Custom Topsoil, Inc.

National Labor Relations Board - Board Decisions

May 20, 1999

328 N.L.R.B. 446 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 446
Custom Topsoil, Inc. and International Union of Op-
erating Engineers, Local Union No. 17. Case 3–
CA–21008
May 20, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND
HURTGEN
On November 17, 1998, Administrative Law Judge
Martin J. Linsky issued the attached decision. The
Charging Party Union filed exceptions and a supporting
brief. The General Counsel filed cross-exceptions and a
supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,1 and conclusions, as
modified below, and to adopt the recommended Order.
The judge found that the Respondent did not violate
Section 8(a)(3) and (1) of the Act by limiting to two the
number of applicants who could apply at one time and by
requiring applicants to complete a “Custom Topsoil”
application at its office. We agree with the judge that the
Respondent did not act unlawfully with respect to the
challenged application procedures, but only for the fol-
lowing reasons.2
Under Wright Line, the General Counsel must first
make a threshold evidentiary showing sufficient to sup-
port the inference that employer animus against union
activity was “a motivating factor” in the employer’s de-
cision to take adverse action against employees who par-
ticipated in the union activity. Upon such showing, the
burden shifts to the employer to demonstrate that it
would have taken the same action notwithstanding the
union activity. Fluor Daniel, Inc., 304 NLRB 970
(1991).
Here, we find that on this record, the Respondent es-
tablished that it would have imposed or enforced these
rules even in the absence of union activity. With regard
to the two-at-a-time rule, the Respondent established that
it acted on the basis of a legitimate concern that its office
was simply not large enough to accommodate large
numbers of applicants attempting to file applications en
masse. It was certainly not large enough to handle the
group of 16 union members who arrived together on June
9, 1997, to file their applications. The General Counsel
does not dispute this fact. His main argument instead is
that the Respondent engaged in disparate treatment of
union members by notifying only the Union and union
members about the new rule. However, only the Union
had attempted en masse applications. Nor is there any-
thing sinister about the fact that the rule is aimed only at
applicants. There is no evidence that any other visitors
to the Respondent’s office, such as vendors or customers,
had ever attempted to enter or would reasonably be ex-
pected to enter the office in such numbers as to require
regulation of their traffic. There also is no evidence that
the Respondent had limited or would limit its rule only to
union member job applicants. Finally, there is no evi-
dence that allowing only two applicants into the office at
one time had the effect, or would tend to have the effect,
of preventing anyone from filing an application. Absent
such evidence, we find that the rule was not unlawfully
designed to restrict, and in fact did not restrict, the ability
of union applicants to apply for work.

1 There were no exceptions to the judge’s finding that the Respon-
dent violated Sec. 8(a)(3) and (1) by refusing to hire 10 of 16 union
members who applied for available jobs in June 1997.
The judge here,has referred to a judge’s decision in a prior proceed-
ing involving the Respondent. On November 16, 1998, the Board
adopted that judge’s findings that the Respondent committed 8(a)(3)
violations similar to those in the instant case. See Custom Topsoil, 327
NLRB 121 (1998). The Board reversed the judge, however, and dis-
missed an 8(a)(1) threat allegation based on a statement made by the
Respondent’s bookkeeper, Michelle Podpura, to union member job
applicants. We therefore disavow the judge’s reliance in this case on
the Podpura statement as evidence of the Respondent’s animus. This
does not affect the results here, particularly in the absence of exceptions
to the judge’s findings that the Respondent unlawfully refused to hire
10 union member job applicants.
2 The judge failed to apply the analysis set forth in Wright Line, 251
NLRB 1083 (1980).
As for the in-office application procedures, the Gen-
eral Counsel does not dispute the general legitimacy of
the Respondent’s rule that applicants fill out and sign
Custom Topsoil applications at its office. Rather, the
General Counsel challenges the application of such a rule
in this case as a “sham designed to cloak a discriminatory
motive” for rejecting generic union job applications filed
by a group of union members on December 11, 1997.
He relies primarily on two points: (1) the Respondent
accepted the generic union forms completed off-site by
the June 9 union applicant group; and (2) the Respondent
interviewed certain nonunion applicants without having
them fill out Custom Topsoil applications at its office
until their first day of work.
We find no merit in the exceptions. As to the first
point, the Respondent’s “acceptance” of the Union’s ge-
neric group applications on June 9 appears to have been a
singular departure from its usual practice.3 Thus, as re-
flected in the prior unfair labor practice proceeding, the
union applicants whom the Respondent refused to hire in
June and December 1996 were required to fill out com-
pany applications in the office. These events corroborate
the testimony of the Respondent’s office manager, Diane
Burger, that it has always been the Respondent’s general
practice to require in-office completion of a Custom
Topsoil application.
3 See J. O. Mory, Inc., 326 NLRB 604 (1998) (a “single departure
from normal, legitimate hiring policy” did not prove disparate treatment
or pretext in the application of that policy to an applicant group of
union organizers).
328 NLRB No. 66
CUSTOM TOPSOIL, INC. 447
The General Counsel’s second point fails as well to
prove unlawful disparate treatment. The circumstances
of applicants interviewed before they had to complete the
Respondent’s application form differed from those of the
group of union member applicants who were advised on
December 15 of the need to return to the Respondent’s
office to fill out the Custom Topsoil form. In sum, the
evidence shows that the Respondent differentiated be-
tween “stranger” applicants and familiar applicants, not
between union and nonunion applicants. Those appli-
cants interviewed before completing an application form
were already known by the Respondent to some degree
through past employment or employment with a subcon-
tractor of the Respondent. Respondent Official Michael
Fronchowiak used the interview to reacquaint himself
with the abilities of such applicants. Ultimately, how-
ever, all applicants had to fill out the same Custom Top-
soil application at the Respondent’s office before begin-
ning work.
Based on the foregoing, we conclude that the Respon-
dent has proved that it would have imposed or enforced
its application rules even in the absence of the Union’s
activity. We therefore affirm the judge’s conclusion that
the Respondent’s actions with respect to these rules did
not violate Section 8(a)(3).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Custom Topsoil, Inc., Cheek-
towaga and Buffalo, New York, its officers, agents, suc-
cessors and assigns, shall take the action set forth in the
Order.

Doren Goldstone, Esq., for the General Counsel.
Jeremy 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
MARTIN J. LINSKY, Administrative Law Judge. The charge
and amended charge in Case 3–CA–21008 were filed by the
International Union of Operating Engineers, Local Union No.
17 (the Union) on December 8, 1997, and February 23, 1998,
respectively, against Custom Topsoil, Inc. (Respondent).
On February 26, 1998, the National Labor Relations Board
(the Board), by the Regional Director for Region 3, issued a
complaint alleging that Respondent violated Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act), since June 9,
1997, when it refused to hire 16 union applicants for employ-
ment and when on June 16 and December 11, 1997, it change
its hiring practices and policies to restrict the receipt of job
applications.
Respondent filed an answer in which it denied that it violated
the Act in any way.
A hearing was held before me in Buffalo, New York, on Au-
gust 10 and 11, 1998.1
On the entire record in this case to include posthearing briefs
submitted by the General Counsel, Respondent, and the Charg-
ing Party and on my observation of the demeanor of the wit-
nesses I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent, a corporation, with an of-
fice and place of business in Buffalo, New York, has been en-
gaged in the construction industry as a site contractor.
Respondent admits, and I find, that at all material times Re-
spondent has been engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union has been a la-
bor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Overview
This is a so-called “salting” case. “Salting” is a practice
where union members, under the direction or at the suggestion
of a union organizer, seek employment with nonunion employ-
ers in order to get hired and to organize the nonunion em-
ployer’s employees.
The Respondent in this case was targeted to be salted. This
was not the first time. In June 1996, Respondent was the target
of a “salting” campaign that led to unfair labor practice charges
being filed and the issuance of a complaint. That complaint
was tried before Judge Eleanor MacDonald on December 8 and
9, 1997. Judge MacDonald issued a decision on June 22, 1998,
finding, inter alia, that Respondent violated Section 8(a)(1) and
(3) of the Act when it refused to hire seven job applicants be-
cause they were members of the Union. Exceptions were filed
and her decision (JD (NY)–14–98) is pending before the Board.
The case before me involves a “salting” effort in June 1997.
B. Facts and Analysis of “Salting” Case
Chris Hollfelder is a union organizer for Operating Engi-
neers Local No. 17, the Charging Party, in this case. His objec-
tive with respect to Respondent was to help get union members
hired by Respondent and then to organize Respondent’s em-
ployees.
On June 9, 1997, Hollfelder gathered at the union hall with
16 union members. The 16 union members filled out applica-
tions for employment on forms provided by the Union.
At approximately 2 p.m. on the afternoon of June 9, 1997,
Hollfelder and the 16 union applicants went to Respondent’s
office in Cheektowaga, New York, a community right next to
Buffalo, New York. They did not have an appointment and
Respondent did not require appointments.
As the 16 union applicants for employment, a number of
whom were wearing union hats and jackets, approached Re-
spondent’s office, the person in charge at Respondent’s office
was Diane Burger, the daughter of Respondent’s president,
Henry Fronckowiak, and the sister of Michael Fronchowiak

1 Respondent’s motion to correct transcript, as modified by the
Charging Party’s motion to correct transcript, is granted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 448
who ran Respondent’s day-to-day operations, called out to her
subordinates to close and lock all the windows and doors.
The applicants for employment were refused entry to Re-
spondent’s offices.
Hollfelder knocked on the door eventually getting Diane
Burger’s attention and told her they were there to apply for
jobs. Burger spoke on the phone with someone and told Holl-
felder that the job applications they wanted to submit could be
slipped through the mail slot. Hollfelder slipped the 16 ap-
plications for employment through the mail slot and he and the
job applicants left the area. Not only were the applicants for
employment denied entry into the office but Burger did not
even open the door. Hollfelder was not an applicant for em-
ployment. It is under these highly unusual circumstances that
Respondent received the 16 job applications on June 9, 1997. It
was stipulated before me that the union applicants were not
unruly on June 9, 1997. The police were not called. Although
Diane Burger conceded at trial before me that she had overre-
acted when she saw the job applicants approach the offices of
Respondent, I do not credit her testimony that she did not know
they were union affiliated applicants. She knew they were
because some wore union hats and jackets and her reaction
manifests extraordinary union animus.
The applications of the 16 union members, 3 of whom, Lisa
Smoczynski, James Smolinski, and William Frye, testified
before me reflect that they were highly qualified in the skills
needed by Respondent to conduct its business which is the
operation of two concrete crushing plants as well as demolition
and site development work.
The 16 applicants and their years of experience as reflected
in their job applications are as follows:

1. Richard Benz (3 years’ experience)
2. Steve Curtin (7-1/2 years’ experience)
3. John J. Danahy (years of experience not listed on
application)
4. James Erhardt (6 years’ experience)
5. Steven A. Everett (14 years’ experience)
6. William R. Frye (16 years’ experience)
7. Mah Hogey (10 years’ experience)
8. Paul Hopkins (8 years’ experience)
9. Eric Maybee (7 years’ experience)
10. James McGann (31 years’ experience)
11. Ellen Preischel (years of experience not listed on
application)
12. Michael Radetich (27 years’ experience)
13. Nathaniel A. Raffner (4 years’ experience)
14. Lisa Smoczynski (4 years’ experience)
15. James A. Smolinski (35 years’ experience)
16. Anthonio Ventresca (years of experience not listed
on application)

All 16 applicants, to include the 3 who did not list on their
applications the number of years of experience they had, listed
the skills they possessed.
All 16 applications reflected that the applicant was a volun-
tary union organizer and would work for the wages that would
customarily be paid a worker of their experience.
All 16 applicants noted on their applications that they would
take any job offered.
It is clear that Respondent when it received the applications
of the 16 applicants on June 9, 1997, knew from the applica-
tions that the applicants appeared imminently well qualified for
employment by Respondent and that they were union affiliated
and, if hired, would attempt to organize Respondent’s employ-
ees because each of the 16 applications contained the following
language:

I am a voluntary union organizer. If hired, I will perform all
duties to the best of my ability. I will also attempt, during
nonwork time and in nonwork areas, to organize Operating
Engineers into Local Union #17.

None of the 16 union applicants for employment were even
called by Respondent for an interview or offered a job by Re-
spondent. None, obviously, went to work for Respondent.
On June 16, 1997, Respondent sent to the Union a letter
which provided as follows:

June 16, 1997

International Union of Operating Engineers
Local 17
150 North America Dr
West Seneca, NY 14224

To Whom it may concern:

We are in receipt of the ‘applications’ that were dropped off at
our office last week.

Please be advised that they will be reviewed and considered.

Should you wish to send people in the future, we ask that you
limit the number of people to a maximum of two (2) at a time.
We are unable to accommodate any more than that, and the
large crowd that showed up last week created a perceived
safety issue. We hope you will understand we must protect
our office staff’s safety.

Thank you.

The evidence at trial reflects that since June 9, 1997, Re-
spondent has hired 17 persons to do work which the 16 union
applicants appear qualified to do based on their applications.
The 17 people hired by Respondent began work over a 13-
month period between June 23, 1997, and July 13, 1998, in the
following order:

1. John Cuttitta June 23, 1997
2. John Nelson August 5, 1997
3. Steve Swinarski August 18, 1997
4. Kevin Haag August 25, 1997
5. Glenn Ranno August 26, 1997
6. Michael Webster September 29, 1997
7. Norman Faulkner III October 13, 1997
8. Doris Patterson March 3, 1998
9. Walter Swinarski April 28, 1998
10. David Zielinsky April 28, 1998
11. Caroline Basker May 5, 1998
12. Robert Crawford May 13, 1998
13. Ray Schafer, Sr May 19, 1998
14. Douglas Hyman May 26, 1998
15. Richard Fronckowiak May 26, 1998
16. Jay Pauley July 6, 1998
17. Lyle Emerson July 13, 1998

For some time, Respondent had a sign posted in its office
which said that applications were not being accepted. The sign
was inside Respondent’s office but could not be seen by the
union applicants who applied for jobs on June 9, 1997. How-
ever, Respondent’s witness, Diane Burger, testified that 1 week
CUSTOM TOPSOIL, INC. 449
after the 16 union applicants applied for work on June 9, 1997,
the sign was taken down. In other words the sign was removed
on the same day that Respondent started accepting applications
and on the same day it wrote to the union that the applications
of the 16 union applicants would be “reviewed and consid-
ered.”
Respondent claims that prior to being salted in June 1996 its
policy was to discard and throw away job applications if Re-
spondent had no openings. Since being salted in June 1996,
Respondent’s policy is to send applications it doesn’t need to
its lawyer, Jeremy Cohen, Esq. Respondent keeps no file on
hand of applications it receives and would then consider if it
had a job opening.
However, I find credible the testimony of James A. Smolin-
ski. Smolinski was 1 of the 16 union applicants for employ-
ment on June 9, 1997. After not hearing from Respondent for 1
month, Smolinski called Respondent’s office. Smolinski did
not identify himself as a union member, but simply “called,
identified myself; who I was and the person asked me my
reason for calling and I said that I think I have an application
there on file and the person said ‘we’re not hiring, we will call
you back’ and I never heard from—again from Custom Topsoil
and I have an answering machine.” (Tr. 50.)
Respondent is a family business and day-to-day operations
and hiring are done by Michael Fronchowiak, the son of Re-
spondent’s president and owner, Henry Fronchowiak.
Michael Fronchowiak testified that when he needs to hire
someone he will ask his other employees to recommend people
to him and that he also consults business associates and job
superintendents for recommendations.
If an application is received at the office it is put in his in-
box and he reviews it when he gets a chance. He spends most
of his time in the field and not in the office. With particular
reference to the 16 union applicants of June 9, 1997, he testified
as follows:

Q. Were you aware that union applicants had applied
for work on or around June 9, 1997?
A. Yes, I was.
Q. And, had you seen the applications which they gave
to Diane Burger on that date?
A. Yes.
Q. And, were those applications that you–did you read
those applications?
A. No.
Q. Did you read any of the applications?
A. I said I might have thumbed through the names or
something, that’s about all.
Q. How long of a period did you spend reviewing ap-
plications submitted by the 16 applicants?
A. I don’t recall.
Q. Was a it something like you spent 30 minutes or
you spent five minutes?
A. No more than five minutes.
Q. And, that’s for all 16 applications?
A. Yes.” [Tr. 242.]

Fronchowiak then sent the applications to his attorney.
When asked later in his testimony if anyone’s application in the
pile of union applications looked like they might be useful dur-
ing the 1997 construction season he replied, “I didn’t really
look at them.” (Tr. 243.)
However, the June 16, 1997 letter to the Union advised that
the applications “will be reviewed and considered.” It is obvi-
ous by Burger’s actions on June 9, 1997, and Fronchowiak
simply going through the motions that because of union animus
Respondent had no intention of considering for hire or hiring
any the union applicants. I should also note that the claimed
safety threat of June 9, 1997, is utter and complete nonsense.
Respondent seems to think that if it sends applications to its
attorney it is forbidden by law to consider those applications in
filling openings. As Judge MacDonald noted in her decision:

[Michael] Fronchowiak would have me accept the statement
that because his lawyer had the original applications he him-
self had no applications pending for the Union members when
he was hiring new employees after June 13, 1996. This posi-
tion is pure sophistry. Of course, Respondent is deemed to
have applications in its possession when it has turned them
over to its attorney. Had Fronchowiak been in good faith, he
could have obtained the originals or copies of the applications
by making one telephone call. [JD– (NY)-41–98 at p. 8.]

It would seem appropriate at this juncture to discuss the 17
people who were hired by Respondent after June 9, 1997.
Ray Schaffer Sr. worked only 1 day. He is an elderly gen-
tleman (late 70s at the time) and was an old friend of Henry
Fronchowiak, Respondent’s president, and was hired for old
times’ sake.
Lyle Emerson was a former employee of Respondent and
was hired as a foreman.
Doris Patterson was known to Respondent because she
worked for one of Respondent’s subcontractors and Respondent
was familiar with her skills and this was true for Kevin Haag as
well.
John Cuttitta was hired on the recommendation of his father
Anthony Cuttitta who worked for Respondent.
Robert Crawford was also a former employee of Respondent
and Respondent was familiar with his skills.
Lastly, Richard Fronckowiak was a brother to Henry
Fronckowiak and an uncle to Michael Fronckowiak and uncle
to Diane Burger.
I find that the hiring of Ray Schaffer Sr., Lyle Emerson,
Doris Patterson, Kevin Haag, John Cuttitta, Robert Crawford,
and Richard Fronckowiak is not evidence of unlawful discrimi-
natory hiring by Respondent because these hiring selections
were made on a basis other than union or no union affiliation.
However that leaves 10 jobs that were filled by new hires
where the union applicants were refused hire, in my opinion,
because of their union affiliation.
The 16 union applicants were well qualified and experienced
as reflected in their applications, which are in evidence whereas
many of those actually hired by Respondent are decidedly less
qualified, e.g., Steve Swinarski had what Michael Fronchowiak
referred to as “minimal” experience (Tr. 258) and I believe
Fronckowiak is correct because Swinarski listed his work ex-
perience as one of detailing cars. Norman Faulkner III had no
experience in construction, and David Zielinski’s experience
was in cleaning floors.
Respondent, in its defense, claims that it did offer employ-
ment to Joel Nuwer in March 1998 and that Nuwer was a union
member but Nuwer turned down the job. There is no evidence
to support Michael Fronchowiak’s statement that he offered
Nuwer a job, e.g., no application for Nuwer and Nuwer did not
testify. But even if Nuwer was offered a job, it does not neces-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 450
sarily follow that Respondent did not discriminate against the
16 union applicants who filed applications on June 9, 1997,
because Nuwer, unlike the 16 union applicants, never identified
himself as a voluntary union organizer.
The Board has held the elements of a discriminatory refusal-
to-hire case include the employment application by each al-
leged discriminatee, the refusal to hire each, or showing that
each was or might be expected to be a union supporter or sym-
pathizer, and further showings that the employer knew or sus-
pected such sympathy or support, maintained an animus against
it, and refused to hire the applicant because of such animus.
Considering all the evidence above recited and taking into
consideration the Board’s landmark decision in Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), and Board decisions in other
so called “salting” cases, e.g., M. J. Mechanical Services, 324
NLRB 812 (1997); Walz Masonry, 323 NLRB 1258 (1997);
and Fluor Daniel, Inc., 304 NLRB 970 (1991), I find that Re-
spondent violated Section 8(a)(1) and (3) of the Act when it
failed and refused to hire the union applicants who filed appli-
cations with Respondent on June 9, 1997.
Needless to say if Judge MacDonalds’ decision is affirmed
by the Board and her findings of union animus left undisturbed,
this is further evidence to support my finding of an 8(a)(1) and
(3) violation. In particular, Judge MacDonald found that Re-
spondent’s agent, bookkeeper Michelle Podpora, on June 13,
1996, told union applicants that Respondent was “nonunion”
and that applicants’ union membership would affect their
chances of being hired. Podpora’s statements were captured on
tape and Judge MacDonald discredited Podpora’s denial that
she said union membership would affect the chance of being
hired. Podpora testified before Judge MacDonald in December
1997 some 6 months after the June 1997 salting effort which is
the subject matter of this case.
C. Change in Hiring Practices in June and December 1997
In its June 16, 1997 letter to the Union, Respondent wrote,
“[S]hould you wish to send people in the future, we ask that
you limit the number of people to a maximum of two (2) at a
time.” Judge MacDonald found in her case that the reception
area at Respondent’s office had a table that could accommodate
three people. Even one of the General Counsel’s witnesses in
the case before me, Lisa Smoczynski, testified that the office
was small.
I do not find that the imposition of this rule of “two appli-
cants at a time” was unlawful even if promulgated with anti-
union motivation because it is a reasonable rule considering
how small the reception area is and the rule does not limit the
number of applicants who can apply at one time but only that
no more than two at a time can be in the office. This is how the
rule was understood by the Union and understood and enforced
by Respondent. In December 1997 union applicants for em-
ployment entered Respondent’s office two at a time to apply
and more than two a day could and did apply.
In December 1997 on one of the days that Judge MacDonald
was hearing her case involving Respondent, union affiliated
applicants for employment went to Respondent’s office to ap-
ply for a job. Thereafter, Respondent in a letter dated Decem-
ber 15, 1997, to the union applicants advised that applicants for
employment must “personally complete a Custom Topsoil, Inc.
application at our office” and that Respondent’s “office is
available for that purpose from 9:00 am to 12:00 noon and from
1:00 p.m. to 3:30 p.m., Monday through Friday.”
It is alleged that requiring applicants to complete one of Re-
spondent’s application at Respondent’s office was a new rule
unlawfully designed to make it more difficult for union affili-
ated applicants for employment to apply for work with Respon-
dent.
Respondent claims that this was not a new rule but was al-
ways their rule which may or may not have always been en-
forced. Further, Respondent has the rule so that it will know if
the applicant can read and write and that the signature on the
application form is actually that of the applicant. In addition,
Respondent claims its application form asks for pertinent in-
formation that may not be on a resume or generic application,
e.g., that the applicant is 18 years of age or older, the appli-
cant’s social security number, educational background, and
references.
Even if the enforcement of this old rule or implementation of
a new rule was motivated by union animus, I do not find it
unlawful because Respondent’s office is conveniently located
near Buffalo and not in a remote area and my own experience
with Board cases discloses that many employers have require-
ments that applications be filled out in person on the em-
ployer’s application form. These rules make sense and in the
context of this case are not unreasonable and, therefore, not
unlawful.
REMEDY
Between June 9, 1997, and the hearing before me in August
1998, Respondent hired 17 people into positions for which the
16 union applicants appear imminently well qualified. Seven
of the 17 people hired were hired for reasons that had nothing
to do with the union pro or con. Ten positions, therefore, were
available to be filled by the 16 union applicants. I will leave to
the compliance stage of this proceeding the determination as to
which of the 16 union applicants is offered 1 of the 10 jobs.
Backpay, of course, should be paid and Respondent ordered
to post a notice and cease and desist from its unlawful behavior.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of the Act
when it failed to hire 10 of 16 union applicants for employ-
ment.
4. This unfair labor practice is an unfair labor practice having
an effect on commerce within the meaning of Section 2(6) and
(7) of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, Custom Topsoil, Inc., Buffalo and Cheek-
towaga, New York, its officers, agents, successors, and assigns,
shall

2 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 pur-
poses.
CUSTOM TOPSOIL, INC. 451
1. Cease and desist from
(a) Failing and refusing to hire applicants for employment
because they are members of a union.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer 10 of
the 16 discriminatees the jobs which they were denied or, if
those jobs no longer exist, to substantially equivalent positions
at new jobsites, if necessary, and make them whole for any loss
of earnings and other benefits suffered as a result of the dis-
crimination against them. Backpay to be computed on a quar-
terly basis as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
(b) 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.
(c) Within 14 days after service by the Region, post at its fa-
cilities in Buffalo and Cheektowaga, New York, and all other
places where notices customarily are posted, copies of the at-
tached notice marked “Appendix.”3 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 the Respondent has gone
out of business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own ex-

3 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.”
pense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since June
9, 1997.
(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 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 con-
certed activities.

WE WILL NOT fail and refuse to hire applicants for employ-
ment because they are members of a union.
WE WILL NOT in any like or related manner interfere with, re-
strain, 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 this Order, offer
immediate employment to 10 of the 16 following applicants for
employment, i.e., Richard Benz, Steve Curtin, John T. Danahy,
James Erhardt, Steven A. Everett, William R. Frye, Mah Ho-
gey, Paul Hopkins, Eric Maybee, James McGann, Elle
Preischel, Michael Radetich, Nathaniel Raffner, Lisa Smoczyn-
ski, James A. Smolinski, and Antonio Ventresca WE WILL make
them whole for any loss of earnings and other benefits resulting
from our discrimination, less any net interim earnings, plus
interest.
CUSTOM TOPSOIL, INC.