Action MultiCraft

National Labor Relations Board - Board Decisions

Dec 20, 2001

337 N.L.R.B. 268 (N.L.R.B. 2001)

268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Action Temporary Employment, a/k/a Action Multi-
Craft and Local Union 654, International Broth­
erhood of Electrical Workers, AFL–CIO and
Local Union 313, International Brotherhood of
Electrical Workers, AFL–CIO and A-Bell Elec­
tric, Inc. and Action Temporary Employment,
a/k/a Action Multi-Craft and Local Union 654,
International Brotherhood of Electrical Work­
ers, AFL–CIO and A-Bell Electric, Inc. and Ac­
tion Temporary Employment, a/k/a Action
Multi-Craft and Local Union 313, International
Brotherhood of Electrical Workers, AFL–CIO.
Cases 4–CA–23898, 4–CA–24026, 4–CA–23974,
and 4–CA–24001
December 20, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On June 30, 1997, Administrative Law Judge Karl H.
Buschmann issued the attached decision. On December
13, 2000, the judge issued the attached supplemental
decision. Respondent Action Temporary Employment1
filed exceptions to the judge’s initial decision and a sup-
porting brief, and the General Counsel filed an answering
brief in opposition to the Respondent’s exceptions. The
General Counsel filed exceptions and a supporting brief,
the Respondent filed an answering brief in opposition to
the General Counsel’s exceptions, and the General Coun­
sel filed a reply brief to the Respondent’s answering
brief. No exceptions were filed to the judge’s supple-
mental decision.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find­
ings,2 and conclusions only to the extent consistent with
this Decision and Order.3
The facts, as more fully set forth in the judge’s deci­
sion, are as follows.
1 Respondent A-Bell Electric, Inc. entered into an informal settle­
ment agreement, and is not a party to these proceedings. All references
to “Respondent” herein are to Action Temporary Employment.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis­
trative law judge’s credibility resolutions unless the clear preponder­
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We shall modify the judge’s recommended Order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001).
The Respondent is an employment agency that recruits
and hires temporary workers on behalf of its clients. In
early 1995, union members from two local unions of the
International Brotherhood of Electrical Workers (IBEW)
submitted employment applications to the Respondent.
One of the questions on the Respondent’s application
form inquired whether the applicant had been involved
with a union. None of the applicants who revealed their
union membership was considered for employment,
while those who concealed their union affiliation were
hired. One applicant who was being interviewed over
the telephone was asked whether he was still with the
Union. Finally, two union members, Robert Matsinger
and James Conroy, who had been hired by the Respon­
dent and referred to work on a project, went on strike for
3 days to protest the Respondent’s unfair labor practices.
They ended their strike and offered to return to work
unconditionally, but were refused reinstatement to their
jobs.
The judge found that the Respondent violated Section
8(a)(3) and (1) by refusing to consider and refer for em­
ployment members of the two local unions. He also
found that both the question on the Respondent’s appli­
cation form and the inquiry to the applicant regarding his
union activity constituted unlawful interrogations in vio­
lation of Section 8(a)(1). We adopt these findings by the
judge, as well as his analysis. The judge, however, rec­
ommended dismissal of the complaint allegation that the
Respondent unlawfully refused to reinstate employees
Robert Matsinger and James Conroy. For the reasons set
forth below, we reject this recommendation and find the
Respondent’s actions violated Section 8(a)(3) and (1) of
the Act.
The Refusal to Reinstate James Conroy and
Robert Matsinger
A. Facts
James Conroy and Robert Matsinger were both mem­
bers of IBEW Local 654, and Conroy additionally was
that Local’s president.4 The Respondent hired Conroy
and Matsinger and, on June 21, 1995,5 referred them for
employment at A-Bell Electric’s Avon facility in New-
ark, Delaware. The judge found, and we agree, that the
Respondent and A-Bell are joint employers.
Conroy and Matsinger worked for A-Bell on June 21.
On June 22 and 23, both employees went on strike to
protest the Respondent’s unfair labor practice of refusing
4 Both Conroy and Matsinger previously had submitted applications
with the Respondent and, as found by the judge, were among the appli­
cants that the Respondent unlawfully refused to hire.
5 All dates are 1995, unless otherwise indicated.
337 NLRB No. 39
ACTION MULTI-CRAFT 269
to refer union applicants for employment.6 They also
picketed the Avon jobsite on both days from 6:30 a.m. to
10:30 a.m. with placards stating, “Action Temporary
Employment Service, unfair labor practice. Strike.”
The Respondent concedes that A-Bell informed it of
the picketing activity early in the morning of June 22,
and that it thereafter went to the Avon site to meet with
A-Bell. The Respondent further admits that it knew that
Conroy’s and Matsinger’s picketing was directed against
it.
On Friday, June 25, Conroy and Matsinger reported to
work at the Avon jobsite. They informed A-Bell’s fore-
man, Louis Wright, that they were unconditionally end­
ing their strike and returning to work. The employees
said that Wright then informed them, “You’ve been dis­
missed by Action and you’ve been permanently replaced
by Tri-County Electric.”7 Conroy and Matsinger left the
Avon jobsite. The following Monday they submitted
their timecards to the Respondent and were paid. The
Respondent thereafter did not refer Conroy or Matsinger
to any jobs. In a subsequent letter to the Board’s Re­
gional Office, the Respondent argued that this non-
referral was consistent with its “policy that any worker
leaving a job and failing to return thereafter will not be
hired again.” (Emphasis in original).
B. Analysis
At issue here is whether the Respondent is liable for
A-Bell’s unlawful refusal to reinstate Conroy and
Matsinger upon their unconditional offer to return to
work from their unfair labor practice strike.
In Capitol EMI Music,8 the Board analyzed the cir­
cumstances under which one joint employer will be li­
able for the unfair labor practices of another. Specifi­
cally, the Board held that
[I]n joint employer relationships in which one em­
ployer supplies employees to the other, we will find
both joint employers liable for an unlawful employer
termination (or other discipline short of termination)
only when the record permits an inference (1) that the
nonacting joint employer knew or should have known
that the other employer acted against the employee for
unlawful reasons and (2) that the former has acquiesced
in the unlawful action by failing to protest it or to exe r-
6 Previously, on June 6, IBEW Local 654 had filed an unfair labor
practice charge alleging, inter alia, that the Respondent had unlawfully
refused to refer its members for employment. Locals 654 and 313
subsequently filed additional charges.
7 The judge found that Conroy’s and Matsinger’s testimony, about
what Wright said that the Respondent had told him, was hearsay.
8 311 NLRB 997 (1993), enfd. 23 F.3d 399 (4th Cir. 1994)(Table).
cise any contractual right it might possess to resist it.
[footnotes omitted] [311 NLRB at 1000].
In Capitol EMI Music, the Board also established the
following allocation of evidentiary burdens for assessing
whether a joint employer would be held liable for the
unlawful conduct of the other:
The General Counsel must first show (1) that two em­
ployers are joint employers of a group of employees, and
(2) that one of them has, with unlawful motivation, dis­
charged or taken other discriminatory actions against an
employee or employees in the jointly managed work
force. The burden then shifts to the employer who seeks
to escape liability for its joint employer’s unlawfully
motivated action to show that it neither knew, nor should
have known, of the reason for the other employer’s ac­
tion or that, if it knew, it took all measures within its
power to resist the unlawful action. ([Footnote omitted.])
[Id.]
The General Counsel argued to the judge that, under
Capitol EMI Music, an inference should be drawn that A-
Bell and the Respondent are jointly responsible for the
unlawful refusal to reinstate unfair labor practice strikers
Conroy and Matsinger after those two employees ended
their strike and unconditionally offered to return to work
at A-Bell on June 25.
The judge found that the General Counsel sustained its
burden under Capitol EMI Music of proving the joint
employer status of A-Bell and the Respondent, and that
A-Bell took discriminatory action against Conroy and
Matsinger by refusing to reinstate these unfair labor prac­
tice strikers. The judge further concluded, however, that
the Respondent met its rebuttal burden because the re-
cord failed to show that it knew or should have known
that Conroy and Matsinger had made an unconditional
offer to A-Bell to return to work. On this basis, the judge
recommended dismissing this portion of the complaint.
In his exceptions, the General Counsel argues that the
judge improperly applied the standards set forth in Capi­
tol EMI Music. The General Counsel contends that the
Board emphasized in Capitol EMI Music that its holding
—that the nonacting joint employer was not liable for the
other’s unlawful act—was a narrow one. It rested on the
finding that no information had been conveyed to the
nonacting joint employer that would have put it on notice
that the other joint employer’s termination decision was
unlawfully motivated. The General Counsel argues,
however, that the Board made clear in Capitol EMI Mu-
sic that if the reason for the termination that was given to
the nonacting joint employer had “suggested a violation,
or if no reason had been given, [the nonacting joint em­
ployer] would have had the burden of presenting some
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
evidence of its efforts to ascertain the reason for the
[termination].” Id. at 1001, fn. 23 [Emphasis added].
Here, the General Counsel contends that even though the
Respondent knew (1) that Conroy and Matsinger had
engaged in an unfair labor strike against it at the A-Bell
jobsite and (2) that their employment had been termi­
nated at A-Bell, the Respondent took no action to deter-
mine the reason for their termination or to separate itself
from A-Bell’s unlawful act. Accordingly, the General
Counsel argues that the Respondent is jointly liable for
A-Bell’s failure to reinstate Conroy and Matsinger. For
the following reasons, we agree.
Under the second prong of Capitol EMI’s 2-part test,
for liability to be imposed on the nonacting joint em­
ployer, the General Counsel must establish that the other
joint employer’s termination decision was discriminato­
rily motivated. Here, however, that motive element is
not required. The judge found, and we agree, that Con­
roy and Matsinger were unfair labor practice strikers 9
who informed A-Bell on June 25 that they were uncondi­
tionally ending their strike and offering to return to work.
In these circumstances, A-Bell was not legally free to
discharge them, but was required to reinstate them upon
this June 25 request. Thus, it is well settled that the de­
nial of reinstatement to unfair labor practice strikers upon
their unconditional offer to return to work is “inherently
destructive” of the strikers’ Section 7 rights without re­
gard to the motive for the denial. See NLRB v. Fleetwood
Trailer Corp ., 389 U.S. 375, 379–380 (1967), citing
NLRB v. Great Dane Trailers, 388 U.S. 26 (1967), and
Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956).
Accordingly, by establishing that A-Bell and the Re­
spondent are joint employers, and that A-Bell refused to
reinstate unfair labor practice strikers Conroy and
Matsinger upon their unconditional offer to return to
work, we find that the General Counsel satisfied his bur-
den under Capitol EMI Music by establishing that A-Bell
had engaged in inherently destructive conduct.
We also find, under the standards set forth in Capitol
EMI Music, that the Respondent failed to meet its burden
of showing that it neither knew nor should have known
of A-Bell’s unlawful action. On the facts of this case, we
find that the Respondent had sufficient information to
impose on it the duty to inquire as to the reason Conroy
and Matsinger were no longer employed at A-Bell. The
Respondent knew that the two employees had engaged in
an unfair labor strike against it at A-Bell starting June 22
and had picketed the A-Bell jobsite with signs directed
only at its unfair labor practices; and it knew that they
were no longer working for A-Bell as of June 25. Thus,
9 Indeed, the Respondent did not except to this finding.
after they ended their strike, Conroy and Matsinger de-
livered their timecards for the A-Bell assignment to the
Respondent and inquired about further work opportuni­
ties. The Respondent then issued paychecks to Conroy
and Matsinger covering their employment at A-Bell and
did not offer them further work. In these circumstances,
particularly because the refusal to reinstate unfair labor
practice strikers would be unlawful regardless of A-
Bell’s motive, we find that the Respondent was obligated
to inquire as to the circumstances under which Conroy
and Matsinger’s employment at A-Bell ceased and thus
should have known of A-Bell’s unlawful conduct. Hav­
ing failed to find out about and protest or reject A-Bell’s
unlawful conduct, the Respondent is jointly liable for A-
Bell’s failure to reinstate Conroy and Matsinger.10
ORDER
The National Labor Relations Board orders that the
Respondent, Action Temporary Employment, a/k/a Ac­
tion Multi-Craft, Wilmington, Newark, and Dover,
Delaware, its officers, agents, successors, and assigns
shall
1. Cease and desist from
(a) Coercively interrogating employees and job appli­
cants about their union involvement and activities.
(b) Refusing to consider, refer, or hire applicants for
jobs because of their union membership.
(c) Refusing to reinstate unfair labor practice strikers
after they unconditionally offer to return to work.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
applicants James Kerrigan, Robert Lange, Jr., Robert
Megonigal, Roger Colegrove, Edward Coleman III,
David Mark Bryan, James Conroy, William Bryant,
Jeffery Scott, John Clark, Russell Fox, Vincent Caliguiri,
10 We find our dissenting colleague’s contrary arguments unpersua­
sive. His claim that the absence of an 8(a)(3) finding against A-Bell
precludes a determination that the Respondent is jointly liable, ignores
the reality of cases involving joint employers. In these cases, it is not
unusual for one respondent to settle while litigation proceeds as to
another that has declined to do so. See, e.g., Urban Laboratories, Inc.,
305 NLRB 987, 988 (1991). Further, there are sufficient facts found by
the judge to establish the illegality of A-Bell’s conduct: (1) Conroy and
Matsinger were unfair labor practice strikers; (2) they made an
unconditional offer to return to work for A-Bell; and (3) A-Bell’s
foreman refused their request.
Nor do we find merit in our colleague’s argument that, under Capitol
EMI Music, the information known by the Respondent was insufficient
to require it to inquire into the circumstances under which Conroy and
Matsinger ceased working for A-Bell. As discussed above, fn. 23 of
Capitol EMI clearly compels such an inquiry.
ACTION MULTI-CRAFT 271
Anthony Hartlage, Robert Matsinger, Daniel Minnick,
Jr., Gunner Webb, Robert West, Harold William Jones,
John Bondrowski, and John McCrohan employment in
positions for which they applied, or if such positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges they would have enjoyed.
(b) Make James Kerrigan, Robert Lange Jr., Robert
Megonigal, Roger Colegrove, Edward Coleman III,
David Mark Bryan, James Conroy, William Bryant,
Jeffery Scott, John Clark, Russell Fox, Vincent Caliguiri,
Anthony Hartlage, Robert Matsinger, Daniel Minnick Jr.,
Gunner Webb, Robert West, Harold William Jones, John
Bondrowski, and John McCrohan whole for any loss of
earnings they may have suffered by reason of the dis­
crimination against them as set forth herein and in the
remedy section of the underlying decision.
(c) Offer James Conroy and Robert Matsinger imme­
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
(d) Make whole James Conroy and Robert Matsinger
for any loss of earnings they may have suffered as a re­
sult of the unlawful refusal to reinstate these strikers after
they unconditionally offered to return to work, as set
forth herein and in the remedy section of the underlying
decision.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords 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.
(f) Within 14 days after service by the Region, post at
its Wilmington, Newark, and Dover, Delaware offices
copies of the attached notice marked “Appendix.”11
Copies of the notice, on forms provided by the Regional
Director for Region 4, after being signed by the Respon­
dent’s authorized representative, shall be posted immedi­
ately 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
11 If this Order is enforced by a Judgment of a United States court of
appeals, the words in the notice “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.”
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re­
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since June 6, 1995.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re­
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
CHAIRMAN HURTGEN, dissenting in part.
I agree with the judge that the Respondent cannot be
held liable for the conduct of its joint employer, A-Bell
Electric, Inc. in failing to reinstate John Conroy and
Robert Matsinger. Under Capitol EMI Music, 311 NLRB
997 (1993), in order to find joint employer liability, the
General Counsel must show that: (i) the two employers
are joint employers; and (ii) one of the employers has,
with unlawful motivation, discharged or taken other dis­
criminatory actions against employees in the jointly man-
aged work force. The burden then shifts to the nonacting
joint employer to show that: (i) it neither knew, nor
should have known, that the other employer had acted
unlawfully; or (ii) if it knew, that it took all necessary
measures within its power to resist the unlawful action.
In the instant case, the judge made no finding whether A-
Bell (which settled the charges against it), violated
Section 8(a)(3) by refusing to reinstate Conroy and
Matsinger. Thus, I find that the General Counsel did not
sustain his initial burden. Moreover, even assuming,
arguendo, that A-Bell violated Section 8(a)(3), I agree
with the judge that the Respondent met its rebuttal bur-
den under Capitol EMI Music.
I recognize that the Respondent knew that Conroy and
Matsinger had engaged in a strike, and that they were no
longer working at A-Bell at the Avon site. However, this
was not sufficient to establish that the Respondent knew,
or should have known, that A-Bell had acted unlawfully
toward them. Indeed, there are various reasons why
Conroy and Matsinger may have ceased working for A-
Bell at the Avon site: their work could have ended there;
their work could have been unsatisfactory; they could
have voluntarily quit their employment at that site; etc.
Unlike the majority, I do not find the instant facts suffi­
cient to impose an obligation on the Respondent to in-
quire into the conduct of A-Bell toward Conroy and
Matsinger, let alone bear liability for A-Bell’s conduct.
Accordingly, I would dismiss this allegation of the
complaint.
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we vio­
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT coercively interrogate employees or job
applicants about their union involvement and union ac­
tivities.
WE WILL NOT refuse to consider, refer, or hire appli­
cants for jobs because of their union membership.
WE WILL NOT refuse to reinstate unfair labor practice
strikers after they unconditionally offer to return to work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer applicants James Kerrigan, Robert Lange Jr.,
Robert Megonigal, Roger Colegrove, Edward Coleman
III, David Mark Bryan, James Conroy, William Bryant,
Jeffery Scott, John Clark, Russell Fox, Vincent Caliguiri,
Anthony Hartlage, Robert Matsinger, Daniel Minnick,
Jr., Gunner Webb, Robert West, Harold William Jones,
John Bondrowski, and John McCrohan employment in
positions for which they applied or, if those positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges they would have enjoyed.
WE WILL make James Kerrigan, Robert Lange Jr.,
Robert Megonigal, Roger Colegrove, Edward Coleman
III, David Mark Bryan, James Conroy, William Bryant,
Jeffery Scott, John Clark, Russell Fox, Vincent Caliguiri,
Anthony Hartlage, Robert Matsinger, Daniel Minnick Jr.,
Gunner Webb, Robert West, Harold William Jones, John
Bondrowski, and John McCrohan whole for any loss of
earnings and other benefits resulting from our discrimi­
natory refusal to hire, less any net interim earnings, plus
interest.
WE WILL offer James Conroy and Robert Matsinger
immediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL make James Conroy and Robert Matsinger
whole for any loss of earnings and benefits resulting
from their discharge, less any net interim earnings, plus
interest.
ACTION TEMPORARY EMPLOYMENT , A/K/A
ACTION MULTI–CRAFT
Mark E. Arbesfeld, Esq., for the General Counsel.

R. Scott Summers David Crittenden, Esqs., of Greenwood,

Indiana, for the Respondent.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania, on October 9, 10, 11,
and November 6, 1996, on a consolidated complaint dated
April 30, 1996, as further consolidated on September 5, 1996.
The charges were filed by Local Union 654, International
Brotherhood of Electrical Workers, AFL–CIO in Case 4–CA–
23898 on June 6, 1995, and in Case 4–CA–23974 on June 27,
1994. Additional charges were filed by Local 313, Interna­
tional Brotherhood of Electrical Workers, AFL–CIO in Case 4–
CA–240001 on July 3, 1995, and in Case 4–CA–24026 on July
11, 1995.
During the hearing on October 10, 1996, the Respondent, A-
Bell Electric Company, Inc., and the charging parties agreed to
an informal settlement of the charges. The General Counsel
stated his support of the settlement and moved to sever Case 4–
CA–24001 from this proceeding. I granted the motion and
approved the settlement of the allegations relating to A-Bell
Electric (G.C. Exh. 20). The General Counsel also moved to
withdraw portions of the complaint and dismiss the allegations
in the complaint contained in paragraph 7(a) and those portions
of paragraph 10(a) which relate to Gilbert Lewis, James Cor­
radin, and Danny Savina. I granted the General Counsel’s mo­
tion dismissing the specified allegations of the complaint.1
The consolidated complaint alleges in substance that the Re­
spondent, Action Temporary Employment, as joint employer of
A-Bell Electric, Inc., violated Section 8(a)(1) of the National
Labor Relations Act (the Act) by interrogating employee-
applicants about their union membership and Section 8(a)(1)
and (3) of the Act by failing to consider or refer for employ­
ment members of Local 313 (James Kerrigan, Robert Lange Jr.,
Robert Megonigal, Robert Colegrove, and Edward Coleman,
III) and members of Local 654 (Mark Bryan, James Conroy,
William Bryant, Jeffery Scott, John Clark, Russell Fox, Vincent
Caliguiri Jr., Anthony Hartlage, Robert Matsinger, Daniel
Minnick Jr., Gunner Webb, Robert West, William Jones, John
Bondrowski, and John McCrohan). The complaint also alleges
that the Respondent refused to reinstate Robert Matsinger and
James Conroy in violation of Section 8(a)(1) and (3) of the Act.
1 The General Counsel specifically referred to these three employees
in Case 4–CA–24026 and par. 10(a) of the complaint to be withdrawn.
ACTION MULTI-CRAFT 273
The Respondent’s answer, timely filed, admits several of the
jurisdictional allegations in the complaint, and denies that it
engaged in any unfair labor practices. The Respondent admit­
ted the supervisory status of Jeff Rickerman.
On the entire record2 in this case, including my observation
of the demeanor of the witnesses and after consideration of the
briefs filed by the General Counsel, and the Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Action Temporary Employment a/k/a Ac­
tion Multi-Craft, a Delaware corporation, with offices in Wil­
mington, Newark, and Dover, Delaware, is engaged in the
business of locating, placing, and employing temporary work­
ers at other places of business. With services valued in excess
of $50,000 to customers located outside the State of Delaware,
the Respondent is admittedly an employer within the meaning
of Section 2(2), (6), and (7) of the Act. Action Temporary
admitted that it is a single employer and/or alter ego of B&R,
Inc.
The Unions, Local 654 and Local 313, are labor organiza­
tions within the meaning of Section 2(5) of the Act.
II. FACTS
Action Temporary Employment or Action Multi-Craft, the
Respondent, is, as the name implies, an employment agency
which recruits and hires temporary workers on behalf of clients.
With headquarters in Wilmington, Delaware, and offices in
Newark and Dover, Delaware, the Respondent accepts applica­
tions from prospective employees. Jack Boyd is the owner and
Jeff Rickerman is the vice president of operations and dis­
patcher. In that capacity, Rickerman was responsible for the
daily operations of the Company.
In early 1995, union members from two local unions of the
IBEW submitted applications to Action Temporary seeking
employment. The application forms provided by the Employer
required an answer to the question whether the applicant had
been involved with the union. None of the more than two
dozen applicants who had revealed their union membership
were hired or seriously considered for employment. Union
members who had hidden their union affiliation during the
application process were hired. Two union members who were
fired staged a 1-day strike to protest the unfair hiring policy and
were refused reinstatement to their jobs after they ended the
strike and offered to return unconditionally.
The record shows that the Company’s practice was to seek
applicants on a continuing basis. Occasionally applications
were solicited by advertisements, the distribution of leaflets, or
by “word of mouth.’’ Applications were accepted by the Re­
spondent daily between the hours of 12 and 2 p.m. The mem­
bers of Local 313 who submitted their completed applications
and disclosed their union affiliation were not contacted for any
consideration for employment and those few members who
kept their union affiliation a secret were considered and in same
instances offered a job. The applicants, James Kerrigan, Robert
2 The motion to correct transcript is hereby granted.
Lange Jr., Robert Megonigal, Robert Colegrove, and Edward
Coleman, went to the Wilmington office where they were pro­
vided with application forms consisting of several pages of
questions. One of the questions on page 6 of the application
was question 2, “Have you ever been actively involved in a
union? If yes, please explain.’’ The five applicants disclosed
in their applications their active membership in Local 313.
None of them were considered for employment, even though
the Respondent admitted that they were qualified candidates for
the jobs.
For example, James Kerrigan testified that on January 19,
1995, he went to the union hall looking for a job. Jim Clothier,
the Union’s organizer, told him that Action was accepting ap­
plications. Kerrigan completed the application provided him at
Action’s Wilmington office (GC Exh. 4). There, the Com­
pany’s representative indicated that they were looking for elec­
tricians. In response to the question on the application about
his union affiliation, Kerrigan wrote, “Yes, IBEW Local 313.’’
After perusing the application, Action’s representative told him
“that he wasn’t looking for electricians right now, but he would
get in contact with me in the future.’’ Kerrigan testified that he
was never contacted by the Respondent, nor was he instructed
to call Action Temporary repeatedly to keep his application
current.
The Respondent does not contest that it had failed to contact
Kerrigan for several months but maintains that the notations on
his application indicate that the Company had attempted to
contact Kerrigan on May 1 and June 20, 1995. I find Kerri­
gan’s testimony to be credible that he was not notified of any
job opportunity. Even if the notations are correct, it is clear
that the Respondent failed to make an attempt to reach Kerrigan
for at least 3 months after his application.
Robert Lange Jr. and Robert Megonigal each were members
of Local 313 for more than 20 years when they applied on
January 30, 1995, for jobs as electricians, because they were
unemployed at that time. They had seen the Respondent’s ad­
vertisement in the Wilmington News Journal seeking for elec­
tricians. Both electricians testified that they completed the
employment questionnaire, including the question about their
union involvement. They candidly replied that they were
members of IBEW Local 313.
The application process lasted for more than 1 hour and in­
cluded the presentation of a film about safety at work. Jeff
Rickerman reviewed the applications and met with the appli­
cants and informed them that he had no work for them at that
time and that he would call them when jobs became available.
Megonigal and Lange credibly testified that they never received
a telephone call or any other communication from the Respon­
dent.
The Company maintains that it attempted to make contact on
May 1, 1995, with the applicants as noted on their application.
Robert Colegrove, a member of Local 313 for 12 years, was
unemployed when he applied at Action Temporary on February
7, 1995. He was accompanied by Francis Clymer also a union
member. However, only Colegrove disclosed his union affilia­
tion in the application, by answering “yes, I.B.E.W.’’ to the
question whether he has “ever been actively involved in a un­
ion’’ (G.C. Exh. 9). Colegrove testified that he watched a
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
movie on safety during his application process and handed his
completed application to Rickerman. He told Colegrove that he
would receive a call when work became available. The Re­
spondent did not call this applicant until a month later. Rick­
erman called on a Thursday or Friday asking whether Cole-
grove was available for work. Colegrove replied that he could
not start that day but that he was available on Monday. Rick­
erman then inquired whether his prior employment consists of
union shops, Colegrove said yes. Rickerman then asked
whether he was a union member and Colegrove again replied in
the affirmative. Rickerman then said that he would get back
with Colegrove by the afternoon. But the Respondent did not
call, instead Colegrove called. Rickerman however said that he
had no work. The Respondent never contacted Colegrove
again.
In sharp contrast was Respondent’s reaction to Clymer’s ap­
plication (G.C. Exh. 8). He had written “No’’ in answer to the
question about his union affiliation and listed wages lower than
union scales. Clymer received a message from Action Tempo­
rary at around March 15, 1995. Clymer did not respond to the
message. At the end of March, Action Temporary left another
message and inquired if he wanted a job. Clymer returned the
phone call and told them that he was working. In May, the
Respondent contacted Clymer and offered him a job with Globe
Electric. Clymer worked for about 2 weeks and then quit his
job. Thereafter, the Respondent has called him on several oc­
casions with other job offers.
Edward Coleman, also a longstanding union member of Lo­
cal 313, had heard from his union that the Respondent was
accepting applications. He applied at Respondent’s Wilming­
ton office on March 27, 1995, completed the application and
answered, “Yes, I.B.E.W.’’ to the question about his union
involvement (GC Exh. 10). Rickerman told him that he had
work for electricians and would call within a few days. The
Respondent, however, never contacted Coleman.
In summary, the records show that Local 313 members Ker­
rigan, Lange, Megonigal, Colegrove and Coleman submitted
their applications in person and expressly indicated on their
written application forms that they were affiliated with Local
313. None of them were offered jobs or seriously considered
for employment. Other Local 313 members who had concealed
their union involvement, Gilbert Lewis (G.C. Exh. 3), Danny
Savina (G.C. Exh. 7), and Francis Clymer were contacted
within weeks of their application and considered for employ­
ment. Indeed, Clymer actually worked for the Respondent.
Lewis had simply removed the page on this application which
inquired about his union involvement. Within 2 weeks, he
received a call from Rickerman offering him an electrician’s
helper position. Savina responded “No’’ to the question about
the union. Beginning in March, the Respondent contacted Sav­
ina on several occasions with job opportunities.
The 15 members of Local 654 who applied for jobs with Ac­
tion Temporary experienced the same treatment as the union
members just discussed. Union members (Mark Bryan, James
Conroy, William Bryant, Jeff Scott, John Clark, Russ Fox,
Vincent Caliguiri, Anthony Hartlage, Robert Matsinger, Daniel
Minnick, Gunner Webb, Robert West, William Jones, John
Bondrowski, and John McCrohan) went personally to the Re­
spondent’s offices and filled out applications which in all but
two instances contained the question about the applicants’ un­
ion involvement.
James Conroy, president of Local 654, noticed the Respon­
dent’s advertisements for electricians in early 1995. On Febru­
ary 20, 1995, he called the Company’s Wilmington office and
was told that Action was hiring electricians. On the following
day, he (Conroy), David Mark Bryan, William Bryant, and Jeff
Scott went to the Company’s Wilmington office, met Jeff Rick­
erman, and filled out applications for electrician positions. One
of the applicants, David Mark Bryan wore a Local 654 shirt. In
answer to the question on the application about union involve­
ment, Conroy revealed his prominent union background, in­
cluding his position as president and organizer. Conroy asked
Rickerman about his job opportunities and Rickerman replied
that he expected to have work within 2 weeks.
On March 23, 1995, Conroy accompanied three additional
union members, including Russel Fox and John Clark, to the
Respondent’s Wilmington office where they applied for em­
ployment. Conroy asked Rickerman where he stood in regard
to being employed. Rickerman said that he was Number 25
and gave an otherwise vague answer. On March 27, Conroy
called the Wilmington office saying that he was still looking for
an electrician’s job. Rickerman “got off the phone and he came
back and he said, ‘Are you still with the Union?’’’ Conroy
answered that he was still with Local 654 and Rickerman told
them to call the Respondent’s Newark office. Conroy called
the Respondent’s Newark and Dover offices and was told by
the receptionist that electrician jobs were available.
On March 30, 1995, Conroy brought several more union
members (Daniel Minnick, Anthony Hartlage, Robert
Matsinger, and Vincent Caliguiri) to the Respondent’s Wil­
mington office in search for work. On that occasion Rickerman
indicated that he expected to have work available within 2
weeks. Conroy went to the Respondent’s office on April 6 and
May 1, 1995, with additional members of Local 654 who ap­
plied for work.
During one of the his visits to the Respondent’s offices, Con­
roy met John Boyd, the owner of Action Temporary. However,
after a brief conversation, Rickerman interrupted the meeting to
avoid any further conversation between the two men. Ricker­
man then asked Conroy whether he would be interested to work
as an electrician’s helper. Conroy agreed to accept the job, but
the Respondent never contacted Conroy with a job offer until
June 20. On that day, the Respondent called Conroy and union
member Robert Matsinger, and they accepted a job with A-Bell
Electric. Conroy and Matsinger worked 1 day and then went
on strike on June 22, 1995, in protest over the Respondent’s
unfair labor practices of refusing to hire union members, as
more fully discussed below. Thereafter, Conroy was not con­
tacted again by the Respondent for employment.
Union member David Mark Bryan was one of the electri­
cians who with Conroy applied for work at the Respondent’s
Wilmington office on February 21, 1995. Bryan wore a Local
654 shirt and wrote “Yes, on organizing com. of Local 654
I.B.E.W.’’ on his application as his response to the question
about his union involvement (GC Exh. 11). Rickerman had
indicated that he would be in touch in a couple of weeks, but he
ACTION MULTI-CRAFT 275
never contacted Bryan for a job. A notation on Bryan’s appli­
cation shows, “6-20-95 called and offered work left mess’’ as
an indication of Respondent’s effort to contact Bryan. But,
according to Bryan’s testimony, and a telephone record of the
Respondent’s long distance calls, the Respondent did not at-
tempt to contact Bryan.
Jeffery Scott was among the February 21, 1995 applicants.
As a member of Local 654, he also revealed his union affilia­
tion on his application, stating, “yes, I.B.E.W. Local Union 654
Examining Board’’ (GC Exh. 12). Scott similarly testified that
Rickerman had assured the group that he would be in contact
with them in a couple of weeks. Scott was never contacted
until June 20, when he was already employed elsewhere.
The other member of the group was William Bryant, a union
member for 38 years, who responded, “Yes organized’’ to the
question in the application relating to his union involvement
(GC Exh. 13). Bryant testified that Rickerman said the follow­
ing during the meeting on February 21:
He told us that he had work in the next couple of
weeks. He was waiting for blueprints to come in for the
job, and as soon as they came in—and they would be in
within the next couple of weeks—he’d be giving us a call.
He’d need plenty of people.
Bryant heard nothing from the Respondent until June 20, when
the Company called and asked whether he was available for
work. The following conversation ensued (Tr. 179):
He says, “Well, I may need you for work on Mon­
day.’’ I said, “Well, I can’t go to work before Monday,
because I still got tomorrow to work.’’ He said, “Well,
where did you get your call from?’’ I said, “Through the
union hall.’’ I said, “I’m a union member.’’ He said,
“Thank you,’’ and hung up the phone.
When asked whether the Respondent ever called after that,
Bryant testified, “Never after that, no.’’
John Clark is a member of Local 654 who, accompanied by
Conroy, applied for an electrician’s position on March 21,
1995, at the Wilmington office. Like the other applicants, he
completed the employment application and stated, “Yes IBEW
Lo[cal] 654 Member’’ (GC Exh. 14). Clark testified that Rick­
erman indicated that work would be available in 2 weeks be-
cause he was waiting for blueprints and that he would be con­
tacted. The Respondent did not contact Clark until June 20.
Clark received a message on that day, and he returned the mes­
sage on the following day, leaving his name, number, and an
indication that he was interested in a job. But the Respondent
never called thereafter.
Russell Fox Jr. applied at Action Temporary on March 23,
1995, after he had visited the union hall in search for work. At
Conroy’s suggestion, he accompanied the other electricians and
filled out the employment questionnaire, including the inquiry
about his union involvement, stating “Local Union 654 Orga­
nizing Committee, Executive Board Local Entertainment
Committee’’ (GC Exh. 15). Fox also testified about Ricker­
man’s promises about calling him as soon as work would be
available. Yet not until June 20 did he get a message from the
Respondent. At that time Fox was on vacation and did not
contact the Company.
Daniel Minnick Jr. was unemployed and visited his union
hall on March 30, 1995. Conroy suggested that he apply at
Action Temporary. Minnick went to the Wilmington office,
obtained the application form from Rickerman, and, like the
other applicants, answered the question about his union connec­
tions. His answer was, “Yes - Union organizing - Work out of
Hall’’ (GC Exh. 21). Rickerman told Minnick that he might
have a job in a couple of weeks. Minnick received a message
from Action Temporary in late June and returned the call sev­
eral days later. But Minnick was never contacted again.
Robert Matsinger, like several other union members, was out
of work and learned through his union hall that the Respondent
was looking for electricians. He applied at the Wilmington
office on March 30, 1995, and responded to the question on the
employment form about his union affiliation, “Yes member
Local 654 IBEW’’ (GC Exh. 22). Rickerman informed
Matsinger that he would get in touch with him. On June 20,
Matsinger received a message from Action Temporary about a
job. Matsinger called the Respondent but received no answer.
He went to his union hall where he and Conroy contacted Rick­
erman at Action Temporary the following day. Rickerman told
him about a job and they started work on June 21, 1995, at A-
Bell Electric in Newark, Delaware. Matsinger went out on
strike with Conroy to protest the Respondent’s unfair labor
practices as discussed below.
Anthony Hartlage was seeking employment in March 1995
and learned from his union hall that Action Temporary was
accepting applications for electricians. He applied on March
30, 1995, at the Wilmington office along with several other
members of Local 654. His application shows that he was af­
filiated with the Union. In response to the question on the ap­
plication about his union background, he wrote “Yes, IBEW
Lo[cal] 654 Organizing Committee’’ (GC Exh. 25). Hartlage
never heard from Action Temporary.
Vincent Caliguiri Jr. was among the group of unemployed
union members who applied for work at Action Temporary on
March 30, 1995. His response to the union question on the
application was, “Yes, Union organizing and working out of
Hall (GC Exh. 26). Rickerman told him that he would be
called if a position became available. The Respondent may
have made an attempt to contact him on June 20, 1995, but
Caliguiri was not at home to receive a call.
Harold William Jones applied at Respondent’s Wilmington
office on April 6, 1995. Conroy had advised him about the job
opportunity and accompanied Jones and several other members
of Local 654. During the application process Jones answered
the questionnaire about his union involvement, “Yes I.B.E.W.
Lo[cal] 54’’ (GC Exh. 24). Jones handed the completed appli­
cation to Rickerman who appeared impressed by Jones’ experi­
ence as an electrician. Rickerman told him that he would be in
touch with him. On June 20, 1995, the Respondent contacted
Jones about a job. Jones returned the call promptly and went to
the union hall where he learned that the Respondent had al­
ready filled the available positions.
Gunner Webb, another member of Local 654 applied for
work as an electrician along with Jones and several other mem-
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bers of Local 654 on April 6, 1995. He completed the same
application questionnaire and answered the question about his
union membership as follows, “Yes I.B.E.W. Local 654’’ (GC
Exh. 27). Webb does not recall receiving a message from Ac­
tion Temporary. The Company’s records indicate that a call
was made on June 20. At that time Webb was already em­
ployed elsewhere.
Robert West also applied for an electrician’s position on
April 6 after Local 654 informed him that the Respondent was
accepting applications. In response to the question on the em­
ployment form whether he had been involved with a union, he
noted, “Yes Organizer’’ (GC Exh. 29). Not until June 20,
1995, did he receive a call from Action Temporary about a job.
West responded to the telephone inquiry that he would be
available for work on Monday. The Respondent, however, did
not contact him again.
All applicants at this point had been confronted with an ap­
plication form which specifically asked about their union in­
volvement. As of May 1, 1995, the Respondent had revised its
application form so that the question no longer appeared on the
form. Nevertheless, two members of Local 654 applied for
employment on May 1, 1995, and indicated their union back-
ground on the new form.
John McCrohan was unemployed and visited his Local 654
hall in search for work. He learned from Conroy that an oppor­
tunity existed at Action Temporary. McCrohan completed the
revised application form and indicated on the first page that he
was an “Electrician Local 654 IBEW’’ (GC Exh. 30). Accord­
ing to his testimony, McCrohan overheard the conversation as
Rickerman spoke to Conroy about a helper’s position. Conroy
agreed to accept the helper’s position and also made the state­
ment that all Local 654 applicants would accept a helper’s job.
The only communication following the application was a tele­
phone call on June 20 in reference to the A-Bell job. McCro­
han, however, was already employed elsewhere by that time.
Like the previous applicant, John Bondrowski, applied for an
electrician’s position on May 1, 1995. Because he was unem­
ployed at that time, he had come to the union hall of Local 654
and learned that Action Temporary was looking for electricians.
On the first page of his application, Bondrowski revealed his
union affiliation, stating “from Local #654 I.B.E.W.’’ (GC Exh.
31). Bondrowski testified that he heard the conversation be-
tween Rickerman and Conroy where the latter emphasized that
he and all other applicants would accept a helper’s position.
However even though Rickerman indicated that such jobs were
available, he, Bondrowski was not contacted. He testified that
he may have missed a meeting on June 20 because he had
moved.
The Respondent’s conduct with respect to the union appli­
cants just discussed who had revealed their union affiliation on
their applications differed from the treatment accorded William
Scott who had avoided the disclosure of his union membership.
Scott had been a member of Local 654 for 13 years and applied
on April 13, 1995, at the Dover office. Kevin Kowal (Cole),
Respondent’s agent, informed Scott that Action Temporary
needed qualified electricians and that he would be employed
shortly. Scott was contacted a week later and offered a job by
the Respondent at Globe Electric. Scott was transferred by
Action Temporary after several weeks to Globe’s Wilmington
location and worked a total of about 2 months and resigned his
employment for personal reasons. The Respondent has called
Scott on several occasions since his resignation even though he
had indicated that he was no longer interested in temporary
work.
The record shows in summary that during the relevant time
period the Respondent has hired electricians who had concealed
their union affiliation. These candidates did not have to wait
for months for Respondent’s message, but were employed
within a time span of a week or two. Examples of such indi­
viduals are: Gilbert Lewis, a union member, who concealed his
membership. He applied on January 9 and was called within a
few weeks and offered an electrician’s helper job; Danny Sav­
ina, a union member, who applied on February 6 without dis­
closing his union background and was contacted in March and
April 1995 with job opportunities; Francis Clymer, a union
member who did not reveal his union background, and was
contacted twice in March after applying in February 1995 and
ultimately worked at Globe Electric in May 1995; William
Scott, a union member who also concealed his union back-
ground on his April 1995 application. He began work for the
Respondent within a week.
Moreover, the Respondent hired numerous applicants who
had no union background. Applicants without union back-
grounds who were offered jobs were William Robinson who
applied on January 11, 1995, and began work on March 22,
1995; Daniel Wells applied on February 27, 1995, and began
his employment on May 14, 1995; Thomas Gill applied on
March 13 and began on March 22, 1995; Horst Horn applied
March 16 and began on March 26, 1995; William Constanzo
applied on March 29 and began on April 9, 1995; Tyrone Ware
applied on April 12 and began on May 17, 1995; Jack Houston
applied on July 5 and received work on July 16, 1995; and
Charles Heilander applied on March 17, 1995, and began work
on March 22, 1995. These applicants were employed as elec­
tricians during the time when all union applicants who had
honestly conveyed their background were denied employment.
The record also shows that the union applicants were highly
skilled and whose qualifications in many instances exceeded
those who were hired. Indeed, Rickerman conceded in his
testimony that he considered the union applicants well quali­
fied.
III. ANALYSIS
A. Interrogation
The allegation in the complaint that the Respondent coer­
cively interrogated job applicants in violation of Section 8(a)(1)
of the Act is fully supported by the record. As already de-
scribed, each applicant was required to complete a lengthy
questionnaire, with instructions to “[a]nswer those additional
questions honestly and accurately:’’ “Have you ever been ac­
tively involved in a union? If yes, please explain.’’ The inter-
rogation of a prospective employee who is seeking employment
is inherently coercive and clearly irrelevant to his qualifica­
tions. Most of the electricians answered the question, but some
felt constrained and concealed their union background. This
ACTION MULTI-CRAFT 277
question is clearly not relevant to a person’s ability, skill, pro­
ductivity, and reliability as an employee and was clearly de-
signed to interfere with a candidate’s chance of being hired.
The Board has held that such conduct constitutes coercive inter-
rogation. Culley Mechanical Co., 316 NLRB 26 (1995).
Moreover, when on March 27, 1995, Rickerman questioned
Conroy over the telephone whether he was still with the Union,
the Respondent engaged in additional interrogation under coer­
cive conditions, because it occurred during a job interview.
Casey Electric, Inc., 313 NLRB 774, 785 (1994). I accordingly
find, in agreement with the General Counsel, that the Respon­
dent violated Section 8(a)(1) of the Act.
B. Refusal To Hire
With respect to the allegations in the complaint that the Re­
spondent violated Section 8(a)(3) for refusing to consider and
refer for employment members of the two local unions, I can
hardly imagine a stronger prima facie case of unlawful dis­
crimination. The Union applicants testified that they were un­
employed at the time of their applications. Their testimony
showed that they were making a serious and honest attempt to
find work. They testified in a consistent manner about the
cumbersome application process, requiring answers to a series
of questions. They were required to take a test and watch a
movie about safety. The record contains the copies of the ap­
plications of each discriminatee showing his qualifications and
his answers to the question about the union involvement. With
the exceptions of two applicants who had voluntarily disclosed
their union affiliation on the first page of their applications,
each of the remaining discriminatees revealed their union back-
ground in answer to the printed question. None of them were
contacted by the Company prior to the June 20 date. Those
applicants who had concealed their union connections and the
candidates without any union background were hired. In short,
the Respondent had jobs available and sought applicants
through advertising, but it refused to consider any applicant
known to have a union connection. Respondent’s union animus
was clearly established by the Respondent’s unlawful interroga­
tion and obvious disparate treatment of these applicants.
The Respondent’s testimony was simply implausible and un­
convincing. Rickerman testified that he offered helper posi­
tions to the applicants. Yet the record shows that the only con­
tacts made were messages on June 20. Only three positions
were available and filled with Conroy and Matsinger and an
employee named Hurst Horn. Moreover, Conroy testified, as
did several applicants, that they would have accepted a helper’s
position. Rickerman also testified that he informed all appli­
cants to call him and badger him about job opportunities, how-
ever, the consistent scenario of all applicants who testified was
that Rickerman told them that he would contact them when a
job opportunity was available. Indeed the individuals who
were hired were contacted by Rickerman and not vice versa.
Respondent argues that the three offices, Wilmington, Dover,
and Newark, are autonomous and that its Wilmington office did
not need electricians. But the record shows that the advertised
positions identified the Wilmington address. The Wilmington
office operated as the Company’s principal office where the
Company “does payroll, pays the bills, administrative type of
work’’ and generally does the billing (Tr. 672). Certain indi­
viduals who applied at the Wilmington office were assigned to
the Newark office. The Respondent also argues that it has em­
ployed other union members and refers to four individuals,
including Daniel Wells and Don Lindsay (R. Exhs. 44, 63), and
also other employees who were not even employed as electri­
cians but as laborers or helpers. The Respondent even refers to
so called union members who, with respect to the union ques­
tion, gave such responses as, “not in any more,’’ or “just in
work union’’ and “just a member, AFL–CIO’’ (R. Exhs. 66, 69,
70). In any case, it is clear that the Respondent’s employment
of few individuals with a union background does not indicate
that it did not discriminate in its employment practice. KRI
Constructors, Inc., 290 NLRB 802 (1988).
In sum, the General Counsel has shown the Respondent’s
knowledge of the applicants’ union affiliation as a result of the
unlawful interrogations, the Respondent’s anti-union animus,
and the failure to hire qualified electricians with a union back-
ground. Respondent has failed to show that it would have re-
fused to employ the named discriminatees even in the absence
of any union motivation. Wright Line, 251 NLRB 1083 (1980).
C. Refusal to Reinstate
The Respondent referred Jim Conroy and Robert Matsinger
for employment at A-Bell Electric on June 21, 1995. Both men
began work on that day for A-Bell at Avon Products in New-
ark, Delaware, which is located near Respondent’s Newark
office. The Respondent’s Newark representatives gave time-
cards to Conroy and Matsinger and instructed them to get the
timecards signed by A-Bell’s foremen on the job and to submit
them to Action Temporary’s Wilmington office. The Respon­
dent and A-Bell, have supervisory authority in directing the
employees’ job performance. While Conroy testified that either
Company had the authority to discharge him and Matsinger, I
accept Rickerman’s testimony that A-Bell would more likely
inform Action Temporary that an undesirable employee not be
referred again. A-Bell controlled the hours of work of both
employees and also made the work assignments. The Respon­
dent referred to A-Bell as a client. The employees’ timecards
contained detailed provisions about the relationship between
Action and A-Bell (GC Exh. 17). In a letter dated July 11,
1995, to the Regional office, A-Bell confirmed that Action
Temporary supplied the two individuals on its jobsite and de-
scribed them as employees of Action Temporary. The record
clearly shows that an employer-employee relationship excited
between Action Temporary and the two employees while they
worked for A-Bell. The record also shows that such a relation-
ship existed between A-Bell and the two employees, because its
foreman, Louis Wright took charge of their work as soon as he
picked them up at the guard desk. He assigned the work to
them on the Aron project and the new conveyor system and as
Conroy explained in his testimony, “starts laying the job out to
us.’’ Clearly, both companies had retained sufficient control of
the terms and conditions of employment of the two employees.
I accordingly agree with the General Counsel that both compa­
nies while operating as independent legal entities must be con­
sidered joint employers with respect to Conroy and Matsinger.
278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB v. Browning-Ferris Industries, 691 F.2d 1117 (3d Cir.
1982).
The two employees worked for A-Bell on June 21, 1995. On
the following day, June 22, 1995, Conroy and Matsinger pick­
eted at the Avon facility and went on strike in protest over the
unfair labor practices of Action Temporary in refusing to refer
union applicants for employment as contained in the June 6,
1995 charge filed with the Labor Board. The picket signs
stated, “Action Temporary Employment Service[s], unfair labor
practice. Strike’’ (Tr. 259). The picketing lasted from 6:30
a.m. to 10 a.m. on June 22 and continued on June 23, during the
same hours. There was no picketing on June 23 and on June
24. Conroy and Matsinger reported for work on June 25 and
informed Louis Wright that they were unconditionally ending
the strike. Wright informed them, “You’ve been dismissed by
Action and you’ve been permanently replaced by Tri-County
Electric’’ (Tr. 282). The employees were not recalled for work.
They handed in their timecards at Action Temporary and were
paid.
A-Bell had informed Action Temporary about the employ­
ees’ strike activity and Rickerman admitted knowing about the
strike. Rickerman testified that he took no steps to contact A-
Bell about the status of the employees and admitted that they
were not referred for work thereafter. This was consistent with
the Company’s letter, dated February 21, 1996, to the Board’s
Regional Office wherein the Company stated its “policy that
any worker leaving a job and failing to return thereafter will not
be hired again (GC Exh. 33).
The General Counsel properly cites Capitol EMI Music, 311
NLRB 997 (1993), and argues that an inference can be drawn
so as to hold A-Bell and Action Temporary jointly responsible
for the refusal to reinstate the two employees after they offered
to return unconditionally following their unfair labor practice
strike.
Assuming that the strike at one employer in protest of the
other, joint employer’s conduct was a lawful unfair labor prac­
tice strike, the evidence does not show that the Respondent
knew or should have known of the employees’ unconditional
offers to return to work. The two employers are not a single
employer but joint employers and are separate entit ies. In
Capitol EMI, supra, the Board observed that in only two cases
has it ever found a violation of Section 8(a)(3) by two joint
employers by imputing the motive of one to the other. The
record in this case, does not show that A-Bell was ever in-
formed or knew of the employees’ discharge by Action Tempo­
rary,3 nor does the record support a finding that the Respondent
was informed about the unconditional offer to return to work.
There was no contractual obligation between the joint employ­
ers to keep each other informed about their respective labor
policies. Where, as here, the General Counsel has shown (a)
that A-Bell and Action Temporary were “joint employers’’ of
the two employees and (b) “that one of them has, with unlawful
motivation,’’ taken discriminatory action against the employ­
ees, the burden shifts to the employer that it neither knew nor
3 The General Counsel relies upon hearsay testimony in this regard,
namely the employees’ testimony about the statements made by the
Respondent to A-Bell.
should have known of the reasons for the other employer’s
action. Capitol EMI, supra. In my view, the Respondent has
carried that burden. I would, therefore, dismiss the allegations
in the complaint dealing with the Respondent’s refusal to rein-
state Robert Matsinger and James Conroy.
CONCLUSIONS OF LAW
1. The Respondent, Action Temporary, is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act
2. A-Bell Electric which entered into a settlement agreement
was a joint employer with Action Temporary.
3. Local 654 and Local 313 are labor organizations within
the meaning of Section 2(5) of the Act.
4. By interrogating employee-applicants through the use of
employment forms, and by interrogating an employee during a
job interview, the Respondent violated Section 8(a)(1) of the
Act.
5. By refusing to consider or refer for employment members
of Local 313 (James Kerrigan, Robert Lange Jr., Robert Mego­
nigal, Robert Colegrove, and Edward Coleman III), because of
their union involvement, the Respondent violated Section
8(a)(1) and (3) of the Act.
6. By refusing to consider or refer for employment members
of Local 654 (David Mark Bryan, James Conroy, William Bry­
ant, Jeffery Scott, John Clark, Russell Fox, Vincent Caliguiri,
Anthony Hartlage, Robert Matsinger, Daniel Minnick Jr., Gun­
ner Webb, Robert West, Harold William Jones, John
Bondrowski, and John McCrohan, because of the union in­
volvement, the Respondent violated Section 8(a)(1) and (3) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un­
fair labor practices, I find it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent unlawfully refused to
consider and refer for employment the named applicants be-
cause of their union affiliation, it must be ordered to consider
and refer the employees for employment. The record showed
that the Respondent had a continuing need for qualified electri­
cians and considering that the Respondent hired numerous elec­
tricians during the relevant time, it is clear that jobs were avail-
able for these applicants. I find it appropriate to recommend
the traditional remedy, including reinstatement and backpay.
Ultrasystems Western Constructors v. NLRB, 18 F.3d 251 (4th
Cir. 1994); BE&K Construction Co., 321 NLRB 561 (1996). I
accordingly recommend that the Respondent be ordered to offer
immediate employment in the positions for which they applied
and that they be made whole for any earnings lost by reason of
the discrimination against them from the date of the refusal to
hire to a bona fide offer of reinstatement, backpay should be
computed on a quarterly basis as prescribed in F. W. Wool-
worth Co. 90 NLRB 289 (1950), plus interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987). On
ACTION MULTI-CRAFT 279
these findings of fact and conclusions of law and on the entire
record, I issue the following recommended4
ORDER
The Respondent, Action Temporary Employment, a/k/a Ac­
tion Multi-craft, Wilmington, Newark, and Dover, Delaware,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees and job applicants
about their union involvement and activities.
(b) Refusing to consider, refer, or hire applicants for jobs be-
cause of their union membership.
(c) 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 effec­
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer the ap­
plicants for the positions for which they applied James Kerri­
gan, Robert Lange Jr., Robert Magonigal, Robert Colegrove,
Edward Coleman III, David Mark Bryant, James Conroy, Wil­
liam Bryant, Jeffery Scott, John Clark, Russell Fox, Vincent
Caliguiri, Anthony Hartlage, Robert Matsinger, Daniel Minnick
Jr., Gunner Webb, Robert West, Harold William Jones, John
Bondrowski, and John McCrohan or, if such positions no
longer exist, to substantially equivalent positions without
prejudice to their seniority or any other rights or privileges they
would have enjoyed.
(b) Make James Kerrigan, Robert Lange Jr., Robert Magoni­
gal, Robert Colegrove, Edward Coleman III, David Mark Bry­
ant, James Conroy, William Bryant, Jeffery Scott, John Clark,
Russell Fox, Vincent Caliguiri, Anthony Hartlage, Robert
Matsinger, Daniel Minnick Jr., Gunner Webb, Robert West,
Harold William Jones, John Bondrowski, and John McCrohan
whole for any loss of earnings they may have suffered by rea­
son of the discrimination against them as set forth herein and in
the remedy section of the underlying decision.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per­
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or­
der.
(d) Within 14 days after service by the Region, post at its
Wilmington, Newark, and Dover, Delaware offices copies of
the attached notice marked “Appendix.’’5 Copies of the notice,
on forms provided by the Regional Director for Region 4, after
being signed by the Respondent’s authorized representative,
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
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice “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.’’
shall be posted immediately upon receipt and maintained for 60
consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that the no­
tices are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur­
ing 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 employees employed by the Respondent at any time
since June 6, 1995.
(e) 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso­
far as it alleges violations of the Act not specifically found.
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 ordered us to post and abide
by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con­
certed activities.
WE WILL NOT coercively interrogate employees or job appli­
cants about their union involvement and union activities.
WE WILL NOT refuse to consider, refer, or hire applicants for
jobs because of their union membership.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran­
teed them by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order,
offer the applicants for the positions for they applied (James
Kerrigan, Robert Lange Jr., Robert Magonigal, Robert Cole-
grove, Edward Coleman III, David Mark Bryan, James Conroy,
William Bryant, Jeffery Scott, John Clark, Russell Fox, Vincent
Caliguiri, Anthony Hartlage, Robert Matsinger, Daniel Minnick
Jr., Gunner Webb, Robert West, Harold William Jones, John
Bondrowski, and John McCrohan or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges they
would have enjoyed.
280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL make James Kerrigan, Robert Lange Jr., Robert
Magonigal, Robert Colegrove, Edward Coleman III, David
Mark Bryant, James Conroy, William Bryant, Jeffery Scott,
John Clark, Russell Fox, Vincent Caliguiri, Anthony Hartlage,
Robert Matsinger, Daniel Minnick Jr., Gunner Webb, Robert
West, Harold William Jones, John Bondrowski, and John
McCrohan whole for any loss of earnings and other benefits
resulting from our discriminatory refusal to hire, less any net
interim earnings, plus interest.
ACTION TEMPORARY EMPLOYMENT
Mark E. Arbesfeld, Esq., for the General Counsel.

R. Scott Summers and David Crittenden, Esqs. of Greenwood,

Indiana, for the Respondent.
SUPPLEMENTAL DECISION
KARL H. BUSCHMANN, Administrative Law Judge. On June
7, 2000, the Board remanded this proceeding to me for further
consideration in light of its decision in FES (A Division of
Thermo Power), 331 NLRB 9 (2000), and for appropriate ac­
tion and for a supplemental decision setting forth credibility
resolutions, findings of fact, conclusions of law, and a recom­
mended Order, as appropriate.
FINDINGS OF FACT
In an Order to Show Cause, dated August 18, 2000, I di­
rected the parties to show cause on or before September 30,
2000, why my decision, issued on June 30, 1997, is not in ac­
cord with the Board’s holding in FES and, further, to show
what changes, if any, are necessary (pertinent portions attached
as Appendix A).
On September 26, 2000, the General Counsel, the only party
to file a response, submitted Counsel for the General Counsel’s
Response to the Order to Show Cause (pertinent portions at­
tached as Appendix B). The General Counsel stated therein,
“that the ALJD is entirely consistent with the Board’s ‘frame-
work for analysis’ and that no changes are necessary with re­
spect to the refusal-to-hire allegations.” In a careful analysis,
counsel for the General Counsel compared the Board’s holding
in FES with the findings of my decision and concluded, “that
FES supports the refusal-to-hire findings and conclusions made
by the ALJ and that no changes are needed to the ALJD.”
I have re-examined my decision, as directed by the Board, to
assure that it is consistent with the Board’s decision in FES,
and I have so concluded for the following reasons:
The decision sustained the allegations in the complaint that
the Respondent, Action, as joint employer with A-Bell Electric,
Inc.,1 “has refused to consider or refer for employment” the
named individual union applicants. As fully discussed in my
decision, the record clearly shows that the Respondent, Action,
while performing personnel services on behalf of A-Bell Elec­
tric, including the hiring of electricians, discriminated against
applicants who had revealed their union background. As stated
in my decision, “[t]hose applicants who had concealed their
union connections and the candidates without any union back-
1 A-Bell Electric, Inc. agreed to an informal settlement and is there-
fore not a Respondent in this matter.
ground were hired.” Under this scenario, where Action, acting
as joint employer, was in the process of hiring applicants, but
refused to consider the discriminatees for employment and also
refused to refer them for jobs, its conduct amounted not only to
a refusal to consider but a refusal to hire.2 As noted in my deci­
sion, the Respondent was seeking applications on a daily basis
during the relevant time of the alleged unlawful conduct.
Twelve applicants were hired during that time, as fully de-
scribed in my decision. However, none of the 20 union appli­
cants were considered for employment, even though they ad­
mittedly were well qualified. They were highly skilled with
qualifications, which in many instances exceeded those of the
ones hired by the Respondent. As discussed in my decision, the
Employer had interrogated the applicants about their union
background during the application process in violation of Sec­
tion 8(a)(1) of the Act and was obviously aware of the union
affiliations of the applicants. Antiunion animus, clearly shown
by the unlawful interrogations and the disparate treatment of
the applicants, contributed to the Respondent’s decision not to
hire the applicants.
The Respondent’s failure to show that it would not have
hired the applicants even in the absence of their union activi­
ties, as stated in the decision, met the criteria under FES to
establish that the Respondent, Action, violated Section 8(a)(1)
and (3) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Action Temporary, is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Local 654 and Local 313 are labor organizations within
the meaning of Section 2(5) of the Act.
3. By interrogating employee-applicants through the use of
employment forms, and by interrogating an employee during a
job interview, the Respondent violated Section 8(a)(1) of the
Act.
4. By refusing to consider, refer for employment, or hire
members of Local 313 (James Kerrigan, Robert Lange, Jr.,
Robert Megonigal, Roger Colegrove, and Edward Coleman
III), because of their union involvement, the Respondent vio­
lated Section 8(a)(1) and (3) of the Act.
5. By refusing to consider, refer for employment, or hire
members of Local 654 (David Mark Bryan, James Conroy,
William Bryant, Jeffery Scott, John Clark, Russell Fox, Vincent
Caliguiri, Anthony Hartlage, Robert Matsinger, Daniel Minnick
Jr., Gunner Webb, Robert West, Harold William Jones, John
Bondrowski, and John McCrohan), because of the union in­
volvement, the Respondent violated Section 8(a)(1) and (3) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un­
fair labor practices, I find it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
2 My finding in this regard required minor changes in the Conclu­
sions of Law and the Order, as shown herein.
ACTION MULTI-CRAFT 281
Having found that the Respondent unlawfully refused to
consider, refer for employment, or hire the named applicants
because of their union affiliation, it must be ordered to con­
sider, refer and hire the employees for employment. The record
showed that the Respondent had a continuing need for qualified
electricians and, considering that the Respondent hired numer­
ous electricians during the relevant time, it is clear that jobs
were available for these applicants. Even if the number of ap­
plicants had exceeded the number of available jobs, the rein-
statement question would be handled in a compliance proceed­
ing. I find it appropriate to recommend the traditional remedy,
including reinstatement and backpay. FES, 331 NLRB 9
(2000); Ultrasystems Western Constructors v. NLRB, 18 F.3d
251 (4th Cir. 1994); BE&K Construction Co., 321 NLRB 561
(1996). I accordingly recommend that the Respondent be or­
dered to offer immediate employment in the positions for which
they applied and that they be made whole for any earnings lost
by reason of the discrimination against them from the date of
the refusal to hire to a bona fide offer of reinstatement, backpay
should be computed on a quarterly basis as prescribed in F.W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com­
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]