CBI Na-Con, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 2004

343 N.L.R.B. 792 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 88
792
CBI Na-Con, Inc. and United Association of Jour-
neymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and
Canada, Plumbers and Steamfitters Local Union
No. 198, AFL–CIO. Cases 15–CA–13906, 15–
CA–13906–3, and 15–CA–13992
November 30, 2004
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND MEISBURG
On September 25, 1997, Administrative Law Judge
Howard I. Grossman issued the attached decision. The
Respondent filed exceptions and a supporting brief. On
June 7, 2000, the Board remanded this proceeding for
further consideration pursuant to FES, 331 NLRB 9
(2000), enfd. 301 F.3d 83 (3d Cir. 2002). On December
21, 2000, Judge Grossman issued the attached supple-
mental decision. The Respondent filed exceptions to the
supplemental decision and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision, supplemental
decision, and the record in lights of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions only to the extent consistent with
this Supplemental Decision and Order. We shall substi-
tute a new notice for that of the judge.
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act by failing to consider or to hire
14 applicants for employment. He also found, and we
agree, that the Respondent violated Section 8(a)(1) by
coercively interrogating employees concerning their un-
ion membership and sympathies. For the reasons below,
however, we reverse the judge’s conclusions regarding
the alleged failure to consider and to hire applicants and
we shall, therefore, dismiss the 8(a)(3) and (1) allega-
tions.
The Respondent was engaged as a construction con-
tractor at a chemical plant in Geismar, Louisiana, in 1996

1 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 prepondeance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Drywall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (ed
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings. In addition, the Respondent contends that
the judge’s findings demonstrate bias. On careful examination of the
judge’s decision and the entire record, we are satisfied that the Respon-
dent’s contentions are without merit. We disavow, however, the
judge’s comment in his supplemental decision that “If Respondent
managed to hire ‘some’ applicants at subjourneyman or helper wages,
this tends to support the Union’s arguments for the necessity of union
representation.”
and 1997.2 Hiring decisions for welders and pipefit-
ters—the positions for which the alleged discriminatees
assertedly were not considered or employed—were made
by the Respondent’s piping superintendent, Gary Kin-
chen. The complaint alleges that starting about May 29,
1996, the Respondent failed to consider or hire any of the
14 named alleged discriminatees at the Geismar project.
From May 293 to late November, the Respondent,
through Kinchen, hired about 38 pipefitters and 50 weld-
ers at the project. Kinchen used a preferential hiring
system to fill these positions, as follows, in descending
order of priority: (a) employees with whom Kinchen or
an employee of the Respondent had a “personal” rela-
tionship; (b) employees who were recommended by a
current trusted employee of the Respondent; (c) transfers
from other worksites of the Respondent; and (d) the gen-
eral applicant pool.
It is undisputed that the overwhelming majority of em-
ployees hired at the jobsite fit into one of the first three
priority categories noted above.4 The Board has held that
an employer legitimately may implement a hiring policy
based on a hiring system that gives preference to former
employees and employees referred by current employees.
Ken Maddox Heating & Air Conditioning, Inc., 340
NLRB 43 (2003). Thus, hiring decisions “based on neu-
tral hiring policies, uniformly applied” are lawful.
Sunland Construction Co., 309 NLRB 1224, 1229
(1992).
The judge found that the Respondent’s preferential hir-
ing policy was not neutral, based primarily on what he
deemed the “practical result” of the hiring process itself:
i.e., the nonhire of the 14 alleged discriminates. To be
sure, if the Respondent’s policy were inherently dis-
criminatory or unlawful on its face, the failure to hire
union members pursuant to such a policy would support
a finding of discrimination. However, there is no allega-
tion in this case that the preferential hiring policy, on its
face, is discriminatory towards union members, and, as
noted above, Board precedent establishes that such a
policy is legitimate. Moreover, to the extent that the
judge’s reliance on the “practical result” of the policy
meant that it created a closed system in which union
members would not likely have hiring priority, he is fac-
tually mistaken. It is undisputed that several open union
members were hired when they successfully met the Re-

2 We correct the judge’s inadvertent error in identifying the Respon-
dent’s business as the manufacture of gas products.
3 All dates hereinafter are in 1996 unless noted otherwise.
4 As explained in his brief to the judge, the General Counsel noted
that the pool hired employees “was almost exclusively” made up of
referred employees, those with whom Kinchen testified that he had
worked with in the past, and personal friends.
CBI NA-CON, INC. 793
spondent’s preferential hiring criteria.5 Consequently,
the General Counsel bears the ultimate burden of prov-
ing, by specific evidence, that the alleged discriminates
were the subject of disparate treatment in the facially
neutral hiring process because of their union member-
ship. We find the General Counsel has failed to prove
this violation.
First, it is undisputed that the Respondent hired known
union members, albeit the precise number of such hires is
unclear. At a minimum, Kinchen hired known union
member Danny Aucoin and his son, Brian Aucoin. The
judge found that Kinchen did not know of the union af-
filiations of other union members hired by the Respon-
dent “in most of the instances.” But, in addition to
Danny and Brian Aucoin, it is uncontradicted that the
Respondent hired union members Jerry Jones and Kurt
Richard. Although the judge discredited Kinchen’s tes-
timony regarding his knowledge of the union affiliation
of other employees, the judge did not make a specific
finding with regard to Jones and Richard.6 In any event,
irrespective of the exact number of known union mem-
bers hired by Kinchen, it is evident that the Respondent
hired both “covert” and known union members.
Second, the record indicates that the Respondent did
not apply its hiring policies disparately. Put another
way, the Respondent failed to hire numerous nonreferral
applicants from the general application pool, whether
union or nonunion. As we noted in Ken Maddox Heating
& Air Conditioning, supra, the nonhire of large numbers
of nonunion applicants, as well as union applicants, is
evidence that antiunion discrimination did not influence
the Respondent’s hiring decisions. Id. at 45.
Third, the judge erroneously stated that the Respon-
dent did not interview any of the alleged discriminatee
applicants and spent little time investigating their job
credentials. In fact, the Respondent not only interviewed
several of the alleged discriminates, but it offered em-
ployment to applicants Michael Armstrong and Louis
LeBlanc pursuant to such interviews. As to Armstrong, a
job offer was made to him in late July.7 As to LeBlanc,

5 We therefore do not reach the issue whether there could be a viola-
tion if the employer utilized a set of criteria which had the foreseeable
and inevitable consequence of excluding union members. See Contrac-
tors Labor Pool v. NLRB, 323 F.3d 1051, 1056–1061 (D.C. Cir. 2003),
denying enf. in relevant part sub nom. Aztech Electric Co., 335 NLRB
260 (2001).
6 At fn. 30 of his original decision, the judge set forth the names of
several employees for whom Kinchen asserted knowledge of alleged
union membership, as to which the judge discredited Kinchen, but the
judge did not specifically include Jones and Richard in that group.
7 Member Schaumber does not rely on the judge’s finding that the
offer of employment to Armstrong was “tainted” by Kinchen’s asking
him whether he would cross a picket line. Because the violations are
cumulative, Member Schaumber finds no need to pass on whether
the judge found that the Respondent offered LeBlanc a
job and that LeBlanc did not reject the offer. Further, the
judge found that it was uncontradicted that the Respon-
dent offered employment to alleged discriminatees Jerry
Ruiz and Danny Percle, but found it unnecessary to make
a specific finding on the matter.8
Finally, we disagree with the judge’s finding that Kin-
chen’s interrogation of employees concerning their union
activities, and his comment that the Union was “causing
him trouble,” undermined the bona fides of the Respon-
dent’s preferential hiring system. However, even if we
were to find that Kinchen’s comments manifested union
animus on the Respondent’s part, it does not prove dispa-
rate treatment of union applicants in the hiring system
when, as here, the evidence as a whole establishes that
the Respondent knowingly hired or attempted to hire
union applicants and treated nonunion, nonreferred ap-
plicants in similar fashion to union, nonreferred appli-
cants.9
In these circumstances, we find that the Respondent’s
hiring decisions, and its consideration for hire of the al-
leged discriminates, were undertaken pursuant to a valid,
neutral preferential hiring system, were not applied dis-
parately, and were not discriminatory in practice. We
conclude, therefore, that the Respondent did not violate
Section 8 (a)(3) and (1) of the Act, as alleged.
ORDER
The National Labor Relations Board orders that the
Respondent, CBI Na-Con, Inc., Geismar, Louisiana, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating applicants for employment
regarding their union membership and sympathies.
(b) 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.

Kinchen’s inquiry violated Sec. 8(1)(1). See Naperville Ready-Mix,
Inc., 329 NLRB 174, 178 fn. 19 (1999), enfd. 242 F.3d 744 (7th Cir.
2001) (respondent’s inquiry about nonunion truckdrivers’ willingness
to cross picket line was not unlawful).
8 In his initial decision, the judge noted that Kinchen testified with-
out contradiction that he made offers of employment to Ruiz and Per-
cle, but the judge deferred the matter to compliance.
9 We adopt the judge’s findings that Kinchen interrogated applicants
Bullion, Civella, Michael Armstrong, and Quave regarding their union
membership. We note that the complaint does not allege any unfair
labor practice with regard to Kinchen’s comment about the Union
“causing him trouble” and the judge made no finding of a violation.
Even assuming arguendo that the judge correctly considered this com-
ment as evidence of animus, rather than a statement of obvious fact (the
Union was picketing Respondent’s jobsite at the time), there is insuffi-
cient proof of discriminatory motivation in the hiring process.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD794
(a) Within 14 days after service by the Region, post at
its office in Geismar, Louisiana, copies of the attached
notice marked “Appendix.”10 Copies of the notice, on
forms provided by the Regional Director for Region 15,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 11, 1996.
(b) 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 it has taken to comply with this
Decision.
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT coercively interrogate applicants for
employment about their union membership and sympa-
thies.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed to you by Section 7 of the Act.

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
CBI NA-CON, INC.
Zoë Panarites, Esq, for the General Counsel.
Melvin Hutson, Esq. (Thompson & Huston), of Greenville,
South Carolina, for the Respondent.
William Lurye, Esq. (Robein, Urann & Lurye), of Metairie,
Louisiana, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. Charges
in these cases were filed at various times by United Association
of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, Plumbers and Steam-
fitters Local Union No. 198, AFL–CIO (Local 198, or the Un-
ion).1 A consolidated complaint issued on August 30, 1996. It
alleges that CBI Na-Con, Inc. (Respondent or CBI) interrogated
its employees concerning their union membership, activities,
and sympathies in violation of Section 8(a)(1) of the Act, and
violated Section 8(a)(3) by refusing to consider for hire or to
hire 14 applicants for employment because they assisted the
Union and engaged in other concerted protected activities.
A hearing was held before me on these matters in Baton
Rouge, Louisiana, on May 5, 6, and 7, 1997. Thereafter, the
General Counsel, Respondent, and the Union filed briefs.
Based on the entire record in this case, including my observa-
tion of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office at Geismar, Lou-
isiana, where it is engaged in the manufacture of gas products
at a site called the Liquid Carbonics jobsite. During the 12-
month period ending July 31, 1996, Respondent purchased and
received at its Geismar worksite goods valued in excess of
$50,000 from points outside the State of Louisiana.2 Respon-
dent admits that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.

1 The original charge in Case 15–CA–13906 was filed on June 5 and
an amended charge on July 1, 1996. All dates are in 1996 unless oth-
erwise indicated. The charge in Case 15–CA–13906-3 was filed by the
Union on July 1, and the charge in Case 15–CA–13992 on July 25.
2 Respondent’s answer admits the complaint allegation regarding the
purchase of goods valued in excess of $50,000 “but denies that it con-
ducted the operations described in paragraph 2 during the 12-month
period ending July 31, 1996, for the reasons stated in paragraph 2 of the
Answer.” Paragraph 2 of the answer admits that Respondent has a
temporary office at Geismar, denies that it has a “place of business”
there engaged in the manufacture of gas products, and says nothing
about the purchase and receipt of goods. Respondent has not “specifi-
cally denied or explained” the commerce allegation in the complaint, as
required by Sec. 102.20 of the Board’s Rules, and I conclude that the
complaint allegation is correct.
CBI NA-CON, INC. 795
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Applications
1. The May 29 applications
On May 29, 9 alleged discriminatees3 applied at the CBI
trailer in Geismar for employment as pipefitters, pipe welders,
iron workers, or boilermakers. Other experience was listed.
All wore buttons reading “UA Organizing Committee” and one
wore a union T-shirt. Six of the applicants indicated on their
applications that they were voluntary union organizers,4 and
three either indicated Union Business Manager Louis LeBlanc
as a reference or stated that they had worked through the Un-
ion.5 Respondent denies that it refused to consider them but
admits that it refused to hire them.6
The applications state that they remain active for 60 days.
However, Gary Kinchen, Respondent’s piping superintendent
and an admitted supervisor, testified that applications are active
and the applicant is eligible for hire until the project is com-
pleted.
The applications show several construction skills, some with
multiple skills and advanced training. All applications show
extended experience, 31 years by Gordon Laiche, and 36 years
by Louis LeBlanc.
2. The application of Brent Bullion
Brent Bullion was referred to Respondent by employee
Randy Quave. Bullion called piping superintendent Kinchen
on May 28 and again on June 12.7 Respondent denies that it
refused to consider him but admits that it refused to hire him.8
Kinchen called Bullion at home on June 20, and asked
whether he would be ready to go to work the following week.
Bullion replied that he was ready. He testified without contra-
diction that Kinchen asked whether he was working out of the
Union and whether he was a member. Bullion replied affirma-
tively, and Kinchen said that he would contact Bullion later to
go to work. Bullion did not hear further from Respondent.
Kinchen testified that he kept a notebook in which he listed the
names of applicants, and that he wrote “198” next to Bullion’s
name.
3. The application of Matthew Landrey on June 25
As indicated, on May 29, the applicants applied at Respon-
dent’s trailer. There was a guard shack on the jobsite, and Re-
spondent had an arrangement with a security company. After
May 29, Respondent left blank applications at the guard shack,
with instructions that the guard was to receive them. Kinchen
testified that they were picked up on a daily basis.
Matthew Landrey testified that he filled out an application on
June 25, and left it with the guard at the guard shack. He wore
a union organizer button, put “Union Organizer” at the top of

3 Jeffrey Armstrong, Louis LeBlanc, Cynthia Kelly, Ronald T. Ses-
sions, Van Himel, Jerry Ruiz, Danny J. Percle, Roger Duplessis, and
Gordon J. Laiche.
4 GC.Exhs. 3(a), 3(e), 3(f), 3(h), 3(k), 3(l).
5 GC Exhs. 3(d), 3(g), 3(j).
6 GC Exh. 1(o), par. 8.
7 GC Exh. 3(c).
8 GC Exh. 1(o), par. 8.
the application, and listed a Local 198 apprenticeship course in
the body of the application. Landrey further testified that he
taped the conversation.9 The guard told him that the Company
was hiring and that she would give the application to the Com-
pany.
Respondent asserts that it never received the application. I
credit Landrey’s testimony and conclude that the security guard
was an agent of Respondent. NLRB v. Southwire Co., 801 F.2d
1252 (11th Cir. 1986).
4. The application of Ronnie Civella on July 8
Employee Randy Quave also suggested to Ronnie Civella
that he apply for employment. Civella called Piping Superin-
tendent Kinchen on July 8, and related his work experience.
Kinchen replied that some welders had walked off the job10 and
that he was hiring welders. Civella testified without contradic-
tion that Kinchen asked him whether he was a member of Local
198. Civella responded that he was, and Kinchen responded, “I
guess that’s the end of this, then,” and ended the conversation.
Civella called Kinchen again on July 11, and Kinchen told him
that he was “on the top of his list.”
On August 1, Kinchen called Civella and asked whether he
was working. Civella said that he was, and Kinchen responded:
“Sorry I couldn’t have helped you out.” Respondent argues
that this conversation constitutes evidence that Kinchen offered
Civella a job.
Respondent also argues that Civella’s testimony about Kin-
chen’s union inquiry should not be credited because he did not
know certain details such as dates and days of the week. These
minor lapses do not diminish the probative weight of the fact
that Civella’s testimony about Kinchen’s union inquiry is un-
contradicted. I credit Civella’s testimony.
5. The application of Michael Armstrong
Michael Armstrong was a brother of Union Assistant Busi-
ness Agent Jeffrey Armstrong. On July 8, he submitted the first
of 3 applications at the guard shack. On July 11 he called Kin-
chen and described his qualifications. Kinchen asked whether
he ever “worked out of a union.” Kinchen said that the Union
had put up a picket line, and asked Armstrong whether he
would cross the picket line. Armstrong replied that he would
do so. Kinchen said that he did not have Armstrong’s applica-
tion on his desk. Armstrong then went down to the guard shack
and submitted a second application on the same day as his con-
versation with Kinchen, July 11.
A few days later, Armstrong called Kinchen again, and the
latter informed him that he, Kinchen, had also lost the second
application. On July 17, Armstrong filled out a third applica-
tion and delivered it to the guard shack. He called Kinchen,
who informed him that the Union was giving him some trouble,
and again asked Armstrong whether he would cross the picket
line. Armstrong said that he would do so, and Kinchen asked
him to come to the jobsite and fill out some pre-employment
papers.

9 GC Exh. 21.
10 Several employees engaged in a brief strike after the May 29 ap-
plications.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD796
Armstrong returned to the jobsite, filled out some papers,
and had a conversation with Kinchen. The latter again asked
Armstrong whether he would cross the picket line, and received
the same affirmative answer. Kinchen asked Armstrong
whether he was “kin” to Jeffrey Armstrong.
Armstrong said he was ready to work the next morning.
Kinchen replied that he had just received a call from his “boss”
in Lake Charles who informed him that they would be transfer-
ring some employees to the Liquid Carbonics job. Accord-
ingly, Kinchen could not hire anybody.
There is no documentary evidence of a message from Lake
Charles, or of any transfer in late June of employees to the Liq-
uid Carbonics job.
Two or three weeks later, i.e., in late July, Kinchen called
Armstrong and asked whether he was ready to work the next
morning. Armstrong said he would try to be there. He called
later and informed a guard that he had prior commitments and
would not take the job.
6. The application of Charles Middleton
Charles Middleton filed an application for employment as a
pipe welder on July 1.11 Respondent denies that it refused to
consider him, but admits that it refused to employ him.12
The application gives Union Business Manager Louis
LeBlanc as a reference, and states that Middleton had been a
union organizer. It relates Middleton’s extensive experience as
a pipefitter and welder, and as a welding instructor.13 Although
Middleton did not testify, Respondent stipulated at the hearing
that General Counsel’s Exhibit 3(i), and the other applications,
are the applications of the named discriminatees.
B. Respondent’s Hiring at the Liquid Carbonics Job
Respondent hired about 38 pipefitters from June 1 through
November 23, including 6 in June, 4 in July, and 10 in Au-
gust.14 On June 4, General Superintendent George Martin told
Assistant Business Agent Jeffrey Armstrong that CBI had no
need to hire pipefitters, and Piping Superintendent Kinchen told
job applicant (Richard Albee) the same thing, despite the fact
that Respondent hired two pipefitters on June 1, two on June
15, and two on June 29.15 CBI hired about 50 welders, from
June 1 through November 29, including 6 in June, 7 in July,
and 13 in August.16
Kinchen asserted that his preferred order of hiring was (1) he
or someone working at CBI had a prior working relationship
with the applicant; (2) a trusted current employee made the
recommendation; (3) the employee was transferred from an-
other CBI job: or (4) a general application pool.

11 GC Exh. 3(i).
12 GC Exh. 1(o), par. 8.
13 GC Exh. 13(i).
14 GC Exh. 9; GC Exhs 12(k); 13(g), (r), (h), (c), (f), (i), (aa), (y),
(z), (s), (d), (o), (n), (dd), (m), (i), (f), (a), (cc), (ee), (v), (p), (w), (u),
(q), (j), (t), and (b); and 4; CP Exh. 1.
15 GC Exh. 9.
16 GC Exhs. 10; 7; 12(w), (g), (rr), (m), (gg), (jj), (j), (v), (ii), (i), (o),
(e), (pp), (b), (ee), (o), (ss), (hh), (cc), (r), (l), (n), (dd), (f), (d), (y),
(mm), (z), (kk), (t), (p), (h), (u), (oo), (ff), (ee), (nn), (bb), (s), (q), (a),
(tt), and (x), plus other applications.
Kinchen testified that employees were hired at the Liquid
Carbonics jobsite in the foregoing four categories, most in the
first or second category. His testimony is not completely sup-
ported by CBI records. Thus, Kinchen testified that three em-
ployees were transfers although their applications show that
they had not previously worked for CBI.17 Four employees
contradicted Kinchen’s testimony that they had previously
worked for CBI.18 Most of the approximately 88 hired em-
ployee applications do not show the length of experience and
multiplicity of skills reflected in the discriminatees’ applica-
tions.
Applicants for welding positions were not given welding
tests in any routine manner. Some were tested before they were
hired, but others were not tested until after they were hired.
One applicant was hired although he failed two welding tests.19
Kinchen testified that some employees were hired without fil-
ing an application although they were required to file one after
being hired.
C. Kinchen’s Conversation with Randy Quave
Kinchen called Randy Quave on June 11, to offer a job, pur-
suant to a covert application Quave had submitted. He asked
Quave whether he was a member of a local union, and Quave
denied it. The applicant said he would join a union if he
needed to in order to get the job. Kinchen replied, “No, I’m
tired of the damned union out there,” and that they were giving
him too much trouble. He told Quave that he did not want no
more union out there. Asked whether he made this statement,
Kinchen replied, “I don’t think so.” I credit Quave’s unambi-
guous testimony.
D. The Job Offers to Louis LeBlanc, Jerry Ruiz,
and Danny Percle
Piping Superintendent Kinchen testified that CBI offered
jobs to Louis LeBlanc, Jerry Ruiz, and Danny Percle in late
October. LeBlanc confirmed that he received such an offer on
October 24. He replied to Kinchen that he had a subpoena to
go to Arizona to testify in a Board proceeding, but would be
ready to work on November 4. LeBlanc also faxed Kinchen a
copy of the subpoena.20 Respondent’s records show that it hired
four welders on November 2, 8, and 9. It also hired four pipe-
fitters on November 9, and five more during the rest of No-
vember.21
On October 30, CBI sent LeBlanc a letter confirming that it
had offered him a job as a welder and expressing regret that he
had “declined it.” 22 LeBlanc replied on November 6, citing his
subpoena. He added that the timing of the offer was “ironic”

17 Rudy Hostetler, GC Exh. 12(t); Cletus Munrose, GC Exh. 12(ee);
and Anthony Nicholas, GC Exh. 12(ff).
18 Ray Gilbert (GC Exh. 12(p); Leland Durbin (testimony of
Durbin); Phillip Hanna (GC Exh. 7, testimony of Hanna); and Billy
Gay (GC Exh. 4, testimony of Gay).
19 Kinchen contended that the employee, James Willis, did not per-
form standard welding jobs. Kinchen was contradicted by Willis and
Danny Aucoin.
20 GC Exh. 16. Respondent points out that the subpoena does not
show a fax number. The same is true of LeBlanc’s answer to Kinchen.
21 GC Exhs. 9, 10.
22 R. Exh. 2.
CBI NA-CON, INC. 797
considering his application of 4 months standing, and added
that the offer was an attempt to limit CBI’s backpay liability,
and violated Section 8(a)(4) of the Act.23
Respondent argues that either LeBlanc did not send the sub-
poena because there is no fax number on it, or that Respondent
did not receive it. But Respondent clearly received LeBlanc’s
reply to its offer—it responded with an answer which character-
ized LeBlanc’s response as a declination. LeBlanc’s reply to
this communication refers to his prior response and his submis-
sion of a copy of the subpoena, and bears a fax number.24 Re-
spondent was thus clearly put on notice of the nature of
LeBlanc’s business in Phoenix, and the fact that he was issued
a Board subpoena. Respondent did not ask for a copy of the
subpoena or otherwise reply to LeBlanc’s communication of
November. 6.
E. Respondent’s Defense
1. Summary of the evidence
(a) Respondent’s rationale
Respondent’s defense is essentially that it hired union mem-
bers, and thus demonstrated that it did not have antiunion ani-
mus. Some of the hirings took place before the May 29 appli-
cations of the alleged discriminatees, and some after the appli-
cations.
(b) The hirings prior to the May 29 applications
Danny Aucoin was hired on May 25. Kinchen testified that
he had known for many years that Aucoin was a member of
Local 198. Aucoin testified that he was a member. He had
known Kinchen for some time, and was friendly with him.
Aucoin had previously worked together with Kinchen on a non-
union job. He worked for CBI on the Liquid Carbonics job for
about a week in January 1996. Although he spoke to some
employees about the Union, he did not try to organize, and did
not wear any union insignia. Kinchen called him in May, and
he started working again but was not asked to sign an applica-
tion until about a month later. No employee wore union insig-
nia prior to May 31, when some of them started wearing union
buttons.
Leland Durbin was hired on May 25. Kinchen testified that
Durbin said that he was a member of Local 198. Durbin testi-
fied, and agreed that he was a Local 198 member. He denied
that he discussed his union membership with any member of
management and denied that there was any way that manage-
ment could have known of his union membership.
Kinchen testified that he knew that “Arthur Jewell” was a
Local 198 member, and Respondent’s records show that an
“Arthur Jewell” was hired on May 25.25 A witness named
“Duane Jewell” testified, and identified as his application a
document wherein the applicant is named “Arthur Duane
Jewell.”26 I conclude that Duane Jewell and Arthur Jewell are
the same person.

23 R. Exh. 3.
24 Id.
25 GC Exh. 9.
26 GC Exh. 12(vv).
Jewell testified that he called Kinchen and asked for work.
There was brief conversation, in which there was no mention of
the Union or Jewell’s membership. Jewell testified that he did
not tell Kinchen that he was a member, and that there was no
way that CBI management could have known about his mem-
bership prior to his being hired.
Jewell was shown his application, which appears to be dated
“5–13–96,” with the “5” being written over an original “6.”
Jewell testified that he signed the application on June 13, after
having worked for several weeks. Kinchen struck out the “6”
and wrote “5” over it. Asked how he knew this, Jewell testi-
fied: “I was standing there watching him.” The application
denies prior employment by CBI.
Johnny Peart was hired on June 1. Kinchen testified that he
knew Peart was a Local 198 member because he wore a Local
198 belt buckle. Respondent’s records show that Johnny Peart
was hired on June 1.27 He went to the jobsite in May, and had a
conversation with Kinchen. He discussed his qualifications,
but did not fill out an application. Peart did not wear any union
insignia. Kinchen called him later, and told him to report for
work. He was asked to submit an application and take a weld-
ing test after he was already working. Peart denied on cross-
examination that he owns a Local 198 belt buckle.
Earl and Danny Moran were hired on May 25. Kinchen as-
serted that he had known for years that they were affiliated with
unions, and with Local 198. However, Local 198 assistant
business manager Jeffrey Armstrong testified that the Moran
brothers were not members of the Union.
Jason Onstead was hired on May 25. Kinchen contended
that he was in the Local 198 apprenticeship program. Assistant
Business Manager Jeffrey Armstrong testified that he instructed
Onstead to apply covertly.28 Onstead did not testify.
(c) Respondent’s hirings after May 29
Pursuant to a call Phillip Hanna made to Kinchen, Hanna
was hired on June 29. Kinchen testified that he knew Hanna
was a member of “Local 102,” and that he had known him for
20 years. Hanna testified that he had been a member of Local
406 of the Operating Engineers for 26 years, and had not
known Kinchen before the latter told him to report for work.
Respondent hired Billy Gay on June 29. Kinchen testified
that Gay “and his daddy” worked in a “Local 198 fab shop,”
and that he “figured” that Gay was a union member. Gay testi-
fied about the jobs listed on his application,29 and averred that
he did not work with Kinchen on any of them. He also testified
that his father was not a pipefitter.
Kinchen asserted knowledge of the alleged union member-
ship of other persons who were hired, but who did not testify.30

27 GC Exh. 9.
28 Armstrong gave the same instruction to Danny Aucoin, Brian
Aucoin, Duane Jewell, Mark Kirby, Leland Durbin, Mark Pecanty,
Johnny Peart, Melvin Quave, Randy Quave, and others.
29 GC Exh. 4.
30 Mark Kirby, Ricky Berthelot, Ronald Bello, Dupuy Glynn, Paul
Cagle, Danny Christian, and Brent Patterson.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD798
2. Factual analysis
The employee witnesses listed above were truthful in de-
meanor. Each was testifying about one or more conversations
he had with Kinchen, whereas the latter was testifying about
many. I credit the testimony of these witnesses. They show
that the Union instructed its members to make covert applica-
tions prior to the May 29 applications. Thereafter, some began
wearing union buttons, and there was a strike. Although Re-
spondent did hire some union members, the evidence shows
that Respondent did not know of the union affiliations in most
of the instances. In light of the many contradictions of Kinchen
supplied by these witnesses, I do not credit his testimony as to
other applicants and their asserted union membership, where
none was called by Respondent to support Kinchen’s testi-
mony.
F. Legal Conclusions
1. The alleged unlawful interrogation
The credited evidence shows that Piping Superintendent
Kinchen asked several applicants for employment whether they
were union members, or would cross a union picket line.
In an early statement of the principles to be applied in such
cases, the Board stated:
In our view, the test is whether, under all the circumstances,
the interrogation reasonably tends to restrain or interfere with
the employees in the exercise of rights guaranteed by the Act.
The fact that employees gave false answers when questioned,
although relevant, is not controlling. The Respondent com-
municated its purpose in questioning the employees–a pur-
pose which was legitimate in nature–to the employees and as-
sured them that no reprisal would take place. Moreover, the
questioning occurred in a background free of employer hostil-
ity to union organization. These circumstances convince us
that the Respondent’s interrogation did not reasonably lead
the employees to believe that economic reprisal might be vis-
ited upon them by Respondent. [Blue Flash Express, 109
NLRB 591, 593 (1954).]
The Board distinguished its decision in Blue Flash from a con-
trary holding, in which the interrogation took place a week
before a Board election, and the employer failed to give the
employees any legitimate reason for the interrogation or assur-
ances against reprisal (id.).
The Board reiterated this standard in Rossmore House, 269
NLRB 1176 (1984), where it rejected a per se approach to in-
terrogation of open union adherents and concluded that the test
was whether, under all of the circumstances, the interrogation
reasonably tends to interfere with, restrain, or coerce, employ-
ees in the exercise of rights guaranteed by the Act (id. at 1177).
The Board stated some of the factors to be considered:
Some factors which may be considered in analyzing interroga-
tions are: (1) the background; (2) the nature of the information
sought; (3) the identity of the questioner, and (4) the place and
method of interrogation. See Bourne v. NLRB, 332 F.2d 47 (2d
Cir. 1964). These other relevant factors are not to be mechani-
cally applied in each case. Rather, they represent some areas of
inquiry that may be applied in applying the Blue Flash test of
whether under all the circumstances the interrogation reasona-
bly tends to restrain, coerce, or interfere with rights guaranteed
by the Act. [Id., 269 NLRB at 1178 fn. 20.]
The Board has concluded that interrogation of a known
union adherent’s union sympathies was coercive. Baptist
Medical System, 288 NLRB 882 (1988). In Sunnyvale
Medical Clinic, 277 NLRB 1217 (1985), the Board ap-
plied the same test to interrogation of employees who were
not open union adherents. The Court of Appeals for the
Fifth Circuit recently affirmed a Board finding of coercive
interrogation because of the employer’s promulgation of
an illegal rule, and a history of attempting to engage in the
same practice in the past. NLRB v. Brookshire Grocery
Co., 919 F.2d 359 (5th Cir. 1990), enfd. in part 294 NLRB
462 (1989).31
In this case the alleged discriminatees were asked about their
union membership by a ranking supervisor at a time when they
were attempting to get jobs. The Board has held in numerous
cases that these circumstances meet the criteria set forth above.
Accordingly, I conclude that Respondent thereby violated Sec-
tion 8(a)(1) of the Act.
2. The alleged discrimination
The complaint alleges that Respondent failed to consider for
hire or to hire the discriminatees. The elements of this viola-
tion are (1) the applications were filed during the hiring stages;
(2) the applicants were shown to be or could be expected to be
union supporters; (3) the employer knew of their union mem-
bership or sympathy; (4) the employer had animus against the
union; and (5) the employer refused to hire the applicants be-
cause of this animus.32
Each of these criteria has been met. The applications were
filed before, after, and in the midst of the employer’s hiring of
other applicants. The applications continued to be viable for
the duration of the project, according to CBI’s piping superin-
tendent. The fact that some applications were made verbally
without a written application does not detract from their status
as applications, since Respondent hired other applicants with-
out requiring a written application. Accordingly, the applicants
listed in footnote 3 above filed applications on May 29, Brent
Bullion on May 28,33 Matthew Landrey on June 25, Charles
Middleton July 1, Ronnie Civella on July 8, and Michael Arm-
strong on July 8.

31 Citing Bourne, supra the court listed eight factors to be considered
in determining whether interrogation has been coercive: (1) the history
of the employer’s attitude toward its employees; (2) the nature of the
information sought or related; (3) the rank of the questioner in the
employer’s hierarchy; (4) the place and manner of the conversation; (5)
the truthfulness of the employee’s response; (6) whether the employer
had a valid purpose in obtaining the information sought; (7) whether a
valid purpose, if existent, was communicated to the employee that no
reprisals would be forthcoming. Although some of these factors were
not satisfied, the court in NLRB v. Brookshire Grocery, supra, agreed
with the Board that the interrogation had been coercive.
32 J. E. Merit Constructors, 302 NLRB 301, 303 (1991); Big E’s
Foodland, Inc., 242 NLRB 963 (1979).
33 Supplemented by a written application on June 12.
CBI NA-CON, INC. 799
The alleged discriminatees were shown to be union members
or sympathizers, as indicated by the information on their writ-
ten applications listed above, their union insignia, or their an-
swers to Kinchen’s interrogations.
Respondent had animus against the Union, as shown by Kin-
chen’s coercive interrogations, his statement to Michael Arm-
strong that the Union was giving him trouble, his statement to
Randy Quave that he was “tired of the damned Union,” his
writing “198” in a notebook opposite Brent Bullion’s name,
and his hiring of applicants with lower qualifications than those
of the alleged discriminatees. Duane Jewell’s testimony shows
that Kinchen backdated Jewell’s application to a date prior to
the May 29 applications of the alleged discriminatees. The
only discernible reason for this action was to make it appear
that Jewell’s application was filed prior to those in issue here.
An employer who establishes hiring policies designed to im-
pede or screen out union applicants violates Section 8(a)(3).
Starcon, Inc., 323 NLRB 977, 982 (1997).
Respondent’s argument that it did not have animus because
of the hiring of some union members is not persuasive for the
reasons given above. The hiring of a union member does not
necessarily rebut other evidence of animus. Thus, Danny
Aucoin was hired despite his union membership. However, he
was friendly with Kinchen and had previously worked with him
on a nonunion job. Aucoin did not pose a threat to Respondent
compared with applicants such as Louis LeBlanc and Jeffrey
Armstrong, union business agents, or with other individuals
whose applications stated that they were union organizers. The
evidence showed that Respondent did not have knowledge of
the union membership of most of the appicants it hired. Its
hiring of these members who did not display organizational
intentions is overcome by the weight of the evidence of union
animus.
The final issues are whether Respondent in fact did make of-
fers of employment to several discriminatees. I do not agree
that Respondent made an offer to Ronnie Civella on August 1.
When Kinchen called and asked him whether he was working,
and Civella replied that he was, Kinchen merely said that he
was sorry he “couldn’t have” helped Civella. This is phrased in
the past tense, and does not constitute a current offer of em-
ployment.
Kinchen’s exchange of communications with Louis LeBlanc
in early November does not establish that LeBlanc declined an
offer of employment. It merely shows that LeBlanc agreed, but
needed a one-week delay because of a subpoena to attend a
Board hearing. This was not a rejection of the offer.34
Based on the testimony of Kinchen and Michael Armstrong,
I conclude that Kinchen offered Armstrong a job in late July,
and that Armstrong declined it. However, Armstrong applied
on July 8, and Kinchen “lost” several applications, and repeat-
edly asked Armstrong whether he would cross the picket line.
An offer made with this condition was tainted, and did not con-
stitute a valid offer.

34 LeBlanc’s reply to Kinchen could be termed a new application.
Respondent was then hiring employees. However, this analysis is
unnecessary for the reasons given above.
Kinchen’s testimony that he made job offers to Jerry Ruiz
and Danny Percle in late October is uncontradicted. This does
not affect my finding that Ruiz and Percle made applications on
May 29, and I defer to the compliance stage of this proceeding
the issue of whether Kinchen in fact made such offers.
In sum, the General Counsel has established a prima facie
case that Respondent refused to consider or to hire the alleged
discriminatees because of their union membership or sympa-
thies. Respondent has not rebutted the General Counsel’s case,
and, accordingly violated Section 8(a)(3) and (1) of the Act.35
In accordance with my findings above, I make the following
CONCLUSIONS OF LAW
1. CBI Na-Con, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada, Plumbers and Steamfitters Local Union No. 198,
AFL–CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by coer-
cively interrogating employees regarding their union member-
ship and sympathies.
4. Respondent violated Section 8(a)(3) and (1) of the Act by
failing to consider or to hire the applicants for employment
named in the complaint on the dates set forth above.
5. The foregoing unfair labor practices constitute unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
It having been found that Respondent unlawfully failed to
consider or to hire Jeffrey Armstrong, Louis LeBlanc, Cynthia
Kelly, Ronald T. Sessions, Van Himel, Jerry Ruiz, Danny J.
Percle, Roger Duplessis, and Gordon J. Laiche on May 29,
1996, Brent Bullion on May 28, Matthew Landrey on June 25,
Charles Middleton on July 1, Ronnie Civella on July 8, and
Michael Armstrong on July 8, I shall recommend that Respon-
dent be required to offer each of them immediate employment
in the positions for which they applied, or, if nonexistent, to
substantially equivalent positions, and make them whole for
any loss of earnings they may have suffered because of the
discrimination against them, by paying each of them a sum of
money equal to the amount he would have earned from the date
of its unlawful refusal to consider or hire him to the date of an
offer of employment, less net interim earnings during such
period, to be computed on a quarterly basis in the manner es-
tablished by the Board in F. W. Woolworth Co., 90 NLRB 289

35 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), Manno Electric, Inc., 321 NLRB 278 fn. 12 (1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD800
(1950), with interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).36
I shall also recommend that Respondent be ordered to ex-
punge from its records all references to its unlawful failure to
consider or hire the discriminatees, and inform each of them in
writing that this has been done, and that the aforesaid actions
will not be used as the basis of any future discipline of them.
I shall also recommend the posting of notices.
[Recommended Order omitted from publication.]
Zoë, Panarites, Esq., for the General Counsel.
Melvin Hutson, Esq. (Thompson & Huston), for the Respon-
dent.
William Lurye, Esq. (Robein, Urann & Lurye), for the Charging
Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. My ini-
tial Decision in the above-captioned case issued on September
25, 1997. Thereafter, the Board remanded the decision to me
for consideration in light of its Decision in FES, 331 NLRB 9
(2000). The parties submitted briefs after my initial Decision,
supplemental briefs, and responses to my Order to Show Cause.
I have carefully considered them as well as the record.
The Board in FES lists several elements of a discriminatory
violation. The first is a finding that the Respondent was hiring,
or had concrete plans to hire, at the time of the alleged unlawful
conduct. Respondent hired about 38 pipefitters and 50 welders
from June through November 1996, when a project on which it
was working was completed. These figures are based on Re-
spondent’s payroll and personnel files, which were produced at
the hearing in response to the General Counsel’s subpoenas.
Respondent argues that this conclusion is not warranted be-
cause a “substantial percentage” of individuals were hired at
subjourneyman or helper rates, and that it is not discriminatory
for an employer to refuse to hire an applicant who is “over-
qualified.” This argument is without merit. Respondent adver-
tised for pipefitters and welders, as. Kinchen conceded. If Re-
spondent managed to hire “some” applicants at subjourneyman
or helper wages, this tends to support the Union’s arguments
for the necessity of union representation. Further, only “some”
rates were at this low level, and the Board held in FES that
General Counsel must establish at least one available opening
(FES, at 14). The General Counsel established far more than
this, enough to establish openings for 14 discriminatees.

36 Under New Horizons, interest is computed at the “short term Fed-
eral rate” for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. §6621. Interest accrued before January 1, 1987 (the
effective date of the amendment) shall be computed as in Florida Steel
Corp., 281 NLRB 651 (1977).
The second element necessary to establish a refusal-to-hire
violation is that the applicants had experience or training rele-
vant to the generally known requirements for the positions for
hire, or, in the alternative at that the employer did not adhere
uniformly to the requirements. Id. Most of the applications
were in writing, and, as found in my original Decision, revealed
extensive experience in pipefitting and welding. Respondent
did not interview any of these applicants, or submit any proof
that their experience failed to meet the standards required by
the jobs. Kinchen received some applications by telephone,
and in person but there is no evidence that he challenged any of
the experience claims made by the applicants. In fact, Respon-
dent claims that it offered work to some of the applicants, ar-
guments that I have rejected in my original Decision. Finally,
Respondent allowed some welders who were hired to delay
taking a welding test until after they had been hired, and even
hired one individual who failed the test. Respondent thus failed
to administer uniformly its own hiring rules.
Respondent’s anitunion animus is described in my initial
Decision. I conclude that the General Counsel has established a
prima facie case.
Respondent argues that even if a prima facie case has been
established, it would not have hired the alleged discriminatees
for reasons unconnected with their Union activities. Its reason
was that Respondent used a “valid neutral hiring process”.
Under this process, applicants were considered in categories of
preference. The highest category considered applicants who
had a personal relationship with somebody else in the Company
on the site. Next was an applicant recommended by a trusted
employee. Further on the list was an employee transferred
from another Company job site. Finally, unknown applicants
were considered.
Kinchen testified that the purpose of this policy was to as-
sure that the Company hired qualified applicants. Another
motive is suggested by Kinchen’s interrogation of employees
concerning their Union activities, their willingness to cross a
picket line, and his statement that the Union was causing him
trouble. Kinchen spent time investigating the Union activities
of applicants but little time investigating their credentials as
employees. The practical result was to exclude 14 highly quali-
fied applicants from employment on a project. See D.S.E.
Concrete Forms, 303 NLRB 890, 897 (1991), enf. mem. 21
F.3d 1109 (5th Cir. 1994); Ultasystems Western Constructors,
310 NLRB 545, 554 (1993), affirmed in part, remanded as rem-
edy, 18 F.3d 251 (4th Cir. 1994).
The hiring process in this case was not “neutral” in light of
this result. It was in fact discriminatory, and thus cannot form
the basis of a rebuttal of the General Counsel’s case.
For these reasons, I reaffirm my original findings of fact,
conclusions of law, and my recommended Order. [Which are
omitted from publication.]