local 32.
The Respondent’s answer denied the material allegations of
the complaint, and on June 12, 2002, a hearing was held before
me in Newark, New Jersey. Upon the evidence presented in this
proceeding, and my observation of the demeanor of the wit-
nesses and after consideration of the brief filed by the General
Counsel, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, having its office and place of
business in Hazlet, New Jersey, has been engaged as an insula-
tion contractor in the construction industry. During the past
year, the Respondent provided services valued in excess of
$50,000 for Akzo Nobel, Cas Chem, Troy Chemical, and other
enterprises within the State of New Jersey which are directly
engaged in interstate commerce. The Respondent admits and I
find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION STATUS OF THE UNIONS
The complaint alleges, and the Respondent denies that Lo-
cals 14, 24, 32, and 42, all affiliated with the Heat and Frost
Insulators and Asbestos Workers, are labor organizations
within the meaning of the Act.
Each of the above unions has collective-bargaining agree-
ments with employers covering their employees who are repre-
sented by the union with respect to wages, hours, and terms and
conditions of employment. The members of each of the unions
participate in the union by attending meetings and voting for
union officers.
Based upon the above, I find that Locals 14, 24, 32, and 42
are labor organizations within the meaning of Section 2(5) of
the Act.
III. PROCEDURAL ISSUES
A. Standing to File the Charge
The Respondent argues that since none of the three appli-
cants for employment was a member of Local 32, that Union
had no standing to file the charge, and that therefore the charge
and the complaint upon which it is based, must be dismissed.
As set forth below, the three job applicants were officials of
three other labor organizations but were acting at the request of
Michael Schneider, an organizer for Local 32 in attempting to
organize the Respondent.
Section 102.9 of the Board’s Rules and Regulations provides
that a charge may be filed by any “person.” The term “person”
is broadly defined in Section 2(1) of the Act to include labor
organizations. Accordingly, Local 32 was a proper charging
party even though none of its members was an applicant for
hire or the victim of an unfair labor practice.
B. The Respondent’s Request for a Greek Language Interpreter
The Respondent’s counsel stated that he had requested that
the General Counsel provide a Greek language interpreter at the
hearing. He further stated that the General Counsel denied his
request. The Respondent renewed its request at the hearing. The
reason for the request is that the Respondent intended to call its
president, Anthony Argyrou, as a witness, and further that Ar-
gyrou needed the interpreter to translate the proceedings so that
he could understand what was being said. I denied the Respon-
dent’s request for a Greek language interpreter to be provided
by the General Counsel, and suggested that the Respondent
could hire an interpreter at the Respondent’s expense. The Re-
spondent called no witnesses to testify and rested its case upon
the conclusion of the General Counsel’s case.
In Domsey Trading Corp., 325 NLRB 429 (1998), the Board
upheld the administrative law judge’s ruling denying the re-
spondent’s request that the Board pay for interpreters for the
respondent’s witnesses. In Domsey, as in our case, the Board
held that (a) the witnesses will be called by the respondent in its
case; (b) there was no claim or evidence that the respondent is
financially unable to pay for the cost of an interpreter; and (c)
the matters that the respondent seeks to adduce through its wit-
nesses relate to its burden of proving its case.
In George Joseph Orchard Siding, 325 NLRB 252 (1998),
the Board upheld the administrative law judge’s ruling requir-
ing that the Board pay for an interpreter for the respondent’s
witnesses. George Joseph is easily distinguishable from the
facts here.
First, the Board held that its ruling was limited to the facts
therein. The facts in that case when applied here require a find-
ing that Respondent must pay for its own interpreter. In George
Joseph, the General Counsel called numerous witnesses who
were not English speaking or whose English was sufficiently
limited so that testimony in Spanish was necessary. Here, all
the witnesses called by the General Counsel were English-
speaking.
The basis for the holding in George Joseph, supra, is that
large numbers of witnesses were foreign speaking, the “bulk”
of the testimony was in Spanish, and the events relevant to the
issues in that hearing were conducted in Spanish. Documents
A & A INSULATION SERVICES 325
were in Spanish only, or in Spanish and English, including
affidavits, company letters, and other exhibits.
In contrast, here the sole conversation at issue was between
Robert Orr, the foreman, and the three individuals who applied
for jobs and were refused hire. That conversation took place in
English. There is no evidence that any conversation relating to
this matter took place in the Greek language.
Accordingly, this case, unlike George Joseph, supra, does
not involve such a “degree, extent, or proportion of interpreta-
tion that the interpretive function transcends simply the advo-
cacy of one party or another and rather becomes a necessary
part of the judicial administration of the trial.”
Here, an obligation to provide an interpreter remains the ob-
ligation of a party litigant, in this case, the Respondent.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts1
1. The advertisement for employees
On May 6, 2001,2 the following advertisement appeared in a
local newspaper, the Asbury Park Press: “Insulators. Industrial
work. Must have car. Call 732–495–0091.”
Michael Schneider, an organizer for Local 32, noticed the
advertisement and on May 7 called Keith Wagner, a Local 24
organizer to ask for help in organizing this employer. The Re-
spondent was located within the jurisdiction of Local 32, and
Schneider sought to have a collective-bargaining relationship
between Local 32 and the Respondent.
On May 7, Wagner placed a call to the number in the adver-
tisement and was told that the employer was A & A Insulation,
the Respondent. Wagner said that he was responding to the ad
for insulators. The woman who spoke to him asked how many
years of experience he had, and he responded that he had about
15 years of experience. She replied that that was good since the
Respondent was looking for experienced workers. She said that
she would have “Rob” [Robert Orr] call him. Wagner asked
how much work was available and she answered that the Re-
spondent has “a lot of work.” He inquired when he could start
work, and she said he had to speak to Orr. Wagner offered that
he had a couple of other workers who were also interested. She
again advised him to speak to Orr.
On May 9, Orr phoned Wagner and asked about his experi-
ence. Wagner mentioned that he had 15 to 20 years in the busi-
ness and had performed all aspects of the insulating trade. Orr
mentioned that the Respondent had a large foam glass project
“coming up” and wanted to know if he had experience with that
type of material. Orr said that new employees start at $13 per
hour. Wagner asked if he was looking for additional workers,
and Orr replied that he was seeking three employees. Wagner
replied that he had others available if he needed more, and Orr
responded that three “will do well at this period in time.” Wag-
ner asked when “we” could start and Rob said that he needed to

1 This narrative of the facts is based upon the credited, uncontra-
dicted testimony of the five witnesses presented by the General Counsel
which was supported by a tape recording of the main incident involved
herein. The Respondent presented no witnesses.
2 All dates hereafter are in 2001, unless otherwise stated.
interview him first before hiring him. “You sound good, but I
need to see you.”
They arranged to meet at a rest stop on the New Jersey
Turnpike on May 11. Orr asked Wagner where he lived and
where he would be traveling from. Wagner answered that he
lived in Maryland and that traveling was not an issue. He told
Orr that traveling a “great distance” was no problem, and that if
necessary, he could relocate to the work area. Wagner asked
Orr if he was the owner of the Company. Orr said that he was
not the owner but he acted as a field superintendent and did the
hiring.
2. The refusal to hire the three applicants
On Friday, May 11, Wagner met James Cunningham, the
president of Local 14, a resident of Philadelphia, Pennsylvania,
and Ken Johnson, an organizer for Local 42, a resident of
Delaware. All three men were full-time paid union officials or
organizers. Together, they traveled to the rest stop and met Orr.
They wore shirts that said “union yes,” but covered those shirts
with other apparel. They introduced themselves and Orr gave
them employment applications. During the ensuing conversa-
tion they filled out their applications.
Unknown to Orr, Wagner tape recorded the conversation.
What follows are the material parts of the transcript of the tape
recording prepared by Wagner.
The Respondent objected to the introduction of the tape re-
cording as hearsay. Hearsay is defined as a statement, other
than one made by the declarant while testifying at the trial,
offered in evidence to prove the truth of the matter asserted.
Federal Rules of Evidence, Rule 801(c). Cunningham, Johnson,
and Wagner listened to the tape recording of the interview and
reviewed the transcript made of the recording by Wagner. All
three men testified that the transcript accurately reflected the
conversation set forth on the tape. In addition, the Respondent’s
counsel, after having listened to the tape, stated that it was an
accurate depiction of what was said at the meeting.
Evidence obtained either secretly or without notice is pre-
sented all the time in trials. Examples include secretly made
tape recordings of telephone or face-to-face conversations, or
recordings secretly made of a manager’s statements at group
meetings. There are many such NLRB cases. Parts Depot,
Inc., 332 NLRB 670, 679 (2000).
I accordingly reaffirm my ruling overruling the Respondent’s
objection to the tape as hearsay.
After speaking to the three men about their qualifications,
Orr asked them “how soon are you guys looking to start?” They
replied that they wanted to begin immediately. They asked
where the Respondent was working at that time, and Orr said
that the Company had just put in a bid for a foamglass job, was
starting a job in Bayonne and “there are a couple of jobs com-
ing. It’s going to be a lot of jobs. We’ll hopefully do a lot of
jobs.” Orr noted that if the work maintains its current level “we
keep you on, but if we slow down, we slow down . . . .” He
added that he could keep the men on “definitely through the
summer.”
WAGNER: When do you think we can start?
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD326
ORR: We’ll probably get you guys going sometime
next week.
WAGNER: Do you know when?
ORR: I’ll have to call you. I need to talk to Tony about
that.3
WAGNER: Can you ask him now? I mean, can you give
us a definite date?
ORR: Well, I can call you.
WAGNER: Well, we would just like to know before we
get out of here, so we know what we are locked into. Do
you think Monday?
ORR: Let me see if I can get him on the phone.
Tony, what’s going on with Cas-Chem? When do you
want to start that? If you want to keep Gordon over at
Axel and I’ll set these guys up over there. Yeah, that’s
where I will be, I’ll be there. Tuesday? Okay, yeah, yeah,
is Tuesday all right? That will give us time to get material
there. Okay, okay. When are you starting over at Hatco?
When are you going to finish that shit over there? You
working there tonight? Yeah, all right. Okay I’ll start eve-
rything there unless you want to start it.
[At this point, an unidentified woman approached
them and began a conversation. Wagner told her that they
were being hired by Orr. She asked Orr whether he was
the “boss of these guys?”]
ORR: Well, if I hire them I will be.
Wagner: So when do we start?
ORR: Tuesday, I’ll get you guys set up on Tuesday, is
that all right?
WAGNER, Cool, yeah man.
ORR: We are going to be starting a new job on Tues-
day.
WAGNER: Where at?
ORR: By Bayonne.
WAGNER: Do you know where it is Kenny [Johnson]?
JOHNSON: Yeah.
WAGNER: How much?
ORR: How much what?
WAGNER: We going to start for?
ORR: Twelve.
WAGNER: I thought it was $13.00.
ORR: I said $12.00.
WAGNER: No man, you said $13.00.
ORR: No, I said $12.00. I start everyone at $12.00.
WAGNER: All right.
ORR: I said if you guys know what you are doing, then
I will give you $13.00.
WAGNER: How many other people will be on the job?
ORR: The way it looks now, it will be me and one
other guy. Maybe.
WAGNER: Will we get a chance to talk to the other
people?
ORR: Talk to who?
WAGNER: The other employees, I’d like to. What time
do we start on Tuesday?

3 Anthony Argyrou is the president of the Respondent.
ORR: The hours are 7:00 a.m. to 3:30 p.m. If we need
you to stay later, we will ask you.
WAGNER: 1½ ?
ORR: Yeah, anything over 8 hours is 1½ , Saturday is
1½, Sundays are double time.
Wagner: It’s almost like working for the Union, huh?
ORR: Yeah, any federal holidays we give you off. I
don’t know how many. 11 or 14 in the year. You guys
have your own tools?
WAGNER. Yeah.
ORR: Do you have a bander?
WAGNER: I can probably get one.
ORR: They are kind of expensive. Normally when we
are doing a tank, we’ll make sure you have one. Any type
of harness we supply. You are going to need a hard hat,
safety glasses, work boots, long sleeve shirt, and pants.
Orr asked the men to write on the top of their applications
how much money they wanted deducted from their wages for
taxes. Wagner then introduced the subject of union organizing.
WAGNER: Have you ever thought about signing with
the Union?
ORR: No, we don’t want to get involved in that.
WAGNER: No that’s what we are here for, to try and do
some organizing.
ORR: For who?
WAGNER: For the Union.
ORR: Uh, we’re not going to be Union.
WAGNER: What?
ORR: We’re not going to be Union.
WAGNER: Well, we are going to try, that is why we
want to meet your other employees. Is that all right? What
do you think?
ORR: What do you mean?
WAGNER: We are going to try to organize.
ORR: We are pretty well organized.
WAGNER: No, Union Organizers for the Union.
ORR: We don’t want to get involved with the Union.
WAGNER: So the Union’s cool, huh?
ORR: What’s that?
WAGNER: Organizing, you don’t have a problem with
that, do you?
ORR: I don’t think my uncle wants to get involved in
that?4
WAGNER: No?
ORR: No.
WAGNER: We are still going to work?
ORR: What do you mean?
WAGNER: The job is still on?
ORR: What are you looking to do here?
WAGNER: We’re looking to go to work and organize
your company. That’s all we want.
ORR: What do you mean organize?

4 In response to a question by the unidentified woman, Orr said that
his boss was his uncle.
A & A INSULATION SERVICES 327
WAGNER: Make A & A become a Union contractor.
That’s our goal. We are going to work hard for you and
talk to your employees. That’s cool, huh?
ORR: I don’t think he wants to get involved in the Un-
ion.
WAGNER: No?
ORR: No.
WAGNER: So, do we have a job?
ORR: Why didn’t you tell me that on the phone?
Wagner: Would you have hired us?
ORR: If you trying to get us in the Union?
WAGNER: Yeah.
ORR: No, we don’t want no problems with the Union.
WAGNER: So, we don’t have a job then?
ORR: Well, if you are trying to get us in the Union, we
don’t want to do that.
CUNNINGHAM: So, you are not hiring anybody?
ORR: No.
WAGNER: No?
ORR: We don’t want to get involved with the Union.
WAGNER: So, what do you want us to do with these?
ORR: Well, if you are going to be in the Union, we
don’t want to get involved in the Union. We’re not Union,
simple as that.
WAGNER: So, since we are in the Union, we go?
ORR: If you are trying to get us in the Union, no.
Wagner: We want to go to work but we want the op-
portunity to talk to your employees.
ORR: Talk to them about what?
WAGNER: Joining the Union. We want to talk to the
employees about making A & A a Union contractor. So,
do we still have our job or not?
ORR: What are you trying to do?
WAGNER: We want to go to work and talk to your em-
ployees. We are going to talk to them on our own time.
ORR: You want to take our employees?
WAGNER: No, we want them to stay working for you,
with Union representation. Do they deserve a better oppor-
tunity?
ORR: I don’t know what you are talking about. We are
not Union. We’re not involved with the Union.
WAGNER: All right not yet, but you are now because
we are here.
ORR: We are private contractors, we already knew
somebody Union, and we did not get involved.
CUNNINGHAM: Who contacted you?
ORR: Tony took care of that.
At this point in the conversation, Orr made a phone call.
Wagner stated that he did not know who he called, but Johnson
believes that he called Argyrou. A fair inference may be made
that Orr called the person who he spoke to earlier which was
the Respondent’s president, Argyrou.
ORR: Hey what’s up? Hey, uh, these guys want us to
get involved with the Union somehow. They want to get
involved with the Union. The guys that are filling out ap-
plications. They want to make us Union. Yeah, yeah. They
say Union Organizer. He’s a Union Organizer. I know.
Yeah, these guys want to make us Union.
CUNNINGHAM: We are not going to make you Union.
It’s your employees. Give them a better life?
WAGNER: We are going to tell your employees about
the opportunities that are available.
ORR: Oh, what?
CUNNINGHAM: We are one of your employees now.5
ORR: I did not hear you. Yeah, I did not hear you,
what’d you say? It’s uh, Union Organizer, International
Association of Heat & Frost Insulators and Asbestos
Workers. Are you guys Union workers?
CUNNINGHAM: Yeah.
ORR: Yeah, they are Union workers.
CUNNINGHAM: He already hired us.
ORR: Well, all right. He doesn’t want anything to do
with the Union.
WAGNER: So, we are not going to work?
ORR: No, he doesn’t want anything to do with Unions.
WAGNER: No?
ORR: No.
WAGNER: So, we are not going to work?
ORR: He doesn’t want any of you guys working.
WAGNER: All right, can I finish filling this out?
ORR: He doesn’t want any Union workers. He says no
Union workers. I don’t know why you didn’t tell me this
from the beginning.
WAGNER: Would you have hired us, we were looking
for a job?
ORR: Why didn’t you just tell me from the beginning?
WAGNER: ‘Cause you wouldn’t have hired us, right?
I guess we shouldn’t have told you now. Does this ap-
plication look all right? Is it cool?
ORR: Good.
WAGNER: All right, thanks, man. Sorry we couldn’t do
business. We were looking forward to going to work.
CUNNINGHAM: Since we’re Union, we’re not being
hired.
JOHNSON: We are very capable and willing to work for
what you are paying.
WAGNER: How about those marginal guys. Can we
talk to them, we might want to get them in the Union.
ORR: What marginal guys?
WAGNER: The guys you said you might get rid of.
ORR. Well, right now, it looks like I need them.
At the conclusion of the interview, Wagner gave the three
completed applications to Orr who looked at them for a few
minutes. The applications prominently set forth the union af-
filiations of the men, listing their completion of union appren-
ticeship programs, their positions in the unions, and their em-
ployment with union contractors.

5 Wagner stated that Cunningham gave Orr a business card, and ap-
parently Orr was reading it to Argyrou on the phone.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD328
3. The qualifications of the applicants
Apparently, Orr was satisfied with the qualifications of the
three applicants because he offered them employment and told
them to report to work.
Cunningham has more than 20 years experience as an insula-
tor, having entered the trade in 1979. He completed a 4-year
apprenticeship program and became a journeyman. He has
performed “every facet” of insulation work in the industry,
including hot and cold systems.
Johnson began work as an insulator in 1965, and he has per-
formed such work for 32 years. He completed apprenticeship
training which included all aspects of insulating work, and
became a journeyman. He last worked in the trade for 1 month
in the summer of 2001. He quit that job because of an old back
injury for which he had surgery in 1996. However, Johnson is
not restricted in his ability to work.
Wagner began work as an insulator in 1975 or 1976. He
completed a 4-year apprenticeship which included all aspects of
the trade. Upon completion of such training, he became a jour-
neyman, being employed in all three types of insulation pro-
jects—commercial, industrial, and residential. He worked on
hot and cold insulation projects. He stated that he was experi-
enced in all aspects of insulation work. Wagner last insulated
pipes 5 or 6 months prior to the hearing. Such work was for a
charitable organization. Before that, he was employed as an
insulator 6 years ago, having worked for M & M Insulation
Company.
During the interview on May 11, Orr asked the men if they
had worked with a material called Trimer 2000. They said they
did not. At the hearing, they explained that Trimer 2000 was a
manufacturer’s brand name with which they were not familiar,
but they knew of the product itself, which is urethane, and had
worked with it in the past. In any event, their lack of knowledge
of Trimer 2000 did not cause Orr to reject them for hire.
4. The supervisory and agency status of Robert Orr
As set forth above, the evidence establishes that Orr offered
employment to the three applicants. He interviewed them and
offered them jobs. Aside from the evidence, set forth above,
that Orr offered jobs to the three applicants, there was also
evidence that he hired two other workers.
Jerry Davis responded to a newspaper advertisement in the
summer of 2000. He was interviewed by Orr who asked him
about his experience. Davis recited his experience and Orr gave
him an employment application. Orr told Davis just to list his
name, address, phone number, and the number of dependents
on the application. Orr said that he did not have to list his job
history. Orr then told him that he could start work the following
Monday at $14 per hour.
Davis worked for the Respondent for only 2 months, during
which time he was a paid organizer for Local 89, Insulators
Union. However, the Respondent did not know of his union
affiliation. He sought the job only to obtain information for use
in an organizing campaign.
In about the summer of 2000, Davis told Michael Schneider,
an organizer for Local 32, that the Respondent was looking for
workers. Schneider called the Respondent seeking work, and
was told that Orr would call him. Shortly thereafter, Orr and
Schneider spoke by phone. Orr said that he understood that
Schneider was looking for work, and asked if he knew Davis.
Schneider said that he knew Davis. Orr said that there was an
opening for an employee and Schneider asked if he could be
hired. Orr replied, “yes,” and told Orr to report to the job that
Davis was then working on.
The following day, Schneider reported to work and intro-
duced himself to Orr who gave him an application. Schneider
asked him if he was the boss. Orr said that he was not, that his
“Uncle Tony” was the boss, but he (Orr) does the hiring and
firing. Schneider worked for about 2 weeks and quit. His pur-
pose in working was to obtain information regarding the Com-
pany and when that was completed he left. Schneider did not
indicate on his application that he was a union member, and
during his tenure, Schneider did not tell his coworkers that he
was attempting to organize the Respondent, and did not attempt
to solicit their membership in the Union.
In March 2001, Argyrou called Davis several times and
asked him to return to work. Argyrou told him that there was a
lot of work and that he needed a “couple of men.” Davis said
that he was not available.
The Respondent’s original answer to the complaint admitted
the complaint allegation that Orr was its supervisor and agent.
The Respondent’s first amended answer denied that allegation.
At hearing, the Respondent’s counsel, in arguing that the em-
ployees’ testimony on the tape recording was hearsay, stated
that “I do believe that the comments of our foreman, Mr. Orr,
may qualify for exception to the hearsay rule as being an ad-
mission by party opponent, Mr. Orr of course being an agent of
A & A Insulation, Inc., the Respondent.”
It is abundantly clear, therefore, that on May 11, Robert Orr
was an agent of the Respondent and its supervisor having the
authority to hire, within the meaning of Section 2(11) of the
Act.
Analysis and Discussion
The complaint alleges that the Respondent unlawfully re-
fused to hire Cunningham, Johnson, and Wagner because they
were members of a union and intended to engage in lawful
activities in support of Local 32.
To establish a discriminatory refusal to hire violation, the
General Counsel must show: (1) that the respondent employer
was hiring, or had concrete plans to hire, at the time of the al-
leged unlawful conduct; (2) that the applicants had experience
or training relevant to the announced or generally known re-
quirements of the positions for hire; and (3) that antiunion
animus contributed to the decision not to hire the applicants.
Once the General Counsel has made this showing, the burden
shifts to the employer to show that it would not have hired the
applicants even in the absence of their union activity or affilia-
tion. [Tim Foley Plumbing Service, 337 NLRB 598 (2002);
FES, 331 NLRB 9, 12 (2000). ]
It is clear that the Respondent was hiring at the time of the
May 11 interview. In March 2001, the Respondent’s president
Argyrou asked former employee Davis several times to return
to work and told him that he needed a couple of men. Appar-
ently unable to fill the jobs through appeals to former workers,
A & A INSULATION SERVICES 329
the Respondent placed an advertisement in a local newspaper
for “insulators.” Thus, it was seeking more than one insulator.
On May 9, Orr told Wagner that he was seeking to hire three
people, and on May 11 he offered employment to the three
applicants.
It is equally clear that the three applicants had experience
relevant to the requirements of the positions for hire. As set
forth above, Cunningham, Johnson, and Wagner each had more
than 20 years experience as insulators and had completed an
extensive 4-year apprenticeship program and had then become
journeymen. Their lack of knowledge of Trimer 2000 did not
deter Orr from hiring them.
The evidence establishes that Robert Orr possessed the au-
thority to hire employees. He hired Davis and Schneider on his
own without seeking permission from Company President Ar-
gyrou. Here, too, Orr offered employment to the three appli-
cants without obtaining approval from Argyrou or anyone else.
Thus, Orr interviewed the three men and asked about their ex-
perience. Immediately following that discussion, and appar-
ently satisfied that the men possessed the needed experience,
Orr asked, “[H]ow soon are you guys looking to start?” When
they told him that they wanted to begin immediately, Orr said,
that they could definitely remain employed through the sum-
mer. When the men pressed Orr about starting soon, he called
Argyrou in order to determine when the men could start. Orr
told the men that he would probably put them to work the fol-
lowing week but that he had to check with Argyrou about a
starting date. It was at that point that he called Argyrou. After
speaking to Argyrou, Orr told them that they could start the
following Tuesday at Bayonne. Orr finalized the hiring by tell-
ing them the starting rate of $12 per hour and instructing that
they should bring their own tools and safety equipment.
The evidence therefore establishes that three job openings
were available and the three applicants were offered employ-
ment to fill those openings. FES, supra at 14.
Immediately following their hire, Wagner told Orr that they
were union organizers who sought to organize the Respondent.
Orr’s attitude immediately changed. He said that he did not
believe that Argyrou wanted to get involved with the Union,
adding that Wagner should have told him his intentions to or-
ganize when they spoke on the phone prior to the interview.
When Orr was asked directly whether he would have hired the
men if he had known that they were union organizers, Orr said
“No, we don’t want no problems with the Union.” When asked
whether they had a job, Orr replied, “[I]f you are trying to get
us in the Union, we don’t want to do that” and he was not hir-
ing anyone, and “we don’t want to get involved with the Un-
ion.” Finally, Orr spoke to Argyrou and told him that the three
applicants were union organizers. He then told them that Argy-
rou “doesn’t want anything to do with the Union.” In reply to a
question as to whether they would be going to work, Orr said,
“[N]o, he doesn’t want anything to do with Unions. He doesn’t
want any of you guys working. He doesn’t want any Union
workers. He says no Union workers. I don’t know why you
didn’t tell me this from the beginning.”
The evidence is crystal clear that Cunningham, Johnson, and
Wagner were offered employment by the Respondent and then
were refused hire when the Respondent learned that they were
union organizers who sought to organize its shop. I accordingly
find and conclude that antiunion animus contributed to the de-
cision not to hire those three applicants. Once the General
Counsel has made this showing, the burden shifts to the em-
ployer to show that it would not have hired the applicants even
in the absence of their union activity or affiliation. Wright Line,
251 NLRB 1083 (1980).
The Respondent attempted to prove that it did not possess
union animus since it employed Davis and Schneider, both of
whom were union members. However, neither told any official
of the Respondent that he was a member of a union and they
did not indicate on their job applications the fact that they were
union members. Accordingly, the Respondent had no knowl-
edge of the union affiliations of Davis or Schneider. Therefore,
the absence of animus toward them is explainable since the
Respondent was not aware of their union membership.
The Respondent called no witnesses and presented no de-
fense to the complaint’s allegations. However, Respondent’s
counsel raised certain defenses in opening and closing state-
ments, none of which were proven, which will nevertheless be
discussed here.
The Respondent’s counsel called the tactics of the union “en-
trapment” or a “sting” done for the purpose of organizing its
employees. He asserted that the applicants were not interested
in obtaining work but were simply attempting to organize its
shop, and were therefore not bona fide applicants. On cross-
examination, Cunningham, Johnson, and Wagner conceded that
they were full-time paid union officials and organizers, and
they intended to retain their jobs with their respective unions
while working for the Respondent. They further conceded that
they intended to quit work with the Respondent after it was
organized. Orr expressed no concern about how long the three
men intended to work for the Respondent when he offered them
jobs. It is possible that the organizing effort would have taken
much time and, thus, the Respondent’s concern that these men
would work only a short time would not be an issue. The Su-
preme Court and the Board, in rejecting other respondents’
arguments, have found that full-time paid union organizers and
employment applicants are considered employees under Sec-
tion 2(3) of the Act, and are entitled to the Act’s protection.
NLRB v. Town & Country Electric, 516 U.S. 85 (1995); Fergu-
son Electric Co., 330 NLRB 514 (2000), enfd. 242 F.3d 426
(2d Cir. 2001).
The Respondent’s counsel further stated that the Respondent
sought to hire only one employee, but that three appeared, and
that certain jobs it had bid on did not materialize. However, it is
clear that the advertisement sought more than one person, Orr
expressed a need to hire three people, and in fact offered jobs to
the three applicants. In addition, the three men were told that
there was enough work to keep them busy through the summer.
Counsel also asserted that the Respondent had a practice of
hiring residents of New Jersey to work for it because all of its
jobs were located in the Northern New Jersey area. As set forth
above, Wagner told Orr on the phone when the interview was
arranged that he lived in Maryland and that traveling was not an
issue. The applicants were not asked at the interview where
they lived, and Orr expressed no reservation about hiring them,
except when he learned about their union affiliation and in-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD330
tended activities in behalf of the union. In any event, these al-
leged defenses were not proven at the hearing, Respondent not
having called any witnesses or adduced any evidence concern-
ing those matters.
I accordingly find that the Respondent has not met its burden
of showing that it would not have hired Cunningham, Johnson,
and Wagner in the absence of their union affiliations and in-
tended activities. I therefore find and conclude that the Respon-
dent violated Section 8(a)(1) and (3) of the Act by refusing to
hire them because of their union membership and because they
intended to engage in lawful activities in support of Local 32.
CONCLUSIONS OF LAW
1. The Respondent, A & A Insulation Services, Inc., is an
employer within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Locals 14, 24, 32, and 42, affiliated with the Heat and
Frost Insulators and Asbestos Workers, are labor organizations
within the meaning of Section 2(5) of the Act.
3. By refusing to hire James Cunningham, Ken Johnson, and
Keith Wagner because of their union membership and because
the Respondent believed that they intended to engage in lawful
activities in support of Local 32, the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily refused to hire
James Cunningham, Ken Johnson, and Keith Wagner, it must
offer them instatement and make them whole for any loss of
earnings and other benefits, computed on a quarterly basis from
the date they would have commenced working for the Respon-
dent, May 15, 2001, less any net interim earnings, as prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
The complaint contained a request for an additional remedy
requiring the Respondent to reimburse Cunningham, Johnson,
and Wagner for any extra Federal and/or State income taxes
that would or may result from the lump sum payment of the
award. I reject such a request since such remedial relief would
require a change in Board law. Colden Hills, Inc., 337 NLRB
560 (2002).
The Respondent’s counsel argued at the hearing that the new
work the Respondent expected and for which it had submitted
bids did not materialize. Accordingly, according to counsel, it
should not have to instate the three men because of lack of
work.
Generally, an employee who has been refused hire by an
employer is entitled to instatement to the position he applied
for. “However, in some situations, legitimate and substantial
business reasons may justify an employer in his failure or re-
fusal to reinstate an employee. One such reason may be elimi-
nation of the employee’s job for substantial and bona fide cause
not related to any labor dispute.” McDonnell Douglas Corp.,
270 NLRB 1204, 1209 (1984). These matters may be raised in
a compliance proceeding, in which the Respondent has the
burden of demonstrating that instatement should not be made.
See Boland Marine & Mfg. Co., 280 NLRB 454, 461 (1986).
The Respondent’s payroll records were received in evidence
upon the General Counsel’s offer of them. The General Coun-
sel argues that they show that the Respondent hired certain
employees following its refusal to hire the three applicants
involved herein. I have not considered such evidence in making
this decision. However, such evidence would also be appropri-
ately considered in a compliance proceeding.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, A & A Insulation Services, Inc., Hazlet,
New Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to hire applicants for employment because of
their union affiliation or based on the Respondent’s belief that
they may engage in union organizing activity once they are
hired.
(b) In any like or related manner interfering with, restraining,
or coercing employees or applicants for employment in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer James
Cunningham, Ken Johnson, and Keith Wagner full instatement
to a job for which they applied or, if that job no longer exists, to
a substantially equivalent position, without prejudice to their
seniority or any other rights or privileges.
(b) Make James Cunningham, Ken Johnson, and Keith Wag-
ner whole for any loss of earnings and other benefits suffered as
a result of the discrimination against them, in the manner set
forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful refusal to hire
James Cunningham, Ken Johnson, and Keith Wagner and,
within 3 days thereafter, notify each of them in writing that this
has been done and that the refusal to hire will not be used
against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Hazlet, New Jersey, copies of the attached notice

6 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.
A & A INSULATION SERVICES 331
marked “Appendix.”7 Copies of the notice, on forms provided
by the Regional Director for Region 22, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since May 11, 2001.
(f) 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.
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
Federal labor law and has ordered us to post and obey this notice.

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to hire applicants for employment be-
cause of their union affiliation or because we believe that they
may engage in union organizing activity once they are hired.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees or applicants for employment in
the exercise of the rights guaranteed them by Section 7 of the
Act.
WE WILL within 14 days from the date of this Order, offer
James Cunningham, Ken Johnson, and Keith Wagner full in-
statement to a job for which they applied or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to their seniority or any other rights or privileges.
WE WILL make James Cunningham, Ken Johnson, and Keith
Wagner whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful refusal to
hire James Cunningham, Ken Johnson, and Keith Wagner and,
WE WILL within 3 days thereafter, notify each of them in writing
that this has been done and that the refusal to hire will not be
used against them in any way.
A & A INSULATION SERVICES, INC.