Efficient Design, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jan 13, 2012

07-CA-060306 (N.L.R.B. Jan. 13, 2012)

JD(ATL)–01–12
Birmingham, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
EFFICIENT DESIGN, INC.
and CASE 07–CA–60306
LOCAL 9, INTERNATIONAL UNION OF
BRICKLAYERS AND ALLIED
CRAFTWORKERS (BAC), AFL–CIO
Scott R. Preston, Esq.,
for the Acting General Counsel
John G. Adam, Esq., of Royal Oak, Michigan,
for the Charging Party
Donald E. Conley, Esq., of Birmingham, Michigan
for the Respondent
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard this case on December 12,
2011, in Detroit, Michigan. After the parties rested, I heard oral argument, and on December 13,
2011, issued a bench decision pursuant to Section 102.35(a)(10) of the Board’s Rules and
Regulations, setting forth findings of fact and conclusions of law. In accordance with Section
102.45 of the Rules and Regulations, I certify the accuracy of, and attach hereto as “Appendix
A,” the portion of the transcript containing this decision.1 The Conclusions of Law, Remedy,
Order and Notice provisions are set forth below.
Further Discussion
In Toering Electric Co., 351 NLRB 225 (2008), the Board discussed refusal-to-hire
allegations which arose in the context of a union’s “salting” campaign, which the Board has
described as “the act of a trade union in sending a union member or members to an unorganized

1 The bench decision appears in uncorrected form at pages 159 through 173 of the transcript. The final
version, after correction of oral and transcriptional errors, is attached as Appendix A to this Certification.
JD(ATL)–01–12
2
jobsite to obtain employment and then organize the employees.” Tualatin Electric, 312 NLRB
129, 130 fn. 3 (1993), enfd. 84 F.3d 1202, 1203 fn. 1 (9th Cir. 1996).
The Board noted that a “salting campaign’s immediate objective may not always be
organizational, and the role of an individual ‘salt’ who applies for work may not always be to 5
obtain employment.” Id. In some instances, a “salting” strategy may entail the filing of unfair
labor practice charges to “impose on charged nonunion employers the immediate and often
substantial expenses of defending themselves in legal proceedings” and to “provide the premise
for disruption of the nonunion employer’s work force and production through a series of declared
unfair labor practice strikes.” Toering Electric Co., 351 NLRB at 225.10
The Board held that “an applicant for employment entitled to protection as a Section 2(3)
employee is someone genuinely interested in seeking to establish an employment relationship
with the employer.” Id. at 228. However, the Board further stated:
15
Although some salts, paid or unpaid, may genuinely desire to work for a nonunion
employer and to proselytize coworkers on behalf of a union, other salts clearly
have no such interest.
Toering Electric Co., 351 NLRB at 230.20
The bench decision in the present case weighs certain statements of Respondent’s project
manager, Jeffrey Thomas, using the criteria set forth in Rossmore House, 269 NLRB 1176
(1984). It could be argued that at least some of the questions which Manager Thomas posed to
Jones sought only to determine whether Jones had a genuine desire to work for Respondent or 25
whether he was applying for work with the intention of doing mischief unprotected by the Act.
In other words, it might be argued that the questions pertained to whether Jones was an
“employee” as described in Toering Electric Co., rather than to Jones’ union membership and
propensity to engage in protected activity.
30
However, in considering whether communications from an employer to employees
violate the Act, the Board applies an “objective standard of whether the remark tends to interfere
with the free exercise of employee rights. The Board does not consider either the motivation
behind the remark or its actual effect.” Scripps Memorial Hospital Encinitas, 347 NLRB 52
(2006), citing Miller Electric Pump & Plumbing, 334 NLRB 824 (2001).35
In determining whether questioning reasonably tends to restrain or interfere with
employees in the exercise of Section 7 rights, the Rossmore House test focuses on “all the
circumstances.” It would not be faithful to this standard to single out certain questions by
Thomas which seek to elicit information about Jones’ intention to perform assigned job duties 40
and to ignore other questions which, on their face, concern Jones’ inclination to engage in union
activity.
When Thomas, discussing the prospects of Jones being hired, told him that “I guess it
depends on how unionized you are,” that statement reasonably would be understood to refer to 45
activities protected by Section 7 of the Act. Shortly after making this statement about “how
unionized you are,” Thomas said something else to Jones which is somewhat more ambiguous.
JD(ATL)–01–12
3
He told Jones that if “you’ve been sent our [sic] here to be a rat, so to speak” then Thomas would
have to “say goodbye.”
Although the “be a rat” statement might mean a number of things, if considered in
isolation, the fact that it closely followed “how unionized you are” places it in a specific context. 5
In these circumstances, I conclude that a listener reasonably would associate “be a rat” with the
protected activity of being “unionized.”
This objective test—determining, based on the language of the statements, what message
they would communicate to a reasonable listener—forms the basis for the bench decision’s 10
conclusions that Respondent’s questions violated Section 8(a)(1) of the Act. To analyze the
8(a)(3) allegation, I view the Respondent’s questions to Jones from a slightly different
perspective.
As discussed in the bench decision, the Board analyzes refusal-to-hire allegations using 15
the framework set forth in FES (A Division of Thermo Power), 331 NLRB 9, 14 (2000). Under
that framework, the General Counsel must prove, among other things, that antiunion animus
contributed to the decision not to hire the applicants. Therefore, I revisit Thomas’ questions to
Jones not to ascertain what message they would convey to a reasonable listener but rather what
they actually revealed about the manager’s state of mind.20
In the present case, it could be argued that Thomas’ questions to Jones do not signify
hostility to union membership or protected union activity. Although a union did not represent
Respondent’s employees, this construction contractor hired union members fairly frequently.
Moreover, the record does not establish that Thomas harbored a general antagonism to the 25
Union. Rather, he was upset because an employee named Carl, who was a union member,
together with a union representative, had complained about the quality of certain construction.
Their complaint resulted in a number of tests being performed, presumably at considerable
expense. The record indicates that the tests showed their complaint to be unfounded.
30
From the record, it is not clear whether the complaint by Carl and the union
representative enjoyed the protection of the Act. Perhaps it did, but there is a possibility it did
not. Do Manager Thomas’ questions only indicate that he wished to prevent a repetition of
unprotected conduct?
35
Thomas’ remarks to Jones, in the interview Jones recorded, do not draw a clear
distinction between actions inconsistent with an employee’s duty to his employer and legitimate
union activities protected by the Act. I infer that Thomas may not have thought in terms of such
a distinction. To the contrary, he seemed to make an unarticulated assumption that the more
“unionized” an applicant, the more likely that person would be a “rat.” Therefore, I conclude 40
that although Thomas’ hostility may have arisen because people associated with the Union
engaged in certain conduct, arguably unprotected, the animus extended to all persons identified
with the Union. Quite obviously, it is impermissible to discriminate against a member of a
legally protected class because of membership in that class.
45
JD(ATL)–01–12
4
During oral argument, Respondent noted that it had hired other union members, thereby
demonstrating that it harbored no antiunion animus. However, I focus here on the specific
decision Respondent made about Jones, namely, not to hire him. Manager Thomas’ own words
prove that he harbored animus at the time he considered hiring Jones. Additionally, I conclude
that Thomas’ coercive questioning of Jones establishes that this antiunion animus contributed to 5
the decision not to hire him.
For reasons discussed in the bench decision, I also conclude that the General Counsel has
proven the other two initial elements under the FES framework. During oral argument,
Respondent contended that it had no definite plans to hire employees at the time Thomas 10
interviewed Jones but, as discussed below and in the bench decision, Thomas’ own words
establish a definite intention to hire employees, indeed, an intention to hire them within the next
14 days, the exact timing depending on the weather. Moreover, both documentary evidence and
testimony support a finding that Respondent did hire during this period.
15
Respondent also argued that Jones did not submit a job application. However, as noted
below, the record demonstrates that Respondent sometimes put an individual to work even
before that person filled out an application. It is not clear whether Respondent had on file an
application which Jones submitted earlier, but in any event, I find that the existence or
nonexistence of an application did not figure in Respondent’s decision not to hire Jones.20
Because the General Counsel has proven the three initial elements required by the FES
framework, the burden shifts to Respondent to prove that it would not have hired Jones even if
Jones had not been a union member or associated with the Union. Respondent has not met this
burden. Therefore, as explained more fully in the bench decision, I conclude that Respondent’s 25
failure and refusal to hire Jones violated Section 8(a)(3) and (1) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find 30
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act, including posting the notice to employees attached as
Appendix B. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, or other electronic
means, if the Respondent customarily communicates with its employees by such means. J. 35
Picini Flooring, 356 NLRB No. 9 (October 22, 2010).
Respondent must remove from the application form it provides to prospective employees
all questions pertaining to the applicant’s union membership and activities.
40
The General Counsel seeks a remedy which includes, as stated in the complaint, that
Respondent offer “employment to Cory Jones, or if no position exists, to a substantially
equivalent position, and make him whole for any loss of earnings or other benefits suffered as a
result of Respondent’s discrimination against him by payment to him of backpay together with
interest calculated in accordance with Board policy.”45
JD(ATL)–01–12
5
At the outset, and in view of Toering Electric Co., above, it may bear mention that the
record leaves no doubt that Jones was a bonafide job applicant, entitled to the Act’s protection.
He had been out of work for a considerable time, and was genuinely interested in an employment
relationship with Respondent. No evidence suggests that he intended to accept employment for 5
any purpose other than earning a living. Rather, I find that he intended to work indefinitely, if
offered employment, and intended to perform his work in a satisfactory manner.
Although Jones tape recorded the job interview at the behest of a union representative, no
credited evidence establishes the Union was following a “salting” strategy or sought to use Jones 10
to provoke the Respondent into committing unfair labor practices. I conclude that Jones meets
the definition of “employee” in Section 2(3) of the Act and that he is entitled to the Act’s
protection.
To obtain an instatement and backpay remedy for a refusal-to-hire violation, the General 15
Counsel must prove that an opening existed for each discriminatee for whom he requests that
relief. Construction Products, 346 NLRB 640, 641–642 (2006), citing FES, 331 NLRB 9, 14
(2000), supplemented by 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002). I conclude
that the General Counsel has met this burden and that, accordingly, Jones is entitled to be made
whole, with interest, for the loss of earnings he suffered because of Respondent’s unlawful 20
failure and refusal to hire him.
Credible evidence clearly establishes that Respondent filled bricklayer positions not long
after its project manager interviewed Jones on April 4, 2011. As noted in the bench decision, it
put another bricklayer, Fred Treutle, to work on that same day. 25
At one point during the testimony of Respondent’s project manager, Jeffrey Thomas,
Respondent’s counsel asked “When you interviewed Cory Jones, did you need any bricklayers at
the Cros-Lex project?” Thomas answered “No.”
30
However, Thomas also testified that Respondent hired a bricklayer, Russ Teetzel, who
began work on April 18, 2011. (Another employee, Greg LaScott, also began work that same
day, but he is a laborer.)
Moreover, during the April 4, 2011 job interview, which Jones recorded, Thomas said 35
that he had “jobs down like in Roseville and East Detroit” which were about to start, and when
they did, he would transfer workers from the Cros-Lex jobsite, creating openings there. Thomas
told Jones he would “[t]ake two or three of ya, you know.” However, because of anticipated
rain, he could not say exactly when the job openings would occur: “So, you might, might be
next week, might be the week after, it all depends on the weather.”40
The actual start date of Teetzel, on April 18, shows that Thomas’ prediction of “the week
after” was correct. Accordingly, I find that, but for Respondent’s unlawful discrimination
against Jones, he would have been hired and begun work for Respondent on April 18, 2011.
Respondent must make Jones whole, with interest, for the loss of pay and benefits he suffered 45
because Respondent failed and refused to hire him on this date.
JD(ATL)–01–12
6
The make-whole relief shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010), enf. denied on other grounds sub nom. Jackson Hospital Corp. v. NLRB, 5
647 F.3d 1137 (D.C. Cir. 2011).
The record does not establish whether the completion of the Cros-Lex project would have
resulted in Jones’ layoff or, if so, when such a layoff would have occurred. Therefore, issues
concerning the end of the backpay period or the tolling of accrual of backpay remain for the 10
compliance stage of this proceeding.
CONCLUSIONS OF LAW
1. The Respondent, Efficient Design, Inc., is an employer engaged in commerce 15
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party, Local 9, International Union of Bricklayers and Allied
Craftworkers (BAC), AFL–CIO, is a labor organization within the meaning of Section 2(5) of
the Act.20
3. The Respondent violated Section 8(a)(1) of the Act by coercively interrogating
prospective employees about their union membership and activities, by requiring prospective
employees to complete a job application form questioning them about their union membership,
and by threatening prospective employees with discharge if they engaged in union activities.25
4. The Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing
to hire bricklayer Cory Jones for employment at Respondent’s Crosswell jobsite because of
Jones’ union membership, sympathies, and activities, and to discourage employees from
engaging in such activities.30
5. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not engage in any unfair labor practices alleged in the 35
complaint not specifically found here.
On the findings of fact and conclusions of law, and on the entire record in this case, I
issue the following recommended2
40

2 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, these
findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed waived for all purposes.
JD(ATL)–01–12
7
ORDER
The Respondent, Efficient Design, Inc., its officers, agents, successors, and assigns, shall
1. Cease and desist from:5
(a) Interrogating prospective employees, either orally or through a job
application form or other writing, about their union membership and sympathies;
(b) Threatening prospective employees with discharge if they engage 10
in union or other protected, concerted activities.
(c) Failing and refusing to hire a job applicant because of the
applicant’s union membership, sympathies, or protected, concerted activities.
15
(d) In any like or related manner 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.20
(a) Remove all questions pertaining to union membership from
application forms which it directs prospective employees to complete.
(b) Offer Cory Jones employment in the bricklayer position for which 25
he applied on about April 4, 2011 or, if that position no longer exists, to a substantially
equivalent position.
(c) Make Cory Jones whole, with interest computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), at the rate prescribed in New Horizons for the 30
Retarded, 283 NLRB 1173 (1987), and compounded daily as set forth in Kentucky River Medical
Center, 356 NLRB No. 8 (2010), enf. denied on other grounds sub nom. Jackson Hospital Corp.
v. NLRB, 647 F.3d 1137 (D.C. Cir 2011).
(d) Preserve and, on request, make available to the Board or its agents 35
for examination and copying, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its place of business in Chesterfield, Michigan, and at all 40
other places where notices customarily are posted, copies of the attached notice marked
“Appendix B.”3 Copies of the notice, on forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized representative, shall be posted by the

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 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.”
JD(ATL)–01–12
8
Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees customarily are 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 addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, or other electronic 5
means, if the Respondent customarily communicates with its employees by such means. J.
Picini Flooring, 356 NLRB No. 9 (October 22, 2010).
(f) Notify the Regional Director in writing within 20 days from the
date of this Order what steps the Respondent has taken to comply.10
Dated Washington, D.C., January 13, 2012.
15
________________________________
Keltner W. Locke
Administrative Law Judge
JD(ATL)–01–12
9
APPENDIX A
Bench Decision
This decision is issued pursuant to Section 102.35(a)(10) and Section 102.45 of the 5
Board’s Rules and Regulations. For the reasons to be discussed, I conclude that Respondent
violated Section 8(a)(1) of the Act by unlawfully interrogating and threatening a job applicant,
and violated Section 8(a)(3) and (1) of the Act by failing and refusing to hire the applicant
because of his association with a labor organization.
10
Procedural History
This case began on June 13, 2011, when the Union, Local 9, International Union of
Bricklayers and Allied Craftworkers, AFL–CIO, filed its initial charge in this proceeding. The
Union amended this charge on September 29, 2011.15
On September 30, 2011, after investigation of the charge, the Regional Director for
Region 7 of the National Labor Relations Board issued a complaint and notice of hearing, which
I will call the “Complaint.” In issuing this complaint, the Regional Director acted on behalf of
the General Counsel of the Board, whom I will refer to as the “General Counsel” or as the 20
“government.” Respondent filed a timely answer.
On December 12, 2011, a hearing opened before me in Detroit, Michigan. At the
beginning of the hearing, the government amended the Complaint and Respondent amended its
answer.25
After all parties had rested, counsel for the General Counsel, the Union and the
Respondent presented oral argument, which I have carefully considered. Today, December 13,
2011, I am issuing this bench decision.
30
Admitted Allegations
In its Answer, Respondent stated that it “does not contest” that the original charge in this
proceeding was filed by the Union on June 13, 2011, and that a copy was served by regular mail
on Respondent on June 17, 2011. It also “does not contest” that the Union filed its amended 35
charge on September 29, 2011, and that Respondent received service of the amended charge on
September 30, 2011. In view of Respondent’s answer, and noting the presumption of
administrative regularity, I so find.
Based on Respondent’s admissions, I conclude that the government has proven the 40
allegations raised in complaint paragraphs 2, 3 and 4. Therefore, I find that Respondent is an
employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act, and
that it meets the Board’s standards for the assertion of jurisdiction.
JD(ATL)–01–12
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APPENDIX A
Further, based upon these admissions, I conclude that Respondent is a masonry contractor
and that, at all material times, it maintained a worksite and temporary office at the Croslex High
School jobsite in Crosswell, Michigan, where it had been engaged in the installation of masonry 5
block and brick for the school building.
In its answer, Respondent admits that its president, Raymond Salelens, and its project
manager, Jeffrey Thomas, are its supervisors within the meaning of Section 2(11) of the Act and
its agents within the meaning of Section 2(13) of the Act. I so find.10
At hearing, Respondent amended its answer to admit that the Union was a labor
organization within the meaning of Section 2(5) of the Act. I so find.
Respondent’s answer admits the allegations raised in complaint paragraph 8 which states 15
that at all material times, since at least April 8, 2011, Respondent has maintained and utilized a
job application form requesting that applicants disclose if they are union members and of which
local they are members. I so find.
Complaint paragraph 9 alleges that since about April 18, 2011, Respondent has failed and 20
refused to hire Bricklayer Cory Jones at and/or for its Crosswell jobsite. Respondent’s answer
states, “Respondent admits that it did not hire Bricklayer Cory Jones at and/or for its Croswell
jobsite for the reason that it did not need any additional bricklayers at and/or for its Croswell
jobsite.” Based on Respondent’s admission, I conclude that the government has proven that
Respondent failed and refused to hire Jones, as alleged.25
Complaint paragraph 11 alleges that the job applicant, Cory Jones, had the experience
and training relevant to the announced or generally known requirements for the position of
bricklayer at the Crosswell jobsite. Respondent’s answer states “Respondent does not contest the
experience and training of applicant Cory Jones and asserts it had no open positions for such 30
applicant.” Based on this admission, as well as Jones’ testimony during the hearing, I find that
Jones had experience or training relevant to the announced or generally known requirements of
the bricklayer position for which he applied.
Facts35
No labor organization represents Respondent’s employees. However, it sometimes has
hired bricklayers who were union members. Based on the testimony of Union Field
Representative Michael Lynch, which I credit, he gave certain members permission to work on
the nonunion project provided that they reported to him concerning wage rates and working 40
conditions.
On the Crosswell school project, Respondent employed a bricklayer, identified as “Carl,”
who was a union member. Although the record does not establish the exact date, at some point
before April 1, 2011, Carl and Union Representative Lynch went to the superintendent of schools 45
to complain that certain portions of the work, such as the rebar, had not been done correctly.
JD(ATL)–01–12
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APPENDIX A
The school superintendent, Kevin Miller, credibly testified that, because of this complaint
concerning the soundness of the construction, he ordered an x-ray and other tests, which “came
out within the scope of what was to be done.” In other words, the tests found no problem.5
Sometime before April 1, 2011, Bricklayer Cory Jones visited the Respondent’s jobsite
trailer to seek employment but did not find anyone present at the time. He then went to School
Superintendent Miller, who called Respondent’s project manager, Jeffrey Thomas. On April 1st,
Thomas telephoned Jones.10
Jones is a member of the Union and is also its recording secretary. Previously, he served
as shop steward on various jobs.
Complaint paragraph 7(a), as amended, refers to this conversation. It alleges that on or 15
about April 1, 2011, in a telephone conversation, Respondent “interrogated prospective
employees about their union membership and sympathies.” Respondent states, in its answer, that
“Respondent admits that its agent Jeffrey Thomas asked prospective employees about their union
affiliation but denies he asked about their sympathies.”
20
Jones credibly testified that Thomas “asked me if I was union or not, and I told him I
was.”
According to Thomas, “I let him know that we were a non-union company” and asked
him if he had any problems with it. Thomas also testified that he cautioned Jones that if Jones 25
began causing any kind of problem, “anything disruptive,” that “we would have to let him go.”
Based upon the testimony of Jones and Thomas and upon the admission in Respondent’s
answer, I find that Thomas did interrogate a prospective employee, Jones, concerning his union
membership. However I do not find that Thomas asked Jones about his “sympathies” during this 30
telephone conversation.
Thomas asked Jones to come to a job interview the following Monday, April 4, 2011.
Jones then contacted Union Representative Lynch, who gave Jones a microcassette recorder with
which to tape the interview.35
On April 4th, Jones, with the recorder in his shirt pocket, met with Thomas. The
government introduced both the tape recording itself and a transcript of it into evidence. Based
on the testimony of Jones and Lynch, who sometimes had custody of the tape, I conclude that it
is complete and unaltered, and rely upon it.40
Early in the conversation, Thomas asked Jones “What local you outta?” After Jones
replied that it was Local 9, the conversation continued as follows:
Thomas: Well, am I gonna have problems like, ah. . .other people trying 45
to. . .start shit out here?
Jones: I don’t think so. I. . .
JD(ATL)–01–12
12
APPENDIX A
Thomas: (laugh) Well, that’s the wrong answer. You’re supposed to say no.
Later in the conversation, Thomas indicated that he was trying to get other construction 5
projects underway in Roseville and East Detroit, which would entail transferring employees from
the Crosswell jobsite. At that point, Thomas said, he would be able to put “guys to work.”
However, the timing would be affected by the weather, which might affect the Roseville and
East Detroit projects. Thomas said: “Take two or three of ya, you know. So you might, might
be next week, might be the week after. It all depends on the weather.”10
Thomas then referred to his conversation with School Superintendent Kevin Miller:
“Well, I know I talked to Kevin and he said that you’re kind in a bad way and you need a job and
my concern right now is, you know. . . bottom line is the union tried to start some shit out here
and, you know, but we’re fucking, you can even see the fucking job is nice. You got pride.”15
Thomas added, apparently referring to Jones’ prospects for employment, “I guess it
depends on how unionized you are.” Thomas explained that if he felt that “something’s going
on or. . . you’ve been sent our [sic] to be a rat, so to speak, you know, then like I have to. . . say
goodbye. . .” What Thomas meant by “be a rat” became clear later in the conversation:20
Thomas: . . .I got to be concerned about it cause of the shit that the union is
trying to pull.
Jones: Well, what are they trying to do?25
Thomas: Well, they’re just, shit, not grouting the walls, not putting rebar
and shit in and, so. . .
Jones: Well.
Thomas: We got a machine and we went out there, and all the places where
Carl said that there wasn’t. . .30
Jones: Right.
Thomas: It shows that there is.
Thomas expressed the opinion that the Union had put pressure on Carl to cause problems. 35
Jones replied that “nobody’s done that to me. . .” However, Jones also told Thomas that Carl
was his friend.
Later in the conversation, Thomas told Jones, “So, I’m definitely looking for good
bricklayers and like I said you know when I put you on, it definitely doesn’t have to be it. You 40
know, obviously if I think you’re trying to Carl me then. . .”
Respondent has admitted that it never offered Jones employment. Thomas testified that
another bricklayer, Fred Treutle, began work for Respondent on April 4, 2011, the same day as
the interview with Jones. However, Treutle’s employment application is dated April 8, 2011. I 45
conclude that an employment application is not a prerequisite to hiring, and that an applicant
may complete the application after being offered employment or even after being put to work.
JD(ATL)–01–12
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APPENDIX A
Analysis
Respondent has admitted that it asked about a job seeker’s union membership on the 5
employment application form. Additionally, the record clearly establishes that during the April
1, 2011 telephone conversation, Project Manager Thomas asked Jones if he belonged to the
Union. Under the circumstances, were these questions unlawful?
The test for whether an unlawful interrogation occurred is “whether under all the 10
circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights
guaranteed by the Act.” Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd. sub nom.
HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
The Board considers such factors as whether the interrogated employee is an open or 15
active union supporter, the background of the interrogation, the nature of the information sought,
the identity of the questioner, and the place and method of the interrogation.
Here, Respondent asked a job applicant about his union membership on the job
application form as well as through a supervisor. Considering all of the Rossmore House20
criteria, and the totality of the circumstances, I conclude that both the question on the job
application form and Thomas’ question during his April 1, 2011 telephone conversation with
Jones were coercive and unlawful. See Sproule Construction Co., 350 NLRB 774 (2007). In the
present case, some of the Rossmore House factors weigh against finding that the interrogation
was coercive. For example, Jones did not try to conceal his union membership. Moreover, the 25
questioning did not occur in the context of existing serious unfair labor practices.
Nonetheless, the fact that Respondent asked the question about union membership in the
context of considering an applicant for employment weighs heavily towards finding the question
coercive. Moreover, as Thomas himself admitted in his testimony, he “pretty much” hired all the 30
employees on the Crosswell project. He was the decision-maker with authority to hire or reject a
job applicant.
In these circumstances, I conclude that both the question on the application form (alleged
in complaint paragraph 8) and Thomas’ questioning of Jones during the April 1 telephone 35
conversation (alleged in complaint paragraph 7(a)) violated Section 8(a)(1) of the Act.
Complaint paragraph 7(b) alleges that on about April 4, 2011, Respondent coercively
interrogated prospective employees about their union membership and sympathies and the union
membership, activities, and sympathies of other employees.” Respondent’s answer admits that 40
Thomas asked about the applicant’s union membership, but denied that Thomas inquired about
Jones’ union sympathies or the about the union membership and activities of other employees.
However, the evidence clearly shows that Thomas not only asked Jones if he were a
union member, but also sought information to judge how likely it was that Jones would engage 45
in union activity. Thus, Thomas said, “I guess it depends on how unionized you are.”
JD(ATL)–01–12
14
APPENDIX A
Section 7 of the Act protects more than the right to be a member of a labor organization.
It also includes the right to engage in concerted activities “for the purpose of collective 5
bargaining or other mutual aid and protection.”
On the other hand, I conclude that the record does not establish that Thomas coercively
inquired about the union activities, sympathies and membership of others besides Jones.
Although Thomas and Jones discussed an employee, Carl, it does not appear that Thomas was 10
trying to obtain any particular information about him.
However, applying the Rossmore House criteria, I conclude that Thomas’ interrogation of
Jones was coercive and violative.
15
Complaint paragraph 7(c) alleges that on about April 4, 2011, Respondent threatened
prospective employees with discharge if they engaged in union activities. Respondent denies
this allegation.
At one point during Thomas’ conversation with Jones, he remarked that if felt that Jones 20
had been sent to the job to “be a rat” then he would have to “say goodbye.” In the context of the
entire conversation, I conclude that “to be a rat” referred to engaging in union activity.
It is arguable that Thomas’ “rat” remark only referred to a worker who did poor work or
failed to do the work assigned. However, Thomas did not say anything to suggest the meaning 25
was so limited. Applying an objective standard, I conclude that the “rat” comment reasonably
would be understood to refer to protected activities as well.
In sum, I find that Respondent unlawfully threatened prospective employees with
discharge as alleged in complaint paragraph 7(c).30
The Failure to Hire
To prove an unlawful refusal to hire, the General Counsel must establish three elements:
35
(1) that the respondent was hiring, or had concrete plans to hire, at the time of the
alleged unlawful conduct;
(2) that the applicants had experience or training relevant to the announced or
generally known requirements of the positions for hire, or in the alternative, that
the employer has not adhered uniformly to such requirements, or that the 40
requirements were themselves pretextual or were applied as a pretext for
discrimination; and
(3) that antiunion animus contributed to the decision not to hire the applicants.
Dynasteel Corp., 346 NLRB 86, 88 (2005) citing FES (A Division of Thermo Power), 331 NLRB 45
9, 12 (2000), enfd. 301 F.3d 83 (3d Cir. 2002).
JD(ATL)–01–12
15
APPENDIX A
Respondent has admitted that it did not hire Jones. It also has admitted that Jones had the
requisite experience and training. Moreover, Thomas’ unlawful statements to Jones constitute
sufficient evidence that antiunion animus contributed to the decision not to hire him.5
Respondent denies that it was hiring at the time of Jones’ application. For the following
reasons, I reject that argument.
During his conversation with Jones, which Jones recorded, Thomas said “I’m definitely 10
looking for good bricklayers.” Even standing alone, that sounds rather emphatic. However,
Thomas also indicated that he expected to be hiring the next week or the week after that,
depending on the weather.
Moreover, the record establishes that Respondent hired Fred Treutle and put him to work 15
on the very same day, April 4, 2011.
In sum, I conclude that the General Counsel has established all three FES elements. The
burden therefore shifts to Respondent to establish that it would have made the same decision in
any event, regardless of union membership or protected activities.20
As already noted, I have concluded that completing a job application was not a
prerequisite to being considered or offered employment. In other respects, I conclude that
Respondent has not carried its burden. Therefore, I find that Respondent’s failure to hire Jones
violated Section 8(a)(3) and (1), as alleged.25
When the transcript of this proceeding has been prepared, I will issue a Certification
which attaches as an appendix the portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the Findings of Fact, Conclusions of Law,
Remedy, Order and Notice~. When that Certification is served upon the parties, the time period 30
for filing an appeal will begin to run.
I greatly appreciate the civility and professionalism displayed by counsel in this
proceeding. Thank you. The hearing is closed.
35
JD(ATL)–01–12
16
APPENDIX B
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 federal labor law and has
ordered us to post and abide by 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 interfere with, restrain or coerce our employees in the exercise of these rights,
guaranteed to them by Section 7 of the National Labor Relations Act.
WE WILL NOT , either orally or in writing, interrogate job applicants about their union
membership or activities.
WE WILL NOT refuse to hire or offer employment to any job applicant because of that person’s
membership in, affiliation with, or activities on behalf of a labor organization, or because of that
person’s other protected, concerted activities.
WE WILL remove from the application form we provide to prospective employees all questions
seeking information about the applicant’s membership in, affiliation with or activities on behalf
of a labor organization.
WE WILL offer Cory Jones immediate and full employment in the position for which he applied
in April 2011, or, if that position no longer exists, in a substantially equivalent position.
WE WILL make Cory Jones whole, with interest, for all losses he suffered because we unlawfully
failed and refused to hire him.
EFFICIENT DESIGN, INC.
(Employer)
Dated: _________________ By:______________________________________________
(Representative) (Title)
JD(ATL)–01–12
17
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.
477 Michigan Avenue, Room 300, Detroit, Michigan 48226-2569
(313) 226-3200, Hours: 8:15 a.m. to 4:45 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, (313) 226-3244.