Fluor Daniel, Inc.

National Labor Relations Board - Board Decisions

Aug 30, 1991

304 N.L.R.B. 970 (N.L.R.B. 1991)

970
304 NLRB No. 100
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
We also correct the following inadvertent errors made by the judge: the
name of the construction project at issue in this case is Union Camp, not
Camp Springs; the date of the second meeting between representatives of the
Building Trades and the Respondent was May 10, 1988, not December 20,
1988; it was Marshall Coleman who opposed signing the proposed prehire
agreement, not Arnold Calhoun; and the application of Harry Freeman, an in-
dividual hired by the Respondent, shows his most recent employer to have
been Fluor Daniel, Inc., not Tyger Construction. We find, therefore, that there
were only 13 applicants hired who did not have prior Fluor Daniel experience.
These errors do not affect our decision except to the extent that, in fashioning
the remedy, it is clear that there were only 13 positions available for the 48
applicants, not 14, as found by the judge.
2 The Respondent filed a motion to supplement the record. We grant the Re-
spondent’s motion but find that the evidence contained therein does not affect
our decision.
3 Charges were also filed on behalf of approximately 60 boilermakers and
3 millwrights. Their names were omitted from the complaint by the Regional
Director on learning that the Respondent did not perform such work. Regard-
ing the carpenter applicants, all carpenter positions were filled in accordance
with the Respondent’s preferential hiring system. The General Counsel did not
challenge the legality of this system.
4 Approved in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
5 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966).
6 Associacion Hospital Del Maestro, 291 NLRB 198, 204 (1988); White-
Evans Service Co., 285 NLRB 81, 82 (1987).
7 ACTIV Industries, 277 NLRB 356, 374 (1985); Heath International, 196
NLRB 318, 319 (1972).
8 We are not deciding which applicants were the most qualified nor whom
the Respondent should have contacted. We find, however, in agreement with
the judge, that the credentials listed by several of the discriminatees should
have warranted at least some response from the Respondent.
Fluor Daniel, Inc. and International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers and Helpers, AFL–CIO. Case 10–CA–
24024
August 30, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On October 26, 1990, Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the Charging Party filed a brief in support of the
judge’s decision and in response to the Respondent’s
exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and, for the
reasons set forth below, has decided to affirm the
judge’s rulings, findings,1 and conclusions and to
adopt the recommended Order.2
The facts, as more fully set forth by the judge, may
be briefly summarized as follows. In early 1988, the
Savannah Building Trades attempted unsuccessfully to
persuade the Respondent to sign a prehire agreement
at one of its construction projects (i.e., the Kemira
project) and to organize the employees at both that site
and at another (i.e., the Union Camp project). On De-
cember 20, 1988, between 100 and 150 members of
various building trades appeared at a temporary em-
ployment office to apply for jobs at Union Camp. Of
the 48 alleged discriminatees who were members of
the Electrical Workers, Ironworkers, and Operating En-
gineers, none was hired to fill any of the 13 positions
that were available to applicants without prior Fluor
Daniel experience.3 Every application revealed the ap-
plicant’s union affiliation in one way or another.
The judge concluded, inter alia, that the Respondent
violated Section 8(a)(3) and (1) by discriminatorily re-
fusing to hire any of the 48 applicants named in the
complaint. The Respondent excepts to this finding. We
agree with the judge, but do so only for the following
reasons.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982),4 the Board set forth its causation test for cases
alleging violations of the Act turning on employer mo-
tivation. First, the General Counsel must make a prima
facie showing sufficient to support the inference that
protected conduct was a ‘‘motivating factor’’ in the
employer’s decision. Once accomplished, the burden
then shifts to the employer to demonstrate that the
same action would have taken place notwithstanding
the protected conduct. It is also well settled, however,
that when a respondent’s stated motives for its actions
are found to be false, the circumstances may warrant
an inference that the true motive is an unlawful one
that the respondent desires to conceal.5 The motive
may be inferred from the total circumstances proved.
Under certain circumstances the Board will infer ani-
mus in the absence of direct evidence.6 That finding
may be inferred from the record as a whole.7
Here, the Respondent clearly had knowledge that all
48 alleged discriminatees were union affiliated. As
found by the judge, every one of the applications re-
vealed some indicia of union membership, and all but
two of the applications were filed on the morning of
December 20, 1988, en masse, at the Respondent’s
employment office. None of the discriminatees was of-
fered a position with the Respondent, called in for an
interview, or even contacted by the Respondent after
submitting an application. This occurred even though,
as the judge found, each had at least a few years of
experience and many listed credentials which should
have at least warranted some type of inquiry by the
Respondent.8
The applicants who were offered employment, on
the other hand, uniformly displayed either weak or
971FLUOR DANIEL, INC.
9 Based on our finding here, we find it unnecessary to rely on the judge’s
discussion of comments made by representatives of the Respondent at the May
10, 1988 meeting to infer animus on the part of the Respondent. We also find
it unnecessary to rely on the judge’s finding that the Respondent’s conduct
had a destructive impact on the future exercise of employee rights as con-
templated in NLRB v. Great Dane Trailers, 388 U.S. 26 (1967).
10 See San Angelo Packing Co., 163 NLRB 842, 846 (1967) (the fact that
17 of 29 named prounion employees were selected for layoff whereas none
of the remaining 37 employees were affected is not purely coincidental and
is persuasive evidence of discrimination). See also Lott’s Electric Co., 293
NLRB 297 (1989); Continental Radiator Corp., 283 NLRB 234, 248 (1987).
The Respondent introduced statistical evidence, through an expert witness,
in an attempt to demonstrate that union membership did not adversely affect
an applicant’s chance of being hired. The judge found, and we agree, that the
Respondent’s witness based his opinion on a faulty premise and that his con-
clusions should be disregarded.
11 We agree with the judge that H. B. Zachry Co., 289 NLRB 838 (1988),
enf. denied 886 F.2d 70 (4th Cir. 1989), is distinguishable. The court in
Zachry found that the respondent did not violate the Act when it refused to
hire someone who was already employed as a full-time, paid professional
union organizer. In this case, however, there is no evidence that any of the
applicants were employed by their unions as full-time organizers and were
seeking simultaneous employment with the Respondent.
12 We disavow reliance on the judge’s discussion of Sunland Construction
Co., JD–214–89 (Sept. 5, 1989), because it is the Board’s policy not to com-
ment on pending cases.
13 See KRI Constructors, 290 NLRB 802, 812 (1988).
14 The judge found, and we agree, that the Respondent relied on pretextual
reasons to explain its failure to contact any of the 48 discriminatees. In making
this finding, the judge discredited the testimony of Doyle Gilliam that he
sought to hire well-qualified applicants but found few applications of quality.
This lends support to our finding that the Respondent’s motive was unlawful.
Shattuck Denn Mining Corp., supra.
nonexistent union ties. In fact, many had work his-
tories with well-known nonunion employers. We find
it reasonable to infer that it was not just coincidental
that all those applicants who displayed union affiliation
were refused employment while those who were hired
did not display union affiliation.9 We conclude that
such a blatant disparity is sufficient to support a prima
facie case of discrimination.10
We further agree with the judge’s conclusion that
the applicants were bona fide.11 We find no evidence
even remotely suggesting that the applicants in ques-
tion were doing anything other than legitimately seek-
ing work with the Respondent. In fact, the judge
found, and we agree, that the discriminatees would
have gone for interviews and very likely would have
accepted employment with the Respondent, if such an
offer had been made. Finally, we agree with the judge
that writing in ‘‘voluntary union organizer’’ on many
of the applications was no more indicative of union af-
filiation than other indicia of union membership men-
tioned on the discriminatees’ applications. Accord-
ingly, this factor is insufficient to alter our finding that
the applicants were bona fide.12
Examining the Respondent’s rebuttal case, we reject
the somewhat conflicting defense it proffers for its ac-
tions: that the applicants were not bone fide which, the
Respondent seems to contend, justified its refusal to
consider any of the 48 applicants, and that its actions
were not motivated by antiunion animus. Surely, the
applicants’ union affiliation must have played some
role in the Respondent’s determination that the appli-
cants were not bona fide and its subsequent refusal to
interview or hire any of the 48 discriminatees. Yet, the
Respondent argues that the applicants’ union affiliation
played no role in its hiring decisions. In either case,
the Respondent’s argument fails.
Moreover, we also find that the evidence as a whole
supports an inference that the Respondent discrim-
inatorily and purposely failed either to consider the ap-
plications of, or offer employment to, any of the 48
discriminatees. The Respondent offered no credible
reasons to explain why none of the 48 was considered
in the same manner for employment as the other appli-
cants.13 We find persuasive the judge’s comparisons
and analysis of the resumes and credentials between
applicants who were hired by the Respondent and
those who were not, and her finding that factors other
than merit caused the Respondent to discount the
union applicants.
Thus, based on the totality of circumstances in this
case, we agree with the judge that the Respondent’s
stated motives for rejecting the applications of the 48
discriminatees were false and that its true motive was
to discriminate against them because of their union af-
filiation.14 Accordingly, we conclude that the General
Counsel made a prima facie showing of unlawful moti-
vation on the part of the Respondent for its refusal to
hire any of the 48 discriminatees as required under
Wright Line. We reject the Respondent’s proffered jus-
tifications as pretextual and find that the Respondent
failed to meet its Wright Line burden of demonstrating
it would have taken the same action absent the union
activities of the 48 discriminatees.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Fluor Daniel, Inc., Savan-
nah, Georgia, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
J. Howard Trimble, Esq., for the General Counsel.
Melvin Hutson, Esq., John P. Mann Jr., Esq. (Thompson,
Mann & Hutson), of Greenville, South Carolina, for the
Respondent.
Michael T. Manley, Esq. (Blake & Uhlig), of Kansas City,
Kansas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. Pursuant to a
charge filed by the International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers and Help-
ers, AFL–CIO on March 16, 1989, as amended on June 16
and August 8, 1989, a complaint issued on May 10, 1989,
and was amended on December 22, 1989, alleging that the
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless otherwise indicated, all events took place in 1988.
2 Exhibits offered by counsel for the General Counsel (the General Counsel)
and by the Respondent will be referred to as General Counsel’s exhibit and
Respondent’s exhibit respectively, followed by the exhibit number. The three
volumes of the transcript will be cited as I, II, and III for each day of the
hearing, followed by the page number (e.g., Tr. I–100).
3 Following the hearing, the Respondent filed a motion to correct the tran-
script. As the motion is unopposed and accurately corrects some, if not all,
the numerous errors in this record, the motion is granted. The Respondent’s
motion, which has been marked as G.C. Exh. 1(z), is admitted into evidence
as part of the formal pleadings in this matter.
Respondent had refused to hire 48 named individuals on or
about December 20, 1988, because of their membership in or
activities on behalf of various trade unions, in violation of
Section 8(a)(1) and (3) of the National Labor Relations Act
(the Act).1 The Respondent filed a timely answer denying
that it had committed any unfair labor practices.
A hearing was held in this case in Savannah, Georgia, on
April 18, 19, and 20, 1990, at which time the parties had full
opportunity to examine and cross-examine witnesses, intro-
duce documentary evidence, and argue orally.2 After consid-
ering the witnesses’ demeanor, the parties’ posttrial briefs,
and on the entire record,3 pursuant to Section 10(c) of the
Act, I make the following
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
The Respondent, a California corporation with an office
and place of business located at the Union Camp Corporation
jobsite in Savannah, Georgia, is and has been engaged as a
contractor in the construction industry. During the past cal-
endar year, a representative period at all times material, the
Respondent purchased and received at its Union Camp job-
site goods valued in excess of $50,000 directly from suppli-
ers located outside the State of Georgia. The complaint al-
leges, Respondent admits, and I find that Fluor Daniel, Inc.
is now, and was at all times material, an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
The Charging Party Union is, and was at all times mate-
rial, a labor organization within the meaning of Section 2(5)
of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview
The Respondent, Fluor Daniel, is a major construction
contractor with numerous projects both in and beyond the
United States. Although the Respondent considers itself an
open shop employer, and acknowledges that it intends to
avoid union organization by all legal means, approximately
25 percent of its multibillion dollar business is performed by
union labor. While almost all its union work comes about
through subcontracts with firms operating under union agree-
ments, a small portion is attributable to work performed pur-
suant to site-specific, prehire agreements.
This case had its roots in the Savannah Building Trades
Council’s efforts to interest the Respondent in signing a
prehire project agreement in the spring of 1988 to cover a
construction project at the Kemira Corporation in Savannah.
When the Respondent refused to enter into such an agree-
ment, the Building Trades Council started an informational
campaign opposing Fluor Daniel’s wage scale and practice of
hiring workers outside the Savannah community. At the same
time, the building trades attempted, without success, to orga-
nize employees both at the Kemira site and at another Fluor
Daniel construction project at the Camp Springs Papermill in
Savannah.
On December 20, between 100 to 150 employees belong-
ing to the various building trades, appeared at the Respond-
ent’s employment center and submitted applications for jobs
at the Camp Springs project. The complaint alleges that the
Respondent unlawfully refused to hire 48 of these workers
who belonged to three crafts—electricians, operating engi-
neers, and ironworkers—because of their union affiliations.
The Respondent admitted that none of the applicants was
hired, but defends its actions on two principal grounds: first,
that they were not bona fide candidates for employment;
rather, the union members applied for jobs at the Camp
Springs project as part of the Building Trades Council’s cam-
paign to banish Fluor Daniel from the Savannah area; and
second, the failure to hire any of the 48 applicants was not
motivated by antiunion animus. For the reasons set forth
below in the analysis section of this decision, I find that the
Respondent’s defenses are unpersuasive and that it unlaw-
fully refused to hire any of the 48 discriminatees named in
the complaint for discriminatory reasons.
B. Background
In the early spring of 1988, members of the Building
Trades Council, an alliance of business agents representing
diverse construction craft unions in the Savannah area,
learned that Kemira, Inc. intended to award the contract for
a major modernization project at its facility to the Respond-
ent. In an effort to overcome serious unemployment prob-
lems, the then president of the Building Trades Council and
business agent for Operating Engineers Local 474, Arnold
Calhoun, requested Kemira’s president to arrange a meeting
with the Respondent to consider the possibility of entering
into a prehire project agreement.
Through Kemira’s good offices, respresentatives of the
Building Trades Council and the Respondent met on two oc-
casions. At the first one on March 24, Calhoun, spokesman
for the Building Trades delegation, reviewed the terms of a
prehire agreement for the Camp Springs project, which had
been drafted with an eye toward making the Unions’ terms
as competitive and appealing as possible for an employer
who was known to operate on an open-shop basis. Marshall
Coleman, the Respondent’s industrial relations director, made
no commitments at this meeting other than promising to con-
tact the Building Trades Council after reviewing the pro-
posal.
Coleman testified that in deciding whether or not to accept
such project agreements, the Respondent’s practice was to
perform an ‘‘area labor market analysis’’ which examined
the following three factors: the number of unemployed Fluor
Daniel employees in the area, costs, and client preferences.
From such an analysis performed in the project area, a 75-
mile radius of Savannah, Coleman learned that approximately
3500 Fluor Daniel employees were available, and that labor
costs incident to a project agreement would be an estimated
973FLUOR DANIEL, INC.
4 Coleman explained that this 20-percent figure included projections of costs
attendant to jurisdictional problems which might arise among the different
crafts.
5 Barry Edwards, a paid, full-time union organizer, was a well-known figure
in certain labor management circles in the construction trade. See H. B.
Zachry Co., 289 NLRB 838 (1988), enf. denied 886 F.2d 70 (4th Cir. 1989).
20 percent higher than if the work was self-performed.4
Coleman also stated that although the project agreement was
one of the best he had seen, accepting it would be ‘‘bucking
the trend.’’ (Tr. II–80.)
Pursuant to Coleman’s instructions, Emerson Johnson, the
Respondent’s industrial relations manager for the southeast
region, telephoned Calhoun and informed him of Coleman’s
decision. Johnson also advised Calhoun that some sub-
contracting work would be let for which union union con-
tractors could bid. Although Calhoun did not recall making
any further statements, Johnson testified that the business
agent ended their phone call with the following admonition:
‘‘I’m sorry this happened. We’ll see you in battle.’’ (Tr. II–
43.)
At Calhoun’s request, Kemira’s president interceded a sec-
ond time and arranged another meeting on May 10. Calhoun,
again serving as the Unions’ spokesman, started off by ask-
ing what the building trades could do to make the project
agreememt more palatable to the Respondent. Coleman re-
sponded that the project agreement appeared to be very com-
petitive; was one of the best he had seen. Nevertheless, he
stated that the Respondent would not sign the agreement, that
it wanted to retain full control of the Camp Springs job, and
would deal with the Unions only if they succeeded in win-
ning an NLRB-1 sponsored representation election. At this,
Alvah Watts, business agent and secretary/treasurer of Boil-
ermakers Local 26, testified that he proposed bringing Labor
Organizer Barry Edwards into the area. According to Watts,
Johnson quickly rejoined that ‘‘we don’t want Barry Ed-
wards in this area or any of the union organizers in here to
mess up our jobs.’’ (Tr. I–163.) Coleman then suggested that
union craftsmen could apply at the gate and be considered
for employment like any other applicant. Apparently
unimpressed with this prospect, Calhoun replied that job re-
ferral was a union’s responsibility, not Fluor Daniel’s.
The parties differ considerably over the next important ex-
change between the principals. Calhoun testified at the trial
that after the project agreement was rejected, he made one
last effort to win the Respondent over, telling Coleman:
we would be willing . . . we’ll sign a contract for five
dollars an hour. He said, ‘‘I won’t work your people for
five dollars an hour. I can find better craftsmen off the
street.’’ [Tr. I–86.]
Other business agents who attended the May 10 meeting con-
firmed Calhoun’s testimony with some modification. Thus,
according to Boilermakers Business Manager Watts, the col-
loquy went as follows:
He [Calhoun] said ‘‘We put all this time and effort into
a contract . . . but it doesn’t look to me like you peo-
ple will work our people for five dollars an hour.’’ . . .
and . . . Mr. Coleman said, ‘‘That’s correct.’’
And then . . . either Mr. Coleman or Mr. Johnson . . .
made the statement that, ‘‘We can get better qualified
people off the streets through our hiring hall than you
have at your hiring halls.’’ [Tr. I–163.]
Edgar West, the Iron Workers business agent, put it this
way:
Arnie said, ‘‘You mean to tell me we spent all this time
putting this agreement together? . . . You didn’t have
any intention of hiring us to begin with. . . . You
wouldn’t hire us for five dollars a hour, would you?’’
And he [Coleman] said ‘‘No, I wouldn’t.’’ [Tr. I–224.]
The Respondent’s witnesses recall this incident much dif-
ferently. Paraphrasing the remarks of his labor counterpart,
Coleman testified that Calhoun said:
Sounds to me like there’s nothing we can do to get an
agreement with you people. You are telling me that
even if our craftsmen were paid $5 an hour, you
wouldn’t work them. My response to him was ‘‘. . .
we’re not interested in signing a project agreement on
this job.’’ [Tr. II–329.]
Emerson Johnson and James Head, the Respondent’s vice
president for operation, both denied that Coleman said any-
thing about not hiring employees at $5 an hour. In fact, hav-
ing taken no notes of the meeting, neither could recall any-
one mentioning that figure. In addition, Johnson denied mak-
ing any comment about Barry Edwards, although he admitted
knowing who he was and discussing him with other contrac-
tors.5 The parties agreed that shortly after this exchange, the
meeting concluded rather abruptly.
In the months following its failure to obtain a prehire
agreement, the Building Trades Council waged a campaign
against the Respondent and another nonunion contractor
which also was performing construction work in the area. As
part of a larger organizing effort by the Building Trades
unions, the campaign, titled ‘‘Project Southern Fightback,’’
included such tactics as handbilling at jobsites, billboard and
newspaper advertising, and labor rallies. In general, labor’s
message was that because the Respondent paid substandard
wages and hired workers from out of the State, ‘‘Fluor Dan-
iel Must Go.’’ (See R. Exhs. 13–17.) In addition, the Unions
attempted unsuccessfully to organize at the Kemira and
Camp Springs projects by distributing authorization cards.
Events on December 20
In December, the Building Trades learned that the Re-
spondent was hiring for the Camp Springs project at a tem-
porary employment office located at the Westside Shopping
Center in Savannah. As a rule, the Unions’ bylaws proscribe
accepting employment at nonunion sites and authorize the
imposition of fines on members who do so. However, busi-
ness agents for the three craft Unions involved in this dispute
testified without controversion that these penalties were rare-
ly, if ever imposed. Moreover, given the paucity of work in
the area, in this situation, they had waived any proscriptions
and encouraged their members to apply for work at the Re-
spondent’s Camp Springs project. In fact, the record shows
that the Unions contacted a number of their members and
urged them to appear at the Westside Shopping Center on
December 20 to file applications.
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Estimates of the size of the crowd that appeared at the shopping center
on December 20 varied. However, the majority of the witnesses who testified
regarding the number who appeared there that day set the approximate number
between 100 and 150. Only one witness set the size at 200. In addition, prior
to the dismissal of charges filed by members of three crafts not involved in
the proceeding, the original number of alleged discriminatees was 125. Ac-
cordingly, I conclude that the best estimate of those present at the shopping
center on December 20 lies between 125 and 150.
7 On cross-examination, union officials stoutly denied having summoned the
media to the shopping center on December 20 and speculated that the TV
crew which appeared at the shopping center may have followed the police
there after picking up a police radio report of the incident.
8 Blank applications were available at some of the union hiring halls.
9 Charges also were filed on behalf of some 60 or more members of the
Boilermakers Union, and 3 persons who had applied for millwright work.
Their names were deleted from the complaint after the Regional Director
learned that the Respondent did not perform such work. In addition, no com-
plaint was issued regarding several carpenter applicants since the Regional Di-
rector found that the Respondent had filled all such positions in accordance
with its lawful preferential hiring system. Thus, only the three crafts men-
tioned above are involved in this dispute.
G.C. Exhs. 2(14) and (43) are applications filed on January 10. Two appli-
cations, G.C. Exhs. 2(30) and (46) show file dates of December 19 and 21
respectively. Since the parties assume that 45 of the applications were submit-
ted on December 20, I conclude that the applicants simply entered incorrect
dates on their applications.
10 Wayne Cross recalled having filled out an application on December 20
together with a large group of other union members gathered at the Westside
Shopping Center. He also recalled that the application had ‘‘volunteer union
organizer’’ written on it. Several months later, he filled out a second applica-
tion given to him by his son who was working at the Kemira project. It is
undisputed that Cross gave this second application to Emerson Johnson who
promised to assist him in finding work at the Camp Springs project. However,
Cross was not hired. I found Cross to be a credible witness whose testimony
was corroborated in important respects by an official with the Respondent.
Moreover, R. Exh. 20 proves that Cross’ application was not the only one
which the Respondent was unable to find. Consequently, I credit Cross and
find that he did apply for a position with the Respondent on December 20.
11 The three references were a Beetle Bailey, Charles Dickens, and John
Doe. In fact, a document subsequently admitted into evidence indicated that
Beatle Baily existed and could have been known by the applicant.
12 The General Counsel does not challenge the Respondent’s preferential hir-
ing policy.
On December 20, between 100 to 150 members of the var-
ious building trade craft unions gathered at the shopping cen-
ter between 8 and 11 a.m.6 Apparently alarmed by the size
of the crowd, the Respondent’s personnel manager for the
Union Camp project, Jim Lott, called the police who arrived
on the scene, followed by television news crews.7 Despite
the number of people present, the crowd was orderly and no
incidents were reported. The applicants formed a queue and
entered the office 15 to 20 at a time where they left applica-
tions with the Respondent’s agents which they either had
completed in advance or on the scene. The name of each
such applicant, his craft, and the date were entered into a log
maintained by one of the Respondent’s staff.8 Forty-six of
the forty-eight alleged discriminatees listed in the complaint,
members of the Electricians, Iron Workers, and Operating
Engineers unions, applied for work on that date, while two
others applied on January 10, 1989.9 Their applications were
admitted into evidence as General Counsel’s Exhibit 2, with
the exception of those filed by Wayne Cross, which the Re-
spondent was unable to locate.10 None of the 48 was hired.
Each of the 47 applications revealed the applicant’s union
affiliation in more or less obvious ways. For example, well
over half wrote that they were volunteer union organizers. In
addition, many offered the names of their business agents as
references; some identified their unions in a space reserved
for professional associations; others indicated that they at-
tended a union trade school or apprenticeship program while
still others revealed their union affiliation by identifying pre-
vious employers known to be union contractors or listed
wages that presumably reflected union scale. Many applica-
tions contained multiple indicia of the applicants’ union af-
filiation.
The Respondent contends that these applicants had no real
desire to work for Fluor Daniel; they were merely actors in
an event staged by the Building Trades Council as part of
its Fightback campaign. In support of this contention, the Re-
spondent introduced the application of a Donald Edenfield
which listed three references who either were fictitious or not
living, as an apparent joke. (R. Exh. 3.)11 However,
Edenfield was not one of the named discriminatees.
To refute the Respondent’s contention that the applicants
were bogus, the General Counsel presented four witnesses
who testified convincingly that they would have accepted
employment gladly with the Respondent had it been offered.
When applying for positions with Fluor Daniel on December
20, several of these men filed applications showing impres-
sive credentials. Henry Blount, for one, submitted a printed
resume with his application which set forth extensive training
and experience. In addition, he listed the names of seven
business references, four more than the Respondent required,
and attached a copy of his electrician’s license. Blount ex-
plained that he would have taken a position with the Re-
spondent because his then-current employment required him
to drive 4 hours to and from work each day. Although an-
other applicant, George Crawford, was a skilled electrician
who taught at the Union’s apprenticeship training school, the
only job he could find in the Savannah area was as a sign
painter at a low rate of pay. He, too, testified persuasively
that he genuinely was interested in a long-term position with
the Respondent. Wayne Cross testified that he was working
only part time and hoped to obtain full-time employment
with the Respondent. Herbert Davis stated that he had been
unemployed for 5 to 6 weeks prior to his seeking a job with
Fluor Daniel.
Respondent’s Hiring Practices
As a matter of policy, the Respondent considered appli-
cants for employment for a 60-day period following the date
of application. However, Doyle Gilliam, one of the Respond-
ent’s personnel administrators responsible for employment
decisions at the Camp Springs project after January 1, 1989,
testified that as a practical matter, he hired within a day or
two after an application was filed. He claimed that although
he reviewed applications filed during the previous 60 days,
he found few of quality. He further explained that he cus-
tomarily offered employment within a day or two after the
application was filed because ‘‘There is so much work going
on’’ qualified applicants quickly became unavailable.
Documents in evidence establish that during the 60-day
period at issue here; that is from December 20 to March 20,
1989, the Respondent hired a total of 81 electricians, iron-
workers, and operating engineers. Of that number, it is undis-
puted that the vast majority, 67, previously worked for Fluor
Daniel and were rehired in accordance with the Respondent’s
policy of giving preference to former employees.12 Specifi-
cally, 16 of 19 (84 percent) electricians, 26 of 27 (96 per-
975FLUOR DANIEL, INC.
13 Dr. Peterson explained that the words of art, standard deviation, refer to
the difference between two percentages (i.e., between the percentage of em-
ployees hired with and without Fluor Daniel experience). If the difference be-
tween the two percentages exceeds two or three standard deviations, then sta-
tistical theory holds that the difference is statistically significant and cannot
be attributed to chance. On the other hand, if the standard deviations are less
than two, the converse is true; that is, the difference is insignificant, statis-
tically speaking, and is the result of chance.
14 Sec. 8(a)(3) proscribes discrimination by an employer against both appli-
cants for hire and employees ‘‘in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage membership
in an labor organization. See Phelps Dodge Corp. v. NLRB, 313 U.S. 177
(1941); Lewis Mechanical Works, 285 NLRB 514 (1987); Eskaton Sunrise
Community, 279 NLRB 68, 77 (1986).
15 As discussed above, I found Wayne Cross to be a credible witness, and
therefore, concluded that he did file an employment application on December
20. Since he testified that someone had written on his application that he was
a volunteer union organizer, it follows that he, too, would be considered a
union member. Therefore, Cross shall be treated in the same manner as the
47 other individuals whose applications are collected in G.C. Exh. 2.
cent) ironworkers, and 25 of 35 (71 percent) operators hired,
worked for Fluor Daniels sometime in the past.
Viewed from a different perspective, the Respondent hired
only 14 of 81 craft employees without Fluor Daniel experi-
ence in the applicable 2-month period. The Respondent
claims that the employment applications of these 14 reveal
that 2 (10 percent) of the 3 electricians hired were affiliated
with the Electricians Union, and 1 (4.76 percent) of 10
equipment operators was a union member. Neither of the two
ironworkers hired without Fluor Daniel experience was affili-
ated with the Union. However, one applicant was employed
who was both a union member and a Fluor Daniel alumnus.
Relying on the expert testimony of Dr. David West Peter-
son, a statistical consultant, the Respondent contends that its
hiring decisions did not reflect an antiunion bias. After ana-
lyzing data supplied by the Respondent as to the applicant
pool, and the characteristics of those hired during the rel-
evant 60-day period, Dr. Peterson testified:
If the employer had hired in each category in parity so
that the hiring rate for the non-union people was ex-
actly the same for the hiring rate for union people . . .
the number of union people that would have been hired
. . . would have been 5.89, and in fact four union peo-
ple were hired. The difference between 5.89 . . . and
. . . four . . . comes to .109 standard deviations which
is far less significant than the two standard deviation
threshhold that is often used with employment discrimi-
nation cases. [Tr. III–28–29.]
Summing up, Dr. Peterson concluded that although the
.109 standard deviation reveals that the Respondent failed to
hire according to perfect parity, this failure is not statistically
significant.13 He concluded, therefore, that holding union
membership did not adversely affect the applicant’s chance
of being hired.
C. Discussion and Legal Conclusions
As alleged in the complaint, the General Counsel and
Charging Party contend that the Respondent refused to hire
48 named individuals because of their membership in and ac-
tivities on behalf of their unions in violation of Section
8(a)(3) of the Act.14 Specifically, they argue that the Re-
spondent purposely refused to consider anyone who filed ap-
plications on December 20 which demonstrated that they
were union members. The Respondent denies that its failure
to employ the 48 individuals named in the complaint was
discriminatorily motivated; rather, it maintains that legitimate
considerations drove its hiring decisions.
In cases such as this, where the legitimacy of the employ-
er’s motivation is in issue, the task of assessing the true rea-
son for the Respondent’s hiring decisions requires analysis in
accordance with the burden shifting framework set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982). There, the
Board held that the General Counsel bears the initial burden
of proving that the employees were engaged in protected
concerted activity which was a dominant factor motivating
the employer’s actions. If the General Counsel succeeds in
establishing a prima facie case, the burden shifts to the Re-
spondent to prove affirmatively that its conduct would have
been the same even in the absence of the employees’ pro-
tected activity. Id. at 1089. Wright Line’s burden shifting test
has been applied to various contexts, including cases alleging
discrimination in the refusal to hire. See Eskaton Sunrise,
supra.
The General Counsel’s Prima Facie Case
1. Respondent’s knowledge of the applicants’
union affiliations
On applying these standards to the instant case, I am satis-
fied that the General Counsel has met his burden of estab-
lishing a prima facie case. At the outset, the General Counsel
introduced into evidence the employment applications of all
but one of the 46 union members who sought employment
on December 20 and of the 2 who applied on January 10.
Even a cursory review of these applications reveals that each
applicant ‘‘was or might be expected to be a union sup-
porter.’’ Big E’s Foodland, 242 NLRB 963 (1979).
If Lott and Gilliam, the management officials directly in-
volved in the hiring process for the Camp Springs project,
reviewed these applications, as they said they did, they cer-
tainly noted that the greater majority of the applicants identi-
fied themselves as volunteer union organizers.15 Where this
element was absent, other indicia of union membership ap-
peared on every application. Many applicants provided a
work history with employers known to hire union labor,
and/or cited former rates of pay which were recognizably
higher than wages typically offered by nonunion employers.
Lott and Gilliam admitted that they either were familiar with
the union employers in the area or could recognize when a
wage was one which was most likely offered by a union con-
tractor. In addition, many of the December 20 applicants list-
ed union business agents as personal references, gave the
name of their union in the space seeking information about
membership in job-related professional associations, and/or
identified union training programs in which they had partici-
pated. Most applications contained multiple indicia, but none
lacked at least one of these readily identifiable earmarks of
union affiliation. Cf. Tyger Construction Co., 296 NLRB 29
(1989) (nothing on majority of applications of alleged
discriminatees revealed that the individual was a union mem-
ber).
976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 The applications of the two discriminatees who applied on January 10,
1989, also contain multiple indicia of union membership. See G.C. Exhs. 2(14)
and (43).
17 Evidence of events occurring prior to the 6-month statutory limitations pe-
riod prescribed by Sec. 10(b) of the Act, is admissible to show antiunion moti-
vation. See Allis Chalmers Corp., 231 NLRB 1207 fn. 14 (1977); Darlington
Mfg. Co., 165 NLRB 1074, 1079 fn. 8 (1967).
18 It could be assumed that Watts, secretary/treasurer of the Boilermakers,
and a fellow member of the Building Trades Council, would support Cal-
houn’s testimony in all important respects. Yet, West confirmed Coleman’s
testimony that it was Calhoun who said that the Respondent would not hire
union men for $5 an hour.
19 Johnson admitted knowing who Barry Edwards was but denied making
the remark. No one at this meeting took notes. Therefore, in order to deter-
mine credibility in this situation, I rely on the inherent probability that John-
son, well aware of Edwards’ reputation as a notorious union organizer, prob-
ably made the comments attributed to him.
If the above signs of union membership were not enough,
there is another factor which distinguished 46 of the named
discriminatees: they all applied on the morning of December
20. Their appearance en masse at the Respondent’s employ-
ment office was significant enough to impel the Respond-
ent’s hiring chief to summon the police who were followed
by a television crew. This episode surely brought the Decem-
ber 20 applicants to the Respondent’s attention in an unfor-
gettable manner.16
2. Evidence of animus and motivation
The critical issue here, however, is not whether the Re-
spondent knew that the 48 applicants were union members
and had engaged in union activity. Those elements necessary
to establishing a prima facie case are beyond dispute in the
instant case. Rather, the more difficult problem is whether
the Respondent’s knowledge was causally related to its deci-
sion not to hire the 48. Because direct evidence of antiunion
motivation is rare, proof of discriminatory intent may be in-
ferred from circumstantial evidence in the record as a whole.
See Morgan Precision Parts v. NLRB, 444 F.2d 1210 (5th
Cir. 1971); ACTIV Industries, 277 NLRB 356, 373 (1985).
There are several factors which emerge from this record
which give rise to the inference that the Respondent’s refusal
to hire any of the 48 applicants was discriminatorily moti-
vated. I rely, in part, on certain comments made by highly
placed management officials at the May 10 meeting with the
Building Trades representatives.17 After considering conflict-
ing testimony about this meeting, I conclude that it was a
frustrated Calhoun, not Coleman, who proposed an agree-
ment with wages set at $5 an hour.18 Clearly, the Respondent
had no obligation to enter into a prehire agreement and I
draw no inference of unlawful motivation from Coleman’s
refusal to do so. See Tyger Construction Co., supra at 30 fn.
1. It was not the fact that Coleman rejected the proposal, but
the way in which he did so which is significant here.
Following Calhoun’s remarks, Calhoun did not simply op-
pose signing the Building Trades’ proposal for legitimate
business reasons. Rather, he admitted rejecting the proposal
even if the union members agreed to work at a wage scale
lower than what the Respondent currently was paying. Cal-
houn may not have actually been willing to enter into an
agreement with an hourly rate far below what the Respond-
ent was offering to its nonunion work force. However, Cole-
man could have tested the genuineness of Calhoun’s offer by
accepting it. Alternatively, he could have regarded it as an
opportunity to bargain for a highly desirable wage scale, one
which might have saved the Respondent even more than the
20-percent higher costs attributed to union labor. Instead,
Coleman dismissed Calhoun’s statement out of hand, thereby
indicating that he would not enter into a project agreement
regardless of how advantagous it might be. Based on the par-
ties’ exchange and all the attending circumstances, I infer
that Coleman’s reaction stemmed not from legitimate busi-
ness reasons but from a mindset which was opposed to hiring
union employees under any circumstances. As Calhoun right-
ly observed, ‘‘It wasn’t the economical fact, it was some-
thing else.’’ (Tr. I–149.) There is good reason to infer that
the ‘‘something else’’ was the Respondent’s antiunion ani-
mus.
Other comments errupted at the December 20 meeting
which, taken altogether exposed the Respondent’s antiunion
bias. Both Calhoun and Watts testified that either Coleman
or Johnson stated they could find more qualified workers off
the street than through the Unions’ hiring halls. Neither of
the alleged speakers expressly repudiated this hostile remark.
The Respondent submits in its brief that this comment evi-
denced nothing more than the Respondent’s interest in con-
trolling the employment process. I find this statement less
benign than the Respondent suggests. Examined objectively,
this remark goes beyond the Respondent’s interest in retain-
ing control of its employment decisions; it reflects a state of
mind wholly adverse to employing union labor.
Further, at the trial, Coleman did not hesitate to assert that
the Respondent firmly opposed union organization by all
legal means. The Respondent’s position in this regard clearly
is not unlawful. See Holo-Krome Co. v. NLRB, 907 F.2d
1343 (2d Cir. 1990). However, it sets an attitudinal backdrop
for Johnson’s abrasive comment that the Respondent did not
want Barry Edwards, a professional organizer for the Boiler-
makers, or ‘‘any of the Union Organizers in here to mess up
our jobs.’’ (Tr. I–163.)19
To be sure, Coleman told the Building Trades representa-
tives that union members could apply for jobs and be consid-
ered like all other applicants. If taken at face value, Cole-
man’s invitation arguably was inconsistent with the antiunion
comments attributed to him and Johnson. However, contrary
to Coleman’s invitation, the evidence strongly suggests that
the union craftsmen who applied to work for Fluor Daniel
on December 20 were not accorded the same neutral consid-
eration given to nonunion applicants. To the contrary, the
evidence supports an inference that the Respondent purposely
failed to consider their applications seriously.
Given the Company’s preferential hiring policy, only 14 of
81 positions filled during the 2-month hiring period involved
in this case, were available for applicants who lacked prior
Fluor Daniel experience. The real issue here is why not 1 of
the 48 applicants named in the complaint was interviewed or
offered 1 of these 14 positions. Each applicant had at least
a few years’ experience, and many listed credentials which
should have warranted some inquiry from an employer pos-
sessing a sincere interest in hiring qualified people.
Gilliam attempted to rationalize his failure to contact any
of the 48 union members named in the complaint, but his ex-
cuses were incredible. As outlined above, Gilliam maintained
that although he reviewed applications on file, he found few
of quality. As an example of quality, Gilliam pointed to Jerry
Lowe who submitted a handwritten resume with his applica-
977FLUOR DANIEL, INC.
20 Most of those employed were former Fluor Daniel employees and gen-
erally were offered jobs on the same date they applied.
tion form and listed five references. If Gilliam was impressed
with Lowe’s submission, he should have found Blount’s pro-
fessionally printed resume listing a greater number of ref-
erences even more outstanding. Blount, an intelligent man
who bore himself with much dignity, testified credibly that
the person who accepted his application at the Respondent’s
employment office commented favorably on it. When he
asked when he might expect a call, Blount was told they
would contact him. He never heard from the Respondent
again. Many other applications contained in General Coun-
sel’s Exhibit 2 demonstrated that the applicants were trained
and experienced; yet, the Respondent did not contact, inter-
view, or hire a single member of that group.
Even a cursory review of the credentials of some of the
non-Fluor Daniels applicants whom Gilliam hired casts much
doubt on his purported effort to find well qualified applicants
and compels the inference that factors other than merit
caused him to discount the union applicants.
Take, for example, the application of Michael Bruce. He
applied for a carpenter’s position on December 7 and cited
experience solely as a carpenter or carpenter’s helper. Not-
withstanding Bruce’s limited work history, Gilliam retrieved
Bruce’s application from the files, contacted him, and found
that he had grown up on a farm. From this, Gilliam con-
cluded that Bruce was capable of operating a light tractor
and offered him a job on January 23. In doing so, Gilliam
disregarded far more competent and experienced operators
whose applications appear in General Counsel’s Exhibit 2.
Nothing exceptional appears in Sammy Bullin’s applica-
tion which would mark him as a particularly qualified em-
ployee. He listed no special training and his experience was
limited, except for the fact that he worked for Tyger Con-
struction, a known nonunion contractor. Bullins applied on
January 10 and Gilliam offered him a job the following day.
Another applicant, William Pearson, unfortunately was illit-
erate and needed help with his application. In fact, his form
is incomplete in many respects. It contained no educational
or training credentials, listed few former employers, and gave
no references. Nevertheless, Gilliam hired Pearson as an op-
erator a week after he applied, explaining that he had been
referred by a Fluor Daniel’s equipment superintendent and
that he had checked him out with other companies, one of
which was a known nonunion contractor. (Tr. II–459.)
Gilliam’s other justifications for failing to contact any of
the electricians, ironworkers, or operators who applied on
December 20 make no more sense than his claim that he was
searching for qualified employees. Consider his testimony
that he filled positions shortly after the application was filed
because (1) there was a lot of work going on and (2) a com-
petent person would not be available for long. Several union
leaders testified without contradiction that the unemployment
rate for their crafts hovered close to 70 percent. Given such
conditions, it is unlikely that applicants would find jobs eas-
ily, particularly during the holiday season which fell within
this 60-day period. Further, the Respondent’s own exhibit
contradicts Gilliam’s assertion that it was necessary to hire
applicants shortly after they applied. Respondent’s Exhibit 20
shows that of 19 electrician positions filled, 5 individuals
who had no apparent union affiliation were hired from 1 to
3 weeks after their application date. Similarly, 3 of 28 iron-
workers and 14 of 35 operators were hired from 1 to 3
weeks after the date they applied.20
In still another attempt to counteract the inference that
arises from his failure to interview or hire any of the crafts-
men named in the complaint, Gilliam alleged that he hired
a pipefitter who had the words ‘‘volunteer union organizer’’
inscribed on his application. The Respondent neither intro-
duced an application for this supposed pipefitter whose name
Gilliam could not recall, nor attempted to refresh Gilliam’s
recollection by showing him applicant logs for December 20.
In fact, no evidence was introduced to establish when, if
ever, this pipefitter applied. Having found Gilliam’s testi-
mony untrustworthy on almost every score, in the absence of
any other substantiating proof, I decline to credit his asser-
tion that he hired anyone who identified himself as a volun-
teer union organizer.
Only one common thread bound the Respondent’s choice
of employees—virtually all those hired in the relevant time-
frame submitted applications which bore no indicia of union
affiliation. Indeed, many contained affirmative evidence that
the applicants worked almost exclusively for nonunion em-
ployers.
The Respondent disputes the charge that it was
discriminatorily motivated in its hiring practices by claiming
that of the 14 positions available for persons lacking Fluor
Daniel experience, 4 were filled by individuals whose appli-
cations demonstrated union ties. The four applications on
which the Respondent relies, those of Louis Graham, Earl
Penniman, Harry Freeman, and Robert Hawkins, do not se-
curely support for its claim.
Scott and Gilliam, the industrial relations officials respon-
sible for hiring prior to and after January 1989, respectively,
concluded that Graham had a union background based on
previous employment and rate of pay with Babcock &
Wilcox. Apart from this data, Graham’s application is barren
of anything that might mark him as a union member. Inter-
estingly, Graham, who applied for a position solely as a
welder, was listed as one of three electricians hired without
Fluor Daniel experience. Gilliam explained that he employed
Graham on January 16 because the Respondent needed a
welder and ‘‘We didn’t have anyone available by then.’’ (Tr.
II–201.) If Gilliam had reviewed the applications on file in
an unbiased fashion, he would have discovered at least four
union welders whose credentials as good as if not better than
Graham’s. (See G.C. Exhs. 2(2), (8), (26), and (46).)
Scott also identified Penniman as union-oriented based on
the fact that he participated in an IBEW apprentice training
program. However, it is highly probable that Penniman, who
was born in 1928, was involved in the IBEW program many
years ago. His recent experience immediately prior to apply-
ing to the Respondent, was as a foreman with Brown &
Root, another acknowledged open-shop employer. Given the
recency of this employment, compared to the dated nature of
his union contact, Penniman did not clearly label himself a
union supporter.
Freeman is identified in Respondent’s Exhibit 20 as pos-
sessing both a Fluor Daniel and union background. However,
in the absence of any enlightening testimony, I am unable to
detect any union connection from his application. To the
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contrary, Freeman listed Tyger Construction as his last em-
ployer.
Gilliam pointed to Hawkins’ employment by a union con-
tractor with pay at union scale as demonstrating his probable
union affiliation. However, Gilliam failed to note that Haw-
kins also cited recent employment as an equipment super-
intendent with Tyger Construction. This latter experience cre-
ates doubt as to Hawkins’ union sympathies.
If there is any characteristic which unifies the above four
individuals, it is not the strength of their ties to a union. To
the contrary, in each case, their purported union links are ei-
ther remote, weak, or nonexistent. In contrast to the 48
named discriminatees, whose applications typically dem-
onstrated multiple indicia of union affiliation, the Respondent
could hardly believe that Graham, Penniman, Freeman, and
Hawkins qualified as current representatives of organized
union labor.
In its Exhibit 20, the Respondent summarized statistical
data as to the total number of applicants in each craft, the
number hired, and whether those hired had Fluor Daniel or
union experience. Assuming that the figures provided to him
were accurate, Dr. Peterson performed calculations which led
him to conclude that prior employment with the Respondent
significantly improved an applicant’s employment oppor-
tunity. However, he also determined that union affiliation
was not a statistically significant factor affecting an appli-
cant’s chance of being hired . The problem with Dr. Peter-
son’s analysis lies not with his methodology, but with the
premises on which he relied.
As shown above, the Respondent’s assumption that Fluor
Daniel hired four individuals with clearly established union
affiliations is highly questionable. Removing even one or two
of the persons from the union column and placing them in
either of the other categories surely would alter Dr. Peter-
son’s conclusion that union affiliation played no part in the
selection process.
Further, in Respondent’s Exhibit 20, asterisks were placed
after the names of 18 individuals whose applications the Re-
spondent was unable to find. Since the Respondent deter-
mined whether the applicant had union, nonunion, or Fluor
Daniel experience from information on each application, no
conclusions could be drawn about these 18. Dr. Peterson
dealt with this problem by treating the 18 individuals as hav-
ing neither Fluor Daniel nor union experience. What Dr. Pe-
terson did not do was analyze the data assuming that all 18
or even a portion of them were union members. This could
have had relevance since none of the 18 was hired. Dr. Pe-
terson agreed that including the 18 as unhired union mem-
bers would affect his calculations, but without performing a
new analysis, was unwilling to say how this might alter his
conclusion that no statistically significant deviation existed
between the number of union and nonunion applicants hired.
Given the flawed assumptions on which the doctor relied, I
must disregard his opinion that union affiliation did not af-
fect an applicant’s employment opportunity with the Re-
spondent.
In light of the foregoing discussion, little mystery remains
as to the true motivation for Fluor Daniel’s employment de-
cisions. Based on all the evidence, it is fair to infer that the
Respondent chose to ignore the 48 applicants named in the
complaint because their applications and their concerted ac-
tivity on December 20 unmistakeably stamped them as union
supporters. Accordingly, I find that the General Counsel es-
tablished a prima facie case. See KRI Constructors, 290
NLRB 802 (1988).
The Respondent Fails to Sustain Its Burden
1. The union members were bona fide applicants
Relying heavily on H. B. Zachry Co. v. NLRB, 886 F.2d
70 (4th Cir. 1989), the Respondent argues initially that the
48 individuals named in the complaint were not bona fide
applicants. The Respondent’s reliance on Zachry is mis-
placed. The facts as recited in the court of appeals opinion
are as follows. Edwards, the alleged discriminatee in that
case and a member of the Boilermakers Union, first was em-
ployed at one of the Zachry plants in 1980. Although satis-
factory in his work, he later was discharged for what the
Board found to be unlawful reasons. Zachry was ordered to
reinstate him, but by the time the Board’s order issued, the
project for which he was hired was completed. Subsequently,
Edwards applied for employment without success at other
Zachry locations. At the time of his last application, Edwards
was a full-time union organizer and intended to remain a
union employee concurrently with his employment by
Zachry. Had he been hired by the company, the union in-
tended to compensate him for any salary differential and to
continue his health, life, and pension benefits. Edwards had
conceded that he sought entry to the plant to organize it. The
Board ruled that Zachry had discriminated against Edwards
by refusing to hire him because he was a union organizer
and had initiated proceedings against the firm. 289 NLRB
838 (1988).
The court of appeals denied enforcement, finding that Ed-
wards was not a bona fide applicant for employment and,
therefore, was not covered under the Act. In reaching this
conclusion, the court explained that although ‘‘Edwards
would undoubtedly share some of the external characteristics
of a Zachry employee, at core he would remain an employee
of the union.’’ Zachry v. NLRB, supra at 73. In the court’s
view, the term employee ‘‘does not contemplate someone
working for two different employers at the same time and for
the same working hours.’’ Id. Since Edwards already had a
job, he was not in search of one, like a true job applicant.
The court also opined that in light of Edward’s avowed role
as a full-time union organizer, Zachry reasonably could as-
sume that he would stay on the job only until the organiza-
tional campaign was over and not until the project was com-
pleted. Id. at 74. Additionally, the court observed that an em-
ployer is not required to permit a union organizer on its
premises when other means to reach employees are available
Id. While affirming that an employer may not discriminate
against applicants on the basis of their union membership,
the court also pointed out that an employer is not obliged to
favor union membership in its hiring policies. Id. at 75. Sum-
ming up, the court emphasized the carefully circumscribed
nature of its holding:
We uphold the employer’s right to reject a job appli-
cant simultaneously paid and supervised by another em-
ployer. We do not encroach, however, upon the fun-
damental purpose of the NLRA to protect those with
union sympathies and allegiances from unfair practices.
979FLUOR DANIEL, INC.
21 Lyman Cochran’s application (G.C. Exh. 2(10)), shows that he may have
a union employee on the date he applied. G.C. Exhs. 2(26), (32), (45), and
(47) indicate that the applicant either still was employed or failed to give a
termination date for his last period of employment. Blount also was working
on December 20, but as he explained, he traveled to and from work for 4
hours and was seeking a job closer to home. I have no question about the
legitimacy of Blount’s intentions, and, without further evidence, am reluctant
to include that the employees designated by exhibit number above, like the
43 other discriminatees, were not bona fide applicants.
22 Interestingly, no applicant was asked what the duties or obligations of a
volunteer union organizer might be.
23 It also may be that the Building Trades Council was interested in probing
the reach of the Zachry decision.
24 In Sunland, supra, the administrative law judge ‘‘reluctantly’’ rejected the
the employer’s argument that the submission of a large number of employment
applications from union members was part of the unions’ hiring scheme ‘‘de-
signed to enmesh the Board . . . in a private labor dispute,’’ because he knew
of no precedent holding that a valid defense to otherwise discriminatory con-
duct could be based on a union’s motives. (ALJD at 33–34.) The facts in
Sunland offer insight into the judge’s reluctance. There, only 3 months re-
mained until the construction project was completed when four union mem-
bers, one of whom was the Local’s vice president, obtained employment. All
four had secured waivers from the union allowing them to work for a non-
union company for the express purpose of organizing the job. Id. at 4. The
other applicants for Sunland jobs, including those of full-time professional
union organizers, were delivered in batches to the jobsite. In Sunland, no evi-
dence was produced as to high levels of unemployment nor were the applica-
tions admitted into the record. Further, apparently, none of the spurned appli-
cants testified as to their motives in applying for work with Sunland. The facts
in the instant case are far more compelling than those in Sunland that the 48
discriminatees who sought jobs with Fluor Daniel were bona fide applicants.
Here, the project was just beginning and the appplicants’ right to work for a
nonunion employer was not conditioned on their engaging in organizational
activity. Moreover, testimonial evidence, together with the 47 applications, at-
test to the applicants’ genuine interest in obtaining work during a period of
high unemployment for them.
25 Contrary to the Respondent’s claim, I found no frivolous applications
among those collected in G.C. Exh. 2.
Of course, I am bound by Board rather than appellate
court precedent. However, any conflict between the Board’s
and the court’s rulings poses no problem here for the facts
in the instant case are easily distinguished from those in
Zachry. A critical difference lies in the fact that the Decem-
ber 20 applicants were not full-time paid union organizers;
rather, with a few exceptions, they were unemployed elec-
tricians, ironworkers, and equipment operators.21 As the un-
employment statistics indicated, as virtually all the applica-
tions demonstrated, and as several of the witnesses testified,
the December 20 applicants appeared at the Respondent’s
employment office on the advice and with the consent of
their unions because they genuinely needed work. I cannot
assume, as the court did in Zachry, that these applicants’ pri-
mary purpose in seeking employment with the Respondent
was to engage in organizational activity. Further, even if
union members had filled each of the 14 available positions,
they would have constituted only a minute part of the Fluor
Daniel employee complement; hardly enough to disrupt oper-
ations as the Respondent supposed.
Further, unlike Edwards in the Zachry case, these appli-
cants were not full-time organizers seeking simultaneous em-
ployment with the Respondent. Therefore, the Respondent
would not have been burdened with paying them wages ordi-
narily paid by their unions, or would the unions have supple-
mented their pay. With unemployment uncontestably high in
their crafts, with no alternative sources of income, and with
roots in the Savannah area, these employees were not likely
to quit their jobs before the project was completed. Thus, the
Respondent could not assume that the union applicants
would stay on the job ‘‘only temporarily, i.e., for the length
of the organizational campaign.’’ Zachry Co. v. NLRB, supra
at 74. In short, if the December 20 applicants had been hired,
‘‘many of the normal incidents of the employer-employee re-
lationship [would have] remain[ed] intact.’’ Id. at 73.
It is true that many noted on their applications that they
were volunteer union organizers, but these comments were
no more revealing of their union affiliation than many other
indicia of union membership and support which appeared on
these forms.22 In all probability, the union leaders suggested
to the applicants that they add this comment as a way to test
the Respondent’s word that it was willing to hire union
members.23 In any event, efforts to conceal the applicants’
union affiliations would have been pointless and disingen-
uous. By frankly announcing that they were volunteer union
organizers, they avoided giving the Respondent grounds to
accuse them subsequently of being union plants or infiltra-
tors, rather than bona fide job applicants. Cf. NLRB v. Elias
Bros. Big Boy, 327 F.2d 421 (6th Cir. 1964).
I have little doubt that the officers of the Building Trades
Council had institutional objectives in mind when they en-
couraged members to apply for work with Fluor Daniel, and
were well aware that a large applicant turnout on December
20 would have public relations value. At the same time, the
unions, as a matter of survival, had to find employment for
their out-of-work members. There is no inconsistency be-
tween the unions waging a campaign against Fluor Daniel
and at the same time, urging their members to seek work
with the Respondent, while it remained one of the largest
contractors in the area.
Even if the union leadership had ulterior purposes in urg-
ing its members to assemble at the Respondent’s employ-
ment center on December 20, this does not negate the fact
that the applicants themselves were unemployed, experi-
enced, and willing to accept work if offered, even under less-
than-optimal terms and conditions of employment. Virtually
all the union applicants stated in their applications that they
were available immediately and that they either were open as
to an acceptable rate of pay or would accept what the Re-
spondent was offering. Many also noted they were willing to
travel to work, while a lesser number even indicated a will-
ingness to relocate. Such responses do not suggest, as the
Respondent contends, that these applicants had hidden agen-
das and were not legitimately seeking employment. Many of
the 48 union members noted on their applications that they
were volunteer union organizers, thereby indicating they
were prepared to engage in organizing activity after they
were employed; but this does not alter the fact that they were
bona fide applicants entitled to the protections of the Act.
See Sunland Construction Co., JD–214–89 (Sept. 5, 1989);24
Zachry Construction, 289 NLRB 838.
In insisting that the December 20 union applicants were
not seriously interested in jobs with Fluor Daniel, the Re-
spondent asks rhetorically in its brief (1) why the applicants
failed to inquire at the shopping center about job availability,
(2) submitted incomplete applications, and (3) failed to re-
apply.25
Answers to these questions are readily available, but they
do not support the inference the Respondent proposes. (1)
First, the evidence suggests that the applicants may have
asked more questions than the Respondent’s industrial rela-
tions officer recalled. Given the press of applicants who ap-
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 The union applicant who reapplied was Wayne Cross.
27 According to R. Exh. 22, 20 of 54 non-Fluor Daniel applicants were iden-
tifiably affiliated with the Union and 2 were hired; of 81 equipment operator
applicants, 21 were union members and 1 was hired. Fifty-three of 111, iron-
worker applicants were associated with the Union and none were hired. 28 Coauthor W. Connolly Jr., New York Law Journal Seminars Press (1987).
peared at the employment center on December 20, the Re-
spondent’s small staff on duty there surely was preoccupied
with distributing, receiving, and logging in applications, leav-
ing little time to answer questions. Moreover, Blount
credibly testified that he did question one of the Respond-
ent’s agents at the employment office. If Lott, who was di-
recting the hectic employment process on that date, forgot
that Blount questioned him, he may well have forgotten that
others questioned him as well. (2) I find, as a matter of fact,
that union members submitted or failed to submit duplicate
applications in proportionately the same number as did non-
union applicants. Thus, the record shows that 1 of 96 union
applicants and 4 of 241 nonunion applicants filed more than
one application. These figures suggest that the failure to re-
apply was relatively uncommon among both categories and
not necessarily related to union affiliation.26 (3) I also find
contrary to the Respondent’s suggestion, that the applications
submitted by union members overall were neither more nor
less complete than those from nonunion applicants. Indeed,
as discussed above, Gilliam hired one individual whose ap-
plication was remarkable for its lack of information, indicat-
ing that the Respondent did not necessarily regard complete-
ness as an important criterion.
In the final analysis, by failing a job to even one of the
48 union applicants, the Respondent never tested its conten-
tion that they had no real desire for employment. Thus, hav-
ing no basis to conclude that these applicants were not genu-
inely seeking work in their trades, the Respondent’s argu-
ment rests on surmise and conjecture. Its evidence is not
enough to overcome the showing that the 48 discriminatees
were bona fide applicants for hire entitled to coverage under
the Act.
2. Statistical data tends to demonstrate antiunion
discrimination
As discussed above, the Respondent adduced statistical
evidence from its expert witness in an unsuccessful effort to
establish that its hiring practices were nondiscriminatory. If
the figures on which Dr. Peterson relied are evaluated in a
more realistic manner, they appear to contradict his conclu-
sion that union affiliation played no statistically significant
role in the Respondent’s hiring practices.
Since the odds were extremely high that prior Fluor Daniel
employees would be rehired, including them in the applicant
pool skews the results. Accordingly, it may be fairer to cal-
culate the ratio between the number of applicants and those
hired after subtracting the Fluor Daniel employees from the
total applicant pool. When the applicant pool includes only
union and nonunion applicants, far different results are ob-
tained than those proposed by Dr. Peterson. Respondent’s ex-
hibit 22 shows that in the electricians craft, 37 percent of the
non-Fluor Daniel applicants were union-oriented with an ac-
tual hire rate of less than 4 percent. Similarly, 30 percent of
equipment operator applicants indicated union affiliation with
a 1-percent employment rate. Even worse, close to 50 per-
cent of the ironworker applicants were union-affiliated, but
the hire rate was naught.27
In his text, Use of Statistics in Equal Opportunity Litiga-
tion, Sec. 4.05, 4–31–32, Dr. Petersen writes:28
The composition of the applicant pool and the new
hires should be similar if the company’s hiring prac-
tices are non-discriminatory.
If offers of employment are extended proportionately
to affinity group members, it is evidence that the hiring
process from applicant pool to new hires is non-dis-
criminatory. If the offers . . . are consistently given
relatively less frequently to affinity group members, it
is strong evidence of discrimination.
Based on the foregoing computations, an enormous dispar-
ity exists between the union members’ representation in the
applicant pools and their rates of hire. Cf. Tyger Construc-
tion, supra (statistics demonstrated that union-oriented em-
ployees were hired in greater numbers than their representa-
tion in the applicant pools) (emphasis added). Since the Re-
spondent has not presented persuasive evidence to account
for these disparities, In keeping with Dr. Peterson’s analysis,
these statistical disparities support the inference that Fluor
Daniel’s hiring practices were biased against the union appli-
cants.
Clearly, the Respondent treated all applicants who dem-
onstrated strong union ties in a manner different from and in-
ferior to applicants who were not union activists, and failed
to show lawful justification for such treatment. In such cir-
cumstances, it is fair to infer, without further proof, that the
Respondent’s conduct was discriminatorily motivated and
had a destructive impact on the future exercise of employee
rights. NLRB v. Great Dane Trailers, 388 U.S. 26, 34
(1967); National Fabricators, 295 NLRB 1095 (1989), enfd.
903 F.2d 396 (5th Cir. 1990).
In sum, I conclude that the Respondent has failed to sat-
isfy its burden under Wright Line; it has adduced no convinc-
ing evidence that it would not have employed the 48
discriminatees even in the absence of their union activity.
Accordingly, it follows that the Respondent’s failure to offer
positions to those named in the complaint violates Section
8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. The 48 individuals named in paragraph 6 of the amend-
ed complaint were bona fide applicants for employment enti-
tled to the protections of the Act.
4. By refusing to offer positions to any of the 48 named
discriminatees because they were members or supporters of
labor organizations, as demonstrated by their job applications
and group appearance at Fluor Daniel’s employment office,
the Respondent violated Section 8(a)(3) and (1) of the Act.
5. The above unfair labor practices affect commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
981FLUOR DANIEL, INC.
29 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 objec-
tions to them shall be deemed waived for all purposes.
THE REMEDY
Having found that the Respondent violated Section 8(a)(3)
and (1) of the Act by refusing to hire the applicants named
in paragraph 6 of the amended complaint, I shall recommend
that the Company cease and desist therefrom and take appro-
priate action designed to effectuate the policies of the Act.
Generally, the remedy in refusal-to-hire cases is no dif-
ferent than the relief ordered for traditional violations of Sec-
tion 8(a)(3); that is, a make-whole order for backpay and re-
instatement. While recognizing that ‘‘employment patterns in
the construction industry have unique characteristics and jobs
are frequently of short duration,’’ the Board, nevertheless,
stated in Dean General Contractors, 285 NLRB 573–574
(1987), that:
these general characteristics, standing alone, do not jus-
tify a departure from our traditional make-whole rem-
edy prior to compliance. We simply do not now know,
as a factual matter, whether the Respondent would have
transferred or reassigned (the discriminatee) elsewhere.
Indeed, although jobs in the construction industry are
frequently of short duration at a single project, that is
not always the case. . . . Further, it is not unusual for
employers to carry over or request selected employees
from jobsite to jobsite. Determination of whether an
employee may have been transferred or reassigned else-
where is a factual question and, as such, is best re-
solved by a factual inquiry at compliance. [Footnotes
omitted.]
Fashioning a remedy in this case is particularly problem-
atic since, at best, only 14 positions were available for 48
applicants. Thus, there is no assurance that all those in the
protected class will be guaranteed relief. Further, although
record evidence indicated that employees were laid off at the
end of each project, Fluor Daniel employees were given pref-
erential treatment when applying for subsequent positions
with the Respondent. Absent discrimination, some of the 48
discriminatees would have been employed at the Camp
Springs project and, consequently, would have received fa-
vored treatment when they next applied for a position at an-
other Fluor Daniel project. Thus, their rejection at the Camp
Springs project had multiple, far-reaching consequences.
Moreover, there is no evidence which might show whether
on occasion, the Respondent transferred some favored em-
ployees from site to site. As the Board pointed out, ‘‘it is
not unusual for employers to carry over or request selected
employees from jobsite to jobsite.’’ Id. at 573.
Difficult questions remain as to an appropriate remedy in
this case, but they are best reserved for the compliance stage
of the proceeding. For the present, in keeping with the
Board’s approach in Dean, I shall recommend the traditional
make-whole remedy, with the understanding that the Re-
spondent may introduce evidence as to the likelihood that the
discriminatees would have been transferred or reassigned to
other sites after the Camp Springs project was completed.
Specifically, I shall recommend that the Respondent offer
immediate employment to the discriminatees who would
have been hired but for the Respondent’s discriminatory
treatment of them, and if the construction project at Camp
Springs is completed, the Respondent shall offer the named
discriminatees the same or substantially equivalent employ-
ment at other projects as close as possible to Savannah,
Georgia. I also shall recommend that the discriminatees
named in the complaint be made whole for any loss of earn-
ings and other benefits they may have suffered by reason of
the discrimination against them from the date they applied
for employment to the date that the Respondent makes them
a valid offer of employment. Backpay shall be computed on
a quarterly basis, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), and shall be reduced by net interim earn-
ings, with interest computed in conformance with New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). Additionally,
it shall be recommended that the Respondent expunge its
files of any reference to the failure to employ the named
discriminatees and inform them that this has been done.
It is important to bear in mind that all reinstatement and
backpay recommendations are subject to resolution of the
issues outlined in Dean, supra at 575. Thus, the Respondent
may introduce evidence at a compliance hearing regarding
the likelihood that those discriminatees who were hired,
would have been transferred to other projects subsequent to
the conclusion of work at the Camp Springs site. If the Re-
spondent establishes at compliance that the discriminatees
would not have been transferred, then the Respondent shall
place their names on a preferential hiring list for jobs at
other projects and offer them positions as they become avail-
able in their respective crafts, since they would have had pre-
ferred status as Fluor Daniel employees had the Respondent
not discriminated against them. See Apex Ventilating Co.,
186 NLRB 534 (1970). Evidence regarding transfer or reas-
signment also may be considered with regard to the date
when the Respondent’s backpay liability terminated.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended29
ORDER
The Respondent, Fluor Daniel, Inc., Savannah, Georgia, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging employees from engaging in activities on
behalf of a labor organization by refusing to hire job appli-
cants because they are members or supporters of unions, be-
cause they previously worked for union employers, or be-
cause they indicate on their employment applications that
they are voluntary union organizers; or in any other manner
discriminating with respect to their wages, hours, or other
terms and conditions of employment.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees or applicants for employment
in the exercise of their Section 7 rights protected by the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer the applicants for employment listed in paragraph
6 of the amended complaint, employment in positions for
which they applied, or if such positions no longer exist, to
substantially equivalent positions, and make them whole for
any loss of earnings they may have suffered by reason of the
discrimination against them as set forth in the remedy section
of the decision.
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
(b) Remove from its files and expunge any and all ref-
erence to the unlawful refusal to hire the discriminatees
named in the complaint and notify the discriminatees in writ-
ing that this has been done and that the refusal to hire will
not be used againt them in any way.
(c) Preserve and, on request, make available to the Board
or its agents 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 the remedial por-
tion of this Decision and Order.
(d) Post at all of its jobsites within a 75-mile radius of Sa-
vannah, Georgia, copies of the attached notice marked ‘‘Ap-
pendix.’’30 Copies of the notice, on forms provided by the
Regional Director for Region 10, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places, including all
places where notices to employees 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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps 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
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 discourage employees from engaging in ac-
tivities on behalf of a labor organization by refusing to hire
job applicants because they are members or supporters of
unions, because they previously worked for union employers,
or state on employment applications that they are volunteer
union organizers; nor shall we discriminate against such ap-
plicants in any other manner with respect to wages, hours,
or other terms and conditions of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees or applicants for employment
in the exercise of their rights guaranteed by Section 7 of the
National Labor Relations Act.
WE WILL offer the applicants for employment listed in
paragraph 6 of the amended complaint, employment in posi-
tions for which they applied, or if nonexistent, to substan-
tially equivalent positions, and WE WILL make them whole
for any loss of earnings they may have suffered by reason
of the discrimination against them in the manner set forth in
the remedy section of this decision.
WE WILL remove from our files, delete, and expunge any
and all reference to the unlawful refusal to hire the 48 appli-
cants named in the complaint, and will notify them that this
action has been taken and will not be used against them in
the future.
FLUOR DANIEL, INC.