C&K Insulation, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 2006

347 N.L.R.B. 773 (N.L.R.B. 2006)

C&K INSULATION, INC.
347 NLRB No. 71
773
C&K Insulation, Inc. and Heat and Frost Insulators
and Asbestos Workers Local #38. Case 3–CA–
24151
July 31, 2006
DECISION AND ORDER
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
On September 29, 2003, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the judge’s decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
This case involves an attempt by three overt union ap-
plicants, Paul Raymond Johnson, Keith Wagner, and
Thomas Davitt, to gain employment with the Respondent
beginning on January 7, 2003.2 Based on the Respon-
dent’s conduct, the judge found that from about January
to May 22, when the Respondent offered them instate-
ment, the Respondent refused to consider for hire and
hire Johnson, Wagner, and Davitt because of their union
affiliation. For the reasons stated in the judge’s decision,
we agree that the Respondent violated Section 8(a)(1)
and (3) by refusing to hire the applicants. For the rea-
sons stated here, we also agree with the judge that the
Respondent further violated Section 8(a)(1) and (3) by
refusing to consider the applicants for hire.3
To establish a discriminatory refusal to consider, pur-
suant to Wright Line,4 the General Counsel bears the

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 preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Unless stated otherwise, all dates are in 2003.
3 Because we agree with the judge that the Respondent did not ade-
quately explain why it did not hire—or consider for hire—Johnson,
Wagner, and Davitt after it had recently lost three experienced employ-
ees, or why over the course of several months it additionally hired
employees Duane Harty, James Jardine, Scott Disbrow, and Thomas
Disbrow instead of the union applicants, we find it unnecessary to
decide whether, as the judge implies, employee Ken Moseman also was
hired to fill a vacancy for which the union applicants should have been
considered.
On the basis of extant Board precedent, Member Schaumber adopts
the violations found herein.
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
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 appli-
cants for employment. FES, 331 NLRB 9, 15 (2000),
enfd. 301 F.3d 83 (3d Cir. 2002). Once this is estab-
lished, the burden shifts to the respondent to show that
it would not have considered the applicants even in the
absence of their union activity or affiliation. Id.
The record establishes that the Respondent excluded
the applicants from the hiring process. Johnson, Wag-
ner, and Davitt applied for work at the Respondent’s
main office on January 7.5 At the time they applied,
they wore clothing with the Union’s insignia. After
seeing the union insignia, C. Ingraham volunteered
that the Respondent was not a union company. There-
after, the Respondent gave inconsistent information on
its need for employees, with C. Ingraham saying that
there was quite a bit of work coming up in the future
and that the Respondent might possibly be looking for
new employees and Ingraham saying just the oppo-
site—that there was not much work available and that
he would have laid off some employees had they not
already left because work was slow.
The Respondent’s gratuitous comment that it was
not a union company, and its providing inconsistent
information on its hiring needs, suggest that it did not
take these applications seriously. On the other hand,
consistent with its usual hiring procedure, the Respon-
dent gave application forms to Johnson, Wagner, and
Davitt at their request and accepted the completed
forms from them. An employer’s acceptance of appli-
cations generally supports a finding that the employer
considered the applications. See Eckert Fire Protec-
tion, 332 NLRB 198 (2000) (dismissing refusal-to-
consider allegation where there was no evidence that
the respondent refused to accept applications from
alleged discriminatees or otherwise indicated that it
would not consider union-affiliated applicants). How-
ever, it is not determinative. Rather, in determining
whether an employer has excluded applicants from the
hiring process, the Board considers all of the surround-
ing circumstances. See Wayne Erecting, Inc., 333
NLRB 1212 (2001) (failure to consider established
where respondent accepted union adherent’s applica-
tion but also made comments indicating it had ex-
cluded him from hiring process because of his union
affiliation).

5 The Respondent’s main office is located in the home of its
owner, Chester Ingraham. Ingraham’s wife, Carolynn Ingraham,
works in the main office as the company estimator.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD774
On balance, we would not find a refusal-to-consider
violation based solely on the events of January 7.6 How-
ever, subsequent events make clear that the Respondent
went through the motions of considering the applicants
but in reality excluded them from the hiring process.
Thus, the applicants returned to the Respondent’s facility
on February 4 after not hearing from the Respondent
about their applications. Ingraham responded to their
inquiry in a hostile manner and told them that they were
talking bad about him and “running him down on the
job.” He further stated that they were not welcome at the
Respondent’s jobsites, and if they ever showed up at an-
other job again, he would call the police. He then asked
why they were picking on him. Wagner replied that they
were not picking on him, and that they just wanted to
work for him.7
Ingraham’s February 4 statements leave little doubt
that he had no intention of considering the applicants for
employment.8 See Corporate Interiors, Inc., 340 NLRB
732, 749–752 (2003) (refusal to consider where respon-
dent gave application forms to union applicants and ac-
cepted one completed form, but also told them he knew
their “f—ing game” and was not going to play it, and that
they could jump in a lake); Wayne Erecting, Inc., supra.
In addition, there is no evidence that the Respondent ac-
tually considered any of the applicants for its openings
after January 7. Instead, after telling the applicants that it
was not hiring, the Respondent hired Duane Harty on
February 3, James Jardine on March 11, and Tom Dis-
brow and Scott Disbrow on March 24.9 Moreover, In-
graham directed the Disbrows to backdate their applica-
tions to make it appear they had applied in December,
before the union applicants, and told them this was to
“help him from getting involved in the union.” Taken
together with the events of January 7 and February 4

6 Cf. C. T. Taylor Co., 342 NLRB 997 (2004) (finding that union ap-
plicants were not excluded from the hiring process where they were
provided with applications which were accepted and filed, but the ap-
plicants were not considered for hire because they did not call for an
interview as was the respondent’s requirement); Ken Maddox Heating
& Air Conditioning, 340 NLRB 43 (2003) (dismissing failure to con-
sider allegation based on evidence that employer handled the union
applications consistent with established, nondiscriminatory practices).
7 They also discussed whether the Respondent paid prevailing wage
rates.
8 Our consideration of the events on February 4 is consistent with the
relevant complaint allegation. The complaint alleges that “[s]ince on or
about January 7, 2003, Respondent has refused to consider for hire the
following employee-applicants: Paul Raymond Johnson, Keith Wag-
ner, and Thomas Davitt.” Accordingly, in our analysis of whether the
Respondent unlawfully refused to consider the alleged discriminatees
for hire, we consider the Respondent’s entire course of conduct.
9 The judge found, and we agree, that the Respondent’s reasons for
hiring Harty, Jardine, and the Disbrows, rather than the union appli-
cants, were pretextual, and, accordingly, discriminatory.
discussed above, these facts demonstrate that the Re-
spondent excluded the applicants from its hiring proc-
ess. See also CNP Mechanical Inc., 347 NLRB No.
14, slip op. at 11–12 (2006) (refusal to consider where
respondent told union applicants it was not hiring and
then hired nonunion applicants and directed them to
backdate their applications).
We further find that the Respondent’s antiunion ani-
mus contributed to its decision not to consider the ap-
plicants for employment. Ingraham’s request that re-
cent hires backdate their applications to “help him
from getting involved in the union” is evidence of the
Respondent’s animus. See Caruso Electric Corp.,
332 NLRB 519 fn. 2 (2000); Pan American Electric,
328 NLRB 54 (1999). Ingraham’s threat to exclude
the union applicants from the jobsite and contact the
police also demonstrates the Respondent’s antiunion
animus. All Seasons Construction, Inc., 336 NLRB
994, 999 (2001) (respondent refused to accept applica-
tions from union applicants, falsely told them it was
not hiring, ejected them from its facility, and threat-
ened to call the police). Accordingly, the General
Counsel has satisfied his FES burden.
Under FES, the burden thus shifts to the Respondent
to prove, as an affirmative defense, that it would not
have considered the applicants even in the absence of
their union activity. To establish this affirmative de-
fense, “[a]n employer cannot simply present a legiti-
mate reason for its action but must persuade by a pre-
ponderance of the evidence that the same action would
have taken place even in the absence of the protected
activity.” W. F. Bolin Co., 311 NLRB 1118, 1119
(1993), petition for review denied 70 F.3d 863 (6th
Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir. 1996).
The Respondent does not contend that it would not
have considered Johnson, Wagner, and Davitt for em-
ployment even absent their union affiliation. Instead,
the Respondent contends that it did consider them. In
support of its assertion, the Respondent points to its
physical acceptance of the applications. However, as
discussed above, we do not find merit in this argument.
Thus, for all of the foregoing reasons, we find that
the Respondent’s refusal to consider for hire Johnson,
Wagner, and Davitt violated Section 8(a)(1) and (3) of
the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, C&K Insulation, Inc.,
Binghamton, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
C&K INSULATION, INC. 775
Robert Ellison, Esq., for the General Counsel.
Joseph Steflik Jr., Esq. (Coughlin & Gerhart, LLP.), for the
Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on July 23 and 24, 2003, in Binghamton, New
York. The complaint, which issued on April 15, 2003,1 and was
based on an unfair labor practice charge and an amended
charge that were filed on March 19 and April 8 by Heat and
Frost Insulators and Asbestos Workers Local # 38 (the Union),
alleges that since on about January 7, C & K Insulation, Inc.
(the Respondent) refused to consider for hire and refused to
hire employee-applicants Paul Raymond Johnson, Keith Wag-
ner, and Thomas Davitt because of their union and protected
concerted activities, in violation of Section 8(a)(1) and (3) of
the Act.2
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that it has been engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION STATUS
The Respondent admits, and I find, that the Union has been a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE FACTS
This case involves the alleged refusal to consider for hire,
and to hire, Johnson, Wagner, and Davitt beginning on January
7. Johnson has been the president and organizer for the Union,
a full-time paid position; Wagner is a regional organizer for the
Mid Atlantic States’ Conference for the International Union
and Davitt is employed by Local 30 of the same Union as an
organizer, both full-time paid positions. Johnson and Davitt’s
offices are located about an hour’s drive from Binghamton,
where the Respondent is located. Wagner lives in Maryland,
about 260 miles from Binghamton.
On January 6, Johnson went to a jobsite at SUNY Bingham-
ton to check on some insulation work that was being performed
there. While there he met Art Ingraham and Jeremy Wallace,
who were working at the jobsite, and they told him that they
were employed by M&G, but that they had recently left their
employment with the Respondent and, therefore, the Respon-
dent might be in the need of employees. Johnson called Wagner
and Davitt, told them of the situation, and they met at the
SUNY jobsite the following day. After again speaking to Art
Ingraham and Wallace, they decided to go to the Respondent’s
main office, which is also the home of the Respondent’s owner,

1 Unless indicated otherwise, all dates referred to relate to the year
2003.
2 Counsel for the General Counsel’s unopposed motion to correct
transcript is granted.
Chester Ingraham (Ingraham), to apply for employment with
the Respondent as overt salts.
They arrived at the Respondent’s facility late in the after-
noon on January 7. Johnson was wearing a union jacket with
the union insignia on the back and a union patch on the front.
Davitt was wearing a Local 30 hat and Wagner was wearing
a union building trades’ jacket. They knocked on the front
door and were met by Carolynn Ingraham, Ingraham’s wife
(C. Ingraham), who is an estimator for the Respondent and
also performs some office work. Johnson testified that they
told her that they wanted to apply for work and she said that
they were not a union company. They said that didn’t matter,
but they would like to work for the Company and she gave
them employment applications, which they each completed.
They asked about the work situation, “and she made the
comment that there was work.” When they asked if the Com-
pany was hiring at the time, she said that she didn’t know. In
addition, “she did allude to the fact or make the comment
that there was quite a bit of work coming up in the future
here and that they might possibly be looking.” While they
were completing the applications, she walked out of the
room and, a short time later, Ingraham came into the room
and introduced himself. Davitt asked him how long their
applications would be valid, and he said that they would be
kept for a year. Ingraham was asked about work, and he said
there wasn’t much work available. They asked him about
wages, and he said the starting hourly rate would be $10.50
on private jobs and the “full amount” for prevailing rate
work. They told him that they had met two of his former
employees, and Ingraham said that if they hadn’t left he
would have had to lay them off because work was slow.
They handed in their applications and left. Johnson testified
that if he had been offered employment on January 7, or
between January 7 and May 22, when he was offered em-
ployment, he would have accepted it.
There was a substantial amount of testimony from John-
son, Davitt, and Wagner, principally during their cross-
examination, about salting and salting techniques, and
whether they were really interested in working for the Re-
spondent or whether they applied solely to organize the Re-
spondent’s employees. Johnson’s testimony in this area (and
to a lesser degree Davitt and Wagner) was not very credible.
Initially he testified that his purpose in applying to work for
the Respondent was because, “I wanted a job.” When asked
if that was the only purpose, he testified, “And organize the
company.” He later testified, rather sarcastically, that another
reason that he applied to work for the Respondent was be-
cause his wife wanted him to buy her a van, yet he never
applied to work for a union contractor, which obviously
would have paid a higher hourly wage. There was similar
testimony from Davitt and Wagner. None of this will be
discussed further because under Board and court law, it is
irrelevant and no defense to the allegations herein. Since the
Supreme Court’s decision in NLRB v. Town & Country Elec-
tric, 516 U.S. 85 (1995), the law has been clear that paid
union organizers, acting as salts in applying for employment,
are employees within the meaning of Section 2(3) of the Act.
Further, Johnson, Wagner, and Davitt did not act in a “dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD776
ruptive, intimidating and disrespectful” manner on January 7,
Exterior Systems, Inc., 338 NLRB 677 (2002), nor did they
convince any of the Respondent’s employees to leave its em-
ploy for a union job (stripping), Abell Engineering & Mfg, 338
NLRB 434 (2002). Therefore, the testimony on this subject will
not be discussed further nor will it be considered.
Wagner testified that C. Ingraham let them in to the office
and they said that they were insulators looking for work and
asked for employment applications. At the time he was wearing
a jacket with a union building trades logo. She gave them ap-
plications which they proceeded to fill out. She told them that
they were not a union shop and they said that wasn’t a problem,
they were there to work. They asked if the Company was hiring
and she said that she didn’t know. They asked about the work-
load, and she said that they were pretty busy with a decent
backlog of work. They completed the applications and returned
them to C. Ingraham. Shortly thereafter, Ingraham arrived and
they asked if he was hiring, and he said that he was not, “in
fact, things were slowing down.” They asked about wages, and
Ingraham mentioned a figure of about $10.50 an hour. They
said that they were worth more than that, but they would be
willing to work for whatever he was offering and would prove
themselves. Davitt asked how long the applications would be
kept on file, because they said 45 days, and Ingraham said that
they would be maintained for a year. Wagner asked if he had a
lot of applications on file, and he said that he didn’t. He testi-
fied that if he had been offered employment by the Respondent
at that time or thereafter, he would have accepted the job offer.
Davitt testified that Carolynn was in the office when they ar-
rived on January 7. He was wearing a hat with the International
union name and logo on it. They asked if they could have em-
ployment applications, and she gave them the applications. She
said, “[T]hey were going to be busy, you know, had a lot of
work and they’d be looking for some people.” She also told
them that the Respondent was not a union company. He saw
that while they were completing the applications, she was mak-
ing a telephone call and, shortly thereafter, Ingraham arrived.
They asked him how the work was, and he said that the work
was slow, that he was probably going to be laying people off.
When they told him that they met his two former employees
now working for M&G, Ingraham said that he was happy that
they had left, otherwise he would have had to lay them off.
Johnson asked what a mechanic with 15 years’ experience
would earn, and he said between $10 and $11 an hour. Davitt
asked how long their applications would be held and Ingraham
said that they would be held indefinitely. He testified that if he
had been offered employment by the Respondent in January,
February, or March, he would have accepted the job.
Ingraham testified that he returned to the office when he re-
ceived a telephone call from C. Ingraham on January 7 that
Johnson, Davitt, and Wagner were there. While there, one of
them commented that three of his employees had either quit or
were about to quit, and he responded that they did him a favor
because he might have had to lay them off if they didn’t quit
because the work was slowing down. Of the three, Art Ingra-
ham left in October or November and Jeremy and Todd Wal-
lace left the last week in December 2002 or the first week in
January. All went to work for M&G. Before Johnson, Wagner,
and Davitt left, they gave Ingraham their employment appli-
cations; at the time, he had about three other applications on
file.
Johnson’s application3 states that he completed the 4-year
apprenticeship program in 1996 and lists his “Work Experi-
ence” from June 1995 to March 2000 when he was employed
by Parson Insulation; from April 2000 to June 2001, by Su-
perior Insulation, and since June 2001 he has been president
and organizer of the Union. Wagner’s application also states
that he completed a 4-year apprenticeship program, and that
he was employed in the industry from 1976 to 1995 (“Listing
of contractors available on request”) and that since 1995 he
has been an organizer for the Union. Davitt’s application
states that he has been an apprentice instructor for 10 years
and was employed in the industry from 1972 through De-
cember 1996 and in January 1997 he became business man-
ager for Local 30 and teaches at the apprentice school. He
became a journeyman in 1976. Ingraham testified that he
had some doubts about their abilities because of the gaps in
their work records: “Mr. Davitt had been better than six years
since he worked with the tools. Mr. Wagner in excess of
eight years working with the tools. Mr. Johnson. . . was the
most recent one.”
Not having heard from Ingraham, Johnson and Wagner re-
turned to the Respondent’s facility on February 4. Johnson
testified that Wagner did all the talking for him. He asked
about their applications and Ingraham “made reference to us
talking bad about him.” He said that they were “running him
down on the job.” Ingraham told them “that we’re not wel-
come on any jobs and told us that he told his men that if we
ever show up on another job again that they are to escort us
off and call the police.” Wagner asked him if he had hired
anybody and he said that he didn’t hire anybody and wasn’t
planning to hire anybody. Ingraham asked Wagner why they
were picking on him, and Wagner said that they weren’t
picking on him, that they wanted to work for him. Johnson
testified that he does not recall whether Wagner accused
Ingraham of not paying prevailing rate wages on public jobs
at this meeting and that he does not believe that Wagner
threatened to have the Respondent investigated regarding
prevailing rate violations, although he does remember Wag-
ner saying, “So, you wouldn’t mind being investigated.” In
addition, Johnson filed prevailing wage rate violation claims
with a Government agency after this meeting, but he could
not recollect how many complaints he filed. By letter to
Johnson dated May 22, the Respondent offered him “uncon-
ditional employment.” The letter gave him until May 29 to
respond. Because he couldn’t begin by that day, Ingraham
gave him additional time, and he began working for the Re-
spondent on June 4 and, at the time of the hearing, was still
employed by the Respondent.
Wagner testified that as they had not received any re-
sponse from the Respondent about their employment applica-
tions, they returned to its facility on about February 4. They

3 The applications for employment used by the Respondent are of
a “generic” nature, without the Respondent’s name printed therein,
and are probably available at stationary stores.
C&K INSULATION, INC. 777
asked about their applications, and Ingraham and C. Ingraham’s
“temperament became a little hostile, they wanted to know why
we were picking on their company.” Wagner said that they
weren’t picking on them, they just wanted to ask about their
applications. He asked Ingraham if he had hired anybody, and
he said no. He testified that he did not accuse Ingraham of fail-
ing to pay proper prevailing wage rates; he did question Ingra-
ham as to whether he was paying the proper rates. Like John-
son, he received an unconditional offer of employment from the
Respondent dated May 22. He did not accept, nor did he re-
spond, because he was involved in other campaigns at the time.
Davitt was also sent an unconditional offer of employment on
May 22, although his testimony is somewhat confused on this
point. He, apparently, began working for the Respondent on
June 2, worked about a day or 2, and went “on strike.” About a
week prior to the hearing herein, he went to the Respondent’s
office where he allegedly made an unconditional offer to return
to work. He testified that Ingraham told him that if he ever
returned, he would contact the sheriff.
Ingraham testified that when Johnson and Wagner returned
to his office in February, Wagner did most of the talking. He
asked if they had done any hiring, and Ingraham said no. Wag-
ner said that he just hired some people, and Ingraham said that
he hired an apprentice. Wagner was getting irate, shook his
finger under Ingraham’s nose, and said that he wasn’t paying
premium rates, and how would he like to be investigated. In-
graham said that he wasn’t doing anything wrong, and that they
could investigate him if they wanted to. Ingraham said that it
was best if they left, and that they come return at a later date.
He testified that his failure to offer employment to Johnson,
Wagner and Davitt between January 7 and May 22 was uncon-
nected to their union positions.
Scott Disbrow has been performing insulation work for ap-
proximately 20 years and has been a member of Local 30 for 2
years. He lives in Elmira, New York, about an hour drive from
the Respondent’s facility. He testified that his last employment
in the industry was with an employer named Atlantic, a union
contractor. That employment ended just before Christmas. In
late February, Davitt, his business agent, told him that the Re-
spondent was hiring and he could apply to work there. At the
beginning of March, he called the Respondent’s office and
spoke to C. Ingraham, who said that they were looking for ex-
perienced help and were accepting applications. He told C.
Ingraham that he worked with his son at a previous job and she
said that his son could submit an application as well. Disbrow
went to the Respondent’s facility on about March 7 with his son
Thomas. At that time he met with Ingraham and C. Ingraham
and both he and his son completed employment applications,
but neither was given a copy of their application. His applica-
tion is dated March 7 and lists two prior employers, one from
1983 to July 1999 and the other from January 2000 to July
2002. The application makes no mention of unions. He testified
that he did not list his employment with Atlantic, “To show that
it wasn’t union tied” although neither Davitt nor any other un-
ion representative told him to omit any reference to union em-
ployment.
Johnson testified that on about February 26 he spoke to Dis-
brow about applying for work as a salt with the Respondent.
Disbrow had “concerns” about doing it, but Johnson told him
that if he was hired by the Respondent it would help prove
that they were discriminating against Johnson, Wagner, and
Davitt. On March 7, he and Wagner met with Disbrow and
Thomas and told them what to do and what to say when they
applied for work with the Respondent. They told him to list
only nonunion employers and to “stretch the dates of the
employment to create less gaps” as much as possible in the
application. Since Disbrow had 20 years’ experience in the
industry, he had good credentials to apply to work for the
Respondent.
Disbrow testified that he received a telephone call from C.
Ingraham on March 10. She told him that Ingraham looked
over his application and wanted him to come to the facility
for an interview. He and Thomas went to the Respondent’s
facility on the following morning. Ingraham asked him some
questions about his experience and said that they needed
some help and would hire Disbrow at a starting salary of $12
an hour and Thomas at $8 an hour, “and we could work as a
team.” Disbrow said that he was worth more than $12 an
hour and Ingraham said that he would reevaluate him and, in
addition, he had some prevailing rate work coming up. In-
graham wanted him to begin working “right away,” but Dis-
brow told him that his sister, who had three children, had
recently died and he had to go to court and care for the chil-
dren. Disbrow called Ingraham on March 21 to tell him that
they were available, and he and Thomas began working for
the Respondent on March 24. Ingraham testified that he hired
Disbrow principally because of his experience in the trade
and Thomas because he thought it would work out well for
him to work with his father. He made the decision to hire
them about a week before they started because work was
starting to pick up at that time.
Disbrow testified further that in the March 21 telephone
call with Ingraham, Ingraham told him that “he’d like to put
us to work but he had problems with the union, wanted to
know if me and my son could redo our applications.” He told
Disbrow that the union people had filled out applications
before he did and he wanted to show that Disbrow’s applica-
tion was received first. Ingraham told him to come to the
office on March 24, redo the application, and go right to
work from there. Disbrow and Thomas went to the office on
that morning and met with Ingraham and C. Ingraham. Their
March 7 applications were on the table with another set of
applications to fill out. Ingraham told them to copy what was
contained in the March 7 application, but date it December
17 and that doing so “would help him from getting involved
in the union.” After completing the application which he
dated December 17, when nobody was looking, Disbrow
took the two applications dated March 7 from the table in
front of him. He had not previously been given those applica-
tions, and “I knew what I was getting into and I just kept it
for, basically, today.” After completing the applications,
Disbrow and Thomas left to begin their first day of employ-
ment for the Respondent.
Ingraham testified that the only time that Disbrow and
Thomas applied for employment with the Respondent was in
mid-December 2002. He didn’t hire them at that time be-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD778
cause: “I didn’t need anybody at that time.” He hired them in
late March because work started to pick up at about that time.
He hired Disbrow over Johnson, Wagner and Davitt because he
had been performing insulation work continuously over 20
years, while Johnson, Wagner, and Davitt hadn’t been perform-
ing this work recently, and he hired Thomas because he worked
with his father. He did not refuse to hire or consider Johnson,
Wagner, and Davitt for employment because of their union
positions. He testified that prior to the day before the hearing
herein, he had never seen the employment applications of Dis-
brow and Thomas dated March 7 and never asked them to
complete a second application and change the date. C. Ingra-
ham testified that she first met Disbrow and Thomas on De-
cember 17 when they completed employment applications for
the Respondent; she had never previously seen their employ-
ment applications dated March 7, a Friday. She testified that
she was not present in the office on March 7 because on the
first Friday of every month she takes her elderly mother shop-
ping. Her mother receives her pension money by the third day
of the month, so she takes her shopping on the first Friday of
the month, and that is where she was on March 7.
In order to support the authenticity of the December 17 em-
ployment applications, counsel for the General Counsel pro-
duced testimony and witnesses to establish that Disbrow and
Thomas were working that day, at a location distant from the
Respondent’s office. Disbrow testified that he was performing
work for Atlantic at a psychiatric clinic in Ogdensburg, New
York, about a 5-hour drive from his home in Elmira, New
York, the week of December 16. They left early in the morning
on Monday, December 16, but were delayed or prevented from
getting to work that day because of a bad snow storm. They
stayed at a nearby motel beginning that night, and worked the
rest of the week at the Ogdensburg facility. Richard Mullen is
employed by Atlantic Contractors as a branch manager. The
purpose of his testimony was to identify a certain payroll record
of Atlantic, which he did. This document states that Disbrow
did not work on December 16, but worked 8 hours for Atlantic
on December 17 and worked from December 18 through 20 as
well. Also received into evidence was a calendar for December
2002 maintained by Disbrow and his wife. Written in pencil by
his wife on each day from December 16 through 20 was “Hon
[her nickname for him] and Tom Ogdensburg.” Ogdensburg is
located about 200 miles from Binghamton.
Thomas ceased working for the Respondent after about a
week. The Union sent Ingraham a letter dated April 13 stating,
inter alia: “Please be advised that the International Association
of Heat and Frost Insulators and Asbestos Workers Union rep-
resent your employees Scott and Tom Disbrow. They will be
engaged in organizing activities within your company.” Shortly
after this letter was sent, he ceased working for the Respondent,
and has been employed elsewhere since that time.
Ingraham testified that in the 11 years that Respondent has
been in operation, his usual complement of employees was
between 8 and 12, although it varied between the slow winter
season and the busier spring and summer; work usually begins
to improve in about March and April. During that period, he
has attempted to avoid laying off employees as much as possi-
ble but, at times, he had to do it, but would offer those employ-
ees recall when work picked up. Over the years most of the
employees that he hired were either family members or
friends of family members. On about January 5 or 6, he
placed an ad for an insulation apprentice on the State of New
York Department of Labor website.4 This ad ran from Janu-
ary 6 through 24. The person who responded to this ad was
Ken Moseman, who completed his employment application
on January 24 and was hired on January 27. Moseman had
no previous experience performing insulation work, but one
factor influencing his hiring was that C. Ingraham knew him
when he was growing up. The fact that he didn’t have any
insulation experience did not prevent Ingraham from hiring
him because he enjoys training employees in insulation
work. Ingraham testified that he did not consider Johnson,
Wagner, or Davitt for this position because they were jour-
neymen and the job was for an apprentice who would go
through the apprentice training program that Respondent was
a member of. It is his understanding that a journeyman is not
eligible for this program.
Duane Harty completed a application for employment
with the Respondent on either January 2 or 12.5 Ingraham
testified that he learned of Harty’s interest in employment
from his son-in-law, Robert Kelly, who was a friend of
Harty. Harty had no experience in insulation work, but In-
graham testified that the main factor in hiring Harty was his
2 years’ experience in sheet metal work, which is related to
insulation work. His most previous employment was as a
cashier at a grocery store. Harty was hired on February 3
because the Company had a large amount of exterior duct
work to perform, and his sheet metal experience would be
valuable. Ingraham testified that Harty’s sheet metal work
experience was the reason he was chosen for employment
over Johnson, Wagner, and Davitt. Harty worked for the
Respondent until March 7 when he quit to return to work at
the sheet metal employer with whom he had previously been
employed. James Jardine completed an application for em-
ployment with the Respondent on March 5; he was also a
friend of Kelly. Jardine had no prior experience in the field
and that was a factor in deciding to hire him, “because I
wanted to train him myself.” He began working for the Re-
spondent on March 11 and was terminated on May 2 because
of problems that he had which resulted in his being absent
from work. After Jardine, Ingraham hired Disbrow and
Thomas and offered employment to Johnson, Wagner, and
Davitt.
On January 7, the Respondent employed the following in-
dividuals to perform insulation work: Kevin Ingraham, his
son, had previously worked with Ingraham at A&D for 8
years and has been employed at the Respondent since 1992.
Edward Staff, who has also been employed by the Respon-
dent since 1992, and worked with Ingraham for A&D with
for about 10 years. Matt LaMere, Ingraham’s son-in-law,

4 The confirmation of this ad from the Department of Labor states
that the job order was received from the Respondent on January 16.
5 On the first page of a copy of the application there appears to be
a mark in front of the “2” and on the last page Harty dated it January
12. January 2 was a Thursday; January 12 was a Sunday.
C&K INSULATION, INC. 779
worked for A&D for about 6 months before being hired by the
Respondent in 1993. David Gould, Ingraham’s nephew, worked
for A&D for about 8 years before being hired by the Respon-
dent in 1994. Pat Murray, C. Ingraham’s cousin, had about 2
years’ experience in insulation work when he was hired by the
Respondent in 2001, and Robert Kelly, who was also hired in
2001. Joe Araya, who also worked with Ingraham at A&D,
worked for the Respondent from October 2002 to July 2003,
when he resigned his employment.
Ingraham testified about the work being performed by the
Respondent on about January 7. Chenango Valley School Dis-
trict job, in progress for about a year, required from one to three
employees 2 to 3 days a week although, at times, nobody was
needed. A Proctor and Gamble job in Norwich, New York,
about 45 miles from Binghamton, was active from September
through December 2002 with one or two employees. A PIT job
in Endicott, New York, adjacent to Binghamton, that is ongo-
ing: “You might have a guy in there for two days this week.
You might not have anybody in there for two weeks.” The To-
wanda Hospital job about 35 miles from Binghamton, which
commenced in about September 2002 and was completed in
about July, required employees from 2 to 5 days a week. The
Warwick High School job, about a 3-hour drive from Bingham-
ton, commenced in about April 2002 and is ongoing. Blue
Mountain Elementary School, about a 2-hour drive from Bing-
hamton, has been active since mid-2002 and employs one or
two people about 2 days a week. The Clara Welsh Retirement
Home in Cooperstown, New York, about an hour drive from
Binghamton, ran from either July to November 2002 or from
November 2002 to about April, using two to four employees 3
to 4 days a week. The John Beck Elementary School in Levitz,
Pennsylvania, commenced in the summer of 2002 and was
ongoing. The number of individuals he employed at the site is
unclear. The final worksite testified to was an Extended Stay
Hotel in Plymouth Meeting, Pennsylvania, east of Philadelphia,
which commenced in the fall of 2002 and was completed in
about July, required one employees about 2 days a week.
IV. ANALYSIS
Counsel agree that FES, 331 NLRB 9, 12 (2000), is con-
troling herein. In that case, the Board stated:
To establish a discriminatory refusal to hire, the General
Counsel must . . . [under the Wright Line burdens] first show
the following at the hearing on the merits: (1) that the Re-
spondent was hiring, or had concrete plans to hire, at the time
of the alleged unlawful conduct; (2) that the applicants had
experience or training relevant to the announced or generally
known requirements of the position for hire, or in the alterna-
tive, that the employer has not adhered uniformly to such re-
quirements, or that the requirements were themselves pretex-
tual 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 appli-
cants even in the absence of their union activity or affiliation.
In FES, supra at 15, the Board set forth the principals regarding
an alleged refusal to consider violation:
[T]he General Counsel bears the burden of showing the fol-
lowing at the hearing on the merits: (1) that the respondent
excluded applicants from a hiring process; and (2) that an-
tiunion animus contributed to the decision not to consider
the applicants for employment. 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 or affiliation.
The major credibility issue herein relates to Disbrow’s tes-
timony regarding backdating his application for employment
to December 17. This is a difficult issue because I, initially,
found C. Ingraham’s testimony on this subject both personal
and credible. However, after a total review of the record
herein I credit Disbrow’s testimony regarding the two appli-
cations. I found Disbrow to be a credible and believable wit-
ness. Although his testimony may have been incorrect on
some minor issues (whether the union agents told him to
“touch up” dates on his employment application and who
asked him to act as a salt) he appeared to be attempting to
testify in an honest and open manner. In addition, Atlantic’s
payroll records support his testimony that he worked 8 hours
in Ogdensburg, about 200 miles from the Respondent’s facil-
ity, on December 17, as well as the rest of that week. Finally,
the unfair labor practice charge was mailed to the Respon-
dent on March 20 and was probably received by it the fol-
lowing day, the day that Disbrow testified Ingraham asked
him to come in to backdate his employment application. The
one suspicious factor on this issue is that the Respondent’s
application for employment is of a generic type that can
probably be purchased at area stationary stores. Therefore,
the Union, together with Disbrow, could have purchased
such an application and created a fictitious application dated
March 7. However, for the reasons stated above, I credit
Disbrow’s testimony and find that on March 21 Ingraham
asked him to come to the office and backdate his application
for employment to December 17, which he did.
I find that counsel for the General Counsel has satisfied all
of the requirements set forth in FES, supra. From November
2002 to January, the Respondent lost three experienced em-
ployees, and from January through March it hired five em-
ployees, Moseman, Harty, Jardine, Disbrow, and Thomas.
Further, Ingraham never satisfactorily explained why he did
not hire Johnson, Wagner, or Davitt in January for the ap-
prenticeship position for which it hired Moseman, even if
they are journeymen, nor did he satisfactorily explain why he
didn’t hire them in place of Harty, Jardine, Disbrow, and
Thomas. The second requirement of FES is clearly satisfied.
Johnson, Wagner, and Davitt are each journeymen with
many years experience in the industry. That there are gaps in
the experience because of their present union positions is no
defense herein as the evidence indicates that most of the
Respondent’s recent hires had little, or no experience, in the
industry. Respondent could not, in good faith, argue that they
did not have the required training or experience to be hired.
The final requirement, that union animus contributed to the
Respondent’s refusal to offer them employment until May 22
is also established. There could be no other reason for Ingra-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD780
ham’s initial failure to offer them employment. As stated
above, they were experienced, and on January 7 they told In-
graham that they would be willing to work for whatever wage
rate he was offering. More directly related to this requirement is
Disbrow’s credited testimony that on March 21, Ingraham
asked him to come to the office to backdate his application for
employment because of problems that he was having with the
Union. This establishes union animus. Pan American Electric,
Inc., 328 NLRB 54, 55 (1999); Caruso Electric Corp., 332
NLRB 519 (2000). I further find a total lack of credible evi-
dence to establish the Respondent’s burden, that it would not
have initially hired Johnson, Wagner, and Davitt even absent
their union affiliation. He hired five employees before offering
employment to them even though they had substantially more
experience in the field than all except one, Disbrow. I, there-
fore, find that by failing to offer employment to Johnson, Wag-
ner, and Davitt from January 7 to May 22, because of their
union affiliation, the Respondent violated Section 8(a)(1) and
(3) of the Act.
It is also alleged that the Respondent unlawfully failed to
consider them for employment. For the reasons stated above, I
find that counsel for the General Counsel has satisfied the bur-
dens set forth in FES, supra, and that the Respondent has not
satisfied its burden of establishing that it would not have con-
sidered them even absent their union affiliation. I, therefore,
find that from January 7 to May 22, the Respondent failed to
consider for employment Johnson, Wagner, and Davitt because
of their union affiliation, in violation of Section 8(a)(1) and (3)
of the Act.
CONCLUSIONS OF LAW
1. At all material times, the Respondent has been engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. At all material times, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. From about January 7 to about May 22, 2003, the Respon-
dent violated Section 8(a)(1) and (3) of the Act by refusing to
consider for employment, and by refusing to hire, Paul John-
son, Keith Wagner, and Thomas Davitt.
THE REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices in violation of Section 8(a)(1) and (3) of the Act, I
shall recommend that it be ordered to cease and desist there-
from and that it take certain affirmative action designed to ef-
fectuate the policies of the Act. However, as the Respondent
made valid offers of employment to Johnson, Wagner, and
Davitt on May 22, 2003, I find no reason to recommend that the
Respondent be ordered to do so again, and I, therefore, reject
counsel for the General Counsel’s argument to this effect at
footnote 17 of his brief. However, I will recommend that the
Respondent be ordered to make whole Johnson, Wagner, and
Davitt for any loss of earnings and other benefits that they suf-
fered as a result of the Respondent’s failure to consider them
for employment, or employ them, for the period from January 7
to May 22, 2003, when the Respondent offered them employ-
ment, computed on a quarterly basis, less any interim earnings
as set forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987). Under FES, supra, this amount will
depend upon the number of employees that the Respondent
employed during this backpay period, which was established
at the hearing, together with the pay rate of these employees,
which will be determined at the compliance hearing herein.
On these findings of fact, conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, C & K Insulation, Inc., Binghamton,
New York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to consider for hire, or refusing to hire, Paul
Johnson, Keith Wagner, or Thomas Davitt because of their
positions with, or activities on behalf of, the Union or other
unions.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days of the date of this Order, make whole
Paul Johnson, Keith Wagner, and Thomas Davitt for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth above in the
remedy section of this decision.
(b) 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 pay-
ment records, timecards, personnel records and reports, and
all other records, including an electronic copy of such re-
cords if stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Within 14 days after service by the Region, post at its
Binghamton, New York facility copies of the attached notice
marked “Appendix.”7 Copies of the notice, on forms pro-
vided by the Regional Director for Region 3, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respon-
dent 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

6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.”
C&K INSULATION, INC. 781
of business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since January 7,
2003.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
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 benefit
and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT refuse to hire, or refuse to consider for hire,
employee-applicants because of their support for, or position
with, Heat and Frost Insulators and Asbestos Workers Local
#38, or any other labor organization.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL make whole Paul Johnson, Keith Wagner, and
Thomas Davitt for any loss that they suffered as a result of
our failure to hire them or to consider them for hire.
C & K INSULATION, INC.