FES (a Division of Thermo Power)

National Labor Relations Board - Board Decisions

Jan 19, 2001

333 N.L.R.B. 66 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 66
FES (a Division of Thermo Power) and Plumbers and
Pipefitters Local 520 of the United Association.
Case 5–CA–26276
January 19, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On May 11, 2000, the National Labor Relations Board
issued its decision in this proceeding, setting forth the
framework for analysis of refusal-to-consider and re-
fusal-to-hire allegations. 331 NLRB No. 20. The Board
adopted the judge’s finding that the Respondent unlaw-
fully refused to consider nine union applicants for em-
ployment, but remanded the case to the judge for further
consideration of the refusal-to-hire allegations in light of
the new framework. Specifically, the Board remanded
the proceeding to the judge for the purposes of reopening
the record and resolving the issue of whether any of the
nine applicants would have been hired, absent the dis-
criminatory refusal to consider them. However, because
the Board agreed with the judge’s rejection of the Re-
spondent’s “wage compatibility” criterion as a defense to
the refusal-to-consider allegations, the Board held that
any consideration of that criterion on remand with re-
spect to the refusal-to-hire allegations must be confined
to the facts as already found by the judge and that the
record could not be reopened on that issue. Id. slip op.
9–10 and fn. 22.
On November 8, 2000, Administrative Law Judge Ar-
thur J. Amchan issued the attached supplemental deci-
sion, finding that the Respondent violated Section 8(a)(3)
and (1) of the Act by refusing to hire the nine applicants.
Stipulations by the parties obviated the need for a further
hearing. Thus, based on all-party stipulations, the judge
found that there was an available job opening for each of
the applicants. In addition, the Respondent stipulated
that its basis for rejecting the union applicants was the
same as that advanced previously (lack of “wage com-
patibility”) and that it would raise no new defenses. Cit-
ing the Board’s decision, the judge held that he would
not reopen the record to receive further evidence with
respect to that defense.
Thereafter, the Respondent filed exceptions and a sup-
porting brief, “principally . . . for purposes of preserving
issues for appeal.” The Respondent states that it has, for
that reason, incorporated by reference its initial excep-
tions and supporting brief. In addition, the Respondent
argues that the judge erred in limiting the evidence it
could present in support of its wage compatibility de-
fense to the refusal-to-hire allegations. The General
Counsel and the Charging Party filed answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
As summarized above, the Respondent’s exceptions
raise no issue not previously considered by the Board.1
Accordingly, we conclude that the Respondent’s excep-
tions lack merit, and we shall adopt the judge’s recom-
mended Order as modified and set forth in full below.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, FES (a Division of Thermo Power), York,
Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to hire applicants on the basis
of their union affiliation or based on the Respondent’s
belief or suspicion that they may engage in organizing
activity once they are hired.
(b) 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) Within 14 days from the date of this Order, offer
Brian Bathavic, Thomas Bathavic III, Brett Emerich,
John Ganoe, Kevin Goodman, George Heckert, Terry E.
Peck, David Wagner, and Richard Walker II instatement
to the positions for which they applied or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges.
(b) Make Brian Bathavic, Thomas Bathavic III, Brett
Emerich, John Ganoe, Kevin Goodman, George Heckert,
Terry E. Peck, David Wagner, and Richard Walker II
whole for any loss of earnings and other benefits suffered
as a result of the unlawful discrimination against them, in
the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to hire
Brain Bathavic, Thomas Bathavic III, Brett Emerich,
John Ganoe, Kevin Goodman, George Heckert, Terry E.

1 In accordance with the Board’s settled practice, our review of the
judge’s supplemental decision is limited to the issues raised by the
Respondent’s exceptions. See, e.g., Anniston Yarn Mills, 103 NLRB
1495 (1953). We do not necessarily agree with the judge’s discussion
of what other defenses (apart from the “wage compatibility” defense)
he would have entertained. In the absence of exceptions, we do not
pass on this aspect of the judge’s rationale.
2 We shall modify the judge’s recommended Order to provide the
customary remedial language.
333 NLRB No. 8
FES 67

Peck, David Wagner, and Richard Walker II and, within
3 days thereafter, notify them in writing that this has
been done and that the refusal to hire them will not be
used against them in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of such re-
cords if stored in electronic form, necessary or useful in
analyzing the amount of backpay due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at
its facility in York, Pennsylvania, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 5,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since March 11, 1996.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing 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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
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.”
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT fail or refuse to hire job applicants on
the basis of their union affiliation or based on our belief
or suspicion that they may engage in organizing activity
once they are hired.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Brian Bathavic, Thomas Bathavic III, Brett
Emerich, John Ganoe, Kevin Goodman, George Heckert,
Terry E. Peck, David Wagner, and Richard Walker II
instatement to the positions for which they applied or, if
those positions no longer exist, to substantially equiva-
lent positions.
WE WILL make Brian Bathavic, Thomas Bathavic III,
Brett Emerich, John Ganoe, Kevin Goodman, George
Heckert, Terry E. Peck, David Wagner, and Richard
Walker II whole for any loss of earnings and other bene-
fits suffered as a result of our unlawful discrimination
against them, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusal to hire Brian Bathavic, Thomas Bathavic III,
Brett Emerich, John Ganoe, Kevin Goodman, George
Heckert, Terry E. Peck, David Wagner, and Richard
Walker II, and WE WILL, within 3 days thereafter, no-
tify them in writing that this has been done and that the
refusal to hire will not be used against them in any way.

FES (A DIVISION OF THERMO POWER)

Steven I. Sokolow, Esq., for the General Counsel.
Thomas R. Davies, Esq. (Harmon & Davies, P.C.), of Lancas-
ter, Pennsylvania, for the Respondent.
Francis J. Martorana, Esq. (O’Donoghue & O’Donoghue), of
Washington, D.C., for the Charging Party.
SUPPLEMENTAL DECISION
ARTHUR J. AMCHAN, Administrative Law Judge. On
May 11, 2000, the Board remanded this case to me to determine
whether the Respondent’s failure to hire nine discriminatees
constituted unlawful refusals to hire, warranting backpay and
instatement remedies, FES, 331 NLRB No. 20.
In my initial decision, I found, and the Board agreed, that
Respondent unlawfully refused to consider nine union appli-
cants for welding and/or pipefitting positions at its York, Penn-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 68
sylvania manufacturing plant and in its construction division.1
However, the Board held that the question of whether any of
the nine applicants would have been hired, absent the discrimi-
natory refusal to consider, could not be deferred to compliance.
It therefore remanded the case for the purposes of reopening the
record and resolving this issue.
In its decision, the Board set out the elements of a discrimi-
natory refusal to hire. The General Counsel must show at the
hearing on the merits: (1) that the respondent was hiring, or had
concrete plans to hire, at the time of the alleged unlawful con-
duct; (2) that the applicants had experience or training relevant
to the announced or generally known requirements of the posi-
tions for hire, or in the alternative, that the employer has not
adhered uniformly to such requirements, or that the require-
ments 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, id. at 4. Once these ele-
ments are established, the burden shifts to the respondent to
show that it would not have hired the applicants even in the
absence of their union activity or affiliation.
The Board stated further that, in a discriminatory hiring case,
the General Counsel must show that there was at least one
available opening for the applicants. It also held that the Gen-
eral Counsel must show at the hearing on the merits the number
of openings that were available. However, where the number
of applicants exceeds the number of available jobs, the compli-
ance proceeding may be used to determine which of the appli-
cants would have been hired for the openings, id. at 6.
On June 27, 2000, I issued a notice and invitation to file
briefs. I asked the parties to consider whether the existing re-
cord was sufficient to decide the issues presented. If not, I
asked that the parties explore whether stipulations could be
reached to obviate the need for reconvening the hearing. In the
event that a party deemed a resumption of the hearing to be
necessary, I asked that they describe the testimony that they
intend to elicit and/or the documents they intended to introduce
into the record. I stated that defenses that were fully litigated at
the initial hearing and rejected would not be relitigated, citing
the Board’s decision at pages 9–10 fn. 22.
All parties filed supplemental briefs. Afterwards, I informed
them that my review of the record indicated that the existing
record established a refusal-to-hire violation with regard to five
of the discriminatees. Although it appeared that Respondent
hired at least eight welders to fill its personnel requisitions of
January 15 and February 19, 1996, it was not clear whether all
of these welders were hired after the discriminatees applied for
jobs on February 9 and March 29, 1996.
I therefore informed the parties that I would convene a sup-
plemental hearing solely to determine the following questions:

1. Whether Respondent hired a sufficient number of employ-
ees to provide an opening for each discriminatee.

1 In my initial decision, I found that all the union applicants had the
qualifications set forth in FES’s employee requisitions and newspaper
job advertisements. None of the employees hired by Respondent prior
to the July 20, 1998 hearing had such qualifications.
2. With regard to any hiring that occurred subsequent to the
opening of the initial hearing on July 20, 1998, whether the
applicants would have been hired for such openings in the
absence of the discriminatory refusal to consider them for
hire.

I informed the parties that I would not consider evidence as
to why Respondent would have considered the individuals it
hired prior to July 20, 1998, more desirable than the discrimina-
tees because I had already determined that the union applicants
were not considered for employment for unlawful reasons.
Respondent was therefore precluded from arguing that, if it had
considered these applicants, it would have rejected them for
lawful reasons. Moreover, I had already rejected FES’s alterna-
tive rationales for failing to hire the discriminatees. Therefore,
I concluded that Respondent was not entitled to a “second bite
of the apple.”
Respondent’s hiring since the July 20, 1998 hearing, I
opined, is distinguishable from that occurring before July 20,
because FES did not have an opportunity at the initial hearing
to meet its affirmative defense that it would not have hired any
of the applicants for such openings for lawful reasons. How-
ever, I informed the parties that I would only consider such a
defense if Respondent could demonstrate that at the time it
hired other individuals, it considered the applications of the
discriminatees and determined that another applicant had supe-
rior qualifications. I stated that I would not entertain a com-
parison of the qualifications of the discriminatees and persons
hired after July 20, if no such comparison was made at the time
the hiring decisions were made.
I again urged the parties to stipulate as to the names and
dates that employees were hired in positions for which the dis-
criminatees applied from February 9, 1996, until the present.
Pursuant to that request, the parties have stipulated that the
following individuals were hired prior to the July 20, 1998
hearing:

Name Hire Date Classification

Alan Leasure 3/11/96 welder/fitter
Construction
trainee

Shawn Rapp 3/18/96 welder/fitter
Construction
trainee

Charles Dusendschine 3/25/96 welder
trainee

Stacy Keller 3/25/96 welder
Trainee

Jeffrey Ray 4/15/96 welder
trainee

Robert Zimmerman 4/22/96 welder

Phillip Shildt 6/2/97 welder

The parties have also stipulated that the following individu-
als were hired after the July 20, 1998 hearing:

Wayne Kneisley 1/11/99 welder

FES 69

Gregory Wilt 1/25/99 welder
trainee

Joel Dell 1/25/99 welder
trainee

Jeremy Bracken 2/22/99 welder

Brad Minda 2/22/99 welder

Eric Morton 2/22/99 welder

Mark Pascale 2/22/99 welder

Chris Duvall 2/29/99 welder

Respondent further stipulated that its basis for rejecting the
union applicants was the same as that advanced in the original
hearing (e.g., “wage rate incompatibility”) and that it would
raise no new defenses. FES stipulated that it made no individ-
ual comparisons between the applications of the discriminatees
and the individuals hired in 1999. Finally, the parties agreed
that in light of the stipulation, a hearing on remand was unnec-
essary.
In view of the foregoing, I conclude that there was a job
opening for each of the discriminatees and therefore Respon-
dent has violated Section 8(a)(3) and (1) by refusing to hire
each one of them.
CONCLUSION OF LAW
By refusing to hire applicants Brian Bathavic, Thomas Bath-
avic III, Brett Emerich, John Ganoe, Kevin Goodman, George
Heckert, Terry E. Peck, David Wagner, and Richard Walker II
Respondent violated Section 8(a)(1) and (3).
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent violated Section 8(a)(1)
and (3) of the Act by refusing to hire nine applicants for em-
ployment, it must offer them instatement and make them whole
for any loss of earnings and other benefits, computed on a quar-
terly basis from the date they would have been hired, less any
net interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]