Custom Top Soil, Inc.

National Labor Relations Board - Board Decisions

Nov 16, 1998

327 N.L.R.B. 121 (N.L.R.B. 1998)

CUSTOM TOP SOIL 121
Custom Top Soil, Inc. and International Union of Op-
erating Engineers, Local 17. Case 3–CA–20435
November 16, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On June 22, 1998, Administrative Law Judge Eleanor
MacDonald issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Acting
General Counsel and Charging Party Union filed answer-
ing briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions, as
modified, and to adopt the recommended Order as modi-
fied.
We find merit in the Respondent’s exception to the
judge’s finding that Bookkeeper Michelle Podpura acted
as the Respondent’s agent and, as such, violated Section
8(a)(1) when she told union members who were applying
for work on June 13, 1996, that their union membership
would adversely affect their chances of working for the
Respondent. The judge erroneously found that Podpura
hands out job applications as part of her duties. Accord-
ing to Podpura’s uncontradicted testimony, she had no
regular role in the job application process. Furthermore,
the transcript of a tape recording of her conversation with
the applicants on June 13 shows that she clearly indi-
cated that she had no knowledge of, and hence was with-
out authority to speak and act on, matters concerning the
Respondent’s hiring policies. Under these circum-
stances, Podpura had neither actual nor apparent author-
ity to speak on behalf of the Respondent concerning the
possible impact of the applicants’ union affiliation on
their employment prospects. We shall therefore reverse
and dismiss the 8(a)(1) allegation based on Podpura’s
statement of personal opinion.
Our reversal of this finding, which the judge cited as
evidence of the Respondent’s union animus, does not
alter his overall analysis of the 8(a)(3) refusal to hire
issue. There remains substantial evidence of animus,
particularly including the Respondent’s unlawful altera-
tion of its application procedure to restrict the submission
of applications from union members, its unlawful physi-
cal removal of a union representative from its office dur-
ing union members’ attempt to file applications, and its
pretextual reasons for not hiring the discriminatees. We
agree with the judge, for the reasons fully set forth in his
decision, that the Acting General Counsel has shown that
union animus motivated the Respondent’s discriminatory
refusal to hire qualified union member applicants for
available jobs, in violation of Section 8(a)(3).
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.
We note, however, that the judge recommended a
backpay remedy for the discriminatees starting from the
date that they applied for employment. In this case, the
jobs for which the discriminatees should have been hired
did not become available until sometime after the appli-
cation dates. Consequently, the correct starting date for
the backpay period is the later date on which the dis-
criminatees would have been hired but for the Respon-
dent’s unlawful conduct. See Starcon, Inc., 323 NLRB
977 (1997). We leave to compliance proceedings the
determination of the specific date on which each dis-
criminatee would have been hired.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders the Respondent, Custom Top
Soil, Inc., Cheektowaga and Buffalo, New York, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Refusing to hire job applicants because they are
members of International Union of Operating Engineers,
Local 17, or any other union.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

2 Member Hurtgen concludes that the better practice is for the Gen-
eral Counsel to establish, in the trial on the merits, the dates on which
discrimination occurred, i.e., the dates on which various jobs became
available. Notwithstanding this, he would not foreclose the General
Counsel from doing so in this case in a supplemental proceeding.
However, Member Hurtgen emphasizes that, at whatever stage, the
General Counsel bears the burden of proof on the issue.
327 NLRB No. 34
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 122
WE WILL NOT refuse to hire job applicants because
they are members of International Union of Operating
Engineers, Local 17, or any other union.
WE WILL NOT physically remove union members
from our office when they come to file applications for
employment.
WE WILL NOT change our hiring practices to restrict
the receipt of job applications from union members.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Bernard Dowdall, Francine Dole,
Dan Racine, Duane Cooper, James Minter 3d, Michael
Schwec, and James Erhardt employment to the same or
substantially equivalent positions for which they applied,
without prejudice to their seniority or any other rights or
privileges to which they would have been entitled in the
absence of our hiring discrimination.
WE WILL make Bernard Dowdall, Francine Dole,
Dan Racine, Duane Cooper, James Minter 3d, Michael
Schwec, and James Erhardt whole for any loss of earn-
ings and other benefits resulting from the discrimination
against them, less any net interim earnings, plus interest.

CUSTOM TOP SOIL, INC.

Ron Scott, Esq., for the General Counsel.
Jeremy V. Cohen, Esq. (Bond, Schoeneck & King), of Buffalo,
New York, for the Respondent.
Michael E. Reilly, Esq. (Morris, Cantor, Barnes, Goodman &
Furlong), of Cheektowaga, New York, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative law Judge.
This case was tried in Buffalo, New York, on December 8 and
9, 1997. The complaint alleges that Respondent, in violation of
Section 8 (a)(1) and (3) of the Act, threatened to refuse to hire
job applicants, refused to hire job applicants, physically re-
moved a representative of the Union from its office and
changed its hiring practices to restrict the receipt of job applica-
tions. Respondent denies that it has engaged in any violations
of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Respondent and the Charging Party
in February 1998, I make the following1
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with an office in Cheektowaga,
New York, and a facility in Buffalo, New York, is engaged in
the construction industry as a site contractor. Annually, Re-

1 The record is corrected so that at p. 44, LL 5, 6, and 8, and p. 117,
L 17, “softic” is replaced by the word “zaftig”. The Respondent’s
motion to correct the transcript dated January 30, 1998, as amended by
the General Counsel’s letter of February 5, 1998, is granted.
spondent provides services in excess of $50,000 for enterprises
which are directly engaged in interstate commerce. Respondent
admits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the International Union of Operating Engineers, Local 17,
is a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
On June 13, 1996, Chris Hollfelder, an organizer with Local
17, accompanied four members of the Union to Respondent’s
office in order that they might file applications for employment.
Hollfelder waited in the parking lot with union members Ber-
nard Dowdall, Francine Dole, and Dan Racine, while Duane
Cooper entered the office and obtained and completed an appli-
cation. Having established that Respondent was indeed hand-
ing out applications to the public, Hollfelder and the three other
union members entered the office and asked for applications.
The applicants were told to use a long table in the public area of
the office for the purpose of completing their applications. It is
undisputed that there is a table in the office which is accessible
to those who come in to fill out employment applications in-
cluding the union members who were at the office on June 13.
The table is large enough to accommodate up to three people at
one time.
Hollfelder testified that while the three members were filling
out their applications, he introduced himself as an organizer for
Local 17 to the receptionist sitting behind the sliding glass par-
tition in the entrance area. After a short while, a woman came
out of an office located behind the area where the receptionist
sat at the glass partition. This woman, who was later identified
as Bookkeeper Michelle Podpora, told Hollfelder and the Local
17 members that Respondent was a nonunion company and she
asked whether they were from the Operating Engineers. Holl-
felder answered her question and then he asked whether the fact
that Respondent was nonunion would affect the members’
chances for employment. Podpora said, “Yes, it would,” Holl-
felder asked what kind of season Respondent was having and
the two women said it was a “good season.” Hollfelder said that
all the members with him were qualified to do any kind of
work. Hollfelder told the women that he planned to organize
Respondent’s employees and that he wanted to talk to the
workers and explain the benefits of the Union and run an elec-
tion. Diane Burger, Respondent’s office manager, came to the
reception area. Hollfelder requested copies of the completed
applications, and after some discussion about how much the
Union would pay for each copy, Burger furnished Hollfelder
with copies of the applications. Hollfelder asked when the
employees should return to update their applications and one of
the women said that Respondent kept completed job applica-
tions on file “for a long, long time.”
Hollfelder asked if there were any jobs available and Burger
replied that there was a job for a part-time sweeper. The appli-
cants said that they would be interested in this job because it
would afford them a chance to work among nonunion employ-
ees and try to build common ground with them.
Four applications were filed on June 13.2 Duane Cooper in-
dicated on his form that he had over 20 years as a qualified
journeyman, that he possessed a CDL license with various en-
2 Hollfelder took a blank application but did not fill it out.
CUSTOM TOP SOIL 123
dorsements and that he would accept employment in “any-
thing” to start as soon as possible. Francine Dole indicated 6
years’ experience as a journeywoman with a CDL and other
licenses, extensive experience on various types of heavy vehi-
cles, and she stated that she would accept work as a truckdriver,
laborer, operator, or any other job to start right away. Bernard
Dowdall indicated 29 years’ experience as an operating engi-
neer and he stated that he would accept a job as an operator or
truckdriver as soon as possible. Daniel Racine indicated that he
had 25 years’ experience as a journeyman operating and repair-
ing all heavy equipment, and he stated that he would accept
work as a mechanic, operator, laborer, or driver to begin
“now.” All of the applicants stated that their salary require-
ments were “open.”
Francine Dole testified that she filled out her job application
to show that she would take any job with Respondent. When
Dole called Respondent at the end of the week to ask about the
sweeper position, she was told that the position had been filled.
Bookkeeper Michelle Podpora, testified that her office is
near the reception area. On occasion, Podpora hands out job
applications to people who come in to request them and this
task is part of her duties. On June 13, Podpora heard male
voices saying that they were from the Union.3 She went to the
sliding glass window and stood next to the receptionist while
the union members completed their job applications. Podpora
admitted that she told the union members that “we are a nonun-
ion company or a merit shop company” but she said that she
never told Hollfelder that union membership would make a
difference in the hiring prospects of the job applicants. She
denied that she told Hollfelder that Respondent keeps applica-
tions on file for a long time. Podpora summoned Burger to the
front to speak to the union members and she stood there while
they arranged with Burger to obtain copies of their applications.
When Burger informed the union members that she had a
sweeper job open, a woman union member said that she would
be interested in this job. On cross-examination by counsel for
the General Counsel, Podpora identified a voice on a tape re-
cording as her own voice.4 After listening to the tape recording,
Podpora acknowledged that she was the one replying to a ques-
tion about when to update application forms by stating that the
company keeps them on file forever or a “long, long time.”
The tape recording also shows, contrary to Podpora’s testi-
mony, that she replied, “yes” when Hollfelder asked if the fact
that Respondent was a nonunion company would have any
bearing on union members coming to work.
Office Manager Diane Burger is the daughter of Company
President Henry Fronckowiak and the sister of Company Vice
President Michael Fronckowiak. Burger testified that at the
request of Respondent’s bookkeeper, she went to the reception
area on June 13. Burger stated that she made copies of the job
applications for Hollfelder. Burger denied that Hollfelder
asked how long Respondent keeps applications on file and she
denied that there was any discussion about the fact that Re-
spondent was a nonunion shop. Burger testified that no one
from the Union asked if there were any jobs available. Burger
is responsible for Respondent’s payroll and personnel matters.
She hires office personnel but she does not hire field personnel.

3 Podpora is recently married. At the time of the relevant events, her
name was Zulawski.
4 Hollfelder made this tape recording of the June 13, 1996 events in
Respondent’s office.
Burger was responsible for filling the sweeper position that was
open on June 13. She testified that she did not hire any of the
union members for this job because they were all overqualified.
I do not credit Burger’s testimony that none of the applicants on
June 13 asked whether there were any jobs available. Podpora
testified that after she called Burger to the front, Burger stated
that there was a sweeper job open and this testimony is sup-
ported by the tape recording of the June 13 events. Thus, I find
that Burger is not a credible witness and that she shaded her
testimony to favor Respondent’s position.
In July 1996, Hollfelder returned to Respondent’s office. He
saw a new sign posted outside the glass partition. All the par-
ties herein agree that the sign stated:

WE CURRENTLY HAVE NO JOB OPENINGS,
THEREFORE WE ARE NOT ACCEPTING ANY
APPLICATIONS.
THANK YOU FOR YOUR INTEREST.

Burger testified that after the union members came in to the
file their applications on June 13, 1996, she prepared and
posted this sign. Burger stated that she made up the sign be-
cause she felt “upset” that the union members had been on the
premises. Burger told her brother about the sign and informed
him that the purpose of the sign was to limit the people coming
in. Michael Fronckowiak agreed that she should post the sign.
Burger admitted that none of the union members had done any-
thing on June 13 to upset her, and she admitted that they had
not threatened or intimidated any of the office staff nor had
they made any demands.5 Burger recalled that in the past the
Union had picketed one of Respondent’s jobsites, but that it had
never picketed the office.
On December 9, 1996, Local 17 member Timothy Heyden
went to Respondent’s office with three other union members,
James Minter 3d, Michael Schwec, and James Erhardt. All four
men entered the office and told a woman there that they wanted
to put in applications.6 Heyden was wearing his union jacket.
The woman answered that there were no job openings and that
Respondent was not taking applications. She pointed to the
sign quoted above. Despite this reply, Minter, Schwec, and
Erhardt gave the woman their completed job applications. At
this point, Henry Fronckowiak, Respondent’s president, ap-
peared in the public area of the office and returned the applica-
tions to Heyden. Nevertheless, Heyden told Fronckowiak that
the members were qualified and wanted to leave their applica-
tions. He asked Fronckowiak how long Respondent keeps
applications on file and Fronckowiak said, “five years.”
Fronckowiak told Heyden that if he had any openings he would
call the union hall. The union members left without being able
to file their job applications. As he was leaving the office,
Heyden decided that he ought to have taken a photograph of the
sign and he went back through the front door to take a picture
while the others continued to the parking lot. While Heyden
was taking the photo, Fronckowiak came over to him and
grabbed his arm, swinging him around and pushing him out the
door. Heyden protested that there was, “no reason for rough
stuff.” James Minter 3d, one of the union members who ac-
companied Heyden on December 9, testified that he saw
5 Indeed, the tape recording introduced into evidence shows that
Hollfelder and the union members were friendly and that they used all
the common forms of courtesy.
6 The complaint does not name Heyden as an alleged discriminatee.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 124
Fronckowiak dragging Heyden out of the door. Minter stated
that Fronckowiak is bigger than Heyden.
Henry Fronckowiak testified that he recalled seeing a man
taking a picture of the sign. He stated that he did not think he
touched the man, nor hold him by the arm and drag him. On
cross-examination, Fronckowiak said that if he did touch the
man, it was just on the shoulder. However, the man may have
said, “There’s no need to get violent.” Fronckowiak acknowl-
edged that he may have jokingly said that Respondent keeps
job applications for 5 years. In fact, according to Henry
Fronckowiak, the company never retains applications. Fronck-
owiak testified that he did not know if he had told the man that
he would call the union hall if he needed workers. He ac-
knowledged that it was not probable that he would call the Un-
ion in search of new employees.
The record shows that three applications were rejected on
December 9. These include the application of James Erhardt
who had 2 years of apprenticeship and 4 years as a U.S. Air
Force heavy equipment operator in addition to other relevant
experience including welding. Erhardt was ready to start work
right away at an “open” wage rate. James Minter had 3 years’
experience in the trade with various types of heavy equipment
and he was willing to work as an operator or in any other posi-
tion. Michael Schwec had 17 years as a journeyman with vari-
ous types of equipment and he was ready to start immediately
in “any” position.
On December 19, 1996, Hollfelder went to Respondent’s of-
fice with Michael Eddy, a fourth year apprentice. The sign
quoted above was still posted. Eddy, who was out of work,
requested an employment application. A man came out front
and said that Respondent was not taking applications.
Michael Fronckowiak, Respondent’s vice president, testified
that he hires all the field personnel. The field employees are
equipment operators, truckdrivers, laborers, mechanics, and
survey assistants. Fronckowiak testified that almost all such
employees are hired through personal referrals from other em-
ployees and other employers in the area. However, he admitted
that a number of field personnel were hired through newspaper
advertisements and that some of them just walked in and ap-
plied for jobs. Fronckowiak testified that Respondent’s appli-
cation form is given to anyone who comes in looking for work.
If applications are filed while he is seeking to hire new employ-
ees, he looks through the applications. According to Froncko-
wiak, all new employees are hired within a day or two of their
submission of a job application. Fronckowiak testified that if
he does not need any new employees, he discards any job ap-
plications right after they are submitted. Fronckowiak stated
that Respondent does not keep applications on file against the
time when there might be job openings. However, the applica-
tions completed by the union members on June 13, 1996, were
not thrown out, instead, they were given to Respondent’s coun-
sel.
Contrary to Michael Fronckowiak’s testimony, there is evi-
dence that Respondent does indeed retain job applications. For
example, Fronckowiak testified that Allen Weierheiser filed a
job application in the early spring of 1996 but he was not hired
as a mechanic until November 4, 1996. Respondent had run
advertisements in the local newspaper on two different occa-
sions in April 1996. While explaining that the ads were placed
because Respondent anticipated a surge of work in the spring,
Fronckowiak said that he thought “Allen was already on the
list” because he had applied prior to the newspaper ads.
Fronckowiak could not recall what happened to Weierheirser’s
application. He said that he might have started a file for
Weierheiser and he might have told Weierheiser that he would
be put on the payroll as soon as Respondent had an opening.
The clear import of this testimony, even though Fronckowiak
hedged by failing to recall and by saying what “might” have
happened, is that Weierheiser applied for work in early spring,
1996 and that a file was started for him until he was actually
hired in November. It follows that Respondent must have kept
his application active for about 6 months. Indeed, Henry
Fronckowiak, the president of Respondent, admitted that
Weierheiser’s application was kept for 7 or 8 months. Simi-
larly, Norman Faulkner applied for work on August 22 and he
began employment as a truckdriver on October 20, 1996. Ex-
plaining why Faulkner’s application was held for 2 months,
Michael Fronckowiak stated that Faulkner needed a drug test
and an endorsement on his driver’s license. It is evident that
Faulkner’s application remained on file for 2 months until he
qualified for the job and Respondent hired him; this fact is con-
trary to Fronckowiak’s testimony that Respondent does not
keep job applications on file if it does not fill a vacancy imme-
diately. I do not credit Michael Fronckowiak’s testimony that
he routinely discards all job applications immediately on re-
ceipt unless he has an actual job opening. I find that Respon-
dent does keep job applications in a file. I find that Froncko-
wiak’s testimony that he always throws out job applications is a
fabrication.
Michael Fronckowiak testified that he looked over the appli-
cations received from the union members on June 13, 1996. He
stated that their work histories indicated that they would be
good operators. Fronckowiak thought that they were overquali-
fied for positions as laborers; he did not think they would have
been happy with laborers’ pay. Although a few of the union
members indicated on their job applications that they possessed
a CDL license, Fronckowiak believed that they were overquali-
fied for truckdriver positions.
Michael Fronckowiak testified that on June 13, 1996, Re-
spondent was not seeking to fill any field positions. In Decem-
ber 1996, Respondent was not seeking to fill any positions.
However, in July 1996, Respondent hired three field employ-
ees, two laborers, and a truckdriver, but Fronckowiak did not
consider any of the union applicants because, having given the
applications to his attorney, he did not have them in his posses-
sion. On September 10, 1996, Respondent ran an advertise-
ment in the local newspaper for a truckdriver. This position
was not offered to any of the union applicants.
Henry Fronckowiak testified that about 20 employees were
hired after June 1996. During all the period that the new em-
ployees were hired, Respondent maintained the sign in its of-
fice stating that no hiring was going on. Fronckowiak stated
that the sign was there for safety reasons.
General Counsel’s Exhibits 10 (c) and (d) reveal that 23 em-
ployees were hired between June 13, 1996 and the instant hear-
ing. Of these, four were casual or summer employees.
B. Discussion and Conclusions
The General Counsel contends that Bookkeeper Michelle
Podpora is an agent of Respondent. Podpora testified that she
hands out job applications to people who walk in off the street
to apply for work and that handing out job applications is part
of her duties. In the instant case, the evidence shows that Pod-
pora came to talk to the union members while they were filling
CUSTOM TOP SOIL 125
out job applications and that she told them that Respondent is a
nonunion company. When Hollfelder asked her whether the
fact that Respondent was nonunion would affect the members’
chances for employment, Podpora answered that it would. In
response to Hollfelder’s question about when job applications
should be updated, Podpora answered that the Company keeps
completed job applications on file “forever” or a “long, long
time.” I find that Podpora, who has the authority to hand out
job applications, behaved in a fashion to cause the union mem-
bers reasonably to believe that she was reflecting company
policy and speaking for management. Podpora volunteered the
fact that Respondent is nonunion and when questioned further
on the subject that she had raised, she affirmed that union status
would affect the ability to be hired. She did not hesitate to
inform the applicants that Respondent keeps applications on
file for a long time. The union members who spoke with Pod-
pora while they were in the process of completing applications
could reasonably have concluded that she spoke for manage-
ment on the subject of Respondent’s hiring policies and appli-
cation procedures. When Burger, a member of management,
appeared on the scene she said nothing to correct the impres-
sion that the union members had spoken with a person who was
competent to deal with them concerning the application proc-
ess. I find that Podpora had apparent authority to speak for
Respondent in matters relating to hiring policy and the applica-
tion process and that she was an agent of Respondent. Waste
Stream Management, 315 NLRB 1088, 1121–1122 (1994); GM
Electrics, 323 NLRB 125 (1997).
Having found that Podpora was an agent of Respondent, I
find that Respondent violated Section 8 (a) (1) of the Act when
Podpora informed the union members who were applying for
jobs on June 13, 1996, that their union membership would ad-
versely affect their chances of coming to work for Respondent.
Respondent’s witnesses admitted that before June 13, 1996,
the Company had a practice of accepting applications from job
seekers who walked in off the street whether or not there were
any vacancies at the time of application. The record is clear
that Respondent accepted applications from the four union
members on June 13, 1996. After the union members sought
jobs on June 13 however, Respondent posted a sign stating that
it was not accepting any applications and Respondent refused to
accept applications from union members on December 9. Al-
though Burger testified that she was upset when the union
members appeared at the office and that the purpose of the sign
was to limit the people coming in, Burger admitted that none
of the June 13 applicants had done anything to upset her. I find
that the testimony of Respondent’s witnesses that the sign was
put up out of concern for security is a pretext. There was no
evidence that the union applicants threatened the security of the
office in any way. The record shows that Respondent hired 23
employees after June 13, 1996. But Respondent continued to
display the sign stating that it had no job openings and was not
accepting applications. I conclude that Respondent had
changed its policy with respect to job applications so that union
members could no longer come in and apply for jobs with the
Company. Respondent violated Section 8 (a) (3) of the Act by
changing its application and hiring policies to restrict the re-
ceipt of job applications from union members.
I credit the testimony of Timothy Heyden that on December
9, 1996, Henry Fronckowiak forcibly removed him from the
public area of Respondent’s office by grabbing his arm, swing-
ing him around, and pushing him out of the door. I credit the
testimony of James Minter 3d, that he saw Fronckowiak drag-
ging Heyden out of Respondent’s doorway. Although Fronck-
owiak at first denied that any physical confrontation had oc-
curred, he later changed his testimony and acknowledged that
he might have touched Heyden and that Heyden might have
said that there was no need to get violent. Heyden was wearing
his union jacket that day and, according to Heyden, Froncko-
wiak made a reference to calling the union hall if he needed
workers. I do not credit Fronckowiak’s halfhearted denials of
Heyden’s version of the events. Manhandling union members
who apply for jobs interferes with employees’ rights under the
Act. By physically ejecting Heyden from Respondent’s office
when the union members came to file job applications, Re-
spondent violated Section 8(a)(1) of the Act.
The record establishes that Respondent harbored antiunion
animus: Respondent’s agent unlawfully told applicants that the
company was nonunion and that the applicants’ union member-
ship would affect their chances of being hired; Henry Froncko-
wiak physically removed a union member from the public area
of the office in violation of the Act; and Respondent posted a
notice unlawfully changing its application and hiring practices
to restrict the receipt of applications from union members. The
record establishes that Respondent was aware that the job ap-
plicants on June 13 and December 9, 1996, were members of
the Union. In defense of Respondent’s position, Burger testi-
fied that she did not hire any of the job applicants on June 13
for the sweeper position because they were all overqualified.
The testimony of Dole and Podpora establishes that Dole told
Burger that she would be interested in this job.7 Indeed, Dole
called asking about the job again after June 13 and she was told
that it had been filled. Michael Fronckowiak testified that the
applicants on June 13 would have been good operators and he
stated that he believed they were overqualified for a laborer or
truckdriver position.8 Yet Fronckowiak did not offer the appli-
cants any of the jobs, including operator jobs, that were filled
after June 13 because he gave the applications to his lawyer and
thus did not consider them when he had openings. Froncko-
wiak would have me accept the statement that because his law-
yer had the original applications he himself had no applications
pending from the union members when he was hiring new em-
ployees after June 13, 1996. This position is pure sophistry. Of
course, Respondent is deemed to have applications in its pos-
session when it has turned them over to its attorney. Had
Fronckowiak been in good faith, he could have obtained the
originals or copies of the applications by making one telephone
call.9 Further, it is evident that Respondent did not hire the
applicants who attempted to file completed job applications
with the company on December 9 because it had unlawfully
changed its hiring procedures to restrict the receipt of applica-
tions from union members. Although Respondent presented
testimony to the effect that unless it had a specific job opening
when it received an application that application would be dis-
carded immediately, I do not credit this testimony. As dis-

7 I do not credit Burger’s testimony that no one from the Union
asked if there were any jobs available on June 13.
8 I note that all four of the job applicants noted that their job and
wage requirements were flexible.
9 The evidence shows that the four applicants on June 13 were quali-
fied for the jobs that were filled after that date, and, indeed, more quali-
fied than the people who were actually hired by Respondent. However,
an analysis of the data is more appropriate at the compliance stage of
the proceedings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 126
cussed above, it is clear that Allen Weierheiser’s application
was kept on file for about 6 months and Norman Faulkner’s
application was kept for 2 months. Podpora told Hollfelder that
Respondent keeps applications on file for a long, long time and
Henry Fronckowiak told Heyden that Respondent keeps appli-
cations on file for 5 years. Although Fronckowiak tried to pass
off this statement as a joke, there is absolutely no indication
that Fronckowiak viewed his confrontation with Heyden as an
occasion for pleasantries. Finally, Michael Fronckowiak testi-
fied that Weierheiser’s name was on “the list.” Thus, Respon-
dent kept some kind of list of applicants and it could have
placed the names of the union applicants on that list. I find that
Respondent’s stated reasons for not hiring those who applied
for work on June 13 and December 9, 1996, were pretexts, and
that the reason the applicants were not hired was that they were
members of the Union. Wright Line, 251 NLRB 1083 (1980).
Respondent thus violated Section 8(a)(3) of the Act when it
failed to hire the union member applicants.
CONCLUSIONS OF LAW
1. By threatening to refuse to hire job applicants because
they were members of International Union of Operating Engi-
neers, Local 17, and by physically removing a union member
from its office when he and others came to file job applications,
Respondent violated Section 8(a)(1) of the Act.
2. By changing its hiring practices to restrict the receipt of
job applications and by refusing to hire job applicants because
they were members of the Union, Respondent violated Section
8 (a) (3) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that Respondent discriminatorily failed and re-
fused to hire seven named job applicants, Respondent must
offer them employment to the same or substantially equivalent
positions for which they applied, without prejudice to any sen-
iority or any other rights or privileges to which they would have
been entitled in the absence of Respondent’s hiring discrimina-
tion. Respondent must make them whole for any loss of earn-
ings and other benefits they may have suffered as a result of the
discrimination practiced against them from the date that they
applied for employment to the date that Respondent makes
them a valid offer of employment. Such amounts shall be
computed in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), and shall be reduced by net interim earn-
ings, with interest computed in accordance with 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 recommended10

10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ORDER
The Respondent, Custom Top Soil, Inc., Cheektowaga and
Buffalo, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening to refuse to hire job applicants and refusing
to hire job applicants because they are members of International
Union of Operating Engineers, Local 17, or any other union.
(b) Physically removing union members from its office when
they come to file applications for employment.
(c) Changing its hiring practices to restrict the receipt of job
applications from union members.
(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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Bernard
Dowdall, Francine Dole, Dan Racine, Duane Cooper, James
Minter 3d, Michael Schwec, and James Erhardt employment to
the same or substantially equivalent positions for which they
applied, without prejudice to any seniority or any other rights or
privileges to which they would have been entitled in the ab-
sence of respondent’s hiring discrimination.
(b) Make the above-named employees whole for any loss of
earnings and other benefits suffered as a result of the discrimi-
nation against them, in the manner set forth in the remedy sec-
tion of this decision.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Within 14 days after service by the Region, post at its fa-
cilities in Cheektowaga and Buffalo, New York, copies of the
attached notice marked “Appendix.”11 Copies of the notice, on
forms provided 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 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 Respon-
dent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since June 13, 1996.
(e) 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.
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”