Construction Products,Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 29, 2003

09-CA-040056 (N.L.R.B. Dec. 29, 2003)

JD–141−03
Columbus, OH

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

CONSTRUCTION PRODUCTS, INC.

and Cases 9−CA−40056
9−CA−40294

INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL, ORNAMENTAL AND REINFORCING
IRONWORKERS, LOCAL 172, AFL-CIO

Mark Mehas, Esq.,
for the General Counsel.
Dennis L. Pergram, Esq.,
of Delaware, Ohio,
for the Respondent.
Gregg Coe,
for the Charging Party.
DECISION

Statement of the Case

IRA SANDRON, Administrative Law Judge. This matter arises out of an order
consolidating cases, consolidated complaint, and notice of hearing (complaint) issued on August
25, 2003,1 against Construction Products, Inc. (the Respondent). The General Counsel alleges
that the Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act (the
Act) by refusing to hire seven applicants for employment in February, and by discharging
employees Richard Carper and Anthony Richards Sr. in March.

Pursuant to notice, I conducted a trial in Columbus, Ohio, on September 25, at which all
parties were afforded full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence.

The General Counsel’s witnesses were Gregg Coe, an organizer for the Charging Party
(the Union), and a named alleged discriminatee; and Carper and Richards. The Respondent
called Clifton Parker, its president; Gary O’Neill, its field superintendent; Susan Jacobs, its office
manager; and employee Don Black.

The General Counsel and the Respondent filed posthearing briefs, which I have duly
considered.

1 All dates are in 2003 unless otherwise indicated.

JD–141−03

5

10

15

20

25

30

35

40

45

50

Issues

1. Did the Respondent fail to hire the following applicants between February 6 and 11,
because they had been employed by unionized employers and worked for union
wages: Coe, Fred Clapper, Todd Hoffman, James Jackson, Mary Miller, Larry
Seymour Jr., and Kurt Thompson?

2. Did Carper and Richards on March 5, cease work concertedly and engage in a
strike,
because they perceived unsafe conditions at the Dominion Homes jobsite (the
jobsite)?

3. Were the Respondent’s discharges of Carper and Richards on March 7, for refusing
to work on March 5 and for not showing up for work at the jobsite on March 6,
pretextual and based on their union or other protected concerted activities, or
justified because they engaged in unprotected activity?

Findings of Fact

It is uncontested that the Respondent is an employer, and the Union a labor
organization, within the meaning of the Act. For many years, the Respondent has engaged as a
nonunion steel erection and ironwork contractor in the construction industry, performing
commercial and industrial construction from its facility in Columbus, Ohio. Its customers’
projects are financed by private funds, not tax dollars, and the Respondent performs virtually no
public works. President Parker determines what wage rate the Respondent can afford to pay
and still be competitive in bidding on jobs. He has established $13 an hour as the starting rate
for ironworkers. The Respondent maintains a staff of 3 office employees, including Jacobs (who
is Parker’s daughter), and O’Neill, as well as between 6 to 10 ironworkers.

In 2001 and 2002, there were nine applicants for ironworker positions, of whom eight
were hired.2

I. Failure to Hire Applicants

The Respondent placed an advertisement in the Columbus Dispatch on February 2, for
experienced steel erectors and/or crane operators.3 The ad specifically stated, “Non-union.”

Union Organizer Coe saw the advertisement and on February 5 called and said he was
interested in the position. A woman who did not give her name said the Respondent was
looking for as many qualified people as they could find because “they had a lot of work.”4 On
February 6, Coe, along with Clapper, Hoffman, and Miller went to the Respondent’s office,
where they filled out and submitted applications.5 Seymour applied on February 10, and
Jackson on February 11.6

2 See R. Exhs. 2, 3.
3 GC Exh. 2.
4 Tr. 19.
5 Jt. Exhs. 1−3, 5.
6 Jt. Exhs. 6, 4.
2

JD–141−03

5

10

15

20

25

30

35

40

45

50

As to Kurt Thompson, the Respondent’s records contain no application for employment
or any other evidence documenting such. Although the General Counsel subpoenaed
Thompson, he failed to appear at the hearing. The only evidence that he applied for a job is the
affidavit he gave to the National Labor Relations Board on April 10, on which the Respondent
was not able to cross-examine him. In these circumstances, I recommend dismissal of the
complaint as it relates to Thompson.

None of the other six applicants named above were hired. The Respondent assumed
that all of them were union members, based on what was stated in their applications concerning
their prior employers. Parker testified that from their employment histories, he concluded they
had made more on previous jobs than the $13 to start that he was paying. He further testified
that the seven individuals whom the Respondent hired in February and March, including Carper
and Richards, had salary histories in their applications that were “in line with what we could
afford to pay.” 7 These seven were hired on or about the dates they applied. The Respondent
never contacted any of the 6 alleged discriminatees to inquire what wage they would be willing
to work for.

II. The Employment and Discharges of Carper and Richards

Carper and Richards are friends. Prior to February, they worked on several jobs
together, and both had been referred out by the Union on a “permit” basis.8

In response to the Columbus Dispatch ad, Carper called the Respondent on or about
February 6 or 7, and said that he and a friend were looking for work. He apparently gave
Richards’ phone number, as well as his own, because on February 26, Parker called Richards.
Parker asked if Richards and Carper could begin work the following day at the Canal
Winchester job at a wage rate of $13 an hour. Richards asked about prevailing wage jobs.
Parker responded that the job was not prevailing wage but that there would be such jobs
available.

On February 27, Carper and Richards reported to work at the above jobsite. Field
Superintendent O’Neill gave them job applications and told them to fill them out and return them
the following day.

Carper and Richards again worked at the Canal Winchester jobsite on February 28. On
Monday, March 3, they worked there in the morning until O’Neill told them to report to another
job, the New Albany School. At the end of the day, O’Neill told them to report to a third job, the
Dominion Homes project (the jobsite) at Tuttle Crossing, Dublin, Ohio.

They worked at the jobsite on March 4 and reported there together on the morning of
March 5.

A. March 5

After arriving together at the jobsite on March 5, Carper and Richards testified, it was still
raining. They remained in their van for about 1-1/2 hours, before Richards went over to O’Neill
and spoke with him. Both of them then went over to Carper. As far as what was said when the
7 Tr. 209. See Jt. Exhs. 7−13, dated between February 27 and March 31.
8 Carper became a full-fledged union member in April; Richards the week prior to the
hearing.
3

JD–141−03

5

10

15

20

25

30

35

40

45

50

three of them were together, I find Carper the most reliable witness. He appeared candid and
had a good memory and, in contrast to Richards and O’Neill, all aspects of his testimony were
fully plausible. Accordingly, I credit his version where it might conflict with those of Richards or
O’Neill.

Both Richards and Carper voiced concerns that because of the rain and mud, they could
slip and injure themselves. I credit Carper’s testimony that O’Neill told them that no one else
seemed to have any problem working.

The subject of prevailing wage came up. Although both Richards and O’Neill testified
that Carper was present at the time, Carper mentioned nothing about the subject in relating
what O’Neill said that morning. I believe that he would have remembered had he heard
something about it. Indeed, Carper testified that on their first day of employment, he and
Richards asked O’Neill if there would be any public work jobs, and O’Neill replied, very seldom.

Richards’ version is that on the morning of March 5, he asked O’Neill about “wages on
the job.” 9 O’Neill replied that they did not pay prevailing wages, the job did not pay it, and “if I
wanted a public works job for me to go to the God damn Union hall and sign up down there.” 10
O’Neill recounted that Richards stated they thought the job was a public works job, to which
O’Neill responded that if they were interested in making big dollars, they should go to the union
hall.

Both Richards and Carper testified that when they told O’Neill they were leaving
because it was still raining, he said okay. O’Neill did not dispute this. Further, Richards and
Carper testified that they told him that the weather forecast was for freezing rain the following
day, and if so, they would not be in because they had to drive approximately 100 miles one way.
O’Neill replied that he would see them the next day if the weather was good. McNeill testified
that he could not recall anything being said about their coming in the next day. I credit Richards’
and Carper’s testimony on this point. O’Neill did not controvert it, and in light of severe weather
conditions at the time and the great distance Carper and Richards had to travel to get to the
jobsite, I find it plausible that they would have raised the subject.

I heard various accounts regarding conditions at the jobsite on March 5. Carper,
Richards, and Coe (who was at the site on March 4 and 5) concluded that conditions were
unsafe. More specifically, Carper and Richards testified that because of rain, the site was very
muddy and that footers were exposed with rebar sticking out of the footers with no caps on
them; further, the piers for columns had no dirt around them and were full of water. In other
words, there was a danger of slipping and being impaled on the rebars or of otherwise suffering
injury.

On the contrary, O’Neill and employee Black testified that conditions on the jobsite were
not markedly unusual. They also testified that all five of the other ironworkers on the jobsite
performed a full days’ work there.11 Black testified that it was “just a typical job . . . It was a little
bit of mud . . . You’re going to walk in mud regardless on a jobsite.” 12 Other than having to
kneel down sometimes and getting mud on his clothes, he experienced no particular problems
working that day.
9 Tr. 67.
10 Id.
11 See R. Exh. 7.
12 Tr. 192.
4

JD–141−03

5

10

15

20

25

30

35

40

45

50

OSHA was not called, and there was no testimony from any safety experts as to whether
or not the jobsite was “unsafe” that morning or on March 6. Accordingly, I do not have
sufficiently reliable evidence on which to make a finding of fact regarding whether or not
conditions on the jobsite were safe or unsafe on either March 5 or March 6.

After leaving the jobsite that morning, Carper and Richards went to the union hall, where
they saw Coe and signed union authorization cards.13

That day, March 5, Coe mailed a letter dated March 4 to the Respondent, stating that
some employees had indicated an interest in having the Union represent them for purposes of
collective bargaining and that “Rich Carper and Nick Richards are on the Organizing
Committee.”14 The Respondent received the letter at about 11 a.m. on the morning of March 6.

The testimony of the Respondent’s witnesses regarding the circumstances leading to the
discharges of Carper and Richards was contradictory and not fully credible. Thus, when asked
on direct examination whether he did anything after Carper and Richards left on March 5,
O’Neill answered, “Nothing.”15 In contrast, Jacobs testified that O’Neill called her on the
morning of March 5, and reported that Carper and Richards would not work that day. Jacobs
further testified that she thereafter informed Parker, who responded that if they did not show up
tomorrow, they were fired. Jacobs also testified she wrote a memo dated March 5 to O’Neill,
after she spoke with Parker.16 The language in the memo is strangely stilted. Although O’Neill
was the one who presumably related to her the circumstances surrounding Carper’s and
Richards’ refusal to work, the memo states, “Their reason for not working was due to the mud at
the job site, however there is gravel inside the building making for safe working conditions.”
This language appears to be directed not to O’Neill but to someone who might later review the
matter.

B. March 6 and 7

Carper and Richards testified that they did not go work on March 6 because of poor
driving conditions. O’Neill testified that all the other employees showed up at the jobsite but did
not work that day because of jobsite conditions.17 Consistent with company policy, the other
employees were paid for 2 hours as showup time. Carper and Richards were not.

Richards testified that he had no way to contact O’Neill; that he had asked O’Neill for an
emergency jobsite number but that O’Neill had replied that there was none and that he did not
13 GC Exhs. 6, 7.
14 GC Exhs. 3, 4. It strikes me as very convenient that Carper and Richards signed union
authorization cards on the same day they had refused to work and that the letter notifying
Respondent that Carper and Richards were union supporters was mailed on that same day. Be
that as it may, even assuming that some of the Union’s conduct may have been calculated to
bolster potential unfair labor practice charges, this did not remove Carper’s and Richards’
activities from the protections of the Act. See W.D.D.W. Commercial Supply & Investments,
Inc., 335 NLRB 260, 262 (2000); M.J. Mechanical Services, Inc., 324 NLRB 812, 813−14 (1997)
(cases involving “salts”).
15 Tr. 159.
16 R. Exh. 6.
17 See R. Exh. 7.
5

JD–141−03

5

10

15

20

25

30

35

40

45

50

give out his cellular number. According to Richards, O’Neill did not give him a business card
containing his (O’Neill’s) cell phone number until the time he was discharged on March 7.
O’Neill, on the other hand, testified that he gave his business card containing his cell number to
either Carper or Richards on the first day that they worked. I find it much more plausible that
O’Neill would have given the business card to Richards on the first day of employment, rather
than when Richards was terminated, and therefore credit this aspect of O’Neill’s testimony.

That morning, March 6, O’Neill called Jacobs. He testified that he told her that Carper
and Richards had failed to show up and for her to make out their checks for that week and the
preceding week. However, O’Neill conceded that “I can’t be sure of what I did tell her,” 18
weakening my confidence in his testimony. Jacobs testified that O’Neill told her to prepare their
checks for both weeks because they were being let go, but she further testified that after talking
to O’Neill, she called Parker and related the information, and he responded that Carper and
Richards “didn’t have a job.” 19 Parker did not testify about his communication with Jacobs
concerning them. Accordingly, who made the ultimate decision to discharge them is not
ascertainable from the record.

Carper and Richards returned to the jobsite on March 7. O’Neill gave them their checks
for the 2 weeks.20 He also gave Richards three warning notices,” all dated March 7.21 One was
for “insubordination” – “Employee refused to change job sites for the following reasons: his wife
would not know where he is.” The second was for “Attendance” – “Employee did not show up to
work or call in on 3/6/03.” The third was for “insubordination” – “Employee refused to work due
to muddy conditions. All other employees found job site conditions acceptable.” Richards
refused to sign them. Carper was given two warning notices,22 identical to the second and third
warning notices just described. He signed them in the belief that it was necessary to get his
paychecks.

Richards asked if he and Carper were fired, O’Neill indicated yes, and Richards and
Carper left the jobsite.

Although O’Neill gave Richards a warning for refusing to change jobsites, O’Neill
testified that the reasons Richards and Carper were discharged were their refusal to work on
March 5, and their failure to show up for work on March 6. He said nothing in his testimony
regarding any refusal of Richards to change jobsites. Nevertheless, by letter dated March 6,
Parker notified Richards that he was terminated not only for refusing to work and failing to show
up but also because he “refused to change jobsites for personal reasons” on March 5.23

Richards subsequently filed for, and received, unemployment insurance benefits.24
18 Tr. 164.
19 Tr. 178.
20 Jt. Exhs. 16 & 17.
21 GC Exhs. 8, 9 & 10.
22 Jt. Exhs. 14 & 15.
23 GC Exh. 11.
24 See GC Exh. 12 & R. Exh. 1. Certain statements contained in the examiner’s report are
adverse to either Richards or Parker. I give those statements minimal weight, since there is no
way to determine how accurately they reflected what Richards or Parker actually said, as
opposed to the examiner’s interpretations, opinions, and conclusions. Even though the
unemployment compensation office stated that Richards quit, the record in this case clearly
establishes that he was in fact discharged.
6

JD–141−03

5

10

15

20

25

30

35

40

45

50

The Respondent has never advanced as a reason for their discharges the actual job
performance of Carper and Richards. Indeed, O’Neill testified that other than what occurred on
March 5 and 6, he would have kept them as employees.

It was stipulated that other than Carper and Richards, the Respondent has discharged
no employees during the 2-year period ending March 7.

Legal Analysis and Conclusions

I. The Discharges of Carper and Richards

The General Counsel alleges that the Respondent violated Section 8(a)(3) and (1) by
discharging Carper and Richards because of their union activity and, further, also violated
Section 8(a)(1), by terminating them because they engaged in protected concerted activity and
in a strike on March 5.

Section 8(a)(3) prohibits employers from discriminating in regard to an employee’s
“tenure of employment . . . to encourage or discourage membership in any labor organization.”
Employees also have the right under Section 7 of the Act to engage in concerted activities for
their mutual aid and protection. Concomitantly, an employer may not, without violating Section
8(a)(1) of the Act, discharge or otherwise threaten, restrain, or coerce employees because they
engage in such activities. Senior Citizens Coordinating Council of Co-op City, 330 NLRB 1100
(2000).

The framework for analysis in cases alleging discrimination against employees on
account of union or other protected concerted activity is Wright Line, 251 NLRB 1083 (1980),
enfd., 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).

Under Wright Line, the General Counsel must make a prima facie showing sufficient to
support an inference that the employees’ protected conduct motivated the employer’s adverse
action. The General Counsel must show, either by direct or circumstantial evidence, that the
employee engaged in protected conduct, the employer knew or suspected the employee
engaged in such conduct, the employer harbored animus, and the employer took action
because of such animus. Additionally, when protected concerted activity is alleged, the General
Counsel must show, in addition to the above elements, that the employee’s conduct was
concerted (i.e., engaged in with or on the authority of other employees and not solely on his or
her own behalf) and that the activity was protected by the Act. Triangle Electric Co., 335 NLRB
1037(2001), citing Meyer Industries, 268 NLRB 493, 497 (1984) (Meyers I),25 see also KNTV,
Inc., 319 NLRB 447, 459 (1995).

Direct evidence of an antiunion motive in discharge cases is rare and, for that reason,
reliance on circumstantial evidence, and reasonable inferences deriving therefrom, is
appropriate and often necessary. Laro Maintenance Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir.
1995); NLRB v. Warren L. Rose Castings, Inc., 587 F.2d 1005, 1008 (9th Cir. 1978); McGraw-
Edison Co. v. NLRB, 419 F.2d 67, 75–76 (8th Cir. 1969). Thus, “Illegal motive has been held
25 Remanded, 755 F.2d 941 (D.C. Cir. 1988), cert. denied 474 U.S. 948 (1985), and 474
U.S. 971 (1985); on remand (Meyers II), 281 NLRB 882 (1986), affd. 835 F.2d 1481 (D.C. Cir.
1987); cert. denied 487 U.S. 1205 (1988).
7

JD–141−03

5

10

15

20

25

30

35

40

45

50
supported by a combination of factors, such as ‘coincidence in union activity and discharge’ . . .
‘general bias or hostility toward the union’ . . . ‘variance from the employer’s normal employment
routine’ . . . and ‘an implausible explanation used by the employer for its action’ . . . “ McGraw-
Edison Co., above at 75.

Under Wright Line, if the General Counsel establishes a prima facie case of
discriminatory conduct, it meets its initial burden to persuade, by a preponderance of the
evidence, that protected activity was a motivating factor in the employer’s action. The burden of
persuasion then shifts to the employer to show that it would have taken the same adverse
action even in the absence of the employee’s protected activity. NLRB v. Transportation Corp.,
462 U.S. 393, 399-403 (1983); Kamtech, Inc. v. NLRB, 314 F.3d 800, 811 (6th Cir. 2002);
Serrano Painting, 332 NLRB 1363, 1369 (2000); Best Plumbing Supply, 310 NLRB 143 (1993).
To meet this burden, “[A]n employer cannot simply present a legitimate reason for its action but
must persuade by a preponderance of the evidence that the same action would have taken
place even in the absence of the protected conduct.” Serrano Painting, above at 1369, citing
Roure Bertrand Deupont, Inc., 271 NLRB 443 (1984).

Although the Board cannot substitute its judgment for that of an employer and decide
what would have constituted appropriate discipline, the Board does have the role of deciding
whether the employer’s proffered reasons for its action is the actual one, rather than a pretext to
disguise antiunion motivation. Detroit Paneling Systems, 330 NLRB No. 1170 (2000); Uniroyal
Technology Corp. v. NLRB, 151 F.3d 666, 670 (7th Cir. 1998).

A. Union activity

Carper and Richards signed union authorization cards on March 5, and the Respondent
admittedly received on March 6, Coe’s letter stating that they were on the Union’s organizing
committee. The elements of union activity and employer knowledge thereof are thus clear.

As to the element of antiunion animus, there is little direct evidence. The fact that the
Respondent openly advertised itself as a nonunion company does not in and of itself equate to
such animus. Moreover, even fully crediting Richards that O’Neill told him to “Go the God damn
union,” after Richards raised the subject of prevailing wages, this statement was devoid of any
threat or coercion and must be taken in context. However, even assuming that these facts
demonstrated animus, I need not rely on them to find animus inferred from other conduct of the
Respondent.

Significantly, O’Neill testified, contradicting Jacobs, that he initially took no action against
Carper and Richards for refusing to work on March 5. Carper and Richards testified without
controversion that when they told O’Neill on March 5 that they would not be in on March 6 if the
weather was as severe as forecasted, he said okay. Yet, on March 7, they were terminated for
refusing to work on March 5, and not reporting to work on March 6. Further, although O’Neill on
March 7 cited an additional reason for terminating Richards—refusing to be reassigned—O’Neill
stated nothing about this in his testimony and, indeed, unequivocally testified that the only
reasons both Carper and Richards were discharged related to the refusal to work on March 5
and the failure to report on March 6. A company’s shifting of reasons for discipline, which can
encompass expansion, is indicative of discriminatory motive. See, e.g., Central Cartridge, Inc.,
236 NLRB 1232, 1260 (1978). I also consider it highly significant that in the last 2 years, the
Respondent fired no employees other than Carper and Richards. Finally, the timing of the
discharges—1 day after the Respondent had knowledge of their union activity—raises a strong
inference of animus.

8

JD–141−03

5

10

15

20

25

30

35

40

45

50
I therefore conclude that under Wright Line, the General Counsel has established a
prima facie case that Carper and Richards were discharged for their union activities.

B. Protected Concerted Activity

As to the issue of whether Carper and Richards engaged in a “strike” on March 5, the
Board has stated that “a strike exists when a group of employees ceases work in order to
secure compliance with a demand for higher wages, shorter hours, or other conditions of
employment, the refusal of which by the employer has given rise to a labor dispute.” American
Mfg. Concern, 7 NLRB 753, 759 (1938). Engaging in a work stoppage is not per se sufficient to
establish engagement in a strike; the work stoppage must be intended to bring pressure on the
employer to change its ways. New York State Nurses Ass’n, 334 NLRB 798, 801 (2001);
Empire Steel Mfg. Co., 234 NLRB 530, 532 (1978).

Here, Carper and Richards merely informed O’Neill that they were refusing to work
because of what they perceived to be unsafe conditions, and he raised no objections to their
leaving the jobsite. In these circumstances, I do not find the existence of a demand for anything
or a refusal of the employer to accede to any demand. Accordingly, I conclude that Carper and
Richards did not engage in a strike when they left the jobsite on March 5.

I now turn to the question of whether their conduct nevertheless constituted concerted
activity protected under Section 8(a)(1). Carper and Richards together spoke with O’Neill
regarding their refusal to work on March 5 because of safety concerns over jobsite conditions,
and they together stated if weather conditions were severe on March 6, they would not be
coming to work. They clearly engaged in concerted activity known by the employer.

The next step is determining whether their activity—refusing to work on March 5
because of safety concerns over jobsite conditions and not reporting to work on March 6
because of severe weather conditions−was protected activity. The answer is clearly yes. As
the Board stated in Odyssey Capital Group, L.P., III, 337 NLRB 1110, 1111 (2002), citing NLRB
v. Washington Aluminum, 370 U.S. 9 (1962):

It is well established that employees who concertedly refuse to work in protest over
wages, hours, or other working conditions, including unsafe or unhealthy working
conditions, are engaged in ‘concerted activities’ for ‘mutual aid or protection’ within the
meaning Section 7 of the Act.

The conduct is not removed from the protection of the Act unless it is unlawful, violent, in
breach of contract, or otherwise indefensible. Washington Aluminum, supra at 17; Odyssey
Capital Group, supra; Tamara Foods, Inc., 258 NLRB 1307, 1308 (1981), enfd. 692 F.2d 1171
(8th Cir. 1982), cert. denied 461 U.S. 928 (1983). If the conduct does not come within these
categories, the reasonableness of the employees’ decision to engage in concerted activities is
irrelevant. Washington Aluminum, above at 16. Indeed, in Tamara Foods, above at 1308, the
Board stated that:

Inquiry into the objective reasonableness of employees’ concerted activity is neither
necessary nor proper in determining whether that activity is protected . . . . Whether the
protested working condition was actually as objectionable as the employees believed it
to be . . . is irrelevant to whether their concerted activity is protected by the Act.

There is no question that Carper’s and Richards’ conduct was lawful, nonviolent, and
breached no contract. The final factor that would remove their conduct from protection is that
9

JD–141−03

5

10

15

20

25

30

35

40

45

50
the conduct was “indefensible.” I cannot come to such a conclusion under the facts of this case.
While other employees may have disagreed with Carper and Richards that jobsite conditions
were unsafe on March 5, no evidence was submitted by the Respondent in the way of expert
opinion by qualified safety experts that Carper and Richards made a frivolous or patently
nonmeritorious claim of unsafe conditions.

Turning to the events of March 6, Carper and Richards put O’Neill on advance notice on
March 5 that threatened severe weather could preclude them from coming to work the following
day, and it does not appear that their failure to call him on March 6 was necessary or resulted in
any prejudice to the Respondent. In fact, the Respondent made the decision that day that no
employees would work because of weather/jobsite conditions. In these circumstances, I cannot
conclude that Carper and Richards acted indefensibly on March 6 when they failed to report to
work.

I conclude, therefore, that Carper and Richards engaged in protected concerted activity
on March 5 and 6 that was known to the Respondent. The Respondent’s express bases for the
terminations were solely their refusal to work on March 5, and their failure to report to work on
March 6. As stated earlier, animus can reasonably be inferred. The General Counsel has
therefore satisfied the first prong of analysis under Wright Line by establishing a prima faciecase
of unlawful discharges for protected concerted activity.

C. Whether the Respondent Would Have Discharged Carper and Richards
Absent Their Union and Other Protected Activities

Once again, I deem it of great significance the fact that the Respondent has fired no
other employees over the past 2 years. Further, O’Neill did not threaten any kind of disciplinary
action against Carper and Richards on March 5, either when they told him they would not work
or that they would not come in the following day if weather conditions were severe. Yet, 2 days
later, they were discharged for these reasons. The Respondent has not alleged that its ability to
perform work on the jobsite was in any way negatively impacted by the failure of Carper and
Richards to work on either March 5 or 6. Even if O’Neill was not placed on advance notice on
March 5 that Carper and Richards might not report on March 6, and it was concluded that they
should have called him, the Respondent suffered no prejudice as a result of their failure to
appear on that date. On March 6, none of the employees performed any work, and the
Respondent actually saved money by not having to pay Carper and Richards for 2 hours’
showup time each.

I conclude that the Respondent has failed to meet its burden of persuasion of showing
by a preponderance of evidence that Carper and Richards would have been terminated other
than for their engaging in union and other protected concerted activities. Accordingly, their
discharges violated Section 8(a)(1) and (3) of the Act.

II. The Failure to Hire Applicants

Applicants for employment are considered employees within the meaning of Section 2(3)
of the Act, and an employer violates Section 8(a)(3) by failing or refusing to hire an applicant for
employment because of his or her union membership or activities. NLRB v. Town & Country
Electric, 516 U.S. 85 (1995); Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941). This
protected status extends to union organizer applicants (“salts”), whether paid or not. See, e.g.,
M. J. Mechanical Servs., 324 NLRB 812 (1997), enfd., 172 F.3d 920 (D.C. Cir. 1998); Braun
Elec. Co., 324 NLRB 1 (1997).

10

JD–141−03

5

10

15

20

25

30

35

40

45

50
In FES, 331 NLRB 9, 12 (2000), the Board held that in cases alleging unlawful failure to
hire job applicants, the General Counsel must establish certain elements to meet its burden of
proof in demonstrating a prima facie case:

1. The Respondent was hiring or had concrete plans to hire at the time of the
alleged unlawful conduct.
2. The applicants had experience or training relevant to the positions sought to be
filled.
3. Antiunion animus contributed to the decision not to hire the applicants.

Once the General Counsel has established such a prima facie case, the burden of
persuasion then shifts to the employer under Wright Line. Id.; Zarcon, Inc., 340 NLRB No. 145
(2003).

Here, elements one and two clearly have been established. Thus, the Respondent
advertised for positions in February and, in fact, later that month and the following month hired
seven other applicants. All of the alleged discriminatees had relevant experience, and the
Respondent has not contended that any of them were unqualified.

Turning to antiunion animus, in failure to hire cases, a showing of specific antiunion
animus is not necessary; rather, an unlawful motive will be presumed if the employer’s action
could naturally and foreseeably have an adverse effect on employee rights, either at that time or
in the future. Radio Officers v. NLRB (A.H. Bull Steamship Co.), 347 U.S. 17, 48-52 (1954).

However, there is specific evidence of antiunion animus in this case. In reviewing the
applications of the alleged discriminatees, the Respondent admittedly concluded that they were
union members based on their prior employment records and did not hire them, although other
applicants were hired shortly thereafter. Although the terminations of Carper and Richards—
that I have found unlawful under Section 8(a)(1) and (3)−occurred the following month, they
were close enough in time to the failures to hire to provide evidence of antiunion animus.
Therefore, under the Wright Line analysis previously set out, I find that the General Counsel has
established a prima facie case of unlawful failure to hire the six applicants.

As to the Respondent’s defenses, Parker testified that he saw from the applications that
the applicants had made more money on prior jobs than he could afford to pay them and,
therefore, did not want to employ them.

Certainly, the Respondent was under no obligation to hire any applicant who would not
agree to the wage rate it was prepared to offer. However, the Respondent made the blanket
assumption that none of the applicants would accept the amount of pay it was offering and took
no steps whatsoever to inquire of any of them whether they would or would not in fact agree to
work for that pay rate. I note in this regard that Clappper’s and Coe’s applications reflected that
they had been laid off in January and were currently unemployed. Moreover, all six of the
applications left the “salary desired” blank or wrote “open.”

The Respondent has not contended there was any change in its employment needs
between the time it failed to hire the six (early February), and its hiring of seven employees in
late February or early March. Parker testified that he hired those seven other individuals, rather
than the six alleged discriminatees, because the former’s applications indicated they would
accept the $13 hour he was offering to start. Their applications do not fully bear out his
assertion. Thus, Borders stated he was paid $14.50 an hour on his last job, Carper $17 an hour
on his last job, McCrary $15 an hour on one of his jobs, and Richards $18-24 on his last job.
11

JD–141−03

5

10

15

20

25

30

35

40

45

50

Moreover, Gardrim stated that he desired $16 an hour, McCrary $14-plus an hour, and Carper
and Richards $18−$24 an hour.

In light of Parker’s failure to even inquire of the six individuals what wage rate they would
accept and his hiring of other applicants who had either made more than he was prepared to
offer and/or who requested more than that amount, seriously undermines the validity of the
Respondent’s proffered business justification for not hiring the six. In the absence of the
Respondent furnishing adequate evidence that it had a bona fide reason for not hiring them,
separate and apart from any considerations related to their having worked for unionized
companies and receiving union wages, I must conclude that antiunion animus was the
motivating factor for their not being hired.

In sum, the Respondent engaged in a hiring standard that operated to automatically
disqualify applicants who had received union wages and was therefore inherently destructive of
employees’ Section 7 right to work in an organized work force. See Aztec Electric, 335 NLRB
260, 262-63 (2001), cited in the General Counsel’s brief; 26 see also, Fluor Daniel, Inc. v. NLRB,
332 F.3d 961 (6th Cir. 2003). Therefore, the Respondent’s failure and refusal to hire the six
applicants violated Section 8(a)(3) and (1) of the Act.27

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. By refusing to hire Fred Clapper, Gregory Coe, Todd Hoffman, James Jackson, Mary
Miller, and Larry Seymour Jr., the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.

4. By discharging Richard Carper and Anthony Richards Sr., the Respondent has
engaged in unfair labor practices affecting commerce within the meaning of Section 2(6) and (7)
of the Act.

5. By the above refusals to hire and discharges, the Respondent violated Section
8(a)(1) and (3) of the Act.
26 Contrast, 7UP of Cincinnati, 337 NLRB 521 (2002), in which an employer’s refusal to hire
an applicant was based on factors unique to him, not a blanket denial of job opportunities to
persons who had worked for union wages.
27 Exterior Systems, 338 NLRB No. 82 (2002), cited in the Respondent’s brief, is
distinguishable. There, the Board held that a union organizer applicant’s misconduct at the
jobsite (creating a “disruptive, intimidating, and disrespectful” atmosphere) provided the
employer with a valid reason for not hiring him, regardless of his union activity. Here, the
Respondent has not alleged any such misconduct by any of the applicants.

12

JD–141−03

5

10

15

20

25

30

35

40

45

50

Remedy

Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

The Respondent having discriminatorily discharged employees, it must offer them
reinstatement and make them whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of discharge to date of proper offer of reinstatement, 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 Retarded, 283 NLRB 1173 (1987).

The Respondent having discriminatorily refused to hire applicants, it must offer them
employment and make them whole for any loss of earnings and other benefits, computed on a
quarterly basis from date of application to date of proper offer of employment, less any net
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended28

ORDER

The Respondent, Construction Products, Inc., Columbus, Ohio, its officers, agents,
successors, and assigns, shall

1. Cease and desist from

(a) Refusing to hire job applicants because they previously worked for unionized
employers and received union wages.

(b) Discharging employees for their activities on behalf of International Association of
Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local 172, AFL-CIO (the Union), or
any other labor organization.

(c) Discharging employees for their protected concerted activities.

(d) 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 effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer Fred Clapper, Gregory Coe,
Todd Hoffman, James Jackson, Mary Miller, and Larry Seymour Jr., employment in the
positions to which they applied or, if those positions no longer exist, to substantially equivalent
positions.
28 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13

JD–141−03

5

10

15

20

25

30

35

40

45

50

(b) Within 14 days from the date of this Order, offer Richard Carper and Anthony
Richards Sr., full reinstatement to their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.

(c) Make Richard Carper, Fred Clapper, Gregory Coe, Todd Hoffman, James
Jackson, Mary Miller, Anthony Richards Sr., and Larry Seymour Jr., whole for any loss of
earnings and other benefits suffered as a result of the discrimination against them, in the
manner set forth in the remedy section of the decision.

(d) Within 14 days from the date of this Order, remove from its files any reference to
the unlawful discharges of Richard Carper and Anthony Richards Sr., and within 3 days
thereafter notify the employees in writing that this has been done and that the discharges will
not be used against them in any way.

(e) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, 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.

(f) Within 14 days after service by the Region, post at its facility in Columbus, Ohio,
copies of the attached notice marked “Appendix.”29 Copies of the notice, on forms provided by
the Regional Director for Region 9, 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
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
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since February 6, 2003.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C. December 29, 2003

__________________________
IRA SANDRON
Administrative Law Judge

29 If this Order is enforced by a Judgment of the 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.”
14
JD–141−03
Columbus, OH

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 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 benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT refuse to hire you because you previously worked for unionized employers and
received union wages.

WE WILL NOT discharge or otherwise discriminate against any of you because of your activities
on behalf of International Association of Bridge, Structural, Ornamental and Reinforcing
Ironworkers, Local 172, AFL-CIO, or any other union.

WE WILL NOT discharge or otherwise discriminate against any of you for engaging together in
activities objecting to the terms and conditions of your employment with us.

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 make Fred Clapper, Gregory Coe, Todd Hoffman, James Jackson, Mary Miller, and
Larry Seymour Jr., whole for any loss of earnings and other benefits resulting from our failure to
hire them, less any net interim earnings, plus interest.

WE WILL make Richard Carper and Anthony Richards Sr., whole for any loss of earnings and
other benefits resulting from their discharges, less any net interim earnings, plus interest.

JD–141−03

5

10

15

20

25

30

35

40

45

50

WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharge of Richard Carper and Anthony Richards Sr., and WE WILL,
within 3 days thereafter, notify each of them in writing that this has been done and that the
discharges will not be used against them in any way.

CONSTRUCTION PRODUCTS, INC.
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
550 Main Street, Federal Office Building, Room 3003, Cincinnati, OH 45202-3271
(513) 684-3686, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (513) 684-3663.

- ii -
16

JD–141−03

5

10

15

20

25

30

35

40

45

50

17