CCC Group, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 2004

341 N.L.R.B. 96 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 96
CCC Group, Inc. and International Union of Operat-
ing Engineers, Local 925, AFL–CIO, Petitioner.
Case 12–CA–21800
January 30, 2004
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND WALSH
On May 7, 2003, Administrative Law Judge John H.
West issued the attached decision. The Respondent filed
exceptions and a supporting brief, and the General Coun-
sel filed an answering brief and cross exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2 as

1 The Respondent has filed exceptions to some of the judge's credi-
bility findings. The Board's established policy is not to overrule an
administrative law judge's credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. 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.
The Respondent’s exceptions also imply that the judge’s rulings,
findings, and conclusions demonstrate bias and prejudice. On careful
examination of the judge’s decision and the entire record, we are satis-
fied that the Respondent’s contentions are without merit.
2 We agree with the judge that the Respondent violated Sec. 8(a)(3)
and (1) by refusing to consider for hire and refusing to hire applicant
Michael Kell. To establish a discriminatory refusal to hire, the General
Counsel must show, inter alia, that the Respondent was hiring or had
concrete plans to hire. FES, 331 NLRB 9, 12 (2000), enfd. 301 F.3d 83
(3d Cir. 2002). The judge failed to make an explicit finding regarding
this element of the General Counsel’s case. As more fully set forth in
the judge’s decision, in April 2001 Kell applied for the position of
“Operator,” and was interviewed by the Respondent. Following his
application, Kell continued to make his interest in employment known
to the Respondent, and was told that the Respondent kept applications
active for 6 months to “years.” On May 3, the Respondent placed a
help-wanted advertisement in the local newspaper seeking a “Crane
Operator” and, on August 24, the Respondent hired Paul Harrell as a
crane operator. We find that the foregoing evidence establishes that the
Respondent was hiring.
In adopting the judge’s finding of a violation, Member Schaumber
notes that the parties do not dispute that Kell was a legitimate applicant.
Further, Member Schaumber is of the view that the General Counsel
should be required to show, as part of his initial burden under FES,
supra, that the applicant met the actual qualifications for the position
established by the employer. In general, this would require proof that
the alleged discriminatee met the announced or advertised qualifica-
tions for the job, unless the employer is shown to have applied lower
standards in practice. Applying this standard, Member Schaumber
finds that the General Counsel met his FES burden in this case.
Member Schaumber additionally finds, in agreement with the judge,
that the Respondent failed to prove its claim that, even if Harrell had
not been hired for the crane operator position, it would have hired one
of the other applicants for the position instead of Kell. He finds it un-
necessary to rely on the judge’s additional comment that, under FES,
modified and to adopt the recommended Order3 as modi-
fied.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that Respondent, CCC Group,
Inc., Bartow, Florida, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(a).
“(a) Refusing to consider for hire and refusing to hire
employee applicants because they are union organizers or
because of their union affiliation.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
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 a 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 refuse to consider for hire and refuse to
hire employee applicants because they are union organiz-
ers or because of their union affiliation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board's
Order, offer Michael Kell employment in the position for

the only permissible comparison is with other applicants who were
hired.
3 We have modified the judge’s notice to more closely reflect the
violations found and the judge’s recommended Order. Additionally, we
find merit in the General Counsel's exception to the judge's failure to
include in his affirmative Order a provision requiring the Respondent to
cease and desist from refusing to consider for hire and refusing to hire
“employee applicants,” and we shall modify the recommended Order
and notice accordingly.
At the compliance stage, Member Schaumber would consider
whether any salary paid to Kell by the Union should be deducted from
any backpay awarded to him.
341 NLRB No. 15
CCC GROUP, INC. 97
which he applied or, if such position no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges that he
would have previously enjoyed.
WE WILL make Michael Kell whole for any loss or
earnings and other benefits suffered as a result of our
unlawful refusal to consider him for hire and our unlaw-
ful refusal to hire him, less any net interim earnings, plus
interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusal to consider and the refusal to hire Michael
Kell, and within 3 days thereafter notify Michael Kell in
writing that this has been done and that our unlawful
conduct will not be used against him in any way.
CCC GROUP, INC.
Ananyo Basu, Esq. and David Cohen, Esq., for the General
Counsel.
James S. Cheslock. Esq. (Cheslock, Deely & Rapp, P.C.), of
San Antonio, Texas, for the Respondent.
Mike Kell, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. This case was
tried in Tampa, Florida, on February 24 and 25, 2003. The
charge was filed by International Union of Operating Engi-
neers, Local 925, AFL–CIO (the Union) on September 18,
2001,1 and the complaint, which was issued December 28,
alleges that CCC Group, Inc. (Respondent or CCC) violated
Section 8(a)(1) and (3) of the National Labor Relations Act (the
Act), since on or about April 20 by refusing to consider for
hire, and refusing to hire, employee applicant Michael Kell
because Kell joined, supported, and assisted the Union, and
engaged in concerted activities, and to discourage employees
from engaging in these activities. In its answer to the complaint
(GC Exh. 1(f)), the Respondent admits that it refused to hire
Kell, it denies that it refused to consider Kell for hire, it denies
that it refused to hire Kell because he joined, supported, and
assisted the Union, and engaged in concerted activities, and to
discourage employees from engaging in these activities, and it
makes the following statement:

Respondent denies that Michael Kell’s union membership or
activity was a factor in its decision not to offer him a job.
However, even if anti-union animus was a factor in Respon-
dent’s decision, Respondent affirmatively alleges that Kell
would not have been hired even in the absence of anti-union
animus.

On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing

1 All dates are in 2001 unless otherwise indicated.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Texas corporation, has been engaged in
the business of providing general construction and manufactur-
ing services out of its facility located at Bartow, Florida, where
it annually purchases and receives goods and materials valued
in excess of $50,000 directly from points outside the State of
Florida. The Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
In July 1998, John Matejek opened the Respondent’s facility
at Bartow. Matejek, who has been with the Respondent for over
20 years and a manager since 1985, became the regional man-
ager in charge of the Bartow operation. The Respondent, whose
corporate offices are in San Antonio, Texas, has operations in
other States and in other countries. Its employees operating out
of its Bartow facility have never been represented by a union.
Matejek testified that in States other than Florida, he did not
indicate which, CCC has collective-bargaining agreements with
unions. A majority of the Respondent’s work out of Bartow is
in the phosphate open (above ground) mines and plants. Its
phosphate customers are Cargill Fertilizer, IMC Phosphate, and
CF Industries. The Respondent has about 80 people at its Bar-
tow operation. Approximately 65 are employees. They include
laborers, welders, concrete workers, pipe fitters, operators, and
general and pump mechanics. Matejek testified that CCC has
written hiring policies which establish preferential hiring priori-
ties for field projects.2 The Respondent uses welding machines,
2 R. Exh. 3. The procedures, as stated on page one of the document,
read as follows:
It is the policy of our Company to staff jobs with former em-
ployees whenever possible. . . . Accordingly, all Project Manag-
ers will staff their jobs in the following manner:
Group One—Former employees who apply for work and are
eligible for rehire will be given first priority hiring preference.
Group Two—Current employees whose work is nearing
completion may be transferred to projects where additional work-
ers are needed. These workers have the same preference as per-
sons in Group One.
Group three—When person in Groups One and Two are un-
available, the Project Manager should show a preference to quali-
fied applicants who are strongly recommended by current Com-
pany employees.
Group Four—Persons who do not fall into Groups One, Two
or Three may be hired only when absolutely necessary.
. . . .
The Company prefers to hire persons with skills in a number of crafts
whenever possible; multi-craft personnel are more versatile than indi-
viduals whose skills are limited to a particular craft.
Each of the three pages of the policy manual received as R. Exh. 3
has “Rev. Date 6–25–02” at the bottom. Matejek testified that this
notation at the bottom of the page means that it was revised June 25,
2002. Notwithstanding this, on cross-examination Matejek testified that
the first page “kind of said everything that’s on the second and third
page[s] [of the document] which has been in effect for years.” (Tr. p.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 98
cutting equipment, compressors, man lifts, cranes, pickers,
front-end loaders, forklifts, and boom trucks. The Respondent
does not own any of the cranes it operates out of Bartow.
Rather, it rents the cranes from Bud Keene Crane, All Sunshine
Crane, and Maxim Crane. The Respondent does not hire crane
operators from another company. A lot of its work in the open
phosphate mines is pump work and cranes are used to lift and
set the pumps. Cranes are also used in maintenance work to set
grating and plate. When cranes are used to repair a drag line,
which is equipment which digs overburden off the phosphate
and digs the phosphate out of the ground, the mine usually
furnishes the crane and the operator. The Respondent has used
cranes ranging in size from 20 to 110 tons. Of the companies
from which it rents cranes, All Sunshine lets the Respondent
bare rent (the Respondent supplies its own operator), Bud
Keene Crane will not allow the Respondent to bare rent cranes,
and Maxim Crane sometimes allows the Respondent to bare
rent cranes. On 150-ton cranes and above, All Sunshine re-
quires the Respondent to use an All Sunshine operator.
On April 18, the Florida Gulf Trades Building Council had a
meeting which Kell attended. It was held at an Ironworkers’
union hall, and representatives from all the crafts attended.
There was a discussion about a lot of work coming up in the
phosphate industry. The president of the Council, Ed Dees,
mentioned that union contractors were complaining about the
low bids of CCC, and he said that an organizing drive should be
started at CCC to get that Company up to a level playing field.
On April 20, Kell, who is a business agent and organizer for
the Union, went to the Respondent’s Bartow facility to fill out
an application for employment. He was given an application by
one of the Respondent’s secretaries, Chris Malys. When he
completed the application, he was interviewed by the Respon-
dent’s operational manager at Bartow, Terry Atchley. Kell
testified as follows about this interview:

And when I walked in the door, he [Atchley] stood up behind
the desk. . . . I shook his hand and he introduced his self. I
told him who I was, and sat down. He had my application in
his hand and he started telling me about CCC Group, said, . . .
they’re a large company, they do work all over the country
and overseas, and they’re doing all aspects of construction. . . .
And I sat down in the chair, again at his desk, and he
sat down. And he picked up my application. And he says,
well, what all . . . do you operate? I told him, I said, . . . I
operate cranes and backhoes and track hoes, loaders, stuff
like that, but . . . mostly cranes. I said I have a certification
for crane operator’s license, and . . . I’m qualified to run
friction, hydraulic, large, small, crawler cranes, the whole
nine.
. . . I told him that I also had a license for running fork-
lifts.
And he lifted the page on the application and he
started looking at the next page, and, . . . then he kind of
leaned down at the application, looked back at me real
quick, and he had a real surprised look. And he . . . [did]

247.) He also testified that he first saw page one of the document after
June 25, 2002.
that about three times, like a triple take, just bounced up
and down, like that, looking at me.
And he says, well, are you still employed with Operat-
ing Engineers? I said, yes, sir. He said, well, why do you
want to leave the union and come to work here? I said,
well, . . . I won’t leave the union. I said I can work for the
union and fulfill my union obligations on my own time. I
said, but it’s also my job as a union organizer to go out
and do such a good job for you that . . . you won’t be
afraid to hire union people.
And he shoved the application down like that, and he
. . . said, well, we don’t hire crane operators . . . we don’t
hire crane operators, we’ve got four certified crane opera-
tors and two cowboys that run our equipment here, we
don’t hire crane operators.
And I was getting up at the same time. I said—he said,
he was kind of extending his arm towards the door. And I
said, well, you know, I can do more than just operate—no,
he said we’ve got four certified operators and two cow-
boys that run our equipment and we don’t hire crane op-
erators. And he said, besides, our guys do more than just
operate equipment.
And we’re both standing by now and he’s extended his
arm to the door. And I said, well, I do more than operate,
too, I said I worked for Milton J. Wood Company for the
last five years down at Tropicana, and I said whatever we
was doing there, I was involved. I said . . . I can burn,
weld, tie rebar, build forms, finish concrete, hang iron, you
name it, I’ve done it . . . I said and you can call them and
check with them. I’ll tell you right now, they’ll tell you
I’m an asset to your company.
And by now, I’m out the door and he’s standing at the
doorway. And he says, well, CCC’s non-union down here
in Florida. He said, but we do have a union side, he said
are you willing to travel? I said yes, sir. He said, well, do
you mind if I send a copy of your application to . . . Bruce
Hillman . . . out of San Antonio. I told him . . . I don’t
mind if you do that. He said, well, he’d send it out there in
case he could use me somewhere, but we don’t hire crane
operators. If we need additional cranes with operators, . . .
we rent a crane with operators. We don’t hire crane opera-
tors.
I said, well, okay, . . . I appreciate your time, keep me
in mind, if you change . . . [your] mind. He said he would.
And, . . . [in] three minutes time, I was out the door. it
was that quick. [Tr. 108–111.]

In his application (GC Exh. 9), Kell indicated that he was ap-
plying for an operator’s position. On page two of the applica-
tion, Kell listed as his most recent employer the Operating En-
gineers, Local 925, he indicated that his job title was organizer,
and for “Duties” he indicated “Educating nonunion employees
of Section 7 Rights.” On the two pages of skills assessment,
which is a part of the application, Kell indicated that he had 5
years’ journeyman experience in both light and heavy rigging,
5 years’ experience in heavy equipment repair, diesel engine
repair, and small engine repair, 8 years journeyman experience
in each of the skills of operating a boom truck, hydraulic crane,
CCC GROUP, INC. 99
conventional crane and forklift, and 5 years’ journeyman ex-
perience on both an excavator and rubber tired loader. Kell also
indicated on the second skills assessment page that he was a
crane operator and a hoe operator, track or rubber tired. In the
“ADDITIONAL COMMENTS” section on the second page of the
skills assessment of the application, Kell wrote “Certification of
crane operators license #98085978 Designations 1, 2, 3, 4 [GC
Exh. 8], IMC Site Specific Mine Safety & Health Administra-
tion Training, Florida Phosphate Council Safety Program.” On
cross-examination Kell testified that no employee at CCC had
referred him and he had never worked for the Respondent be-
fore.
Atchley testified that Kell filled out an application, and he
had a discussion with Kell at the time.3 Atchley testified as
follows about this meeting:

I did hear someone in the lobby area asking for an application,
to fill out an application. And then I was asked if I had time to
see someone. I responded yes.
Mr. Kell came into my office and to sit down [sic] for
us to have a discussion which I assumed would be about
employment opportunities. Mr. Kell introduced himself
and identified himself as being a representative of an Op-
erating Engineers local union, and that he would like to
talk with me about the opportunities and possibilities of
providing crane operators.
Mr. Kell continued to tell me about his organization,
what they do as far as having crane operators, qualified
crane operators, that they can provide any type of operator,
day or night, weekends, outages, that local area or some-
body out of the . . . [way] areas.
After Mr. Kell had the opportunity to explain to me
what his opportunities of services that he thought he might
could possibly provide to CCC Group through his organi-
zation, I then informed him how our operation was staffed
and how we operated, that we did not own cranes at the
Bartow office, that if we needed to rent cranes, we had
people in our employ already that had crane operator
skills, that we could use them, or if we needed to rent a
crane with an operator on it, the crane rental companies
always provided us operators, so I did not have a need for
anyone to provide just crane operators to us. [Tr. 278,
279.]

On rebuttal Kell testified that he did not verbally introduce
himself to Atchley as a representative of the Operating Engi-
neers local; that he did indicate who he was on his application;
that he did not tell Atchley that his local could provide qualified
crane operators for day or night, or weekends or outages; and

3 The following exchange occurred between Respondent’s attorney
and Atchley:
Q. Did you ever interview him [Kell]?
A. I don’t understand the exact definition of the word inter-
view.
Q. Well, did Mr. Kell ever come to CCC Group’s office and
talk to you about employment?
A. He came to our office and filled out an application. And,
yes, I did have a discussion with him.
that three or four times during this meeting Atchley said that
CCC does not hire crane operators.
General Counsel’s Exhibit 3 is the classified ad that the Re-
spondent ran in the Lakeland, Florida newspaper the Ledger on
May 3 through 8. It reads as follows:
CRANE OPERATOR
ENR Top 400 industrial contractor has a position for a con-
ventional/hydraulic crane operator in our Bartow office. Top
pay and benefits. Call 863/533-1494.
EOE/Post Offer Drug Screen.

The telephone number in the ad is the Respondent’s telephone
number at its Bartow facility. Matejek testified that he did not
recall when the last time before the May 2001 ads the Respon-
dent placed an ad for crane operators; that he thought that the
Respondent’s corporate office placed the ad; that the Respon-
dent did not need crane operators at Bartow in May 2001; that
the corporate office had input from Bartow to place the ad; that
he did not remember if he or Atchley or a secretary asked for
the ad to be placed; and that

[w]e were bidding on some projects that were going to start
later on that year and we thought as a possibility that some of
the work we had going on, with operators on it, might run
over each other, so there’s a chance we might need an opera-
tor later on in the year. So we put an ad then to see.

Matejek further testified that the Respondent did hire a crane
operator, Paul Harrell, later in the year; and that at CCC’s op-
eration in Bartow only he or Atchley have the authority to in-
terview and hire. In response to questions of Respondent’s
counsel, Matejek testified that at the time the ads were placed
the Respondent (a) had 10 to 12 employees at Bartow who
could operate cranes, and many of them had worked for the
Respondent for years, and (b) thought that it would eventually
need crane operators on the Cargill Bartow phosphate reactor
project which was in progress at the time. Cranes were used on
the Cargill Bartow project to hang iron and set equipment up.
This was done toward the end of August 2001 when Harrell
was hired.
On May 8, Milton Lee, who has been a crane operator for 33
years, telephoned the Respondent’s office in Bartow. He had
seen the above-described ad. The lady who answered the tele-
phone told him that he had to come in and fill out an applica-
tion. When she started to give him directions he realized that he
used to work in the same building with a company called Flor-
ida Equipment, and the lady with whom he was speaking, Ma-
lys, also used to work at Florida Equipment. Milton Lee testi-
fied as follows about this telephone call:

We talked a little bit. I asked Chris a little more about the job.
She said . . . she couldn’t answer those questions, that I would
have to come by and fill out the application. I told her I was
working and I couldn’t come by, at that time, was there any-
body that possibly I could talk with over the phone. She said
she wasn’t sure, that she would see.
. . . .
. . . At that time, Terry Atchley came on the telephone
and I . . . introduced myself and [said] that I had called in-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 100
quiring about the ad in the paper. And he started to give
me a little run down of the company. They were out of San
Antonio, a large company, worked through the United
States and overseas.
And he went on to explain to me that they didn’t have
any cranes here, that they bare rented, and that they were
looking to hire two more crane operators in the Bartow
area, that they had already hired one that they classed as a
crane operator.
We talked a little further. I exchanged some back-
ground with him. He gave me a little more on the com-
pany. I asked him how much he was paying. he said it
started at $17.

Milton Lee further testified that Atchley did not ask him if he
was in the Union and he did not tell Atchley that he was in the
Union; that after Atchley told him the starting pay Atchley
“added at the same time that they expected there would be other
duties to be performed except for running the crane, when you
weren’t running it” (Tr. 138); that he understood this to mean
that if the Respondent did not have a crane to operate, he would
be expected to do multijobs; that at the time he was making
more than $17 and he told Atchley this; and that Atchley said
that if he was still interested in the job, he needed to come in
and fill out an application. Milton Lee never filled out an appli-
cation with the Respondent.
Respondent’s Exhibit 5 is a “CCC GROUP, INC.,
CONDITIONAL JOB OFFER” to Marvin Lee. The “Date of Job
Offer” is “05/23/01” and the “Date of Employment” on the
same form is “5/29/01.” The form also indicates “operator” on
the “Craft/Skill level” line. Matejek testified that he inter-
viewed and hired Marvin Lee, who was offered the job on May
29; that Marvin Lee was the first person hired after Kell ap-
plied; that he hired Marvin Lee instead of Kell because Marvin
Lee was more qualified than Kell and Marvin Lee was a rehire;
that while he hired Marvin Lee as an operator, Lee did not work
as an operator but rather he worked in the shop doing fabrica-
tion work; that Marvin Lee quit after a week; and that he did
not use Marvin Lee to operate cranes during the week that he
worked for CCC.
Respondent’s Exhibit 4 is the application for employment of
Marvin Lee, dated “05/25/01,” for a “top operator” position. It
indicates that Marvin Lee worked for CCC before. In the skills
assessment portion of the application he indicated that he did a
variety of things, including 30 years operating hydraulic cranes
and 10 years operating conventional cranes. Marvin Lee indi-
cated that he had experience as a foreman or supervisor in
about 50 of the approximately 80 categories listed. Respon-
dent’s Exhibits 4 and 5 were not introduced.
On May 25 after a regularly scheduled union meeting, mem-
ber Milton Lee told Kell that he had seen an ad in a newspaper
for crane operators for CCC and he telephoned the Respondent.
Kell obtained a copy of the ad. On cross-examination Kell testi-
fied that a fellow member, Milton Lee, told him that during his
interview Atchley said that the Respondent had already hired
one man as a crane operator and was looking to hire another.
Milton Lee has been a member of this Union for 33 years. He
testified that he attended this union meeting and after the meet-
ing he told Kell that he saw the Respondent’s classified ad for
crane operator, and he telephoned the Respondent about the ad.
Before work on the morning of May 31 Robert Willis, an
employee of the Respondent since mid-May 2001, presented
Atchley with a letter of intent to organize the Respondent’s
employees (GC Exh. 11). Willis had not indicated that he was a
member of Iron Workers Local 387 to the Respondent prior to
this. On May 31 for the first time while working at CCC Willis
wore union paraphernalia, namely a union shirt and hat. Willis
testified that he was supposed to go out in the field that day but
Atchley asked him to stay in the shop area; that he had never
worked in the shop prior to that; that about 45 minutes later he
was told to go to Matejek’s office; and that just he and Matejek
were present. With respect to what was then said, Willis testi-
fied as follows:

He said he needed to lay me off due to he didn’t need any
ironworkers. And I told him that I hadn’t done any iron work
since I’d been there. And he said that he didn’t need me. And
I asked who was going to do my job. He said he’d get a la-
borer to do my job. And I told him that I was more than will-
ing to do labor type work. And then he yelled at me and said
that this was a union company and—or he didn’t know what I
was up to, but this was a union company and it was going
to— he cursed, he said the F word, that it was going to stay
that way.
JUDGE WEST: I’m sorry. For the record, you said this is
a union company?
THE WITNESS: He said—I’m sorry, a non-union com-
pany and it was going to F’ing stay this way.

Counsel for the General Counsel indicated that Matejek’s al-
leged statement was only being offered to show animus. Willis
further testified that a few days earlier Atchley told employees
that the employees needed to be at work on time because the
company was so piled up with work; that he asked Matejek if it
would be alright if he showed up for work and filled in for peo-
ple who missed work or were laid off; that Matejek then said
that he would get Willis for trespassing; that Matejek said he
could get his personal tools; that when the shop foreman asked
him what was happening he told him that he was laid off be-
cause of his union affiliation, and Matejek then came up to him
and said that if he didn’t leave the property he would “fucking”
drag him off himself; and that he told Matejek that he did not
want any violence and he would leave on his own accord.4 On
cross-examination Willis testified that on May 26 he got up in a
man lift and stood on the midrail, which is a safety violation;
that the violation was witnessed by a safety representative of
the Respondent’s customer; that this safety violation was
brought up at a safety meeting on May 30 by Respondent’s
safety director, John Halbrooks; that when Halbrooks asked if
there were any comments he, Willis, said that he did not agree
with the way the incident was described because on two previ-

4 Willis filed a charge with the NLRB the afternoon of May 31 GC
Exh. 14. The charge alleges that CCC discharged Willis because of his
union sympathies and physically threatened Willis. Willis went back to
work on June 4. Four days later Willis quit. The charge was settled GC
Exh. 15. The settlement agreement contains a nonadmission clause.
CCC GROUP, INC. 101
ous occasions before the incident he complained that he and the
operator of the man lift were not properly trained and he did not
feel safe doing the work, notwithstanding this the foreman
made him and his coworker use the man lift, and he thought
that the foreman should take the violation and not the two em-
ployees who were not properly trained; that Halbrooks then told
him not to “square up to him” (Tr. 168) and Halbrooks pointed
his finger at him; that at this point he told Halbrooks that he
was not going to take any “ass chewings”; and that he did not
believe that he was going to be in trouble because of what he
said to Halbrooks after the safety meeting because he, Atchley
and Halbrooks “all talked and everyone was fine, we shook
hands, and we left . . . [a]nd I considered everything was fine.”
(Tr. 175) Willis also testified on cross-examination that on May
31 he told employees in the shop when he went to get his tools
that he was laid off due to his union affiliation; that there is no
reference in his affidavit to the NLRB to Matejek cursing when
he told him to leave the premises or threatening to drag him
off5; that a Mine Safety and Health Administration (MSHA)
inspector, John Reed, ordered him off a mine site on June 7
because while he had given the Respondent a document indicat-
ing that he had the necessary training to work on a MSHA mine
site, the inspector determined that this was not true; that CCC
then put him to work in the shop; and that the next day he quit.
Matejek testified that he was in Miami with a client on May
30, and Atchley telephoned him on his cellular telephone while
he was on his way back to Bartow; that he told Atchley to have
Willis work in the shop the next morning and he would take
care of the matter; that on May 31 he told Willis that he was
going to lay him off so he could get another job, and he could
get his personal tools out of the shop; that subsequently the
shop foreman called him and said that Willis was in the shop
hollering and screaming; that he went to the shop and told
Willis to get off the property; that he did not curse Willis and
he did not make any comments that the Company is a non-
union company and it was going to stay that way; that after
Willis left, he telephoned the corporate office in Texas on May
31, and he was told to reinstate Willis; and that Willis came
back to work and then quit days later after he was told to leave
a mine site by a MSHA inspector because although Willis, as
required, carried a certificate on his person indicating that he
had been to school, passed training to work in mines, and had
worked in mines, Willis admitted to the inspector that he had
never worked in the mines. Subsequently Matejek testified that
he thought he might have telephoned corporate offices on May
30 and told John Moran, who is in charge, that he was going to
lay Willis off the next morning.
On June 4 Kell telephoned the Respondent and he asked the
woman who answered if they were hiring. The woman told him
that he would have to fill out an application and when he told
her that he had already filled one out she told him that the Re-
spondent keeps the applications active for 6 months but he
could come in and reapply. Subsequently he stopped at the

5 As noted above, the charge filed May 31 with the Board (GC Exh.
14), regarding Willis’ discharge includes an allegation that CCC,
through its agents and representatives “.physically threaten . . . ed]
Willis. . . .”`
Respondent’s office and told the secretary, Chris, that a friend
of his told him that he had seen an ad in the paper for crane
operators. The secretary told him that was last month but he
could fill out an application. When he told the secretary that he
filled out an application last month, she spoke to Atchley, who
looked at Kell, and then the secretary told Kell, “[W]e’re not
hiring crane operators.” (Tr. 118.) The Respondent never con-
tacted him after this.
In August 2001, Paul Harrell was hired as a crane operator.
His application for employment, which is dated “8/21/01,” was
received as General Counsel’s Exhibit 4. Of the total of about
80 “SKILLS” categories listed on the two-page skills assess-
ment portion of the application, Harrell wrote 6 years for heavy
rigging, 6 years for hydraulic crane, and 6 years for aerial lift
off road haul truck, dump truck. According to that portion of
Paul Harrell’s “CONDITIONAL JOB OFFER,” form, Respondent’s
Exhibit 1, his “Craft/Skill level” was “multi.” Matejek filled out
this portion of the form and he also wrote “8/24/01” for the
“Date of Employment” on the form. On the portion of the Con-
ditional Job Offer form filled out by Paul Harrell, he wrote “8–
20–01” for the “Date of Job Offer.” According to the testimony
of Matejek, the last time that the Respondent hired a crane op-
erator before that was in May 2001 when it hired Marvin Lee,
who as noted above did not operate cranes while he was em-
ployed by the Respondent. Paul Harrell did operate cranes for
the Respondent. Matejek testified that he interviewed and hired
Paul Harrell; that one of the Respondent’s employees, Keith
Harrell, recommended Paul Harrell, who is Keith Harrell’s
nephew; that the Respondent hires multicrafted people as much
as it can and he discovered during his interview with Paul
Harrell that he could operate cranes, weld, bolt steel, and hang
iron, among other things; that while Paul Harrell’s application
does not list welding, Keith Harrell told him that Paul Harrell
could weld and he had 6 to 7 years experience as a welder; that
Paul Harrell was hired as a multicraft employee; and that Paul
Harrell operated a crane 13 of the 45 days he worked for the
Respondent. On cross-examination, Matejek testified that Keith
Harrell had been working for CCC about 1 week when he rec-
ommended that Paul Harrell be hired.
The Respondent’s hourly labor rate and equipment rate
schedule as of “8/15/01” was received as General Counsel’s
Exhibit 2.
In October 2001, Paul Harrell was fired by the Respondent.
Harrell had been operating a 110-ton crane, which was rented
from All Sunshine, on the reactor at the Cargill Bartow plant.
According to the testimony of Matejek, Paul Harrell got into a
scuffle with some folks at the Cargill Bartow Plant, and a Car-
gill representative, who saw the scuffle, said that Paul Harrell
had to get off Cargill’s property. His payroll record for the year
2001 through payroll period ending “11/26/01” was received by
stipulation as General Counsel’s Exhibit 16. The Respondent
also stipulated that the operator safety checklist stubs provided
by the Respondent pursuant to the General Counsel’s subpoena
show that Harrell operated a crane in 2001 on the following
days: August 25, 26, 28, and 29, September 6, 20, 21, 26, and
30, and October 2, 3, 4, and 11. Additionally, the Respondent
stipulated that the cranes operated by Harrell included a 110–
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 102
ton Krupp crane and a rough terrain Grove 750.6 One of the
Respondent’s other employees, Gerald Caulder, operated the
crane after Paul Harrell was fired. Matejek testified that after
Paul Harrell was fired, CCC did not hire any other person to
operate cranes; that if he had not hired Paul Harrell he would
not have hired Kell because he had other applications which
indicated that the applicants were better qualified than Kell (Tr.
p. 239), and he “probably” would have hired any one of these
other applicants before he would have hired Kell (Tr. 240).7
General Counsel’s Exhibits 6(a) through (nn) are invoices
dated from February 14 to December 12, 2001, from All Sun-
shine Crane Rental Corporation to the Respondent for crane
rentals.
Respondent’s Exhibit 10 are its operator safety check lists
prepared by CCC employees who operated cranes from March
29 to December 15, 2001.
Respondent’s Exhibit 11 is a monthly crane use report for
the months of April through December 2001, which indicates
which of CCC’s employees operated cranes during that period
of time. And Respondent’s Exhibit 12 is a crane use summary
showing by month how many times during this period a CCC
employee operated a crane.
General Counsel’s Exhibits 7(a) through (z) are invoices
dated from September 26, 2001, to December 27, 2002, from
Maxim Crane Works to the Respondent for crane rentals.
Respondent’s Exhibit 13 are operator safety check lists pre-
pared by CCC employees who operated cranes from January
through December 30, 2002
Respondent’s Exhibit 14 is a monthly crane use report for
the months of January through December 2002 which indicates
which of CCC’s employees operated cranes during that period
of time. There are no entries for March, April, May, July, Oc-
tober, and November 2002 because CCC did not operate cranes
during that period. And Respondent’s Exhibit 15 is a crane use
summary showing by month how many times during this period
a CCC employee operated a crane. Atchley testified that there
had been a drastic reduction of crane use through the year 2002
because CCC did not have the type of work which generated a
lot of crane use or there had been minimal use with crane rental
services that provided an operator.
On January 18, 2002, Kell went to the Respondent’s office
with about 18 other business agents and organizers. All of the
other union representatives filled out applications. He told the
secretary, Chris, that he already filled out an application, and
she told him that he did not have to fill out another one because
the application would be kept active for years.
On June 6 or 16, 2002, Christopher Rose was sent to work
for the Respondent for 1 night as a laborer by Able Body,
which is a temporary service. He testified that he drove his
truck, which had an Ironworkers’ union sticker on it, to the

6 Kell subsequently testified that he was qualified to operate both of
these cranes.
7 Matejek cited the applications of William Branch (R. Exh. 9), who
was also recommended, Jon Roark (R. Exh. 8) who previously worked
for CCC, Jeffrey Owens (R. Exh. 7), and Donnie Hall (R. Exh. 6). Of
the four, Matejek interviewed Rourke. He did not hire Rourke because
of something one of CCC’s managers who worked in Arkansas said
about Rourke’s attitude.
Respondent’s facility that night; that after he arrived at the
Respondent’s facility, he rode in a truck with John Taylor, who
he described as a CCC supervisor, to the jobsite8 8; that Taylor
was in a position to see the union sticker on his truck before
they left the Respondent’s facility; that while they were driving
to the jobsite he asked Taylor about CCC; and that Taylor made
the following statement:

He started off by saying that the company was out of Texas.
he named two or three Texas cities, and gave some numbers
behind them, the biggest one being San Antonio. And ex-
plained that he was here with the company, looking for work,
because work was slow elsewhere in the country, and that
they’re a really good company, they can be pretty big, if they
could get by the bullshit with the damn unions. Basically,
what he said word for word.

Rose further testified that the matter of the unions did not come
up again either that night or when Able Body sent him to work
the night shift for the Respondent on a downed drag line on
July 3, 4, and 5, 2002. Before working for the Respondent as a
temporary employee, Rose had filed two applications for em-
ployment with the Respondent. The first was filed in June 2001
while he was still in the Ironworkers. He and several other
Ironworkers went to the Respondent’s facility dressed in union
paraphernalia and filled out applications. He was told by the
secretary, Chris, that the company was not hiring at the time.
He filed another application (R. Exh. 2), on April 29, 2002.
This time he was referred by someone who knew someone who
worked for the Respondent, Wade Prine. This time he was in-
terviewed by Atchley who asked him where he learned how to
weld. He told Atchley that he was an ex-apprentice out of the
Iron Workers Local 397 but he was not longer in the Union.
Atchley then told him that the Company was not hiring at the
time and he would give him a call if something came up. Rose
never received a telephone call from the Respondent. On cross-
examination, Rose testified that he did check off the “Yes” box
on the April 29, 2002 job application in answer to the question
“Have you been convicted of a crime in the past ten years, ex-
cluding misdemeanors and summary offenses, which has not
been annulled, expunged, or sealed by a court”; that he did not
check off the box on the application indicating that he had ap-
plied with the Respondent before; and that in December 1997,
he was convicted of burglary and grand theft, dealing in stolen
property, and felony possession of a hunting rifle while on pro-
bation, and he was sentenced to a year in jail but he was re-
8 Rose testified that Taylor was a supervisor since Taylor was the
one he and the other two temporary workers who went to Respondent’s
facility with him handed their tickets to, since Taylor was in control
telling everybody what to do including CCC employees, since he be-
lieved that his ticket indicated that he should report to Taylor, and since
there were no other CCC or Able Body supervisors at the jobsite that
night. Matejek testified that Taylor is a supervisor; and that supervisors
(1) plan and schedule work for the crews that work under them, (2)
assign employees work, (3) base the assignments on the capabilities of
the people who are to perform the work, and (4) make judgments about
which duties to assign to the employee when he makes assignments on
a daily basis.
CCC GROUP, INC. 103
leased after 4 months for good behavior and for taking self help
programs. Respondent’s Exhibit 2 was not introduced.
Respondent’s Exhibit 16 are the operators safety check lists
for January 3, 6, and 7 2003, all of which were filled out by
Larry Ray.
Analysis
Collectively paragraphs 5(a), (b), and (c) of the complaint al-
lege that on or about April 20 Respondent refused to consider
for hire and refused to hire employee applicant Kell because he
joined, supported, and assisted the Union, and engaged in con-
certed activities, and to discourage employees from engaging in
these activities. As forth set by the Board in FES, 331 NLRB
9, 12 (2000),

The issues raised by the case . . . go to the most fundamental
rights guaranteed by the Act. Protecting the exercise by work-
ers of full freedom of association and self-organization is an
express, central policy of the Act. See NLRA, Section 1. Un-
questionably, the denial to employees of access to the work
force because of their union activity or affiliation runs directly
against this policy. The Board’s treatment of allegations of
discriminatory refusals to consider or to hire and its determi-
nation or related remedial issues is a measure of the Board’s
effectiveness in giving substance to the rights it is charged to
protect.

To establish a discriminatory refusal to hire, the General
Counsel must, under the allocation of burdens set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), first show the
following at the hearing on the merits: (1) that the respondent
was hiring or had concrete plans to hire, at the time of the al-
leged unlawful conduct; (2) that the applicants had experience
or training relevant to the announced or generally known re-
quirements of the positions for hire, 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.
Once this is established, the burden will shift to the respondent
to show that it would not have hired the applicants even in the
absence of their union activity or affiliation. If the respondent
asserts that the applicants were not qualified for the positions it
was filling, it is the respondent’s burden to show at the hearing
on the merits, that they did not possess the specific qualifica-
tions the position required or that others (who were hired) had
superior qualifications, and that it would not have hired them
for that reason even in the absence of their union support or
activity. In sum, the issue of whether the alleged discriminatees
would have been hired but for the discrimination against them
must be litigated at the hearing on the merits.
If the General Counsel meets his burden and the respondent
fails to show that it would have made the same hiring decisions
even in the absence of union activity or affiliation, then a viola-
tion of Section 8(a)(3) has been established. The appropriate
remedy for such a violation is a cease-and-desist order, and an
order to offer the discriminatees immediate instatement to the
positions to which they applied or, if those positions no longer
exist, to substantially equivalent positions, and to make them
whole for losses sustained by reason of the discrimination
against them. [Footnote omitted.
And as set forth by the Board in FES, supra at 15,

To establish a discriminatory refusal to consider, pur-
suant to Wright Line, supra, the General Counsel bears the
burden of showing the following at the hearing on the
merits: (1) that the respondent excluded applicants from a
hiring process; and (2) that antiunion animus contributed
to the decision not to consider the applicants for employ-
ment. Once this is established, the burden will shift to the
respondent to show that it would not have considered the
applicants even in the absence of their union activity of af-
filiation.
If the respondent fails to meet its burden, then a viola-
tion of Section 8(a)(3) is established. The appropriate rem-
edy for such a violation is a cease-and-desist order; an or-
der to place the discriminatees in the position they would
have been in, absent discrimination, for consideration for
future openings and to consider them for the openings in
accord with nondiscriminatory criteria; and an order to no-
tify the discriminatees, the charging party, and the Re-
gional Director of future openings in positions for which
the discriminatees applied or substantially equivalent posi-
tions. [Footnote omitted.]

With respect to the refusal to consider allegation, General
Counsel on brief contends that animus towards the Union ap-
pears to be not merely a factor but the sole factor in CCC’s
decision to refuse to consider Kell; that Kell was better quali-
fied than Paul Harrell, but consideration of his application
ended as soon as Atchley learned that Kell was a union organ-
izer; that while Atchley told Kell a number of times that CCC
does not hire crane operators, CCC sought to do just that when
it placed the above-described classified ad in the Lakeland
Ledger seeking applications, and when it told Milton Lee to
come in and fill out an application; that when CCC hired a
crane operator in August, Paul Harrell, Kell was never called
despite the evidence that CCC kept applications on file for “six
months or years”; that CCC excluded Kell from its regular
hiring process; and that CCC failed to adduce any evidence
establishing that it would not have considered Kell for hire
even in the absence of his union activities. CCC on brief argues
that General Counsel’s refusal to consider case fails because as
stated in Kanawah Stone Co., 334 NLRB 235 (2001):

[E]even assuming that the General Counsel met his threshold
burden under FES, we find that his case in chief was rebutted
by the Respondent’s showing that it lawfully would not have
considered the applicants, even absent their union activity, be-
cause none of the applicants met any of Respondent’s three
hiring criteria [namely (1) employees on temporary lay off,
(2) former employees, or (3) referrals from existing employ-
ees].

In Kanawah Stone Co., supra at 1, the Board indicated that
“[p]ersons who do not fall into one of these categories are not
considered for hire.” CCC also argues that the evidence does
not show that Kell was excluded from the hiring but rather he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 104
fell into group four under CCC’s hiring preferences because he
was not a former employee, a transfer from another CCC pro-
ject or a referral from a current CCC employee. Finally, CCC
indicates on brief that Atchley had a brief interview with Kell
after Kell completed his application.
Atchley’s description of what occurred after Kell filled out
an application at CCC on April 20 is set forth above. Atchley
was not willing to concede that he interviewed Kell. When he
testified at the trial herein Atchley did not want to treat what
occurred with Kell on April 20 as a situation where Kell was
seeking a job. Rather Atchley took the tack that Kell was there
to sell the services that the Union could provide. The problem
with this approach is that it does not explain why Kell would
take the time to fill out a job application. Perhaps at some point
CCC will argue that it was only Kell’s means of getting his foot
in the door so that he could make his sales pitch to Atchley.
Unwittingly Atchley showed CCC’s cards in that while he is
not a credible witness, he was indicating how he treated Kell’s
April 20 visit to CCC Bartow office. Atchley and CCC never
considered Kell as a job applicant. Atchley demonstrated this
with his testimony at the trial herein. In NLRB v. Town &
Country Electric, 516 U.S. 85 (1995), the Supreme Court ap-
proved the Board’s position that the definition of employee in
Section 2(3) of the Act includes professional organizers who
obtain employment with the employer solely for the purpose of
organizing the employer’s work force. Kell was a credible wit-
ness. His testimony about his April 20 meeting with Atchley is
credited. Not only did Atchley show CCC’s cards with his tes-
timony about his April 20 interview with Kell, but Atchley
failed to specifically deny that he told Kell that “CCC’s non-
union down here in Florida.” Once he realized that he had a
union organizer in his office, Atchley wanted to determine
whether Kell was going to continue organizing, and more par-
ticularly try to organize CCC’s employees. That is why he
asked Kell if he was going to leave the Union. The fact that
Atchley then lied to Kell five or six times by telling him that
CCC did not hire crane operators further demonstrates that
Atchley was not going to consider Kell’s application. Atchley
did not specifically deny telling Kell a number of times that
CCC does not hire crane operators. And the fact that Atchley
then told Kell, a declared union organizer seeking a job with
CCC, in this context that “CCC’s nonunion down here in Flor-
ida” is an indication of CCC’s antiunion animus.9 General

9 CCC’s antiunion animus is further demonstrated by the May 31
termination of Willis after he gave Atchley a letter indicating that he
was going to attempt to organize CCC’s employees. The safety meeting
discussion was not cited by Matejek for the reason for the termination
when he told Willis he was being laid off because there was not enough
work. Neither Halbrook nor Atchley refuted Willis testimony that the
safety matter discussion was amicably resolved on May 30. Willis’
testimony is credited both with respect to what occurred on May 30 and
what occurred on May 31. Matejek lied to Willis on May 31 when he
told him that he was being laid off because there was not enough work.
CCC had plenty of work at that time. Matejek lied under oath when he
testified that he discussed Willis’ lay off with company management in
Texas on May 30. He realized as he was testifying that if he telephoned
Texas to discuss the layoff on May 31 why wouldn’t he discuss the lay
off on May 30 when he claimed that Atchley telephoned him on his
cellular phone (uncorroborated by Atchley and not credited) early
Counsel has demonstrated that CCC excluded Kell from the
hiring process and that antiunion animus contributed to the
decision not to consider Kell for employment.
Has CCC shown that it would not have considered Kell even
in the absence of his union activity or affiliation? As noted
above, on brief CCC cites Kanawah Stone Co, supra, for the
proposition that a respondent can rebut General Counsel’s case
in chief by showing that it lawfully would not have considered
Kell, even absent his union activity, because he did not meet
any of respondent’s three hiring criteria, namely (1) employees
on temporary layoff, (2) former employees, or (3) referrals
from existing employees. But as noted above, in Kanawah
Stone Co., supra at 1, the Board indicated that “Persons who do
not fall into one of these categories are not considered for hire.”
In the instant case, CCC did not limit its hiring to these three
categories. Indeed CCC placed a classified ad in the Lakeland
Ledger for crane operators. And Atchley did not ask Milton Lee
if he was being referred by a CCC employee when Lee tele-
phoned and spoke to Atchley about the ad. CCC argues it has
written hiring policies (R. Exh. 3), which establish preferential
hiring priorities for field projects. However, each of the three
pages of Respondent’s Exhibit 3 indicates that it was revised
“6–25–02.” Matejek conceded that he first saw page one of the
document after June 25, 2002. But Matejek testified that the
first page “kind of said everything that’s on the second and
third pages which has been in effect for years.” On brief, Gen-
eral Counsel contends as follows:

Moreover, the document Matejek claims was its [CCC’s]
published policy at the time Kell and [Paul] Harrell applied
for hire, in 2001, pages 2 and 3 of the current hiring policy,
does not include a preference for employee referrals, despite

enough for him to telephone Texas. The only thing that changed be-
tween May 30 and when he laid Willis off on May 31 was the fact that
Willis for the first time wore union paraphernalia and gave Atchley the
letter indicating that Willis was going to attempt to organize CCC’s
employees. Matejek did not put Texas on notice on May 30 that he was
going to lay Willis off. There may have been a call to Texas on May 30
about the Miami job but it was not shown that Texas was placed on
notice on May 30 that Willis was going to be laid off. When Texas was
placed on notice, Matejek was directed to immediately rehire Willis.
Willis was laid off on May 31 because he wore union paraphernalia and
gave a letter to Atchley indicating that Willis was going to attempt to
organize CCC’s employees. The fact that Matejek was willing to
change his testimony on this matter and fabricate testimony as he real-
ized that there was a problem with his first version demonstrates the
length to which he would go to obfuscate the truth. Matejek was not a
credible witness. I would not credit any of his testimony unless it is
corroborated by a reliable witness or reliable documentation. Atchley
was willing to tell a declared union organizer that “CCC’s non-union
down here in Florida.” Willis’ testimony that Matejek told him when he
was laying him off that CCC was a nonunion company and it was going
to stay that way is credited. Once again CCC demonstrated its antiunion
animus. Notwithstanding the fact that Rose is a convicted felon, Taylor
did not testify to deny that he made the statement attributed to him by
Rose. In these circumstances, Rose’s testimony is credited. But as
noted by CCC, Taylor’s statement was made over a year after Kell filed
his application for employment with CCC. There is sufficient evidence
of record of antiunion animus even without considering the Taylor
statement. Therefore, I am not relying on Taylor’s statement in finding
that CCC was unlawfully motivated.
CCC GROUP, INC. 105
Matejek’s assertion to the contrary. (R3-2nd and 3rd pages,
Tr. 247–248).5 Rather, those documents merely state that if
employment needs cannot be filled by prior employees, Re-
spondent seeks “in-house referrals from other Project Manag-
ers and the only reference to employee referrals” states that
employees are encouraged to give their associates in the con-
struction industry cards which list a telephone number for a
recording or Respondent’s human resources department
which contains a detailed message regarding current job op-
portunities. (R3-2nd page).
______________
5 Even Matejek’s assertion that pages 2 and 3 of the current
hiring policy constitutes the former (pre June 25, 2002) policy is
highly suspect since pages 2 and 3, like page 1, state at the bottom
“Rev. Date 6–25–02.” Respondent failed to introduce its previous
published hiring policy, if any, in evidence.

The General Counsel points out that CCC’s hiring policy was
not revised to reflect any multicraft preference or preference for
referrals from current employees until June 25, 2002, months
after the complaint was issued in this case. The General Coun-
sel contends that as such it gives rise to the inference that it was
formulated after the fact and precisely to avoid liability in this
matter.
On their faces pages 2 and 3 of Respondent’s Exhibit 3 are
contrary to Matejek’s testimony. The first page does not “kind
of said everything that’s on the second and third pages which
has been in effect for years.” As pointed out by the General
Counsel, the second and third pages do not include a preference
for employee referrals. Yet CCC did not make any effort to
introduce the written policy that was in effect between April
and August 2001, if there was any such policy. CCC was will-
ing to rely on the testimony of Matejek, which was on its face
obviously flawed without even getting into credibility. Matejek
is not a credible witness so I do not credit his obviously flawed
testimony about Respondent’s Exhibit 3. CCC has not met the
burden shifted to it to show that it would not have considered
Kell even in the absence of his union activity or affiliation.
CCC has not shown that there was any justifiable reason for
placing Kell in Group Four, as it asserts it did, because CCC
has failed to show that Group Four even existed, as here perti-
nent, between April and August 2001.10 In actuality Kell never
received any consideration after Atchley saw page two of his
application. CCC’s Group Four argument is nothing more than
a flawed false post hoc rationalization.

10 General Counsel’s request for an inference that CCC’s revised hir-
ing policy was formulated after the fact and precisely to avoid liability
in this matter is denied in that while CCC is attempting to use the re-
vised policy in the instant case, it has not been shown that it was formu-
lated solely for that purpose. In view of other of my findings herein
regarding Atchley and the May 30 safety meeting, the alleged May 30
Atchley cellular telephone call to Matejek (since Matejek is not a credi-
ble witness and since this testimony was not corroborated by a credible
witness, it was not credited), and Taylor’s alleged statement to Rose,
the General Counsel’s requests for other specified inferences are de-
nied. The General Counsel’s contention regarding Rose’s speculation
as to why Atchley lost interest in hiring him is just that; speculation.
Accordingly, the request of the General Counsel for an inference is
denied.
With respect to the refusal to hire allegation, Kell was told
by CCC at one time that CCC keeps the applications active for
6 months, and another time Kell was told by Malys that CCC
keeps the applications active for years. Kell’s application there-
fore was available to be considered when Paul Harrell was
hired. The General Counsel has shown (1) that the Respondent
was hiring at the time of the alleged unlawful conduct; (2) that
Kell had experience or training relevant to the announced re-
quirements of the position for hire; and (3) that antiunion ani-
mus contributed to the decision not to hire Kell. Consequently,
the burden has shifted to CCC to show that it would not have
hired Kell even in the absence of his union activity or affilia-
tion. As indicated above, CCC must show that Paul Harrell had
superior qualifications and that it would not have hired Kell for
that reason even in the absence of his union support or activity.
On brief, CCC argues that Paul Harrell had preferences un-
der CCC’s hiring policies; that applying FES, supra, the Board
has held that even though union animus is present, an employer
does not violate Section 8(a)(3) of the Act when it hires appli-
cants pursuant to neutral hiring policies that give preferences to
applicants who are former employees or individuals who are
recommended by current employees, Brandt Construction Co.,
336 NLRB 733 (2001); that Paul Harrell had a hiring prefer-
ence not possessed by Kell in that Paul Harrell had a group
three preference since he was recommended by a current CCC
employee, his uncle Keith; that Kell was a group four applicant
which meant that he was to be hired only when absolutely nec-
essary; that Paul Harrell also had multicraft skills as an iron-
worker and welder, and he performed multicraft work when he
was not operating cranes; that there is insufficient evidence to
establish union animus; that even if there is sufficient evidence
of union animus, there was no violation of Section 8(a)(3) of
the Act with respect to the failure to hire Kell because the evi-
dence shows that Kell would not have been hired even in the
absence of his union affiliation in that when Harrell was hired
CCC had applications on file from individuals, namely Hall,
Owens, Roark, and Branch, whose work experience and exten-
sive multicraft skills made them a better candidate than Kell;
and that as Matejek testified, if Harrell had not been hired he
would not have hired Kell because the other applicants had
better qualifications.
The General Counsel on brief contends that not only was
Kell amply qualified for the position that was filled but indeed
Kell was better qualified than Paul Harrell; that Kell was quali-
fied to operate both of the cranes that Paul Harrell operated for
CCC; that the Board has found that in refusal to hire cases the
General Counsel needs only establish that the Union applicant
was equally (not more) qualified as the person hired, Sommer
Awning Co., 332 NLRB 1318 (2000); that a comparison of the
applications of Paul Harrell and Kell shows that Kell’s length
and breadth of experience was not just equal, but was signifi-
cantly superior to Paul Harrell’s; that Paul Harrell’s conditional
job offer states that CCC made the offer to him on August 20,
the day before he apparently completed his job application; that
of Hall, Owens, Rourke, and Branch, Matejek only interviewed
Rourke and Matejek decided not to hire him although he was a
former CCC employee because Rourke’s former CCC supervi-
sor indicated that there was a problem with his attitude; that it
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 106
is clear that the applications of Hall, Owens, and Branch were
never evaluated in comparison with Kell’s until Matejek got on
the witness stand, and provided after the fact, self serving com-
parisons; and that Matejek’s testimony in this regard should not
be credited, especially in the absence of any indication that he
considered Kell’s or the other applications for any purpose
other than the litigation of this case.
Matejek already ruled out hiring Roark.11 So for CCC on
brief to include Roark, without qualification, is disingenuous at
best. For the reasons stated above, it has not been shown that
there was any group three or any group four in August 2001. In
August 2001, Kell and Paul Harrell should have been on equal
footing. But CCC now argues that Paul Harrell was given a
preference. Why? It has not been shown that there was any
policy in effect at the time which would justify this preference.
As pointed out by the General Counsel, a comparison of the
applications of Kell and Paul Harrell shows that Kell was more
qualified than Paul Harrell. CCC did not call either Paul Harrell
or Keith Harrell to testify at the trial herein and so we are left
with the testimony of Matejek with respect to what he was told.
The problem with CCC’s approach is that Matejek is not a
credible witness. With respect to the applications of Hall,
Owens, Rourke, and Branch, according to the testimony of
Matejek, he only interviewed Rourke, and he ruled out hiring
him because of what he was told when he checked with
Rourke’s prior supervisor. With respect to the other three appli-
cants, a comparison of their applications with Kell’s shows that
he was as “well qualified”12 if not better qualified than any of
these three applicants for the crane operator position which
CCC advertised. Additionally Kell had multicraft skills. More-
over, it was not demonstrated that CCC at the time material
herein actually ruled out Kell on the basis of such a compari-
son. Even when he testified at the trial herein Matejek, who I
find is not a credible witness, first testified that he would not
have hired Kell if Paul Harrell had not been hired because CCC
had other applications that were better than Kell’s, but then
testified, “I probably would have, yes” when asked by CCC’s
attorney “[w]ould you have hired any of those guys before
hiring Mr. Kell?” “Probably” from a witness who does not
hesitate to lie even when under oath is not exactly an unequivo-
cal statement. Additionally, as noted above the Board indicated
in FES, supra,

If the respondent asserts that the applicants were not qualified
for the positions it was filling, it is the respondent’s burden to
show at the hearing on the merits, that they did not possess the
specific qualifications the position required or that others
(who were hired) had superior qualifications, and that it
would not have hired them for that reason even in the absence
of their union support or activity. [Emphasis added.]

It appears that In FES, supra, the Board specifically indicated
that the comparison should be made with the others who were

11 As pointed out by Chief Judge Hand in NLRB v. Universal Cam-
era Corp., 170 F.2d 749, 754 (2d Cir. 1950), “[I]t is no reason for re-
fusing to accept everything that a witness says, because you do not
believe all of it; nothing is more common in all kinds of judicial deci-
sions than to believe some and not all.”
12 Sommer Awning Co., supra at 1318.
hired. In that way one can determine that an applicant had not
been ruled out for some reason but rather the company decided
to hire the individual. As noted above, of the four applications
cited by CCC, Roark had already been ruled out by Matejek
over a question of attitude. While both Kell and Paul Harrell
indicated on their applications that they were employed at the
time, all three of the other remaining applicants, namely Hall,
Owens, and Branch, indicated on their applications that they
were not employed. Matejek testified that he did not interview
Hall, Owens, or Branch. Since they were not hired, how can
one conclude that they were even seriously considered for pur-
poses of comparison. CCC has not met the burden shifted to it
to show that it would not have hired Kell even in the absence of
his union activity or affiliation, and that Paul Harrell had supe-
rior qualifications. CCC violated the Act as alleged in para-
graph 5 of the complaint.13
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) and (3) of the
Act by refusing to consider for hire and refusing to hire em-
ployee applicant Michael Kell.
4. The unfair labor practices set forth above are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily refused to consider
for hire and refused to hire Michael Kell, it must offer him
instatement and make him whole for any loss of earnings and
other benefits, computed on a quarterly basis from August 24,
2001, to date of proper offer of instatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
The Respondent, CCC Group, Inc., of Bartow, Florida, its
officers, agents, successors, and assigns, shall
13 It is noted that in note 4 in Sommer Awning Co., supra, the Board
indicated that where the evidence establishes a refusal-to-hire violation,
it is unnecessary to decide whether the respondent also violated the Act
by unlawfully refusing to consider the applicant because the remedy for
such a violation would be subsumed within the broader remedy for the
refusal-to-hire violation.
14.If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
CCC GROUP, INC. 107
1. Cease and desist from
(a) Refusing to consider for hire and refusing to hire em-
ployee applicant Michael Kell because he is a union organizer
or because of his union affiliation.
(b) 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 Michael
Kell employment in the position for which he applied or, if
such position no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or
privileges; if necessary terminating the service of any employee
hired in his stead.
(b) Make Michael Kell whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him, in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful refusal to consider and
the refusal to hire Michael Kell, and within 3 days thereafter
notify the Michael Kell in writing that this has been done and
that the unlawful conduct of the Respondent will not be used
against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its
Bartow, Florida facility copies of the attached notice marked
“Appendix.” Copies of the notice, on forms provided by the
Regional Director for Region 12, after being signed by the Re-
spondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since April 20, 2001.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the Na-
tional Labor Relations Board” shall read “Mailed Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”