Great Barrier Insulation Co.

National Labor Relations Board - Administrative Judge Opinions

Dec 4, 2003

10-CA-034315 (N.L.R.B. Dec. 4, 2003)

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Decatur, AL

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

GREAT BARRIER INSULATION COMPANY

and Case 10-CA-34315

INTERNATIONAL ASSOCIATION OF HEAT
AND FROST INSULATORS AND ASBESTOS
WORKERS UNION LOCAL 78, AFL-CIO, CLC

John D. Doyle, Jr., Esq. for the General Counsel.
M. Jefferson Starling, III, Esq. and Christopher T.
Terrell, Esq. (Balch & Bingham, LLP), of
Birmingham, Alabama, for the Respondent.
Mr. William Lemus, of Spring Hill, Florida for the
Charging Party.

DECISION

Statement of the Case

JOHN H. WEST, Administrative Law Judge: A charge was filed on March 25, 2003, by
International Association of Heat and Frost Insulators and Asbestos Workers Union Local 78,
AFL-CIO, CLC (Union or Insulators) against Great Barrier Insulation Company (Respondent or
GBIC).1 On May 30, a complaint was issued which alleges that Respondent (1) violated Section
8(a)(1) of the National Labor Relations Act, as amended (Act), on January 15 by (a) supervisor
James Matthews interrogating employees about their union activities, (b) supervisor Ryan
Hawkins promulgating an overly-broad and discriminatory rule prohibiting its employees from
engaging in Union activities, interrogating its employees regarding their union membership,
activities, and sympathies, threatening its employees with unspecified reprisals because they
engaged in union or other concerted activities, and created an impression among its employees
that their Union and other concerted activities were under surveillance by the Respondent, and
(2) violated Section 8(a)(1) and (3) of the Act by (a) failing and refusing to consider for hire and
failing and refusing to hire eight applicants on January 142 and (b) terminating Miguel Aguilar on
January 15 because he assisted the Union and engaged in concerted protected activities, and
to discourage other employees from engaging in these activities. The Respondent denies
violating the Act as alleged.

A trial was held in this matter on July 30 and 31, August 1, and September 10. On the
entire record, including my observation of the demeanor of the witnesses, and after considering
the briefs filed by General Counsel and Respondent, I make the following

1 All dates are in 2003 unless otherwise indicated.
2 Tommy Beasley, Craig Francis, Nicki Gooch, Fred Marsh, Brent Newsome, Dennis Noble,
Bryan Vincent, and Glen Weldon.

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Findings of Fact

I. Jurisdiction

The Respondent, a Florida corporation with places of business, as here pertinent, in
Decatur, and Autaugaville, Alabama, had been engaged in business as a mechanical insulation
contractor, and in conducting its business operations it has provided services valued in excess
of $50,000 to customers located outside the State of Alabama. The Respondent admits and I
find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act. Also, I find that the Union at all material times has been a labor organization within
the meaning of Section 2(5) of the Act.3

II. Alleged Unfair Labor Practices

The Respondent works throughout the United States and it has five nongeographically
based divisions, including the one located at Decatur. As here pertinent, that division is
responsible for work performed at the Autaugaville power plant near Prattville, Alabama and at a
plant in Tonopah, Arizona. Projects are assigned to a division based on which division can
handle the next project.

On January 14 Donald Vincent, who is the President of the Union and works as an
insulator, applied for a job at Respondent. General Counsel’s Exhibit 4 is the application he
submitted to GBIC at its Decatur office. Five other Union members went with him to
Respondent’s office that day to apply for jobs, namely, Francis, Gooch, Marsh, Weldon, and
Noble. All of these union members wore Union T-shirts and Marsh operated a video camera in
the Respondent’s office until Jason Wright, who is a Contract Manager for the Respondent
asked him to turn it off. Vincent testified that he believed that GBIC is a nonunion contractor;
that he has worked at about 20 different power generating facilities; that he has experience in
installing panel and non-panel insulation, and sheet metal up to 020 gauge in an insulation
context ; that about 95 percent of the Union’s referrals are for power generating facilities; that for
9 months in 2000 he worked for Star Insulation, which is a nonunion company that the Union
tried to organize; and that he was never offered employment with GBIC. On cross-examination
Vincent testified that he has been working as an insulator for 15 years; that he has been a
journeyman for 8 years; that he did not know anyone who worked at GBIC prior to January 14;
that in January 2003 he was working on a job for Shook and Fletcher and under the collective
bargaining agreement between that Company and the Union he was making $18.93 an hour
plus $3.05 an hour for pension and between $3.50 and $4 an hour for insurance but the job,
which lasted from August 2002 to February 2003, was winding down and he was about to be
laid off; that he knew that GBIC did not offer health insurance or a pension plan; that in January
2003 he would have left the Shook and Fletcher job to go with GBIC because the Shook and
Fletcher job was about over with anyway; that on his application with GBIC he indicated that he
had 5 years experience in the insulation trade, he did not give his rate of pay with Shook and
Fletcher or for former employer M&O (over $24 an hour), he listed Local 78 as an employer
because he taught some at the apprentice school, and he did not see the notification on the first
page of the application that “[a]pplications will be retained for a period of 30 days. After this
time, applicant must reapply”; that after January 14 he never called GBIC because the secretary
who was working at the window in the office that day said that she appreciated him and the
3 At the trial herein Counsel for General Counsel amended the complaint, without objection,
to allege, and I find, that Sheet Metal Workers International Association, Local 48, has been a
labor organization within the meaning of Section 2(5) of the Act.
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applicants with him submitting applications but the two individuals who were there before them
were the last that they would be hiring; that he and the other members were told while they were
in the office that GBIC was not a union company; and that upon returning to the Union hall after
leaving GBIC he gave a statement to William Lemus. On redirect Vincent testified that no one at
GBIC asked him if he spoke Spanish and he did not notice such a question on the application.

Weldon, who has been an insulator and a union member since 1974, testified that he
was finance and recording secretary of the Union; that on January 14 at Decatur he applied for
work with GBIC and General Counsel’s Exhibit 5 is his application; that he went with Marsh,
Vincent, Francis, Gooch, and Noble; that he and the people who went with him were wearing
union T-shirts; that they asked the secretary at Respondent’s Decatur office for applications and
Marsh had his video camera on; that a man asked Marsh to turn the camera off; that when they
turned the applications back into the secretary she told them that she would turn them over to
human resources; that he never heard back from Respondent; that most of the jobs that he has
worked on in the last 15 or 20 years have been power houses, and the majority of the power
house insulation work he does has metal work on it; that all of the jobs that he has worked since
1974 have been union jobs; that he has worked with Marsh for years applying either metal
jacketing over insulation or panel metal insulation, and Marsh is an excellent insulator; that
Marsh started in the insulation trade in 1973; that Francis went through the Union’s
apprenticeship program in the early 1990s, he has worked alongside of Francis in the field in
metal applications, and Francis, who is now an instructor in the apprenticeship program, is a
good insulator; that Noble went through the Union’s apprenticeship program about 30 years
ago, he has worked with Noble using sheet metal in insulation applications, and Noble is a good
metal man; that Gooch is a second or third year apprentice; and that previously he had worked
at the Autaugaville power generating facility. On cross-examination Weldon testified that he has
not worked for a nonunion contractor since he became a member of the Union about 30 years
ago; that when he applied for a job at GBIC he was not employed; that he worked for M&D at
the Autaugaville site and GBIC was not on the site at the time; that he never called GBIC back
to see if any jobs were available; that he would have taken a helper job at $8 an hour; and that
when Marsh was told to turn off the video camera he left it on but he set it down on a table.
Subsequently Weldon testified that he did not remember seeing the notice on the application
that it would be retained for 30 days; and that the two Hispanic gentlemen who were in the office
when he and the other Union members entered were sent to the Autaugaville jobsite.

Newsome, who is a business representative of the Sheet Metal Workers Local 48,
testified that he started his apprenticeship program in 1977 and became a member of the Sheet
Metal Workers in 1979; that as part of his job he tries to organize contractors; that he has
worked at several power plants, including the Miller Steam Plant where he was hired as a sheet
metal worker and became the general foreman supervising the sheet metal and insulation work;
that he has experience installing (a) sheetmetal over insulation, (b) panel insulation, and (c)
insulation which is going to have sheet metal installed over it; that he applied for work with
GBIC, and General Counsel’s Exhibit 7 is his application; that he met with some of the members
of the asbestos workers before he applied at Respondent’s Decatur office with Beasley, who is
a full time organizer for the Sheet Metal Workers; that Beasley successfully completed the
Sheet Metal Worker’s apprenticeship program around 1996; and that Decatur is approximately
50 miles north of Birmingham, and it takes one hour and twenty minutes to drive from
Birmingham to Autaugaville, which is south of Birmingham. On cross-examination Newsome
testified that he has not been out of work in the last two years but during that period he did apply
at four or five non-union contractors; that he was hired by one, CLP working for R. J.
Mechanical, he worked one day, and then quit after he was able to get employees to sign up to
join the Sheet Metal Workers; that the previous work experience portion of his application for
employment at GBIC is fictitious; that he and Beasley did not wear any union paraphernalia and
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to his knowledge GBIC did not know that they were members of a union; and that it was
planned that he and Beasley would go into GBIC’s Decatur office and apply for jobs on January
14 after the insulators went in and applied.

The Respondent called Beasley as a witness at the trial herein. He testified that
he has been a member of the Sheet Metal Workers for a little over 12 years, and he has been a
full-time organizer for Sheet Metal Workers Local 48 for a little over a year; that in the year
before the trial herein he had also been employed at several named companies; that when he
went to the Decatur office of GBIC on January 14 he was not employed anywhere other than
the Sheetmetal Workers; that some of the information he gave on the previous work experience
portion of his application for employment at GBIC, General Counsel’s Exhibit 9, is not true; that
he recorded what was said when he went to GBIC’s Decatur office on January 14 and there is
nothing on the recording which indicates that anyone at GBIC made any comments about not
hiring union members; that he did not wear anything on January 14 which would indicate that he
was a union member; that he was asked by the insulators to apply at GBIC; and that it was
planned that one group would go in overtly and then he and Newsome would go in covertly.
Beasley also testified that he has worked at nonunion sheet metal jobs during the year before
he testified herein.

The Respondent called Francis as a witness at the trial herein. He testified that on
January 14, when he applied for a job at Respondent he was employed by Performance
Contractors (PCI); that PCI paid $18.93 an hour plus health insurance and pension; that Donald
Stanley of the Union called him and asked him to apply at GBIC; that he has been in the Union
since 1991; that he has worked for non-union contractors, namely Trinity Contractors in 1998 or
1999 and Star Insulation in 2001; that General Counsel’s Exhibit 3 is the application he
submitted to GBIC; that most of his work is on power generation plants; and that he has been a
journeyman since 1996.

The Respondent called Gooch as a witness at the trial herein. She testified that when
she went to GBIC’s Decatur office on January 14 to submit an application for employment she
was employed at the time by Shook and Fletcher making $13 an hour but that job ended a few
weeks after January 14; that she was trying to line up a job for after she was laid off at Shook
and Fletcher; that she has worked in the insulation industry for three years as an apprentice;
and that she never called GBIC to find out whether she had been accepted for a job because
the secretary told her on January 14 that GBIC had filled the last two positions, her application
would be turned over to human resources, and she might hear from human resources.

The Respondent called Noble as a witness at the trial herein. He testified that he has
been a member of the Union since 1977; that when he went to GBIC’s Decatur office on
January 14 he was not employed; that he has worked as an insulator for 25 years, he is a
journeyman, and he has worked at a lot of jobs on power generation sites; and that at the last
job he worked before applying at GBIC he made the contract rate of $18.53 an hour with
benefits. Noble’s application, General Counsel’s Exhibit 6, does not list any work experience
after 1993.

Miguel Aguilar, who has been a member of Insulators Local 73 in Arizona since 1995,
has worked in about 10 power plants.4 He is an organizer with the Insulators International
Union. Pages GBIC 287 through GBIC 301 of General Counsel’s Exhibit 16 are the application
4 His Arizona drivers license, page GBIC-317 of General Counsel’s Exhibit 16, has his full
name, viz., Miguel Angel Guzman Augilar.
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and documents relating to the application he filled out at the Respondent’s Decatur office on
January 14. Pages GBIC 302 to GBIC 317 of the same exhibit are documents relating to the
application and the application he filled out at the Respondent’s Tonopah, Arizona job on
October 21, 2002. Aguilar testified that he was hired by the Respondent at Tonopah that same
day; that Ryan Hawkins worked at the Tonopah job in October 2002; that during the application
process and during his employment at Tonopah, he did not disclose to management that he
was affiliated with the Union; that as soon as he walked out on the Tonopah jobsite he handed
out his Union business card, page GBIC-318 of General Counsel’s Exhibit 16, and Union flyers,
General Counsel’s Exhibit 17, to the employees5; that he did not give his business card to
anyone in supervision or management; that when he worked at the Tonopah jobsite he used his
cellular telephone in the presence of Ron Hawkins; that one of the employees at the Tonopah
jobsite, Harold Hamman, wore a Union T-shirt one day and he was terminated later that day;
that the project manager on the Tonopah job, Ron Davis, told him that Hamman was terminated
for using a cell phone while on the jobsite; that Davis asked him if he knew whether Hamman
was union; that two days after Hamman was terminated he attended an employee meeting; that
Hawkins also attended this employee meeting; that during the meeting one of the employees’
cell phone rang and the employee told the caller that he would call right back; that the employee
who received the cell call during the employee meeting continued to work for GBIC; that before
applying at GBIC on January 14 he had lunch with Bill Lemus, Donald Stanley, who is the
Local’s business manager, and Union members at a restaurant near GBIC’s Decatur office; that
when he went to GBIC’s office later that day the secretary was writing “at this time we’re not
accepting applications” with a black marker on an 8.5 inches by 11 inches piece of paper and
she asked him if he spoke Spanish and if he could translate it for her into Spanish; that he wrote
it out in Spanish on another piece of paper, after consulting with an individual who was there
and could write in Spanish; that the secretary then asked him if he did any metal work and when
he replied that he did she telephoned someone and gave the telephone to him; that Hawkins
was the person the secretary telephoned and Hawkins asked him how many guys were with
him; that he told Hawkins that he had 10 guys; that Hawkins asked him if he had done metal
work in power plants; that when he told Hawkins that he had Hawkins asked him if he could be
at the jobsite the following day; that he explained to Hawkins that he could but the other guys
would not be there until Monday; that Hawkins told him that the secretary would give him an
address to take a drug test and he should be at the jobsite at 6 a.m. the next morning; that the
secretary then placed the two signs on the door coming into the office; that the secretary then
gave him the directions to the location where the drug test would be administered and to the
jobsite; that while he was in the Decatur office he did not disclose that he had previously worked
for GBIC; that no one asked him if he worked for GBIC before; that he did not tell Hawkins that
he had worked for him in Arizona; and that no one told him that the reason he was hired at the
Autaugaville job was because of his previous employment with GBIC in Arizona.

On cross-examination Aguilar testified that he is a paid union organizer; that on January
14 he was acting as a covert salt when he applied at GBIC; that it was his purpose to
5 As here pertinent, the card reads:
MIGUEL AGUILAR
ORGANIZER
LOCAL NO. 73
INTERNATIONAL ASSOCIATION OF HEAT & FROST
INSULATORS & ASBESTOS WORKERS
The Union flyers, which are in English and Spanish, collectively describe Sections 7 and
8(a)(1) and (3) of the Act, specify 35 things an employer cannot do, and describe what the
Union could do.
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demonstrate that he could get hired when the overt salts did not get hired; that no member of
management said anything to him at the Tonopah job about his union activities; that he worked
at the Tonopah job about 12 days, and he left the job because he had a family emergency when
his wife’s grandmother, who lived in Mexico, died; that when he returned from Mexico he
received a telephone call from GBIC indicating that he had missed too much time, about two
weeks, and he no longer had a job with GBIC; that when he left he told GBIC that he had a
family emergency and he did not know when he was coming back; that he did not mention
Hawkins’ name to the secretary in GBIC’s Decatur office on January 14 and he did not tell her
that he knew Hawkins; that the secretary telephoned Hawkins and told him that she had “a
metal guy here for you” (transcript page 239); that Hawkins asked him what type of experience
he had; that Hawkins asked him if he had metal tools; and that he did not tell Hawkins that he
had worked for GBIC in the past.

Jennifer Anders, who works as an accounts payable clerk and does a lot of the reception
work at GBIC’s Decatur office, testified that she makes sure that applicants show the proper
identification, fill out the application as best they can, and she makes sure that all of the tax
forms are filled out; that she places the applications in the top of four trays where they are
rotated downward weekly and discarded after 30 days when they are in the bottom tray; that the
applications indicate that GBIC will only keep them for 30 days; that no one in particular reviews
the applications for purposes of determining whether to hire an applicant; that she reports to
Wright and she has never given the applications in the trays to Wright nor has she seen Wright
review the applications; that Aguilar specifically asked to speak with Hawkins; that she
telephoned Hawkins twice because she did not get him the first time; that in the interim she
asked Aguilar for his help in translating into Spanish a sign indicating that GBIC was not
accepting applications at that time; that both the English and Spanish versions of the sign were
up on January 14; that when she got Hawkins on the telephone she gave the phone to Aguilar;
that the English version of the sign is put up when all of GBIC’s positions are full, it was put up
one time in December 2002 and it was posted again in January 2003; that when the sign is up
applications are still accepted; and that some of the individuals who fill out applications at the
Decatur office are rehires who are sent there by supervisors to fill out an application so that
GBIC will have current information on them. On redirect Anders testified that she does not
telephone a supervisor at the jobsite unless an applicant asks to speak to a specific supervisor.

Hawkins, who is an Estimator and Project Manager for GBIC, testified that since his hire
in January 2002 he has worked at four jobsites for GBIC, including Tonopah, Arizona, and
Prattville (Autaugaville), Alabama; that he reports to Wright; that he was the project manager in
Tonopah and Aguilar was an employee of GBIC there; that Aguilar was a good employee who
had a lot of the right tools; that when Aguilar was at Tonopah he did not know that Aguilar was a
union organizer or supported the Union during that time; that before the charge was filed by the
Union against GBIC, he had no idea that Aguilar was a union organizer; that while he was at
Tonopah he did not know that GBIC employee Hamman was a union organizer or supported the
Union in any way; that Hamman was terminated at Tonopah because the employees had been
told that they were to keep cell phones in their lunch boxes and use them only on breaks,
Hamman was using his cell phone during a non-break time, he approached Hamman and told
him that he was not supposed to be using his cell phone in the field during a non-break period
and this would be his only warning, Hamman said “you don’t have to talk to me like a fucking
kid, you can just fucking fire me if you want to” (transcript page 377), and Hamman was
terminated for insubordination; that he did not notice whether Hamman had on any union
insignia or union paraphernalia; that he did not remember any meetings after Hamman’s
termination where people laughed about the cell phone policy; that it was GBIC’s own cell
phone policy at Tonopah; that at Tonopah Aguilar asked for an extended weekend (Thursday
through Monday) because someone on his mother’s side in California had passed away but
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Aguilar was gone for two weeks; that when Aguilar subsequently telephoned him he told Aguilar
that GBIC’s client, Shaw Constructors, had placed a limit on the number of employees GBIC
could have on the site and he could not bring Aguilar back; that he was transferred to the
Autaugaville jobsite in December 2002; that at Autaugaville he was responsible for calling
Wright and other divisions and superintendents with respect to staffing; that if GBIC employees
are running out of work at one site GBIC tries to find work for them at another site; that when he
needs people he calls other superintendents at other jobsites; that other superintendents also
call him when their jobs are winding down and they looking for another jobsite to send the GBIC
employees; that if he was unable to get employees through his contacts, he telephones Wright;
that he did not recall hiring anybody off the street for a position at the Autaugaville site; that all
the employees at Autaugaville were referrals or transfers except for William Carrera; that around
January 14 he was not actively searching for employees for the Autaugaville site but he did
need a shop man, who does a lot of the metal work for the other mechanics; that on January 14
while he was at Autaugaville he received a telephone call from Anders who told him that she
had a gentleman who wanted to speak with him; that the man identified himself as Angel
Guzman and he asked if GBIC was hiring; and that

I said … have you ever worked for GBIC before, and he said he had, and I said, well, at
which site. And he just fumbled around, and said, oh, I don’t remember who I worked for,
et cetera, I said, you don’t remember anybody’s names, He said, no. I said, well, what
kind of tools do you have.

Just to kind of get an idea of what kind of a mechanic he was, and of course, he
listed a rather long list of tools, which means he probably knows what he talking about, if
he’s actually got them. Well, in order to verify he actually has them, I told him , well, if
you can be here tomorrow, we’ll take a look at you, can you come down tomorrow and
he said he will. And I said, well, let me talk to Jennifer, I’ll make sure she gets you a map
on how to get there, et cetera, He put Jennifer back on the phone. [Transcript pages 384
and 385]

Hawkins further testified that he told Anders to give Guzman directions, send him to get drug
screened, have him fill out the application, and get copies of the ID since he was going to bring
him the next day; that it is common for GBIC to send people for drug screens before they are
hired; and that he never asked Aguilar if he had any mechanics available to work for GBIC. On
cross-examination Hawkins testified that he did tell Guzman during his telephone conversation
with him that the wage rate for mechanics was $12 an hour; that he has never come across an
instance where GBIC would pull an application out of the massive stack of applications they
have to hire somebody who does not have a referral; that to his knowledge there is no written
policy regarding the referral system; that “[y]es sir” Hamman was the only employee cited under
the cell phone policy at Tonopah (Counsel for General Counsel’s question); and that GBIC
adheres to its referral policy so that it can keep good employees, “the ones you trust” (transcript
page 404).

On rebuttal Aguilar testified that on January 14 there was no sign on the door of GBIC’s
Decatur office when he went in; that while he was in the office he saw the secretary put the
handwritten English sign up; and that when he spoke with Hawkins on the telephone that day
Hawkins asked him if the other employees coming to work with Guzman do metal work and he
told Hawkins that they did.

Wright, who oversees all aspects of the day-to-day business out of the Decatur office,
testified that at Autaugaville GBIC had helpers, insulators, mechanics, foremen, a
superintendent, a project manager, and clerical and safety personnel; that GBIC’s manpower
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needs fluctuate on a job based on the number of releases to install insulation GBIC receives
from its client; that it is one of his duties to insure that the proper manpower level is maintained;
that to get people to work on a GBIC job it relies on the transfer of people from site-to-site,
rehires and referrals from GBIC supervisors or mechanics; that the same people are utilized
over and over again; that GBIC has used this policy as long as he could remember, and this is a
common industry policy6; that transfers, referrals and rehires complete new paperwork when
they go to a jobsite to make sure GBIC has the latest information; that using the above-
described system he did not have any problems meeting the labor needs of the Autaugaville
job; that superintendents always want more people to make the job go faster; that he delays
staffing for various reasons; that if GBIC has 20 people on site, he wants to keep enough
releases available to keep the 20 people busy for at least two weeks; that he never hires
anyone over the telephone; that someone is not considered hired until the person has
completed an application, a drug screen, a jobsite interview, orientation, and the project
manager or supervisor fills out the hire form; that at Autaugaville there was an additional step in
that Southern Company also had a screening process to check whether the individual was on a
list of people who are barred from a Southern Company site for various reasons; that all of the
people hired for the Autaugaville job were transfers, rehires, or referrals, except for Carrera; that
from the time the Autaugaville project started up until the time he testified at the trial herein,
GBIC had received about 800 applications from people walking in off the street into the Decatur
office, and none of these applicants were hired7; that since he has been a contracts manager he
has not hired anyone who walked in off the street to submit an application; that such
applications are discarded after 30 days; that he has never hired anyone who previously made
more than GBIC’s top rate and paid them the higher rate they were previously receiving; that he
does not hire people with pay rates significantly higher than GBIC’s because he does not
6 Wright has worked for six or seven different insulation companies since he started in the
industry in 1989.
7 Wright sponsored Respondent’s Exhibit 12 which he testified are the numerous
applications received at GBIC’s Decatur office from people who were not hired from 30 days
before GBIC received the National Labor Relations Board (Board) charge, which was about
January 22, up until sometime in 2003 as indicated by the date on the last application submitted
during the involved period. Subsequently the Respondent stipulated that four of the individuals
with applications in Respondent’s Exhibit 12 were in fact hired and worked at the Autaugaville
job site, General Counsel’s Exhibit 21. They are Manuel Aldana, Cecilio Natividad, Luis
Fernandez Aldama, and Sandro Moreno. The applications of Victor Rodriguez, Pedro Vargas,
Luis Casverantes, Lucino Palacios were received as General Counsel’s Exhibits 22 through 25.
At the continued hearing on September 10 Wright sponsored additional applications of
individuals who were not hired by GBIC, Respondent’s Exhibit 16, which applications were
found in the interim between the first session and the continued hearing. Wright was not sure if
all of these applications were submitted in the Decatur office. Wright testified that Moreno has
worked for GBIC for quite some time at several different job sites, including Autaugaville,
Respondent’s Exhibit 19; that Moreno transferred from GBIC’s Henderson, Kentucky job to
Autaugaville; that Moreno was not hired off an application submitted in the Decatur office, GBIC
1631 of Respondent’s Exhibit 12; and that with a transfer, rehire, or referral he does not
consider the completeness of the application. Counsel for General Counsel introduced (1) the
time sheet for the Autaugaville job for the week ending January 19, General Counsel’s Exhibit
30, (2) a print out of a payroll record for Cecilio R. Natividad showing that he was hired by GBIC
on February 3, General Counsel’s Exhibit 31, (3) a print out of a payroll record for Sandro
Moreno showing that he was hired by GBIC on January 13, General Counsel’s Exhibit 32, and
(4) the time sheet for the Autaugaville job for the week ending January 26, General Counsel’s
Exhibit 33.
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believe that they will be a happy and productive employee; that during the life of the
Autaugaville project he never had any difficulties in hiring insulators or mechanics through
GBIC’s referral, transfer, and rehire system; that he has never hired an insulator making $13 an
hour for a helpers position; that it is GBIC’s policy to terminate employees who lie on company
documents and forms, including applications; that he did not place an ad in the newspaper for
the Autaugaville project; that when he saw an ad in the Decatur newspaper for a GBIC job he
telephoned the number given and found out that it was for a GBIC job in El Dorado, Arkansas;
that GBIC has hired union members at International Paper in Portland, Alabama, at its
Chattanooga, Tennessee facility, and he believed at its Noonan, Georgia facility; that he was
able to meet all of his manpower needs at the Autaugaville site using transfers, rehires, and
referrals because the manpower needs at other GBIC sites such as Ashland, Mississippi,
Eldorado, and Nashville, Tennessee, were declining and employees could be transferred to the
Autaugaville site; that on January 14 he told the union applicants that GBIC was not a union
shop, it was an open shop company; and that GBIC does not have a policy of not hiring people
because they are in the union.

On cross-examination Wright testified that he checked the prior performance at GBIC of
some of the employees who he sent to the Autaugaville site but he could not remember which
employees he checked on; that Hawkins needed authorization from him to hire employees at
the Autaugaville site; that he did not have a conversation with Hawkins while Aguilar was in the
Decatur office (As noted above, when he was in GBIC’s Decatur office Aguilar identified himself
as Angel Guzman.); that in January 2003 the Decatur division had eight projects; that individual
hires at these eight jobsites did not have to be cleared through him but he makes the staffing
decisions based upon releases; that the managers at the sites do not have to call him with every
name that they want to place on the site; that he did not have any personal involvement in the
hiring of Aguilar; that GBIC intends to consider applications from people who walk in off the
street in the event that GBIC needs to but since he has been with the company it has been able
to fill its hiring requirements at the Decatur office from either rehire, or transfer, or referral; that
he has been in the Decatur office since July 2000; that he is the one who decides whether a
sign is placed on the door regarding whether GBIC is taking applications; that even when the
sign is up applications are accepted; that the sign is up only some of the time but he has never
told the secretaries to take down the sign; that the sign was probably first put up in 2002; that
the directions to the Autaugaville site were generated by Southern Company; that he never
reviewed any of the applications in Respondent’s Exhibit 12 for the purpose of considering them
for employment; that he never reviewed the applications of the alleged discriminatees for the
purpose of considering them for employment; that the applications of transfers or rehires are not
checked unless there is some doubt whether the applicant did in fact work for GBIC before; that
referrals are checked in that the person who made the referral is contacted but the employers
listed on the application are not checked; and that he did not know of anybody that has been
hired off the street to work somewhere in the Decatur division other than Carrera.

At the continued hearing on September 10 Wright testified that Respondent’s Exhibit 15
is a summary of all of the employees who worked at the Autaugaville jobsite; and that the
summary provides (1) the job and employee number, (2) the name of the employee, (3) the start
and end week of employment, (4) the pay rate, (5) the classification, (6) if applicable, the name
of the person who referred the employee, (7) the GBIC job the employee was transferred from,
and (8) whether the employee previously worked for GBIC. On cross-examination Wright
testified that he did not recall that the staffing level dropped substantially shortly after the union
members applied at the Decatur office on January 14; that according to Respondent’s Exhibit 15
collectively for the weeks ending January 19 and 26 a number of employees were no longer
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employed at the Autaugaville job8; that he did not recall that there was another group of
employees who also left the job during the week of January 26 but later returned to Autaugaville
so that their end week is shown sometime in March 2003; and that additional employees left
the Autaugaville jobsite on January 26 and returned later.9 On redirect, Wright testified that if an
employee does not have vacation time and he leaves to attend to a family matter, he is then
designated as quitting; that it is common on job sites for employees to leave for short periods of
time and then return to work; that employees on the Autaugaville jobsite were transferred to
jobsites in New Orleans and North Carolina; that employees were transferred back to the
Autaugaville jobsite; and that Respondent’s Exhibit 20, which is a print out of paycheck history
by employee shows, inter alia, that employees Sylvester Hernandez, Walter Jimenez, Abiaser
Hernandez, Ponciano Hernandez, and Luis Fernandez Aldama did not have a hiatus in their pay
or any period when they were not paid for each week.

At the continued hearing Hawkins testified that Luis Fernandez Aldama, who was a
transfer from GBIC’s Ashland, Mississippi job, worked with him in Prattville (the Autaugaville
jobsite) and referred some employees to work at the Autaugaville site, namely Sandro Moreno,
Manuel Aldana, and Cecilio Ramos Natividad; that Moreno had been employed by GBIC in the
past; that he was not aware that Moreno had previously submitted an application in GBIC’s
Decatur office, he did not hire him based on that application, and he hired Moreno based on the
referral of Luis Fernandez Aldama; that German Salido was employed by GBIC through
Superintendent Jerry Matthews, who shared an apartment with Salido; that employees
Ponciano Hernandez and Abiaser Hernandez were brought back to the Autaugaville jobsite to
finish up the last system, which was released to GBIC the last minute; that Natividad and
Aldana left work because Moreno left, they lived together, Moreno drove them to and from work
every day; that Moreno had to leave work for personal reasons; and that Natividad and Aldana
returned to work at GBIC and they did not have to go through the application and rehire
process. On cross-examination Hawkins testified that Luis Fernandez Aldama was not a
superintendent but rather an employee of GBIC; that Luis Fernandez Aldama was referred by
supervisor Ubaldo Serrato; that Luis Fernandez Aldana had been working for about one week
when he referred the other aforementioned individuals for employment; and that Abiaser
Hernandez was laid off when the job was staffing down but when another system was released
to GBIC in about May 2003 some of the employees were brought back.

At the continued hearing Superintendent Serrato testified that he worked at the
Autaugaville job site from December 1, 2002, and he was working at that job site when he
testified at the trial herein; and that Fernando Luna, Ulises Lopez, Juan Sanchez, and Baltazar
Dominguez worked at the Autaugaville job site, and they were hired after a scaffold bander
recommended them to him.

On January 15 Aguilar went to the Autaugaville power plant job site. He testified that he
spoke with Matthews, who was entering Respondent’s job trailer at the Autaugaville jobsite; that
8 Rene Alvarez, Luis Vargas, Alonso Salucio, Pedro Vargas, Francisco Vargas, Gaspar
Domingo, Nhasario Marcos, Victor Perez, Julio Martinez, Manuel Gonzalez, Ramiro Lamdrid,
Francisco Santos, Julio Andres, Evencio Garcia, Francisco Martinez, Jose Moncada, Mario
Brito, William Carrera, Sinue Armenta, Lucino Palacios, Sergio Orozco, Martin Tejeda, Andres
Gutierrez, Manuel Vargas, Sergio De La Trinidad, Sam Watson, Efrin Sanchez, Guadalupe
Rangel, Azel Ramirez, Gilberto Avila, David Trejo, Mauicio Vidal, Mateo Ramirez, Daniel
Gomez, Jaime Rodriguez, Diego Jimenez, Ponciano Hernendez, and Lorenzo Rodriguez.
9 Luis Fernandez Aldana, Manuel Fernandez Aldana, Gabino Barahona, Ponciano
Hernandez, Abiaser Hernandez, Jose Alfredo Jinenes, Walter Jimenez, and Hector Vega.
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he watched a safety video and then went back to the trailer and spoke with Matthews who
asked him to sign for the safety rules and rules of the power plant; that one of the rules of the
plant indicated that cell phones were not allowed at the jobsite; that he asked Matthews if he
should put his cell phone in his car and Matthews told him that he did not have to, he would all
right as long as no plant people saw him using his cell phone, and if he was going to use the cell
phone all he had to do was go to the restroom where no one could see him; and that he told
Matthews that the day before he translated a sign for the secretary and Matthews said that

there was a big commotion going on over there at the office yesterday because the
union come over there with shirts and they had cameras and was trying to get hired on,
and he said, we’re a non-union company, we don’t hire non-union, you know, people
here.

Q. He said, we don’t hire non-union people?

A. We don’t hire no union people here.

….

then he kind of stopped and grinned at me, and he goes, you ain’t no Union spy are you.

Q. Did you respond to the question?

A. Yes I told him I wasn’t. [transcript pages 194 and 195]

Aguilar further testified that Matthews said that there were supposed to be 10 men and he
wanted to know where were the others; that he told Matthews that they would be there Monday;
that subsequently while he was sitting in the job trailer Hawkins came in and he said “you’re that
union guy from Arizona, you’re not going to pass out all your business cards or any handbills
here are you” (transcript page 196); that he told Hawkins that he was not and he came to
Autaugaville to work; that Hawkins asked him why he did not tell him on January 14 that he was
the guy from Arizona and he told Hawkins that he did not ask him that; that after Matthews and
Hawkins talked Matthews escorted him with his tools to where the Respondent kept its tools;
that he waited there for a while and then he received a call from Lemus on his cell phone; that
he went into the restroom and talked on his cell phone; that when he came out of the restroom
Matthews was there and Matthews said “you know the rules, get your tools” [transcript page
197]; and that he went with Matthews to the job trailer where Hawkins was already filling out
page GBIC-282 of General Counsel’s Exhibit 16, which is a termination report.10

On cross-examination Aguilar testified that he brought a tape recorder to the
Autaugaville jobsite; that there was nothing on the recording about Matthews telling him that he
was free to use the cell phone on the jobsite; that the tape recorder given to him by the
Birmingham “guys” was old and after it recorded some “stuff” it stopped; that the alleged
statement of Hawkins that he, Aguilar, was the Union organizer out of Arizona is not on the tape
because the tape was only a 60 minute tape, he arrived at the jobsite at 5:45 a.m., and Hawkins
arrived more than an hour after that; that he met with Hawkins in the office trailer after he had
been through orientation; that he told Matthews that he had worked for GBIC in the past and he
knew Hawkins; that he told Matthews that he was getting bad coverage with his cell telephone;
10 The remarks section of the report reads “Violating S.C. Power’s cell phone Rule by
employees in the field.”
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that he was sent down to the shop after he met with Hawkins; that after he was given his
termination report at Autaugaville, GBIC-282 of General Counsel’s Exhibit 16, Hawkins told him
that he was a good shop man down in Arizona and he was going to be a shop man at
Autaugaville but the same thing happened to him as happened to his buddy Hamman; that
Hawkin’s alleged reference to Hamman is not in his affidavits and just recalled Hawkins’
statement when he testified at the trial herein; that the “Port-a-John” that he used for the cell
telephone conversation was right next to the shop; that when he spoke with Lemus on the cell
telephone he told him “hey, I think they found out who I am” (transcript page 252); and that
before he left the Autaugaville jobsite he spoke with some of the employees giving them his
telephone number.

Matthews, who at the time of the trial herein was not employed by GBIC, testified that he
was employed by the Respondent from December 14, 2002 through May 18; that he was the
Superintendent at GBIC’s Autaugaville job; that he was hired by Wright; that he has been to
GBIC’s Decatur office and he has seen a sign in the window about not taking applications; that
he first met Aguilar, who was using the name of Angel Guzman at the time, just before 6 a.m. on
January 15 at GBIC’s office trailer at Autaugaville; that he took Guzman and four other workers
to Southern Company’s training trailer to watch a safety orientation film and to get some
paperwork done; that the four other workers were GBIC employees who had transferred from
Georgia Power to Autaugaville and they were required to take a drug test that morning; that
Southern Company did a background check on them before letting the four workers go to the
plant to work; that with respect to Guzman, he had to wait for Hawkins to write a letter on
GBIC’s letterhead indicating that Guzman had passed his drug test and give his social security
number so Southern Company could do a background check on Guzman; that he and Guzman
waited in the office trailer for Hawkins; that while they waited he told Guzman that Southern
Company has a policy that cell phones and cameras are prohibited in the field, there were no
warnings, it was a one-shot deal, and if he got caught with a cell phone he was out of there11;
that there was an exception to the policy in that the Respondent’s management was allowed to
have cell phones on the jobsite; that he did not recall whether or not he showed the written
policy to Guzman; that Guzman told him that he had a telephone and he showed it to him; that
he told Guzman if he got caught with it he was gone, and Guzman said that he could not get a
signal there and he would put it in his car when he went to get his tools; that a few moments
later Ryan came into the trailer and when he saw Guzman he said “Miguel, what are you doing
here” (transcript page 308); that when he told Ryan that the man’s name was Angel Guzman,
Ryan said no this is Miguel Aguilar and he asked Guzman why he did not tell him who he was;
that Ryan typed up the letter to get Aguilar out in the field; that he brought the letter to James
Nelson, who made sure the employee had a drug screen and ran the social security numbers
for Southern Company to check for any problems; that he did not tell Aguilar not to worry about
using a cell phone, or that he could use it as long as Southern Company did not see it or that he
could hide in the portable bathroom and use the cell phone; that he did not ever hear Hawkins
make any comment about Aguilar being a union supporter or that Aguilar should not start any of
the union stuff he did in Arizona; that he sent Aguilar to the shop, which was 250 yards from the
11 Respondent’s Exhibit 10. The letterhead on the document is M&D Power Constructors,
Inc., Industrial Construction and Maintenance Specialists. The document is dated January 9. As
here pertinent, it reads as follows:
From this day forward the use or possession of cameras is prohibited.
All cell phones and their use is prohibited on site, leave them in your vehicle if you must
bring them to work.
If you are caught with either of the items in your possession on the project work site you
will be terminated. This will be the only warning. [Emphasis in original]
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trailer, at 8:50 a.m.; that at 9 a.m. foreman Eric Murray came to the trailer and asked where was
the guy who was sent to the shop; that at 9:15 a.m. Murray called him on the radio and indicates
that he still could not find Aguilar; that he went to the shop area and was told that Aguilar was in
the bathroom; that as he approached the “Port-a-Lift” he could hear Aguilar talking; that
subsequently Aguilar came out of the bathroom with a cell phone in his hand, and he told
Aguilar to get his tools and come to the trailer to get his termination report; that Aguilar did not
protest in any way; that he filled out the termination report, made a copy of it, and gave it to
Guzman, page GBIC-282 of General Counsel’s Exhibit 16; that at that time he did not know that
Guzman or Aguilar was a union supporter, a union organizer, or affiliated with the Union; that he
was involved in the hiring process at the Autaugaville site; that when he was looking for help he
telephoned other superintendents with GBIC; that Wright would send people out from the
Decatur office who were transferred; that he hired one person off the street, namely Carrera,
when some of M & D’s scaffold hands asked that he be hired; that M & D is a union company, it
was giving GBIC trouble, and he viewed the hiring as an opportunity to promote harmony on the
job; that he recommended that Murray, who was his traveling partner, be hired; and that other
than Carrera, he did not hire anyone on the Autaugaville site who was not a referral or a GBIC
transfer.

On cross-examination Matthews testified that he was not employed when he testified at
the trial herein; that Guzman was referred by Hawkins; that he was short of people when
Guzman came to the Autaugaville site, and Wright was made aware of this; that Wright told him
that he had employees on a job in Mississippi who would be transferring to Autaugaville; that
within a few days after Guzman was at Autaugaville, GBIC moved a number of employees off
the Autaugaville job to other sites when GBIC had a material problem there; that GBIC
employees at the Autaugaville site worked overtime at that time; that he heard about people
who applied for work at the Decatur office wearing union shirts several weeks after it happened,
from the man who brought him materials; that he had never had another employee with a cell
phone at the Autaugaville site; that he was using his cell phone to check voice mail in his office
when he discussed the cell phone policy with Aguilar; that Aguilar came out of the bathroom at
9:20 a.m.; that the Autaugaville job involved a conventional system of insulation and sheet metal
over it; that he viewed the application as a nuisance; and that he and Hawkins set the pay rate
for the helpers, insulators, and mechanics.

Hawkins testified that on January 15 he arrived at the Autaugaville site between 8 and
8:30 a.m.; that when he saw Aguilar he asked him what he was doing there; that Matthews said
that it was not Miguel but rather Angel Guzman; that when he asked Aguilar why he did not tell
him the day before that it was him Aguilar said that he did not know; that he told Matthews that
Aguilar was the shop man at the Arizona site and they needed a shop man at Autaugaville; that
he then did the paperwork for Aguilar indicating that he was an employee of GBIC, he had a
drug screen, and giving his social security number; that he also filled in the hire form for Aguilar,
GBIC-284 of General Counsel’s Exhibit 16, which is dated January 15; that after Southern
Company checked the information provided on Aguilar, he was sent to the shop; that
subsequently Matthews told him that Aguilar was being terminated for talking on his cell phone;
that he told Aguilar that he knew the rules and he asked Aguilar why he was on the phone; that
Aguilar said that he did not know; that Aguilar did not protest his termination or try to give any
excuses; that at the time he did not believe that Aguilar was a union organizer or a union
supporter and Matthews did not indicate that either was the case; that there was no union
organizing activity at the Autaugaville site; that he never asked Aguilar whether he supported
the Union or not; that on January 15 he did not know that Union members had submitted
applications in Decatur the day before; that GBIC’s customer, Southern Company, had given
GBIC the cell phone policy, Respondent’s Exhibit 10, and indicated that the policy was to be
adhered to; that he never told Aguilar that he was the union guy from Arizona and he should not
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be passing out union cards or flyers at the Autaugaville site; and that he never told Aguilar that
he was being fired for the same reason as Hamman or that he would have been a good shop
man but the same thing happened to him as happened to Hamman. On cross-examination
Hawkins testified that on January 15 GBIC needed people who had metal working skills at the
Autaugaville site.

Jesus Alcaraz testified that he saw an advertisement for insulators in the Decatur Daily,
and on January 15 he telephoned the number given; that the ad did not indicate that GBIC was
involved; that when he telephoned the number given he was given another telephone number to
call; that the other telephone number was GBIC; that when he telephoned GBIC he spoke with a
man he identified only as Ryan; that Ryan told him that GBIC was hiring and it needed 10 to 12
people by the next day at the jobsite, which was near Prattville; that Ryan asked him how much
experience he had and if he had any friends he could bring to the job; that Ryan asked him if he
had worked for GBIC before, and he told Ryan that he had; that Ryan asked him about his tools;
and that he did not go to work for GBIC in Autaugaville. On cross-examination Alcaraz testified
that Ryan told him that he was looking for insulator mechanics (metal men), and Ryan told him
that the rate was $12 an hour without per diem.

On cross-examination Hawkins testified that he did not recall having a conversation with
Alcaraz; that he has not been called in response to an ad; and that he has heard that GBIC
advertises in the newspaper for employees.

Wright testified that on or about January 23 he received an unfair labor practice charge
involving GBIC’s Tonopah job, Respondent’s Exhibit 14; that he subsequently contacted his site
superintendent on the Tonopah job, Davis, and during their second telephone conversation
Davis informed him that an employee had given him Aguilar’s business card; that he had Davis
fax Aguilar’s business card to him in Decatur and he placed it in Aguilar’s file; that prior to this
he never had any indication that Aguilar supported a union; and that prior to receiving the
charge he did not tell Hawkins or Matthews about the union members who applied in Decatur.

Analysis

The problem with General Counsel’s case, except for paragraph 9 of the complaint
alleging failure and refusal to consider for hire or hire, is that it relies solely on the testimony of
Aguilar, who as noted above is a full-time union organizer, and, therefore, has an interest in the
outcome of the case. Even with respect to paragraph 9 of the complaint, General Counsel’s
case relies in great part on the testimony of Aguilar to establish antiunion animus. To believe
Aguilar one would have to disbelieve the testimony of Hawkins, Matthews, who no longer works
for the Respondent, and Anders to the extent their testimony conflicts with that of Aguilar. I did
not find Aguilar to be a credible witness. In my opinion he was not interested in telling the truth
under oath. Rather, he was more interested in building a case against GBIC, and he was willing
to lie under oath to do it. I do not credit any of Aguilar’s testimony unless it is corroborated by a
reliable witness or reliable documentation. To the extent that the testimony of Anders, Hawkins,
and Matthews conflicts with the testimony of Aguilar, the testimony of Anders, Hawkins, and
Matthews is credited, and the testimony of Aguilar is not credited.

The reason that Aguilar used the name Angel Guzman and he testified that (1) he did
not ask Anders to speak with Hawkins, (2) no one asked him while he was in Decatur if he
worked for GBIC before, (3) he did not tell Hawkins that he had worked for GBIC in the past,
and (4) no one told him that he was hired at Autaugaville because of his previous employment
with GBIC in Arizona, is that he was trying to demonstrate that he could get hired at
Autaugaville without being a prior employee of GBIC. Anders’ testimony that Guzman asked to
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speak with Hawkins on January 14 is credited. Hawkins’ testimony that he asked Guzman on
January 14 if he had worked for GBIC before is credited. Hawkins asked on January 14, and
Hawkins recognized Guzman ne Aguilar on January 15 as a prior employee of GBIC before
Hawkins filled out the necessary paperwork to see if Southern Company would allow Aguilar to
work on that jobsite.

Paragraph 7 of the complaint alleges that Matthews at GBIC’s Autaugaville job site
interrogated employees about their union activities. Matthews testified that he did not hear about
what happened on January 14 at GBIC’s Decatur office until several weeks later. His testimony
is credited. Consequently, Matthews would not have been in a position to tell Aguilar on January
15 what happened on January 14 in GBIC’s Decatur office. Additionally as often happens when
someone is not telling the truth and is trying to remember what he should say, there is a slip as
there was with Aguilar when he first testified that Matthews said “we don’t hire non-union.” Only
after Counsel for General Counsel asked Aguilar about this testimony, did he correct himself
using a double negative, testifying that Matthews said “[w]e don’t hire no union people here.”
This alleged statement was a figment of Aguilar’s imagination, dreamed up in his attempt to
show antiunion animus on the part of GBIC. Similarly, in my opinion Matthews alleged question,
namely, “you ain’t no union spy are you” never occurred. In my opinion, it is not determinative
that Matthews was never asked about this alleged statement.

The attempt to show antiunion animus continued when Aguilar testified that Hawkins on
January 15 said “you’re that union guy from Arizona, you’re not going to pass out all your
business cards or any handbills here are you.” Hawkins’ testimony that he did not know that
Aguilar was a union organizer or union supporter when he was at Tonopah is credited. Indeed
Aguilar himself testified that during the application process and during his employment at
Tonopah he did not disclose to management that he was affiliated with the Union, and he did
not give his business card to anyone in supervision or management at Tonopah. Counsel for
General Counsel did not demonstrate that Hawkins knew about Aguilar’s union activity at
Tonopah. Aguilar’s testimony is not credited. Hawkin’s testimony that he did not make this
statement is credited.

And finally Aguilar attempted to show antiunion animus in testifying that when he was
terminated at Autaugaville Hawkins said that he was a good shop man in Arizona and he was
going to be a good shop man at Autaugaville but the same thing happened to him as happened
to his buddy Hamman. As noted above, when asked on cross-examination why this alleged
reference to Hamman was not in his affidavits, Aguilar testified that he just recalled Hawkins’
alleged statement when he testified at the trial herein. At this point it appears that Aguilar was
making it up as he went along. Hawkins testified that he did not make this statement. Why
would he? At Tonopah the cell phone policy was GBIC’s. At Autaugaville the cell phone policy
was not GBIC’s. These two policies were different. Under the former, unlike the latter, there was
some latitude, and Hammond was given the benefit of this. While GBIC’s cell phone policy at
Tonopah was the reason for the conversation between Hawkins and Hamman, it was not the
policy but rather what Hamman said that caused his termination for insubordination. Hawkins
was initially willing to treat his discussion with Hamman regarding the latter’s use of a cell
phone as a warning. Hamman was not willing to accept this. Aguilar fabricated this testimony in
an attempt to show that he like Hamman engaged in union activity and was then terminated
under a cell phone policy. The problem with this is that it has not been shown that Matthews or
Hawkins was aware of any union activity on the part of Aguilar. Also Hawkins testified that he
was not aware that Hamman was a union organizer or supported the Union. Aguilar testified
that Hamman wore a union shirt to work. But if he did why, according to Aguilar’s testimony,
would Davis be asking Aguilar if Hamman was union? Aguilar also testified that Davis said that
Hamman was terminated for using a cell phone while on the jobsite. Aguilar did not testify that
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Davis said that Hamman was terminated for union activity. Hawkins’ testimony that he did not
make this statement to Aguilar on January 15 is credited.

Contrary to the testimony of Aguilar, Matthews did not tell him on January 15 that he
could use his cell phone in the portable restroom. Counsel for General Counsel did not show
that Matthews had ever told any of the many GBIC employees at the Autaugaville site that
notwithstanding Southern Company’s strict rule, they could use their cell phones in the portable
restroom. Why would Matthews make an exception for Aguilar? Aguilar admits that he told
Matthews that he was getting bad coverage with his cell phone. If Aguilar could not use the cell
phone because he was not getting a good signal, is it reasonable to expect that Matthews
believed that he could trap Aguilar? Notwithstanding Aguilar’s assertion to Matthews about
getting bad coverage, admittedly he was able to use his cell phone to speak with Lemus. As
pointed out by GBIC on brief, it defies common sense that GBIC would risk damaging the good
will of a customer by blatantly flouting its strict no-cell phone policy. Also, from a common sense
standpoint while one may not be able to see someone in a portable restroom speaking on a cell
phone, someone passing by would have to wonder who the occupant was talking to and how
the occupant was able to talk to someone else. Where no one can see does not equate with
where no one could hear.

Aguilar did not protest when he was terminated on January 15. One would expect that if
Matthews told him that he could use the cell phone in the portable restroom, he would either
have said to Matthews “you told me I could use the cell phone in the portable restroom” or to
Hawkins “what is going on here? Matthews told me I could use the cell phone in the portable
restroom, and now he is terminating me for doing what he said I could do.” As noted above,
Aguilar testified that when Matthews took him back to GBIC’s trailer after finding him using his
cell phone, Hawkins was already filling out the termination report, namely GBIC 282 of General
Counsel’s Exhibit 16. Matthews testified that he filled out the termination report. An examination
of the termination report reveals just that. Matthews signed it and the writing on the termination
report is not that of the person who filled out the hire form, GBIC 284. Even the spelling of
Aguilar’s name is different on the two forms. Additionally Matthews explained why he put the
wrong date “1-14-03” on the termination report. Hawkins filled out the hire form. Matthews filled
out the termination report. So it appears that Aguilar attempted to mislead both with respect to
who filled out the termination report and the timing. Perhaps Aguilar wanted to leave the
impression that he was setup and Hawkins was filling out the termination report before
Matthews even got back to GBIC’s trailer. Or perhaps Aguilar wanted to leave the impression
that Hawkins was filing out the termination form before Aguilar was even given a chance to
explain his side. But then Aguilar did not protest the termination. Aguilar did not offer an
explanation to Hawkins.

With respect to Aguilar’s termination on January 15, under Wright Line, 251 NLRB 1083
(1980) enf’d. 662 F.2d 899 (1st Cir. 1981) cert, denied 455 U.S. 989 (1982), approved in
Transportation Management Corp., 462 U.S. 393 (1983), Counsel for General Counsel
established that Aguilar engaged in union activity at GBIC’s Tonopah jobsite in Arizona. General
Counsel has not demonstrated, however, that when Aguilar was discharged at Autaugaville
those supervisors who were present at the time, Matthews and Hawkins, were aware of
Aguilar’s union activity at the GBIC Arizona job site. Matthews, who terminated Aguilar, did not
even work at the Arizona jobsite. Aguilar conceded that during the application process and
during his employment at the GBIC Tonopah job site, he did not disclose to management that
he was affiliated with the Union. Hawkins’ testimony that before the charge was filed against
GBIC he had no idea that Aguilar was a Union organizer is credited. Counsel for General
Counsel has not demonstrated antiunion animus on the part of GBIC. It has not been shown
that Aguilar was terminated for any reason other than using a cell phone at the jobsite after he
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was told that if he did, he would be terminated. On the one hand, Counsel for General Counsel
has not made a prima facie case. On the other hand, GBIC has demonstrated that it had a
business justification for terminating Aguilar, and the same action would have taken place
absent any protected conduct.

One would have expected Aguilar’s testimony to be corroborated or at least supported in
some way. Such was not the case for although Aguilar had a tape recorder on him at
Autaugaville on January 15, he did not capture any of the alleged unlawful statements of
Matthews and Hawkins. While at one point Aguilar testified that the recorder was old and it
stopped, at another point Aguilar testified that the reason he did not have Hawkins’ alleged
unlawful statement on the tape was that the tape was a 60 minute tape and Hawkins arrived
more than 60 minutes after Aguilar arrived at Autaugaville. It would appear, therefore, that
Aguilar is asserting that the reason that the recorder stopped was that the tape was used up,
not because of some malfunction. There is no adequate explanation why Aguilar could not have
turned the recorder off to save tape in order to capture his conversations with Matthews and
Hawkins. Or he could have gone to the rest room to replace the tape. But the nail which, in my
opinion, sealed the lid was Aguilar’s own testimony that while in the “Port-a-John” on January 15
he told Lemus that “hey, I think they found out who I am” (transcript page 252). Aguilar can have
it one way or the other way but he cannot have it both ways at the same time. If, as Aguilar
alleges, Hawkins told him before his conversation with Lemus “you’re that union guy from
Arizona, you’re not going to pass out all your business cards or any handbills here are you”
(transcript page 196), then Aguilar would not subsequently be telling Lemus “hey, I think they
found out who I am” (transcript page 252) (Emphasis added.). If Aguilar’s testimony about what
Hawkins said to him in the trailer on January 15 is true, Aguilar would have known that the
Respondent knew who he was and he would not subsequently be telling Lemus “hey, I think
they found out who I am” (transcript page 252) (Emphasis added.). Aguilar was not a credible
witness.

With respect to paragraph 9 of the complaint, which alleges that GBIC failed and refused
to consider for hire and failed and refused to hire the above-described applicants, Counsel for
General Counsel, on brief, contends that he has established a prima facie case under FES, 331
NLRB 9, 12 (2000) in that (1) GBIC was hiring at the time, (2) the applicants had experience or
training relevant to the announced or generally known requirements of the positions for hire, or
in the alternative, that the employer has not adhered uniformly to such requirements,12 or that
the requirements were themselves pretextual or were applied as a pretext for discrimination,
and (3) that antiunion animus contributed to the decision not to hire the applicants; and that
GBIC did not affirmatively show that it would not have hired the applicants even in the absence
of the applicants’ union activity or affiliation. The Respondent on brief argues that while it does
not dispute that (1) GBIC was hiring at the time, and (2) the involved applicants had experience
or training relevant to the announced or generally known requirements of the postion for hire,
General Counsel has failed to produce any evidence of antiunion animus since the only direct
evidence of antiunion animus is the testimony of Aguilar about the alleged January 15
comments of Matthews and Hawkins, which testimony should not be credited; that without
Aguilar’s testimony, General Counsel’s refusal to hire case collapses; that General Counsel
failed to establish that the alleged discriminatees were bona fide applicants; that there is no
evidence of disparate treatment that would support a finding that GBIC’s refusal to hire the
alleged discriminatees was based on antiunion animus; that GBIC’s hiring at Autaugaville was

12 Counsel for General Counsel contends that three of the individuals (Manuel Aldana,
Sandro Moreno, and Cecilo Ramos) whose applications were included in Respondent’s Exhibit
12 had actually been placed on Respondent’s payroll the same day they applied.
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consistent with its hiring policy; that while General Counsel will contend that Manuel Aldana,
Sandro Moreno, Cecilio Ramos-Natividad, and Virginia Mojica were off-the-street hires because
their applications are among the applications of nonunion, nonhires in Respondent’s Exhibit 12,
there is no evidence that GBIC hired these individuals from their applications but rather the
unrebutted testimony is that collectively they were referrals, transfers, or rehires; that GBIC
would not have hired the union applicants notwithstanding any antiunion animus; and that
General Counsel cannot establish that GBIC refused to consider the alleged discriminatees for
employment because there is no evidence that GBIC refused to accept their applications or
otherwise indicated that it would not consider their applications.

With respect to antiunion animus, Counsel for General Counsel contends as follows:

The coercive statements Superintendent Matthews and Project Manager
Hawkins made on January 15, 2003, … demonstrate that the Respondent viewed the
applicants’ Union affiliation with a hostile eye. Particularly, Superintendent Matthews’
statement that the Respondent created a sign saying it was not accepting applications in
response to the commotion the Union caused by having members apply for work,
demonstrates that the Respondent was also willing to adjust its business… practices in
response to the Union members applications. [Counsel for General Counsel’s brief page
28]

The problem with this contention is that the testimony of Aguilar on this point is not credited.
And even if it were, Aguilar did not testify that Matthews said that the Respondent created a sign
saying it was not accepting applications in response to the commotion the Union caused by
having members apply for work. The testimony of at least two witnesses that the English version
of the sign was placed on the door into the office well before January 14 is credited. This
testimony was not rebutted. On January 14 Aguilar worked on a Spanish translation of a sign
which had been posted well before the Union members applied at GBIC’s Decatur office. Also
unrebutted is the testimony of at least two witnesses that even when the sign was up
applications were accepted by GBIC. Counsel for General Counsel has not, in my opinion,
shown antiunion animus and, therefore, it has not established a prima facie case.

On the other hand, the Respondent has affirmatively shown that it would not have hired
the applicants even in the absence of the applicants’ union activity or affiliation. Counsel for
General Counsel did not rebut GBIC’s showing that, with a minor exception, it fills its staffing
needs at Autaugaville by transfer, rehire, and referral from supervisors and GBIC employees.
GBIC established that it did not look at the off-the-street applications filed at the Decatur office
when it hired for the Autaugaville job. It satisfactorily explained why some of those hired did fill
out applications at the Decatur office and why a few of the individuals with applications in
Respondent’s Exhibit 12 (as here pertinent, Manuel Aldana, Sandro Moreno, and Cecilio
Ramos-Natividad) were in fact hired because they were referrals or rehires and not because
they filled out an application at GBIC’s Decatur office. As noted above, Carrera was not a
transfer, rehire, or a referral from a GBIC supervisor or employee. But the Respondent’s
explanation that Carrera was referred by the employees of a union company that GBIC was
working with at the Autaugaville jobsite, that the union company was giving GBIC trouble, and
the hiring was viewed as an opportunity to promote harmony on the job was not rebutted by
Counsel for General Counsel. While this one instance was an exception to the Respondent’s
policy, it does not demonstrate that the Respondent was not otherwise following its policy. The
Board has held that an employer may lawfully apply a policy of hiring only former employees
and persons referred by known individuals. See Kanawha Stone Co., 334 NLRB 235 (2001).
The Respondent’s hiring at Autaugaville was consistent with its hiring policy. The policy was in
existence before January 14. Thus it was not specifically adopted to counter the Union’s salting
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campaign. Counsel for General Counsel has not established that the Respondent’s referral
policy created a closed hiring system, effectively screening out union supporters, or that the
Respondent applied its hiring policies disparately. While it has not been shown that a declared
union member was hired at Autaugaville under the Respondent’s policy during the relevant
period, Counsel for General Counsel has not established that Respondent’s policy inevitably
bars union members from referral or that the Respondent adopted the policy in order to
eliminate the possibility that union adherents would be hired. Counsel for General Counsel did
not rebut Wright’s testimony that GBIC has hired union members at its jobs in Portland,
Chattanooga, and possibly Noonan. The bare fact that no declared union applicants were hired
under the referral policy, without more, is not a ground for inferring that the Respondent’s hiring
motives were unlawful. The Respondent’s hiring policy excluded a large number of nonunion, as
well as union, applicants who did not meet the Respondent’s criteria. This suggests that
antiunion discrimination did not influence the Respondent’s hiring decisions. See Ken Maddox
Heating & Air Conditioning, 340 NLRB No. 7 (September 5, 2003).

With respect to whether the applicants were bona fide and whether the Respondent
would have hired the involved applicants in view of the deficiencies in their applications, and
how they conducted themselves while applying, Counsel for General Counsel contends that the
Respondent did not substantiate its claim that the applicants were other than bona fide; that
there has been no showing by the Respondent that any applicants whom the Respondent
otherwise would have hired were turned down because of deficiencies in their application; and
that the deficiencies defense is purely hypothetical. The Respondent argues that the General
Counsel failed to establish that the alleged discriminatees were bona fide applicants; that the
manner in which the alleged discriminatees applied by bringing a video camera to the Decatur
office establishes that they had no interest in working at GBIC; that many of the involved
applications were incomplete, lacking even the most basic information; that there would have
been a substantial pay cut for most of the applicants; that the alleged discriminatees had no
interest in giving GBIC an opportunity to hire them, only an interest in filing an unfair labor
practice charge; and that not a single one of the involved applicants ever subsequently
contacted GBIC to determine if they were being considered for a job. As indicated by Judge
Frye in Heliger Electric Corp., 325 NLRB 966 (1998), the right does not exist, as a matter of law,
for a job applicant to videotape an employer’s application-interview process. And the Board
affirmed, as here pertinent, certain conclusions of Judge Carson in Tann Electric, 331 NLRB
1014 (2000), one of which was that the involved employer was not obligated to consider for hire,
or to hire, applicants who, in the application process itself, chose to present themselves in a
group, the leadership of which would not honor requests to turn off the video camera being used
to videotape the application process. As noted above, Union member Weldon testified that
Marsh did not turn off the video camera, he left in on but he set it down on a table.

And finally, with respect to whether the Respondent failed and refused to consider for
hire the involved applicants, the Respondent correctly points out that under FES, supra, to
establish a discriminatory refusal to consider violation, the General Counsel must establish that
(1) GBIC excluded applicants from a hiring process, and (2) antiunion animus contributed to the
decision not to consider the applicants for employment. The Respondent argues that it gave the
union applicants the same consideration it gave to any other off-the-street applicant; that there
is no evidence that the union applicants even sought to obtain referrals; and that GBIC would
never have hired the union applicants for the Autaugaville job because it was not necessary to
review any of the off-the-street applications. Counsel for General Counsel, as part of his case-
in-chief, did not make the necessary showing with respect to antiunion animus and, therefore,
he did not meet his threshold burden under FES, supra. The Respondent did show that it
lawfully would not have considered the union applicants, even in the absence of their union
activity, because none of the applicants met any of the Respondent’s three hiring criteria.
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As noted above, on the one hand, Counsel for General Counsel has not established a
prima facie case under FES, supra. On the other hand, the Respondent has demonstrated
under FES, supra, that it would not have hired the alleged discriminatees who applied on
January 14 even in the absence of their union activity or affiliation.

As I have found each allegation of the complaint to be without merit, I shall recommend
that the complaint be dismissed in its entirety.

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 involved Unions are labor organizations within the meaning of Section 2(5) of the
Act.

3. The Respondent did not violate the Act as alleged in the complaint.

On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended13

ORDER

The complaint is dismissed in its entirety.

Dated, Washington, D.C.

____________________
John H. West
Administrative Law Judge
13 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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