F & E Erection Co.

National Labor Relations Board - Board Decisions

Jan 19, 1989

292 N.L.R.B. 587 (N.L.R.B. 1989)

F & E ERECTION CO
F & E Erection Company and Larry Arnold Slone
Case 9-CA-24077
January 19, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On January 22, 1988, Administrative Law Judge
Richard L Denison issued the attached decision
The Respondent filed exceptions and a supporting
brief
The National Labor Relations Board has delegat-
ed 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 brief and has
decided to affirm the judge's rulings, findings, I and
conclusions as modified and to adopt the recom-
mended Order
The judge found, and we agree, that the Re-
spondent unlawfully refused to hire Larry Slone
because it believed or suspected that Slone was a
friend or associate of employees Estep and Oxley,
whom the Respondent viewed as union activists
and troublemakers We do not, however, agree
with all the judge's reasoning in this matter
On the basis of the judge's crediting of the testi-
mony, to which no exceptions have been filed, the
judge found that the General Counsel established a
prima facie case of unlawful discrimination against
Slone Thus, he found that Slone passed the weld
ing test with a rating of "fair" from Welding Su-
pervisor Zeigenfuse, and was subsequently asked
by the Respondent to file an employment applica-
587
tion, on which Slone listed Oxley as a personal ref
erence Further, the judge found the Respondent
did not hire Slone, at least in part, because Zeigen
fuse recommended against hiring Slone 2 Finally,
the judge found that Zeigenfuse on two occasions
indicated to Oxley and Estep that Slone was not
hired because of his friendship with them and be-
cause the Respondent viewed Estep and Oxley as
troublemakers
The Respondent contended, inter alia , that it
would not have hired Slone even in the absence of
any perceived connection with union activity It
argued that all the newly hired welders either had
test evaluations superior to Slone's, were entitled to
a hiring preference under the collective bargaining
agreement, or had welding cards indicating they
had previously passed the welding test and had
worked for the Respondent, which justified giving
them preference Therefore, the Respondent
argued, they would have been hired over Slone
even in the absence of a belief that Slone was con-
nected to Oxley or Estep
The judge's appraisal of the Respondent's de-
fense concluded that, of the welders hired by the
Respondent during the relevant period, three who
took the test were entitled to preference, six had
better ratings on the test than Slone, and two more
who did not take the test and were hired without
written comment already had welding cards The
judge then determined that, of all the applicants
who were hired, three merited no notation by way
of evaluation and, therefore, Slone could not neces-
sarily be said to have had the poorest evaluation 3
On this ground, he found that the Respondent
failed to rebut the General Counsel's case
Applicant Source Date of Test Test Evaluation Date of Hire
L
N
Slone
Ayer
Street
District
9/3
9/8
Fair
Good 9/22
J Cater Street 9/9 Very Good 9/22
J Capps Street 9/9 Very Good 9/22
J Cagle Street 9/9 Very Good 9/22
J Howell Street 9/9 Good 9/22
J Haygood Street 9/12 Good 9/22
R Grooms Street 9/12 Very Good 9/22
B Tucker Street Card 9/22
J Terry 9/12 Very Good
D Eakin Street Card 9/24
C Shepard District 9/24 9/29
J Mullins District 9/25 10/13
A Camp 10/20 Passed
S Warner 10/21 Passed Did not want job
' The Respondent has not excepted to the judge s credibility resolu
tions
2 According to Job Superintendent Parsons when making hiring deci
sions he particularly relied on Zeigenfuse s recommendations as was the
case in which Zeigenfuse recommended against hiring Michael Spriggs a
former vocational school teacher who passed the welding test Zeigen
fuse admitted not linking Spriggs and using his influence to persuade Par
sons not to hire Spriggs
9 The judge s analysis is based on the following information contained
in the Respondents employment and welding test rosters
292 NLRB No 60
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent argues that the judge erred in
his analysis of the notations concerning the hired
welders. It acknowledges that four of those hired
had no notation; however, two of them were enti-
tled to preference under the collective-bargaining
agreement, and the other two already possessed
welding cards. Thus, these applicants had attributes
which placed them ahead of Slone.
The record supports the Respondent's conten-
tions. Nine applicants who took the welding test
were hired. Of those nine , only C. Shepard and J.
Mullins had no notation of evaluation on the test.
Both Shepard and Mullins, however, were entitled
to preference under the collective-bargaining
agreement. Two other applicants, D. Eakin and B.
Tucker, were hired with no notation of evaluation.
However, neither Eakin nor Tucker took the test
because they possessed welding cards; therefore,
there was nothing to note by way of evaluation.
Accordingly, we find that the Respondent has cor-
rectly demonstrated that these four employees had
qualifications which placed them ahead of Slone.
Notwithstanding that conclusion, we find that
the Respondent failed to carry its burden, under
Wright Line,4 of showing that it would not have
hired Slone in any event. Essentially, the Respond-
ent urges that its hiring system is based on rigorous
and unvarying objective factors such that Slone's
attainment of only a "fair" rating on the welding
test doomed his chance to be hired. The Respond-
ent's own witnesses, however, destroy any such
impression.
The testimony of Project Superintendent Par-
sons, Welding Supervisor Zeigenfuse, and Sandy
Bassham, one of the Respondent's secretaries, re-
veals a major subjective element in the Respond-
ent's hiring process. Sandy Bassham, who was gen-
erally credited by the judge and who was one of
the Respondent's secretaries directly responsible
for ministerial acts in the hiring process, testified
that most applicants who passed the welding test
were given applications to fill out immediately
thereafter, and that applications were mailed to
those few who left the site before being given an
application. She emphasized, however, that Project
Superintendent Parsons had the authority to in-
struct her as to who was worthy of receiving an
4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB Y. Transportation Manage-
ment Corp., 462 U.S. 393 (1983).
application. Project Superintendent Parsons, after
being pressed to explain what objective basis, if
any, he used for deciding whether to ask an appli-
cant to fill out an application, finally conceded that
it was "not based on any factor." In answer to
whether it was just "whim," Parsons replied
"maybe." The departure from a strict reliance on
objective factors is further emphasized by the testi-
mony of Welding Supervisor Zeigenfuse, who
stated that he had recommended that Parsons not
hire Michael Spriggs, a former vocational school
teacher who passed the welding test, on the basis
of his subjective evaluation of Spriggs' attitude.
The failure to rely strictly on objective factors is
also evident in the Respondent's welding test and
employment rosters. Thus, for example, there is no
explanation in the record why, of persons tested
during the period September 3 through 21 (the
period on which the Respondent focuses in its
brief), an applicant listed as "J. Terry," who was
rated "Very Good," was not hired, while appli-
cants listed as "J. Howell" and "J. Haygood," who
were rated only as "Good," were. Similarly, there
is no explanation why an applicant listed as "S.
Warner," who, like Slone, merely "passed" the ex-
amination, was apparently offered a job but (lid not
accept it.
Furthermore, the. testimony of the Respondent's
witnesses concerning the role of written job appli-
cations in the hiring process similarly presented a
confusing picture, suggesting both that sentiments
of Project Superintendent Parsons not recorded on
any of the Respondent's records could well play a
part in the process and that the Respondent sought
at the hearing to misrepresent the circumstances
under which Slone was given an application.
As noted earlier, Sandy Bassham testified that
most applicants who passed the welding test were
given applications to fill out immediately thereaf-
ter, that applications were mailed to those who left
the site before being given an application, and that
Parsons had the authority to instruct her as to who
should receive an application. She also testified
that the applications served the purpose of allow-
ing the Respondent to check the references (both
job references and personal references) of qualified
candidates and that it was "standard practice" to
check out references listed on the form. The cred-
ited testimony of Larry Slone and his wife that a
secretary from the Respondent's office called
F & E ERECTION CO 589
Slone's home to announce that she was mailing out
an application which Slone should return promptly
is consistent with Bassham 's testimony
In contrast to Bassham, Project Superintendent
Parsons testified that applications were not given
out on a regular basis to those who passed the ex
amination and that some applicants might not even
fill out an application until after they had been
hired Both Parsons and his wife, Susan, who also
worked as a secretary for the Respondent, gave
misleading testimony aimed at suggesting that it
was a mystery how Slone could have received an
application The judge concluded that Susan Par
sons, who answered, "Not that I can remember,"
in response to the question whether she had talked
to Slone's wife, actually had made that call and
was not being candid about it in her testimony
The picture given by the Respondent's evidence,
therefore, suggests both that the hiring system was
not so highly calibrated and objective as to dictate
that Slone would not have been hired after receiv-
ing the `fair" rating and that the Respondent pre
sented misleading testimony about its application
procedure and its handling of Slone's application in
particular Accordingly, we find that, despite the
Respondent's showing that applicants actually
hired during the relevant period had qual'fications
which objectively would place them ahead of
Slone, the Respondent failed to prove that, even
absent unlawful motivation, it would not have
hired Slone 5 Its refusal to hire him is therefore in
violation of Section 8(a)(1) and (3) of the Act
Wright Line, 251 NLRB 1083 (1980), enfd 662
F 2d 899 (1st Cir 1981), cert denied 455 US 989
(1982), see also Atlas Corp, 256 NLRB 91, 99
(1981) (after the General Counsel has established a
prima facie case and the burden of proof has shift
ed, the respondent does not meet its burden if the
8 As noted above once the General Counsel has made out a puma
facie case that unlawful motives were a factor the Respondent bears the
burden of showing that even in the absence of antiunion considerations
the refusal to hire would have occurred in any event for valid rea
sons NLRB Y Transportation Management Corp supra 462 U S at 400
(emphasis added ) It is for that reason that the consistency of the Re
spondent s hiring system is properly scrutinized here The Respondent
placed its system in question by asserting among other things that its
nondiscriminatory reasons for hiring applicants other than Slone were
their ratings on the welding test These ratings can support the Respond
ent s claim that Slone would not have been hired in any event only if the
Respondent shows that the ratings actually determine the ranking of ap
plicants for hiring If on the other hand the evidence shows (as it does
here) that the Respondent does not simply rank applicants on the basis of
their ratings and hire them accordingly but instead allows the whim or
personal feelings of supervisors to determine whether an applicant who
passes the test is asked to submit an application for hire then the Re
spondent has failed to establish its Wright Line defense that Slone would
not have been hired under the normal operation of its hiring system It is
because the Respondent argues that the rating system controls here that it
must explain for example why it did not hire Michael Spriggs and why
it hired applicants who were rated good before applicants rated very
good
evidence on the respondent's defense does not pre
ponderate in favor of either party) 6
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, F & E Erec
tion Company, Holden, West Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order
s Member Cracraft agrees with her colleagues that the Respondent vio
lated Sec 8(a)(3) and (1) of the Act by refusing to hire Slone She does
so for the following reasons She agrees with the judge that the General
Counsel established a strong prima facie case of unlawful discrimination
against Slone Thus under Wright Line the burden shifted to the Re
spondent to show that it would not have hired Slone even in the absence
of any perceived connection with union activity The Respondent has
shown nondiscriminatory reasons for hiring all applicants before Slone
with the exception of S Warner who merely passed the welding test
The record is inconclusive as to whether Warner was offered a job by
the Respondent The Respondents records introduced by the General
Counsel indicate only that Warner Did not want job Given the ambi
gutty in the evidence it was the Respondents burden to show that
Warner was not offered a job Absent such a showing any ambiguity
must be resolved against the Respondent Resolving this ambiguity
against the Respondent it appears that Warner was offered a job and
Slone was not The Respondent has failed to explain why Under Wright
Line the Respondent has the burden of clarifying any ambiguity in the
evidence in order to rebut the General Counsels prima facie case The
Respondent here has not met that burden Thus the Respondent failed to
establish that it would not have hired Slone even in the absence of his
perceived connection with union activity Accordingly the Respondent
violated Sec 8(a)(3) and (1) by failing to hire him
Gorey Edward Lindsay Esq, for the General Counsel
Roger A Wolfe and Larry W Blalock Esqs (Jackson
Kelly Holt & O Farrell) of Charleston West Virginia
for the Respondent
DECISION
STATEMENT OF THE CASE
RICHARD L DENISON Administrative Law Judge
This case was heard in Charleston West Virginia on 16
17 and 18 June 1987 The charge in Case 9 -CA-24077
was filed on 9 March 1987 by Larry Arnold Slone an
individual The complaint , issued 24 April 1987 alleges
that F & E Erection Company the Respondent , violated
Section 8(a)(1) and (3) of the Act by refusing to hire the
Charging Party for employment at the Respondent s job
site at Holden West Virginia on or about 8 September
1986 in order to discourage employees from engaging in
union or protected concerted activities Alleged also as a
threat in violation of Section 8(a)(1) of the Act is a
statement by one of Respondents supervisors to employ
ees concerning the reason Slone was not hired
The Respondents answer denies the allegations of
unfair labor practices alleged in the complaint, and as
serts an affirmative defense that the charge is barred by
the 6 month limitation period specified in Section 10(b)
of the Act On the entire record in the case including
my evaluation of the 703 page transcript over 100 pages
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of exhibits, consideration of the briefs, and observation of
the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
Based on the allegations in paragraphs 2(a), (b), and (c)
and 3, respectively, of the complaint, admitted by the
Respondent's answer, I find that the Respondent is, and
has been at all times material , an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act; and that the United Mine Workers of
America is now, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
II. SUPERVISORY AND AGENCY STATUS
Based on the allegations of paragraph 4 of the com-
plaint, admitted in the Respondent's answer, I find that
the Respondent's job superintendent, Nick Parsons, and
its welding technician/supervisor, Eugene Zeigenfuse,
are supervisors of the Respondent within the meaning of
Section 2(11) of the Act, and agents of Respondent
within the meaning of Section 2(13) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Since May 1986, Respondent has been erecting a huge
electrically powered dragline, worth over $20 million, at
the Hobet Mining Company's No. 7 mine near Holden,
West Virginia. At the time of the hearing in this matter,
according to F & E's project superintendent, Maron
"Nick" Parsons, completion wa:; expected in mid-July
1987. Since the manufacturer of the dragline, Marion
Power Shovel, a division of Dresser Industries, warrants
this machinery, Marion has at all times maintained a field
welding specialist (otherwise known as a welding techni-
cian or manufacturing engineer) on the jobsite with
power to ensure proper assembly by F & E. This author-
ity includes, in relevant part, the final approval or disap-
proval of the results of standardized welding tests taken
by applicants for employment as welders with F & E on
the project.
On 11 June 1986, Respondent and the United Mine
Workers of America entered into a collective-bargaining
agreement for the Hobet No. 7 construction project.
Among the many provisions of the lengthy contract are
relevant clauses requiring work to be performed "by
members of the Union to the extent permitted by law,"
prohibiting supervisors from performing unit work, gov-
erning the filing and processing of grievances, and speci-
fying priorities controlling the recall rights of laid-off
employees through a panel system.
As the Hobet No. 7 project began, Respondent pur-
sued its plan to hire approximately 40 welders, along
with other classifications, e.g., ironworkers, laborers,
millworkers, pipefitters, electricians, and painters. Two
types of welders were employed. Class "A" welders are
those qualified to perform X-ray welding. Class "B"
welders are qualified to perform other welding. To be el-
igible for consideration for employment on the project, a
welder either had to pass the standard welding test, ad-
ministered by Eugene Zeigenfuse , F & E's welding su-
pervisor , and Ayward Hearl "Harold" Oxley, a Class
"A" union welder with 25 years' experience , or produce
.a card certifying that the test had previously been
passed . Respondent 's records show that between 3 June
and 21 October 1986, 137 applicants took the welding
test . One of the applicants who passed the test, Larry
Arnold Slone , was not hired and, as a result on 9 March
1987 , filed with the Board the charging Case 9-CA-
24077, which gave rise to this proceeding.'
B. Respondent's Failure and Refusal to Hire Larry
Slone
It is the General Counsel's theory that Larry Slone
was not hired by Respondent because F & E's supervi-
sion believed or suspected that Slone was a friend or as-
sociate of Omer Estep and Ayward Oxley, F & E em-
ployees whom Respondent allegedly viewed as employee
activists and troublemakers.
Omer Estep, a welder of some 30 years' experience,
was hired on 9 June 1986 by F & E as a Class "A"
welder. He worked on the Hobet No. 7 project until laid
off on 21 March 1987. Estep's long experience as a union
welder and his employment early in the project resulted
in younger and less experienced employees consulting
him about what could and could not be done on the
project under the collective-bargaining agreement. Ac-
cording to Estep, his dispensing advice was resented by
Assistant Project Superintendent Dalton Allison, who
began calling Estep `old man troublemaker.2 On 14
August 1986, Estep filed a grievance complaining that he
had observed Allison performing bargaining unit work
on 13 August.3 Allison claimed that he had only assisted
another employee for 1 or 2 minutes, but Estep insisted
Allison worked for 15 or 20 minutes. Although Estep
could not remember in detail the entire conversation he
had with Allison about the grievance, Estep insisted that
Allison told him he did not like having the grievance
filed against him.4 The grievance was settled at step 3 on
' In its answer the Respondent asserted as an affirmative defense that
this proceeding is barred by the 6-month limitation period contained in
Sec. 10(b) of the Act, because the complaint alleges that the refusal to
hire Slone occurred on or about 8 September 1986, and the instant
charge was filed on 9 March 1986. Because it is well settled that the run-
ning of the 10(b) period does not begin until the person adversely affect-
ed acquires knowledge of the facts which give rise to the violation and
because it is clear that Slone did not learn he would not be hired until on
or about 22 or 23 September, when other welders were hired , I find this
defense is without merit. Burgess Construction Corp., 227 NLRB 765, 766
(1977).
2 It was stipulated that Allison is a supervisor within the meaning of
Sec. 2(11) of the Act.
3 Jerry Kerns, president of UMWA Construction Local 1582 that rep-
resents Hobet No. 7 employees, testified that Estep's grievance was one
of two grievances filed and settled during the course of a harmonious re-
lationship with F & E on this project.
° Estep is corroborated by the testimony of welder Nolan Ayer, that
on another occasion when Allison and the electrician foreman were per-
forming unit work, he heard Allison say "We'd better quit. Here comes
that union rathole," as Estep approached . Ayer's testimony was not chal-
lenged by cross-examination. Allison did not testify. Estep and Ayer are
credited.
F & E ERECTION CO
2 September, and the settlement became effective on 8
September 1986
Respondents records show that Larry Slone was the
109th employee to take the welding test on the Hobet
No 7 project Arrangements to take the test were made
by Jerry Kerns, president of UMW Construction Local
1582 The test was administered by Oxley under Zeigen
fuse s supervision shortly after Slone s arrival on the
jobsite at 7 30 a in on 3 September 1986 The test con
sisted of four phases flat wire, vertical wire, vertical
stick, and overhead stick In each phase the applicant
welds together two metal bars, producing four test
plates or coupons A central sample is then cut from
each test plate Each coupon, stenciled with the appli
cant s test number, is then bent 90 degrees to the weld,
and cleaned or dressed with a file or grinding wheel, a
process designed to reveal flaws or fractures 5 The test
coupons are first evaluated by Zeigenfuse and obvious
failures are eliminated If in Zeigenfuse s judgment the
test results appear to pass he or Oxley take the coupons
to the Marion representative for examination and final
determination Once approved by the Marion representa
tive, F & E may consider hiring the applicant in accord
ance with the priorities specified in the collective bar
gaining agreement First precedence is given to laid off F
& E employees registered on the company panel nation
wide Next, laid off employees of other employers regis
tered on the local UMW district panel are considered
Thereafter Superintendent Parsons is free to hire off
the street Because panel registrations are constantly
changing, these considerations require meticulous atten
tion when the employer is hiring Larry Slone had never
previously been employed by F & E and was not a
UMW member at the time he took the welding test
It is undisputed that, despite a small fracture in the flat
wire test weld Larry Slone s coupons were approved by
5 During the hearing much time was devoted by counsel for the Gen
eral Counsel to litigating the tangential issue of whether Welding Super
visor Zeigenfuse assisted some applicants in passing the welding test by
improving the appearance of their test welds before a pass or fail deter
mination In his testimony Omer Estep defined dressing up or dress
ing down as synonymous terms used to describe a process in which
flaws in test welds are supposedly eliminated or made invisible by filing
grinding and hammering In this context Estep claimed he had seen Zei
genfuse dress the test weld of applicant Nolan Ayer and that Zeigenfuse
had told him he had dressed down the test welds of two other applicants
However Oxley testified he had never seen Zeigenfuse dress down a test
weld and Ayer testified Zeigenfuse had filed one of his test welds to
assist him in inspecting a small flaw Finally James E Shuck the Marion
field welding specialist onsite at the time of the hearing credibly testified
that dressing up or down was a technique using filing or grinding to
reveal possible flaws in test weld coupons He distinguished dressing
from peening a form of cheating whereby a peening hammer is used to
beat the edges of a defect together to attempt to conceal the flaw Ac
cording to Shuck peening is quite easy to detect when the test cou
pons are examined and he has never seen any peened test coupons on the
Hobet No 7 job Shuck s independent status on the jobsite and his candid
answers to questions at the hearing convinced me of his objectivity I
find and conclude in the light of Shuck s testimony that any dressing up
or down engaged in by Zeigenfuse was for the purpose of making his
preliminary examination for flaws and not for improper purposes More
over there is not a scintilla of evidence that any of the alleged improper
improvement of test weld samples was directed toward excluding Larry
Slone from Respondents employment Thus I also conclude that this
issue is immaterial to the question of whether or not Slone was the victim
of unlawful discrimination
591
the Marion representative, and thus he passed the test 6
When so informed by Oxley Slone asked when to report
for work Oxley said he did not know, and took Slone to
the construction trailer, where Oxley inquired Slone
heard Parsons tell Oxley that he would be in touch with
Slone As they left the trailer, Oxley told Slone that the
Company would be in touch with him and that he would
probably begin the following Monday'
On 10 or 11 September, Susan Slone received a phone
call from a person who said she was a secretary at F &
E The secretary, who did not identify herself by name,
stated that they were mailing Larry Slone an application
that he should fill out and return promptly to the Com
pany because he would probably be starting work that
Monday or the following Monday Larry Slone complet
ed and returned the application, dated 13 September, as
instructed Slone listed Harold Oxley as the first of three
personal references on his application 8
Larry Slone was never hired by Respondent During
the week of 22 September, nine new welders began work
for F & E When Oxley noticed that Slone was not
among them, he went to Parsons office and, in the pres
ence of Zeigenfuse, asked if Slone was going to be hired
Parsons replied that they were not going to hire Sloan
because the other applicants had better looking welding
tests Zeigenfuse agreed Oxley stated that he did not be
lieve that and left the office 9
8 Slone described the fracture as probably one eighth inch or so-
maybe a bit bigger or a little smaller Oxley testified it was three thirty
seconds of an inch A one eighth inch fracture is considered to have
failed
Parsons denied ever talking directly with Slone or giving him any as
surances and indeed there is no evidence that there was any conversa
tion between Slone and Parsons Oxley testified that Parsons stated that
Slone would probably begin the following Monday and that they would
be in touch with him Slone testified that he heard Parsons say to Oxley
only that they would be in touch with Slone not that the following
Monday would be the probable starting date
8 During the time period in issue Parsons employed two secretaries
Their duties included checking employees references and informing em
ployees by telephone that they had been hired and when to report to
begin work Called as a witness for the Respondent Sandy Bassham cre
dibly testified that such calls are made only on specific instructions from
Parsons after a decision to hire has been made Bassham denied that she
had never been told to notify Slone that he had been hired but that it
was possible Mrs Susan Slone had been told that the Company was
sending an application to be completed and returned She denied having
talked to either Slone or his wife According to Bassham the chief pur
pose of obtaining an application is to check the applicants references
She admitted knowing that Slone had applied but denied that she had
checked his references or that Parsons had ever told her Slone was hired
The other secretary is Susan Parsons wife of Maxon Nick Parsons
who serves as office manager but those duties are essentially the same as
her counterpart Accordingly when instructed by her husband she like
wise makes calls to notify applicants that they have been hired and when
to report Susan Parsons was indefinite in her answers to crucial ques
tions She repeatedly answered Not that I remember when asked if she
had a telephone conversation with Susan Slone or if Maron had told her
Slone was hired or if she had been asked to check Slone s references
Clearly someone in accordance with Respondents acknowledged proce
dures asked Slone to return a completed application I am persuaded that
she was being evasive not candid in her testimony and that it was most
probably she who called Susan Slone whose account I credit
9 Parsons gave a similar account of this conversation Zeigenfuse
denied ever talking to Oxley about why Slone was not hired but did not
specifically deny being present in Parsons office at this time
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
About the last week of September or the first week of
October, according to Oxley and Omer Estep Zeigen
fuse approached them while they were working at the
boom table Estep asked why the Company would not
hire Larry Slone Zeigenfuse answered Well, they re
not going to Between me and you and Hearl you all are
considered troublemakers and they re not going to hire
him because you filed that grievance
Zefgenfuse denied ever talking to either Oxley or
Estep about why Slone was not hired, or that he ever
discussed Estep s grievance with either Estep or Oxley
He denied telling Oxley or Estep that they were trouble
makers, or that Estep s grievance had anything to do
with his evaluation of Slone On cross examination by
Respondent, it was revealed that in his affidavit to the
Board Estep omitted any reference to this conversation
However, I am satisfied that this omission was an over
sight because Oxley fully described the incident in his
Board affidavit Thus the testimony of Oxley and Estep
concerning this incident are mutually corroborative and
are credited Consequently, I find that the Respondent
violated Section 8(a)(1) of the Act by threatening that
Slone had not been hired because Respondent considered
Estep and Oxley troublemakers and because Estep had
filed a grievance, as alleged in paragraphs 5 and 7 of the
complaint 10
At the end of October Slone called F & E and talked
to one of the secretaries He did not obtain her name He
asked when he would be hired, and according to Slone
she replied, If you passed the test you re the next one
to be hired Sometime between the last of September
and early November Larry Slone learned from Oxley
that F & E had hired other welders and Oxley s opinion
concerning why they had not hired Slone
On 3 March 1987 Slone completed and signed NLRB
charge forms that he had obtained from Union President
Kerns The charge was docketed by the Regional Office
on 9 March 1987 According to Ayward Oxley and
Omer Estep during the last part of February or first
week of January 1987 Zeigenfuse had approached them
once again and engaged them in conversation concerning
Slone Oxley s and Estep s versions are similar Accord
ing to Estep, one day around the first of January Zei
genfuse approached while he and Oxley were working
on the tub Zeigenfuse began by saying Well your
buddy done it again Estep responded What do you
mean my buddy? Then Zeigenfuse stated that Slone had
went to the National Labor on us and filed charges
At this point Estep retorted Ziggy let s get one thing
straight Slone is not my buddy I've only met him one
time Zeigenfuse ended the conversation by answering
Well maybe not he s Hear] s buddy then 11
10 I have carefully evaluated this incident in the context of the total
circumstances surrounding it and its relationship to the case as a whole
in accordance with the requirements of the Board s decision in Rossmore
House 269 NLRB 1176 (1984) affil sub nom Hotel Employees Local 11 v
NLRB 760 F 2d 1006 (9th Cir 1985 ) and other applicable Board deci
sions in the area of 8(a)(1) conduct
11 Zeigenfuse denied that this conversation ever occurred I do not
credit his denial Both Estep and Oxley were far off the mark concerning
the estimated date on which this conversation allegedly occurred since
Slone s charge was not filed until 9 March Furthermore in this instance
neither Estep s Board affidavit of 8 April 1987 nor Oxley s statement con
Respondent contends that F & E was unaware of any
relationship between Slone Oxley, and Estep, and that
there is no evidence that its refusal to hire Slone was
motivated by discriminatory reasons because Oxley and
Estep had not been engaging in protected activity during
the time Slone was on the jobsite Respondent argues
that to establish a prima facie case the General Counsel
must demonstrate by a preponderance of the evidence
that Slone was associated with protected activity that F
& E was aware of that association and that this activity
was the motivating reason for the refusal to hire Slone
Under all the circumstances I find and conclude that the
General Counsel has adduced sufficient credible evi
dence to establish a prima facie case of unlawful discrim
ination against him The Respondent needed and was in
the process of testing and hiring, welders for the Hobet
No 7 project Slone applied was tested and passed He
was not hired at a time when others, tested or considered
in close proximity to his testing, were hired Parsons
conceded that had Slone been selected, he would have
been hired on 22 September Parsons further asserted
that in making hiring decisions he relies heavily on the
recommendations of his foremen in general and Zeigen
fuse in particular Zeigenfuse recommended against
hiring Slone He likewise, as I have found based on cred
ited testimony told proven employee activists that Slone
was not hired because he believed they were trouble
makers, thereby supplying evidence of improper moti
vation Thus the General Counsel has presented evi
dence which, if it cannot be overcome by that of the Re
spondent warrants a finding of a violation of the Act
In addition to its assertion that F & E s failure and re
fusal to hire Slone was free from discriminatory intent
the Respondent urges that the Board s decision in Wright
Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir
1981), cert denied 455 U S 989 (1982), absolves F & E
because Slone would not have been hired in any event
Respondent argues that once the General Counsel has
established a prima facie showing that unlawful motiva
tion played a part in the course of action taken, the
burden of going forward with evidence shifts to the Re
spondent to show that such conduct would have oc
curred in the absence of an unlawful motive If in the
process the Respondent is able to adduce sufficient evi
dence to persuade the trier of fact that a preponderance
of evidence no longer exists in favor of the General
Counsel a violation has not been established
Together with the evidence offered by the Respond
ent, which has been discussed in earlier portions of this
decision the Respondent also refers to Slone s welding
test score and the hiring records in evidence which it
claims supports this contention I have carefully ana
lyzed this documentary evidence, which I find to be in
conclusive and therefore not persuasive These records
tams any reference to this alleged conversation Despite these discrepan
cies I am persuaded that Estep and Oxley told the truth because Zeigen
fuse s remarks are consistent with his earlier conversation with the two
men Moreover Estep had been outspoken in favor of hiring local West
Virginia employees such as Slone instead of importing welders from
other regions thus providing a logical explanation to the reference to
Slone as Estep s buddy
F & E ERECTION CO
show that between 3 September and 21 October 1986 29
welders were tested including Slone Sixteen failed
Thirteen passed including Slone, of whom nine were
hired Three of these received priority consideration by
virtue of their position on the district panel Of the re
maining six, five were hired off the street from other F
& E jobs with the recommendation of their foreman and
one was recommended by his brother, an F & E employ
ee These six had been evaluated good or very good
by Zeigenfuse in his notebook Two additional employ
ees hired, without any written comment , already had
cards certifying that they had passed the welding test Of
the four employees who passed the test but were not
hired, one was rated very good, one refused the ,lob,
Slone was rated fair, and the remaining applicant drew
no written assessment One further employee not hired
was tested on 29 August and evaluated good Of all
the applicants Slone was the only one rated fair but
three employees hired merited no notation by way of
evaluation as did those employees who failed the test
Thus, Slone cannot necessarily be said to have had the
poorest evaluation as Respondent maintains The main
fact in support of Respondent's position, established by
an examination of its records, is that Slone was not the
only employee who passed the welding test during the
period of time in question and was not hired In my
view, however, this consideration standing alone, is in
sufficient to either rebut the General Counsels prima
facie case or demonstrate that Slone would not have
been hired absent the set of circumstances that caused
Respondent to believe he was associated with protected
employee activism To the contrary an analysis of the
statistics showing those who were hired and those who
were not in the light of Zeigenfuse s notes serves to un
derscore the great influence that Zeigenfuse had on the
selection process Zeigenfuse testified, for example, that
he had previously recommended that Parsons not hire a
certain Michael Spriggs a former vocational school
teacher who passed the welding test on the basis of his
subjective evaluation of Spriggs attitude Thus, Zeigen
fuse admitted, in this instance, to using his power to in
fluence Parsons to the detriment of an applicant he did
not like I am persuaded that this is, likewise exactly
what he did in the case of Larry Slone Furthermore, I
doubt if Zeigenfuse saw any abuse of his authority or
perceived any possible illegality in his role in Respond
ent s failure to hire Slone Otherwise he would not have
been so candid with Oxley and Estep in discussing the
motive behind Respondents action Unfortunately for
Respondent it is well established that ignorance of the
illegal consequences of a course of conduct does not ab
solve Respondent from liability for the wrongful acts of
its supervisors and agents Nor can Respondent escape its
legal responsibility by the fact that Slone was not actual
ly a friend or close associate of Oxley or Estep the em
ployees who engaged in protected concerted activity by
freely discussing with fellow employees union related
matters and by filing a grievance The record shows that
the Respondent believed or suspected Slone was associ
ated with them, through Zeigenfuse s remarks and
through Slone s use of Oxley as a reference on his appli
cation filed immediately before Respondent decided not
593
to hire him I therefore find that the Respondent violated
Section 8 (a)(1) and (3) of the Act by its failure and refus
at to hire Larry Slone
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in coin
merce within the meaning of Section 2(2), (6), and (7) of
the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 By threatening employees that because one of them
had filed a grievance the Company would not hire Larry
Slone, the Respondent violated Section 8(a)(1) of the
Act
4 By failing and refusing to hire Larry Slone at the
Respondents Hobet No 7 project near Holden, West
Virginia, in September 1986, the Respondent violated
Section 8(a)(1) and (3) of the Act
5 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec
tion 2(6) and (7) of the Act
6 The Respondent has not violated the Act in any re
spects other than those specifically found
THE REMEDY
Having found that the Respondent has engaged in cer
tarn unfair labor practices, I find it necessary to order
that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the poli
cies of the Act
In his brief, counsel for the General Counsel requests
the traditional Board remedy for an unlawful refusal to
hire and in addition a visitorial provision authorizing
the Board to engage in discovery, if necessary, to moni
tor compliance with the Board s order In the circum
stances of this case I find the visitorial clause request
ed by the General Counsel unnecessary, and it is not in
cluded in the remedy
Having discriminatorily refused to hire Larry Slone
the Respondent will be ordered to offer him immediate
employment to a position as a welder or if such pose
tions no longer exist to any substantially equivalent pose
tion to which he would otherwise be entitled except for
the Respondents unlawful refusal to hire him, without
prejudice to his seniority or other rights and privileges
which would have otherwise accrued to him under the
collective bargaining agreement between the Respondent
and the Union In addition Respondent shall make Larry
Slone whole for all wages lost as a result of the unlawful
discrimination directed against him Backpay shall be
computed in the manner prescribed in F W Woolworth
Co, 90 NLRB 289 (1950) with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987) i2
The Respondent will also be required to remove from its
files any reference to the refusal to hire Larry Slone and
12 Under New Horizons interest is computed at the short term Federal
rate for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621 Interest accrued before 1 January 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp 231
NLRB 651 (1977)
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its espoused reasons for that action; and to post an ap-
propriate notice.
. On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed13
ORDER
The Respondent, F & E Erection Company, Holden,
West Virginia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to hire applicants because em-
ployees supported the Union or assisted the Union, filed
grievances, or engaged in protected concerted activities
for the purpose of collective bargaining or other mutual
aid or protection.
(b) Threatening employees that because an employee
had filed a grievance or engaged in other protected con-
certed activities, certain job applicants would not be
hired.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Larry Slone immediate and full employment
to a position as it welder or, if welder's jobs no longer
exist , to substantially equivalent employment, without
prejudice to any seniority rights, benefits, or other rights
and privileges which would have accrued to him under
the terms of the collective-bargaining agreement between
the Respondent and the Union had the Respondent not
discriminated against him.
(b) Make Larry Slone whole, with interest, for any
loss of earnings or benefits he may have suffered by
reason of the unlawful discrimination against him, in the
manner set forth in the remedy section of this decision.
(c) Remove from its records and files any and all ref-
erences to the unlawful refusal to hire Larry Slone and
any reasons which have been espoused for that action,
and notify Larry Slone, in writing, that this has been
done, and that evidence of these actions will not be used
as a basis for future personnel actions against him.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Hobet No. 7 project near Holden, West
Virginia, copies of the attached notice marked "Appen-
dix."14 Copies of this notice, on forms provided by the
13 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.
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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
Regional Director for Region 9, after being signed by
Respondent's authorized agent, shall be posted by it im-
mediately on receipt for 60 days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that these notices are not altered, de-
faced, or covered by any other material. If Respondent is
no longer engaged in business at the Hobet No. 7 jobsite,
it shall mail a signed copy of the notice to each and
every employee employed at the facility during Septem-
ber and October 1986.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail and refuse to hire job applicants be-
cause employees have filed grievances under the terms
and conditions of a collective-bargaining agreement be-
tween the Company and United Mine Workers of Amer-
ica, or any other labor organization. Nor will we refuse
to hire them because employees have engaged in lawful
activities in support of a union or other concerted activi-
ties protected by Act.
WE WILL NOT threaten employees that job applicants
have not been hired by the Company because they are
considered to be troublemakers or because employees
have filed grievances.
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 offer Larry Arnold Slone immediate em-
ployment as a welder or, if no welding positions exist, to
any substantially equivalent position to which he would
have been entitled absent our unlawful refusal to hire
him, without prejudice to seniority, benefits, or other
rights which would have accrued to him under the terms
and conditions of the collective-bargaining agreement be-
tween the Company and the Union. WE WILL also make
him whole for any loss of earnings and benefits he may
have suffered by reason of our discrimination against
him, with interest.
WE WILL remove from our files any references to the
refusal to hire Larry Arnold Slone in September 1986,
and WE WILL notify him that this has been done and that
evidence of the unlawful refusal to hire him will not be
used as a basis for future personnel actions against him.
F & E ERECTION COMPANY