Basic Contracting Services,Inc.

National Labor Relations Board - Administrative Judge Opinions

May 25, 2005

28-CA-020015 (N.L.R.B. May. 25, 2005)

JD(SF)–44–05
Albuquerque, NM

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE

BASIC CONTRACTING SERVICES, INC.

and Case 28-CA-20015

REGINALD ZHUCKKAHOSEE, an Individual

Liza Walker-McBride, Esq.,
of Albuquerque, New Mexico,
for the General Counsel.

Jeffrey L. Lowry, Esq.,
of Albuquerque, New Mexico,
for the Respondent.

DECISION

Statement of the Case

JAMES L. ROSE, Administrative Law Judge: This matter was tried before me at
Albuquerque, New Mexico, on April 5 and 6, 2005,1 upon the General Counsel’s
complaint which alleges that the Respondent refused to hire Reginald Zhuckkahosee in
violation of Sections 8(a)(1), (3) and (4) of the National Labor Relations Act, as
amended, 29 U.S.C. §151, et seq.

The Respondent generally denied that it committed any violations of the Act and
affirmatively contends that its decision not to hire Zhuckkahosee was for good cause and
not because of any union or other protected activity he may have engaged in while
working for the Respondent’s predecessor.

Upon the record as a whole, including my observation of the witnesses, briefs
and arguments of counsel, I hereby make the following findings of fact, conclusions of
law and recommended order:

1 All dates are in 2004, unless otherwise indicated.
JD(SF)–44–05
I. Jurisdiction

The Respondent is a New Mexico corporation engaged in the business of
providing security and other services to the United States Government, including the
Social Security Administration Albuquerque Teleservice Center in Albuquerque, New
Mexico. During the 12-month period ending November 2, 2004, the Respondent has
performed security services valued in excess of $50,000 to the United States
Government. The Respondent admits, and I conclude, that it is an employer engaged
in interstate commerce within the meaning of Sections 2(2), 2(6) and 2(7) of the Act.
5
10
15
20
25
30
35
40
45

II. The Labor Organization Involved

International Guards Union of America, Local No. 131 (herein the Union) is
admitted to be, and I find is, a labor organization within the meaning of Section 2(5) of
the Act.

III. The Alleged Unfair Labor Practices

A. The Facts.

On September 24, the Respondent was awarded a contract with the Social
Security Administration (SSA) to provide security services at the SSA Teleservice Center
in Albuquerque for the period September 30 to July 31, 2005, which services had
previously been performed by Mike Garcia Merchant Security, Inc. In October, the
Respondent’s owner and president, John Morgan, interviewed applicants for
employment, all of whom had previously worked Merchant Security. It is unclear on the
record how it was that the Respondent had the contract beginning in September but did
not interview or hire employees until October.

Morgan hired eight of the ten former employees of Merchant Security, all of
whom were members of the Union, as well as their supervisor, Captain Lance Tise.
Morgan determined not to hire Reginald Zhuckkahosee and Nancy Donally. It is the
refusal to hire Zhuckkahosse which the General Counsel alleges violated the Act
because while working for Merchant Security, Zhuckkahosse had engaged in certain
union activity and had filed a charge with the Board in one case,2 and gave affidavits in
that case and another.3 The General Counsel argues that this activity caused Tise to
have animus toward Zhuckkahosse and this animus resulted in Tise recommending to
Morgan (but before Tise himself was hired) not to hire Zhuckkahosse. In short, the
General Counsel argues that the anti-union animus of Tise can be imputed to Morgan
because “the Respondent made Tise its agent even before it hired him.” (GC brief at 27)

The record is largely devoted to events occurring in early 2004 and deals with
animosity between groups of employees and between certain employees and Tise. For
instance in a letter Donally wrote to Mike Garcia on February 2 praising Tise as a “very
good manager, “ she wrote, “I have never worked in nor witnessed such a hostile work
environment where three openly defiant employees, Security Officers Reggie
Zhuckkahosee, Security Officer Leticia ‘Dora’ Castillo, and (Security Officer Eddie Blom
when he was here) ban together to constantly threaten their direct supervisor, Captain

2 Mike Garcia Merchant Security, Case 28-CA-19306.
3 Mike Garcia Merchant Security, Cases 28-CA-19282 and 28-CA-19283.
2
JD(SF)–44–05
Tise, whenever he asks them to do their daily tasks that are within the normal range of
their work related duties. He has asked them to stop engaging in inappropriate behavior
that not only violates established work rules, but is often times very offensive.” And she
cites some examples. While this letter may have been at the instigation of Tise, it was
nevertheless her take on events at the time and had nothing to do with any union
activity.
5
10
15
20
25
30
35
40
45
50

Then later in 2004, while Merchant Security still had the contract, Donally again
wrote to Garcia but this time taking an anti-Tise stance and aligning herself with
Zhuckkahosse. This letter concerned an incident between Zhuckkahosee and Frank
Novelli on October 8. The case against Merchant Security had been settled and would
require Merchant Security to rehire Eddie Blom, in which case Novelli, who was lowest in
seniority, he might be discharged. According to Donally this prospect caused Novelli to
become angry. He talked to Tise and confronted Zhuckkahosee. She wrote, “ This is
just another example of how Capt. Tise allows targeted employees (that is
Zhuckkahosse) to be retaliated against, mistreated, and abused in the workplace with
impunity by various security officers that do his bidding.” Zhuckkahosse also wrote
Garcia about the incident with Novelli.

Donally claimed to have been sexually harassed by fellow employees and on one
occasion not invited to have lunch with the group. She believed this was discriminatory.
Regardless of the truth of these allegations, she was considered disruptive by fellow
guards, a fact which was reported by them when interviewed by Morgan.

She further testified that when interviewed by Tise and Tenoriao (who was then a
sergeant) in December 2003 she was told that there was a problem with three
employees whom Tise wanted to get rid of – Zhuckkahosee, Blom and Costello. This
statement to Donally predated any of the protected activity engaged in by
Zhuckkahosee. Blom testified that when Tise was hired, he made unilateral changes in
working conditions and caused disruption. Costello complained to Tise about his
allotting hours. She also testified that Tise was angry when he heard that he was
attempting to bust the Union and told her he was not anti-union. John Scholl, also a
witness called by the General Counsel, testified that Tise’s arrival was disruptive.
In short, toward the end of Merchant Security’s tenure, there was substantial
personal animosity between employees giving credence to the testimony that morale
was low. Garcia testified that he had lost confidence with Tise as a manager and in fact
wrote a memo to Tise on September 20 stating:

On this date I called Captain Tise regarding incident reports from Nancy
(Donally), Sgt. Tenorio, and some of the other officers.

After a long discussion with him regarding her and the overall Supervision
of the job, I told him not reprimand anybody or write any memos to the
guards unless he passes them to my manager Mr. Roach, my human
resource manager Alfredo Navarro or myself.

Though union grievances and Board cases were involved in some of the
incidents, the animosity between groups and between Zhuckkahosse and Tise seems to
have little or nothing to do with union membership or the charges. Indeed, according to
Donally, Tise’s desire to get rid of Zhuckkahosse predated any union activity on his part
or the charges. Tise reprimanded Zhuckkahosse for writing in the “gun log” and for
3
JD(SF)–44–05
closing and leaving the building prior to the required closing time for the building of
10:15 p.m.

B. Analysis and Concluding Findings
5
10
15
20
25
30
35
40
45
50

Counsel for the General Counsel correctly states the factors needed to establish
a prima facie case of discriminatory refusal to hire. These are, as the Board held in FES
(A Division of Thermo Power), 331 NLRB 9, 12 (2000): “(1) that the respondent was
hiring, or had concrete plans to hire at the time of the alleged unlawful conduct; (2) that
the applicants had experience or training relevant to the announced or generally known
requirements of the positions for hire, or in the alternative, that the employer has not
adhered uniformly to such requirements, or that the requirements were themselves
pretextual or were applied as a pretext for discrimination; and (3) that antiunion animus
contributed to the decision not to hire the applicants.”

Unquestionably the first two factors were established. The Respondent was
hiring and Zhuckkahosee clearly was competent to do the work. This case concerns the
last factor – that antiunion animus was a contributing factor to Morgan’s decision not to
hire Zhuckkahosee. Though the cases do not so state explicitly, I believe and conclude
that the antiunion animus must be that of the employer, which, by Section 2(2), includes
its agents. Counsel for the General Counsel seems to agree, stating on brief (at 23):
“Indeed, Wright Line is premised on the legal principle that an employer’s unlawful
motivation must be established as a precondition to finding an 8(a)(3) violation.”
Antiunion animus of someone not involved in the decision making on behalf of the
employer would not satisfy this requirement.

There is no evidence that Morgan harbors any animus against unions in general,
or Zhuckkahosse in particular. Morgan has recognized the Union as the representative
of the employees involved here and is negotiating with the Union for a collective
bargaining agreement. Indeed, seven of the Respondent’s other bargaining units are
represented by unions. Nor is there evidence that Morgan even knew that
Zhuckkahosse engaged in any union activity while working for Merchant Security or
participated in any charges against that company before the Board. During his interview
Zhuckkahosse mentioned the Board cases and Morgan said he did not want to discuss
them, that such was a matter for Merchant Security. I cannot find animus based on this.

Due to this absence of evidence that Morgan’s decision not to hire Zhuckkahosse
was based on any animus he had, in order to find a violation, unlawful motive must be
imputed. To this end, Counsel for the General Counsel argues that Tise had such
animus, that Tise was an agent of the Respondent and that Tise made an effective
recommendation against hiring Zhuckkahosse.

It is questionable whether the evidence is sufficient to conclude even that Tise
had unlawful animus toward Zhuckkahosse, though there was clearly longstanding
conflict between them. However, assuming, without deciding, that he did, I cannot
conclude that such animus is imputable to Morgan.

The question is whether when interviewed by Morgan, Tise had any kind of
authority to act on behalf of the Respondent in connection with the hiring decisions.
Under well known rules of common law, agency arises when the principal gives the
4
JD(SF)–44–05
agent actual, apparent or implied authority to act on behalf of the principal. E.g., Nelson
Electrical Contracting Corp., 332 NLRB 179 (2000).

At the time Tise was interviewed by Morgan, he was an employee of Merchant
Security. During this interview, Morgan asked Tise his opinion of the other employees.
Tise gave his opinion and when asked by Morgan, followed up with a letter to Morgan
stating why Zhuckkahosse and Donally should not be hired. Although Morgan
subsequently hired Tise for the captain position (and later discharged him), there is
simply no evidence that Morgan “made Tise its agent even before it hired him,” as
argued by the General Counsel. The cases relied on by Counsel to establish agency
are not in point. In Transportes Hispanos, Inc., 332 NLRB 1266 (2000) the Board held:
5
10
15
20
25
30
35
40
45
50

We find substantial evidence of an agency relationship before the
Respondent formally hired Gilliland. * * * The Respondent’s Owner,
Henry Gardunio, and General Manager, Carmelo Oliveras, decided to
give Gilliland sole discretion in determining which employees should be
hired. Oliveras informed Gilliland that the Respondent wanted to hire all
but four Ryder employees and for her to choose based on a set of
general criteria. At a meeting with the Ryder employees, Oliveras
distributed job applications and told them to return their completed
applications to Gilliland. (Emphasis supplied.)

In Jim Walter Resources, Inc., 324 NLRB 1231 (1997), the Board found that the
Charging Party, who had been denied employment with the respondent, had
represented his union while working for another company and in doing so “met regularly
over grievances with Cowin’s management official, Richard Cates, who subsequently
was employed by the Respondent and who was involved in the denial of employment to”
the charging party. (Emphasis supplied.)

In both cases cited by Counsel for the General Counsel, the individual found to
be an agent (and whose animus was therefore imputed to the respondent) had either
been given the actual authority to make hiring decisions or was at the time of the hiring
decision in question a supervisor for the respondent. In Transportes Hispanos the
individual found to be an agent had in fact been given actual authority to act on behalf of
the respondent in the hiring decisions involved. In Jim Walter Resources the decision
maker relied on a supervisor’s negative recommendation. “Under Board and court
precedent, the knowledge and animus of a supervisor making a report about an
employee on which an employer relies in making an adverse employment decision are
imputable to the employer.” 324 NLRB at 1232

I have been directed to no case where animus has been imputed or agency
found simply because a company official asked a non-employee for an opinion. Morgan
asked others for their opinions about the workforce. Indeed, it is common for employers
to inquire of third parties about the suitability of job applicants. However, in seeking
such opinions an employer does not thereby make the third party an agent. Asking an
opinion does not of itself create any kind of authority to act on the employer’s behalf,
even though, as Morgan testified, he relied in part on Tise’s opinion and the opinion of
others.

When interviewed by Morgan, Max Sabado said that he was “uncomfortable”
working with Zhuckkahosee, whom he thought spied on fellow employees by zooming in
5
JD(SF)–44–05
with a security camera. Frank Novelli told Morgan that Zhuckkahosee and Donally were
making work difficult and causing bad morale. Novelli was, at the end of the Merchant
Security contract, the most junior employee. He has now replaced Tise as the captain.

In lieu of delaying this matter to secure the testimony of an official of SSA, the
General Counsel made (and I accepted) an offer of proof to the effect that when asked,
the SSA employee told Morgan that Merchant Security had “a good work force.” Giving
her opinion did not make an agent of the Respondent.
5
10
15
20
25
30
35
40

While it is established that the animus of a supervisor or an agent can be
imputed to a respondent, here, at the time Tise gave his recommendation and Morgan
made his decision Tise did not work for the Respondent. There is no evidence that at
the time of Morgan’s interview with Tise that Morgan had given Tise any kind of authority
to act on the Respondent’s behalf. Even though Tise was subsequently hired as a
supervisor, that was after the fact. I conclude that whatever animus he may have had
cannot be imputed to the Respondent. Finally, the General Counsel does not argue, nor
would I find, that Tise’s animus was condoned by the Respondent and relates back to
the hiring decision.

I do not believe that simply because Zhuckkahosee filed a charge against the
Respondent’s predecessor and gave affidavits in two cases, or engaged in some union
activity while a shop steward for its predecessor, that the Respondent was required to
hire him. In addition to the lack of evidence of an unlawful motive on the part of Morgan,
there is ample evidence that his refusal to hire Zhuckkahosee was not unreasonable.

Accordingly, I conclude that the General Counsel did not establish by a
preponderance of the credible evidence that the Respondent violated the Act as alleged.

On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended 4

ORDER

The Complaint is dismissed in its entirety.

Dated, San Francisco, California, May 25, 2005.

____________________________
James L. Rose
Administrative Law Judge

4If 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 purposes.
6