Guarantee Savings And Loan, A Federal Savings And Loan Association

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 676 (N.L.R.B. 1985)

676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guarantee Savings and Loan , a Federal Savings and
Loan Association and Cecil Gardiner . Case 32-
CA-6304
28 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 30 October 1984 Administrative Law Judge
William J. Pannier III issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed an answer-
ing brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, i and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
i The General Counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence 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 examined the record and find no basis for re-
versing the findings
In sec III,A, of his decision, the judge found that Gardiner, the al-
leged discriminatee , applied for permanent employment with the Re-
spondent on I February 1984 rather than on 7 February 1984 This error
is insufficient to affect the results of our decision
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge
This mater was heard by me in Fresno, California, on
August 16, 1984 1 On March 27, the Regional Director
for 'Region 32 of the National Labor Relations Board
(the Board) issued a complaint and notice of hearing,
based on an unfair labor practice charge filed on March
1, alleging violations of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act). All parties have
been afforded full opportunity to appear, to introduce
evidence, to examine and cross-examine witnesses, and to
file briefs Based on the entire record, on the briefs that
were filed, and on my observation of the demeanor of
the witnesses, I make the following
FINDINGS OF FACT
I JURISDICTION
At all times material, Guarantee Savings and Loan, a
Federal Savings and Loan Association (Respondent) has
i Unless stated otherwise, all dates occurred in 1984
been a California corporation with an office and place of
business in Fresno, California, where it has been engaged
in the operation of a savings and loan association. During
the 12-month period prior to issuance of the complaint,
Respondent, in the course and conduct of its business op-
erations, derived gross revenues in excess of $500,000
and, further, transferred funds in excess of $50,000 di-
rectly to financial institutions located outside the State of
California. Therefore, I conclude, as admitted in the
answer to the complaint, that at all times material, Re-
spondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II THE LABOR ORGANIZATION INVOLVED
At all times material , International Union of Security
Guards (the Union) has been a labor organization within
the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background and Issues
This case presents the issue of whether Respondent re-
fused to hire an employee, Cecil Gardiner, because of ac-
tivities while employed by a previous employer, coupled
with an allegation that an unlawful statement had been
made to Gardiner at the time that he had been informed
that he would not be hired by Respondent.
From December 1980 to August 1, 1983, Gardiner had
worked for Armored Transport of California,2 first as a
courier and then as a messenger/driver. In January 1982
Gardiner approached some of the less senior employees
of Armored about unionizing and thereafter arranged for
two meetings at his house At the second one, a repre-
sentative of the Union, whom Gardiner had contacted,
was present and authorization cards were signed by all
employees in attendance, including Gardiner In July
1982 the Union was elected unanimously as the repre-
sentative of Armored's employees, but negotiations did
not produce a collective-bargaining contract Ultimately,
the Union was decertified In addition, in the spring of
1983, Gardiner filed a claim for overtime pay with the
State of California.3 At the time of hearing in this
matter, that claim still was under consideration according
to Gardiner.
In July 1983 Gardiner gave notice that he was quitting
employment with Armored. Thereafter, he attempted to
locate employment, finally obtaining work with Western
Temporary Service, a firm which dispatches workers to
work temporarily for other employers. In January, Gar-
diner was dispatched to Respondent which was then in
the process of relocating records from its existing ware-
house to one that had been newly acquired. He began
working there on January 26 and worked continuously
for Respondent through February 16
2 At the time that he had commenced working there, that firm's name
had been Valley Armored Transport, United Courier
3 Gardiner placed that event in March 1983, but his claim bears the
date taken of "4/26/83 "
274 NLRB No. 94
GUARANTEE SAVINGS & LOAN
At the suggestion of his immediate superior, Ware-
house Supervisor Jesse Cervantes,' Gardiner applied for
permanent employment on February 1. At that time, Re-
spondent had a courier position opening and, also, an
opening for warehousemen Thereafter, he participated
in two interviews: one with Senior Recruiter Heidi Lynn
on February 8 and the other with Cervantes on February
10 While Lynn had been unimpressed by Gardiner, Cer-
vantes included his name among the four names sent to
his superior, Vice President and General Service Manag-
er Jack F. Armistead,5 with a recommendation that Gar-
diner be selected for hire. Cervantes testified that, in his
estimation, Gardiner's work had been "good" and, fur-
ther, that he had recommended Gardiner for permanent
employment, despite Lynn's opinion, because "he was
doing a good job, he'd been there a while and these were
the two factors that I had in consideration "
Armistead knew Ron Simmons, Armored's courier di-
vision manager, and called the latter to inquire about
Gardiner's performance during the time that he had been
employed by Armored. Following that call, as discussed
more fully post, Armistead told Cervantes that Gardiner
would no longer be considered for employment. Cervan-
tes conveyed that message to Gardiner at the conclusion
of the workday on February 16
It is this sequence of events that has led the General
Counsel to allege that Respondent violated Section
8(a)(3) and (1) of the Act by refusing to hire Gardiner
and, also, to allege that Respondent violated Section
8(a)(1) of the Act by virtue of what Cervantes purport-
edly had told Gardiner on February 16.
B Gardiner's Employment at Armored
As noted above, during the time that he had worked
at Armored, Gardiner had engaged in two types of ac-
tivity which the General Counsel argues are protected
by the Act. First, during January 1982, he began discuss-
ing the possibility of unionizing with the four to six em-
ployees who were less senior than himself and with one
other employee, Mike Maloney, who had more seniority.
In the case of the latter, Gardiner testified that, "I asked
him to talk to the other guys that were like him in se-
niority." In March 1982 Gardiner held a meeting of eight
or nine employees at his apartment during which there
was discussion of "the pros and cons of going union."
Because these employees agreed that unionizing would
be advantageous, Gardiner contacted Randy Bishop, an
executive board member of the Union, and arranged a
second meeting at his apartment so that Bishop could
meet with the employees. At that meeting, held approxi-
mately 2 weeks after the first one had been conducted,
Bishop spoke with the employees in attendance and all of
them signed authorization cards distributed by Bishop. In
addition, John F. Garland, then a driver messenger for
Respondent, was elected shop steward.
" The parties stipulated that at all times material , Cervantes has been a
supervisor within the meaning of Sec 2(11) of the Act and an agent of
Respondent within the meaning of Sec 2(13) of the Act
5 It is admitted that at all times material , Armistead had been a super-
visor within the meaning of Sec 2(11) of the Act and an agent of Re-
spondent within the meaning of Sec 2(13) of the Act
677.
By the end of March, Gardiner had ceased being
active on behalf of the Union- "Once the ball got rolling,
I was literally pushed aside by the people with more se-
niority and they took over " Nevertheless, the organizing
campaign continued and culminated in a representation
election in July 1982. Garland served as the Union's ob-
server and the employees voted unanimously, 13 to 0, for
representation 6 During the contract negotiations that
followed, Garland served on the Union's negotiating
committee as representative of the employees Garland
testified that employee Jim Adams had helped draft the
original contract proposal and that Gardiner had not
provided any assistance during the negotiations Ulti-
mately, the parties were unable to reach agreement on a
union-security provision. Although a strike vote was
taken in the spring of 1983, only Gardiner and employee
Lennie Keel voted to go on strike.' As a result, no strike
was conducted, no collective-bargaining contract was ex-
ecuted, and eventually the Union lost a decertification
election.
On April 26, 1983, Gardiner filed an initial report or
claim with the California Department of Industrial Rela-
tions, Division of Labor Standards Enforcement. Ac-
cording to Gardiner, that claim still is "open and current,
they're still investigating it." Both Gardiner and Garland
testified that the former and employee Lonnie Keel had
filed claims. Gardiner also testified that his claim had
been "a class action," in that "I wanted them to pay ev-
erybody that they owed money to." Yet, Keel did not
appear as a witness to confirm the testimony that he, like
Gardiner, had filed a claim . More significantly, the only
initial report or claims that was produced during the
hearing was one signed solely by Gardiner. In the por-
tion of that claim headed, "BRIEF EXPLANATION
OF ISSUES," Gardiner had written only.
From March 1981 to March 1983 I worked 11 hrs
on Saturday [&] was never paid overtime. Out of
104 Saturdays I only missed 2. 4th of July 1981 [&]
May 22 1982 time cards filled out (time clock).
No mention of losses by or of pay for other employees
appears on the form completed by Gardiner Nor was
other evidence produced that would conform his testi-
mony that he also had been seeking pay for employees
other than himself-that he had, indeed, filed "a class
action."
C. Denial of Permanent Employment with Respondent
As stated above, Gardiner had applied for permanent
employment with Respondent and Cervantes had includ-
ed Gardiner's application among the four applications
forwarded to Armistead, recommending that Gardiner be
selected. Armistead testified that he knew Simmons.
When he noticed that Gardiner had worked for Ar-
mored, he telephoned Simmons to ascertain the latter's
6 Only two eligible voters, part-time employee Lloyd Johnson and
senior armored guard Ray Lasky, did not vote in the election
' It was Gardiner who testified that Keel had voted to strike Garland,
when testifying about the vote, claimed that Gardiner had been the only
employee to vote in favor of a strike
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opinion of Gardiner Based on Simmons' response, Ar-
mistead instructed Cervantes that Gardiner would not be
considered for employment with Respondent and Cer-
vantes then conveyed that message to Gardiner when
work ended on February 16.
With respect to the latter conversation, Gardiner testi-
fied that Cervantes had said, "Jack won't touch your ap-
plication with a 10-foot pole," and, replying to Gardi-
ner's inquiry concerning the reason, assertedly had ex-
plained that "Ron [Simmons] told Jack not to hire you
because you like to organize unions." Cervantes denied
having told Gardiner that he had not been selected for
employment because Armistead had said that Gardiner
had been involved in union activities at a prior employer
Further, Cervantes denied having told Gardiner that Ar-
mistead said that Simmons had reported that Gardiner
had been involved in union activities while working at
Armored Rather, Cervantes testified that he had been
told by Armistead that Gardiner's "background check
was negative, he wouldn't touch it with a 10-foot pole,
and that Gardiner `was a troublemaker "' Thus, testified
Cervantes, he had told Gardiner that the latter had not
been selected, "because of a negative background check"
and, replying to Gardiner's inquiry for a more complete
explanation, "that the background was negative, the ap-
plication wouldn't be touched with a 10-foot pole, that
he was an instigator, I used the term `instigator."'a Ac-
cording to Cervantes, Gardiner then had said,
that he knew who said that, he knew who said it
and why, and then commenced to explain to me his
involvement with some union activity, at which
point I told him that I didn't want to hear any ex-
planation as to what he was involved with and sug-
gested he talk to Jack Armistead if he had anything
more, any more questions about the rejection.
As has Cervantes, Armistead testified that, during the
conversation in which he had announced that Gardiner
would not be considered for permanent employment
with Respondent, he had told Cervantes that he would
not personally touch Gardiner's application with a 10-
foot pole, and that Gardiner's background check was
negative. Armistead further testified that he had said that
he had the impression that Gardiner was a troublemaker
and that Respondent did not need that kind of aggrava-
tion. Armistead denied having indicated to Cervantes
that Gardiner was being rejected for permanent employ-
ment because of involvement in union activities and, fur-
ther, denied having indicated to Cervantes that Simmons
had said that Gardiner had been involved in union activi-
ties while working at Armored.
Both Armistead and Simmons described their tele-
phone conversation pertaining to Gardiner Armistead
testified that it had lasted about 3 minutes and that, after
having said, "[H]i, Ron,"
I asked Ron if he remembered Cecil Gardiner, he
said that he had . He asked me why, I told him that
he had made application to Guarantee Savings for a
warehouse position . I asked Ron what he would tell
me about him, and he told me that he had quit
without notice , and I asked if there was anything
else that could be said for him , and he said , well, he
was a complainer . I says "You know , would you
rehire him?" And he said , "Absolutely not."
That' s pretty much it. We went on to talk about
some other business and things , I believe; but as far
as the information I was after for that application,
that was it.
Examined more closely concerning this account, Armis-
tead agreed that Simmons may have said that Gardiner
had been a "troublemaker," rather than "complainer,"
but did not recall exactly which term had been used by
Simmons and did not perceive any difference between
the terms "for my purposes at that time." Armistead
denied expressly that Simmons had said anything about
Gardiner having been involved in union activities while
employed by Armored or at any other time.
As had Armistead, Simmons denied having informed
Armistead about any union activity by Gardiner while
the latter had been employed by Armored. Moreover,
like Armstead, Simmons testified that their conversation
had lasted only 2 or 3 minutes. According to Simmons,
Armistead, "asked me if I had an employee that used to
work there by the name of Cecil Gardiner, and I said
yes. And he asked me when-basically when he worked
there and when he quit , and I told him. And he asked
me if I would rehire Cecil and I told him no." Simmons
further testified, "I think he asked my why I wouldn't
rehire him and I told him because of the way he left,
that he didn't give me proper notice that he was quit-
ting."9
Analysis
Section 8(a)(3) of the Act expressly prohibits discrimi-
nation based on union considerations in the hire of em-
ployees See Phelps Dodge Corp. Y. NLRB, 313 U.S. 177,
182-187 ( 1941). Section 8(a)(1) of the Act "protects em-
ployees from retaliation by their employers when they
seek to improve working conditions through resort to
administrative and judicial forums." Eastex, Inc. V.
NLRB, 437 U.S. 556 , 565-566 (1978). Here, Armistead
admitted that he had been the official of Respondent
who had decided that further consideration of Gardiner
for employment should cease . Accordingly , it is on his
state of mind that analysis must focus in determining
8 Cervantes testified that Armistead had not used the word "instigator"
when he had told the former that Gardiner would no longer be consid-
ered for permanent employment with Respondent Rather, testified Cer-
vantes, Armistead had used the work "troublemaker" during that conver-
sation With respect to his own substitution of the word "instigator,"
when talking to Gardiner on February 16, Cervantes testified "I used
that word for troublemaker , that 's my-I just used that word "
8 Armistead testified that he had not asked why Simmons would not
rehire Gardiner and, further , that Simmons had not explained why he
would not do so Gardiner testified that, when he had quit, he had given
Armored 2 weeks' notice of that fact, but Simmons testified that Gardi-
ner had given much less advance notice In view of my ultimate disposi-
tion of this case, the latter is a collateral dispute that need not be re-
solved
GUARANTEE SAVINGS & LOAN
whether Gardiner had been denied employment with Re-
spondent because of activity protected by the Act "In
assesing allegations that conduct directed against em-
ployees had been unlawfully motivated, the crucial in-
quiry must be directed to the state of mind of the official
who had made the decision to effectuate that conduct."
Advanced Installation, Inc., 257 NLRB 845, 854 (1981),
enfd. mem. 698 F.2d 1231 (9th Cir. 1982).
Prerequisite to a determination that an employer has
refused to hire an applicant because of considerations
proscribed by the Act is a showing that the official who
made that decision had knowledge of the applicant's
union or other activity protected by the Act. "It is now
well established that knowledge by the employer of the
applicant's union activity is essential to a finding of viola-
tion . . . of the Act." Midwest Tool Co., 192 NLRB 1104,
1111 (1972). See also Sylacauga Garment Co., 210 NLRB
501, 517 (1974); Pfizer, Inc, 245 NLRB 52, 56-57 (1979),
enf denied per curiam 629 F.2d 1272 (7th Cir. 1980).
Here, the only evidence of protected activity engaged in
by Gardiner was his initiation of an organizing campaign
and his filing of an overtime claim with the Stateio
while he had been employed by Armored. Moreover,
there is no evidence that, independent of his telephone
conversation with Simmons, Armistead had learned of
that activity Consequently, the threshold question is
whether a preponderance of the evidence will support a
conclusion that Simmons had told Armistead about Gar-
diner's activity at Armored during the course of that
telephone conversation.
The only arguably direct evidence of such knowledge
is provided by Gardiner's testimony that Cervantes had
said that, "Ron told Jack not to hire you because you
like to organize unions." Yet, in so testifying, Gardiner
was not convincing. It appeared that in attributing those
words to Cervantes, Gardiner was reciting his own infer-
ence as to what Cervantes had meant by the latter's ad-
mitted use of the word "instigator" rather than describ-
ing the words actually spoken by Cervantes. By contrast,
Cervantes was a seemingly candid witness who denied
having made that statement to Gardiner and, further,
who testified that Armistead never had said that Sim-
mons had reported that Gardiner had been involved in
union activities while working at Armored. Accordingly,
I do not credit Gardiner's testimony in this regard and,
therefore, conclude that there is no merit to the allega-
tion that Cervantes had informed a prospective employee
that the latter was not being hired because of his union
activities and sympathies.
Of course, the absence of direct evidence that Armis-
tead had known of Gardiner's activities while working at
Armored does not end the inquiry concerning whether
or not Armistead knew of those activities when he de-
cided to terminate further consideration of Gardiner's ap-
plication. For, "there is well established Board and court
precedent that such knowledge may be inferred from the
10 In light of my ultimate disposition of the issues posed in this case, it
is not necessary to reach the subsidiary question of whether or not it can
be said that Gardiner's overtime claim had constituted "concerted activi-
ties" within the meaning of Sec 7 of the Act See, e g , Enterprise Prod-
ucts, 264 NLRB 946, 948-949 (1982), and Meyers Industries, 268 NLRB
493 (1984)
679
record as a whole." Wiese Plow Welding Co., 123.NLRB
616, 618 (1959). In her brief, the General Counsel points
to essentially five factors which, she argues, serve to es-
tablish an inference that Simmons must have told Armis-
tead about Gardiner's activities while working for Ar-
mored: The use of the words "troublemaker" by Armis-
tead and "instigator" by Cervantes, the seemingly emo-
tional reaction to Simmons' report displayed by Armis-
tead when he said that Gardiner's "application wouldn't
be touched with a 10-foot pole"; Armistead's willingness
to simply take "Simmon's word, at face value, that Re-
spondent's prime candidate for the job was a 'trouble-
maker"'; the assertedly inherent illogic to Cervantes' ac-
count that he "admittedly made no inquiries to Armis-
tead after Armistead told him that Gardiner was a 'trou-
blemaker,"' for in the General Counsel's view , "Human
nature and normal curiosity suggest that Cervantes
would have inquired as to what `trouble' Gardiner had
made"; and the fact that "no evidence was adduced by
Respondent to explain just what kind of trouble it was
that Gardiner caused his fomrer employer which justified
Respondent's refusal to hire Gardiner."
It is perhaps common for an ordinary word to acquire
a distinctive meaning in a particular field and then for
practitioners in that field automatically to attach that
meaning to every use of that word regardless of the con-
text in which it may be uttered. Such appears to be the
fate of the word "troublemaker" as interpreted by the
General Counsel A number of cases have treated its ut-
terance as a euphemism for union activist or union trou-
blemaker. See, e g , NLRB Y. Hearst Corp., 449 F.2d 711,
714 (5th Cir. 1971). Yet, clearly that is not the sole
meaning of that word. Nor can it be said that society at
large has come to apply only that meaning to the word
in common and normal usage. Indeed, the Board has rec-
ognized that its use, even in the labor relations field, is
not always to be taken as a sobriquet for union trouble-
maker or union activist. See, e.g., Bosk Paint & Sandblast
Co., 266 NLRB 1033, 1038-39 (1983). Absent a showing
that the word is being used in a manner "synonomous
with lawful union activity" in the circumstances of a par-
ticular case, "Employers may . . hire . . as they
choose if they have sufficient lawful reason, which in-
cludes refusal to hire so-called `trouble-makers."' NLRB
v. Aclang, Inc., 466 F.2d 558, 561 (5th Cir. 1972).
Here, there is no evidence sufficient to support an in-
ference that Armistead equates use of the word trouble-
maker-or complainer, for that matter-with union trou-
blemaker or with an employee who causes "trouble" of
the type protected by Section 7 of the Act. Moreover,
while there is a basis for suspecting that Simmons, a
seemingly unreliable witness, may have been using the
word complainer or troublemaker to refer to Gardiner's
union activities, there is no evidence that Simmons con-
veyed that meaning to Armistead or, alternatively, that
Armistead understood, or likely would have understood,
that Simmons was attaching that meaning to his use of
the word. Yet, as set forth above, a showing of knowl-
edge is a prerequisite to a finding of an unlawfully moti-
vated refusal to hire an employee. Midwest Tool & Engi-
neering, supra
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor is the General Counsel's asserted inference aided
by Cervantes' admitted choice of the word "instigator"
when he spoke to Gardiner Both Cervantes and Armis-
tead testified that the word actually used by the latter,
during their conversation, had been troublemaker As is
true of the word troublemaker, the meaning of the word
instigator is not confined in common parlance to union
instigator or union activist. While there are differences in
some meanings of those words, there also are overlap-
ping meanings The fact that there are overlapping mean-
ings precludes the automatic inference that substitution
of "instigator" for "troublemaker" mandates a conclusion
that union instigator must have been the meaning intend-
ed by Cervantes when he chose to utter that word
But assuming arguendo that Cervantes had equated
Armistead's use of the word troublemaker with union
troublemaker , and then had used the word instigator in
that sense, that still would not warrant an inference that
Armistead actually had known of Gardiner's activities
while working at Armored Cervantes credibly denied
that Armistead had made any statements to the effect
that Simmons had disclosed that Gardiner had been en-
gaging in union activity when employed by Armored.
There is no objective evidence that Armistead had made
such a statement to Cervantes. Consequently, at best,
Cervantes had harbored a personal belief that Gardiner
was being denied employment for having been a union
activist. But, absent more, Cervantes' personal opinion is
not entitled to any weight and would not be attributable
to Armistead, the official to whose state of mind the cru-
cial inquiry must be directed Advanced Installation,
supra.
In the circumstances of this case, the "10-foot pole"
remark does not serve to reinforce the General Counsel's
argument. While Armistead's statement was emphatic,
there has been no showing that it is extraordinary for
him to speak in that fashion in the normal course of an-
nouncing decisions and of giving instructions. Moreover,
when speaking with Simmons, Armistead had been told
both that Gardiner had quit without notice and that Gar-
diner had been a complainer or troublemaker while em-
ployed by Armored These characterizations are hardly
flattering ones. Nor are they ones that would serve to
enhance a prospective employer 's opinion of an appli-
cant. Accordingly, it cannot be said that such an employ-
er would be reacting unusually if it became emphatic in
announcing that such an applicant would no longer be
considered for employment. This conclusion is but rein-
forced by the absence of any evidence that Respondent
was hostile to unions or to the concept of unionization of
its employees. To the contrary, the only evidence con-
cerning Armistead's state of mind on this point was his
testimony that he once had been a union member as had
his brother, father, and grandfather. i i Therefore, the
i i To say that Armistead's testimony concerning these undisputed facts
is "self-serving" does not detract from its admissibility The concepts self-
serving and disserving are ones pertinent in the area of hearsay, arising
most frequently with regard to the exception for declarations against in-
terest The fact that Armistead 's testimony in this area served generally
to buttress Respondent's position does not make that testimony objection-
able, particularly as Armistead was available for cross -examination "All
evidence offered is self-serving , otherwise it would not be offered "
fact that Armistead expressed emphatically that Gardi-
ner's application would no longer be considered is not an
indicia of either knowledge that the latter had engaged
in protected activity while working at Armored nor of
an unlawful motive
The remaining three factors advanced by the General
Counsel need not be the subject of prolonged analysis.
Clearly it is not Respondent who bears the burden of
showing that Gardiner's trouble at Armored justified Re-
spondent's refusal to hire him. "The burden of establish-
ing every element of a violation under the Act is on the
General Counsel " Western Tug & Barge Corp., 207
NLRB 163 fn 1 (1973). It is the General Counsel who
must establish a prima facie case that a violation has oc-
curred before the burden shifts and Respondent is
obliged to bear the burden of going forward. NLRB v.
Transportation Management Corp., 462 U.S 393 (1983).
As stated above, one element in the General Counsel's
prima facie case is knowledge. Midwest Tool & Engineer-
ing Co., supra. The failure to satisfy the burden of show-
ing that element of a prima facie case may not be
brushed aside by a facile attempt to prematurely shift the
burden to a respondent.
The fact that Armistead chose not to, in effect, cross-
examine Simmons concerning the reasons underlying the
latter ' s opinion of Gardiner does not indicate that Armis-
tead was not being truthful concerning the substance of
his telephone conversation with Simmons. The positions
in which Gardiner was seeking to be employed have not
been shown to be unique . Other applications had been
submitted to Armistead along with the one filed by Gar-
diner . There is no evidence that Gardiner 's qualifications
for the vacancies were so superior to those of the other
applicants that Respondent naturally would have made
special efforts to employ him. Contrary to the General
Counsel's "prime candidate" characterization, the most
that has been shown is that only Cervantes preferred to
hire Gardiner. But, there is no evidence that Cervantes
had been prepared to make extraordinary efforts to do
so. Nor is there evidence of a similar predisposition by
Armistead who, of course, is the official who had spoken
with Simmons and who had made the decision to cease
further consideration of Gardiner for employment. In
these circumstances, no inference can be drawn from the
fact that Armistead simply accepted Simmons' negative
evaluation of Gardiner without, in effect, seeking a bill
of particulars of the specific circumstances underlying it.
Similarly, no inference can be drawn from the fact
that Cervantes simply accepted Armistead's decision
without pursuing the reasons underlying it. In the first
place, there is no evidence that Cervantes is the type of
person who possessed that degree of curiosity that natu-
rally would have led him to pursue a personal inquiry re-
Heafey, California Trial Objections, Sec 19 28 (1967) To the extent that
this testimony tends to make the existence of antiunion motivation less
probable , Armistead 's testimony concerning these matters satisfies the test
imposed by Fed R Evid 401-in the same fashion as Gardiner's testimo-
ny about his union activities at Armored , equally helpful to his own posi-
tion, tends to make the existence of antiunion motive, at least by Ar-
mored , more probable than without that testimony, though in neither in-
stance , of course, is the testimony of Armistead and Gardiner concerning
these matters determinative of the ultimate issue posed in this case
GUARANTEE SAVINGS & LOAN 681
garding specific reasons underlying a decision which he
neither made nor, so far as the record discloses, could
change. Like Armistead, he knew that there were other
applicants. Although he had favored hiring Gardiner,
there is no evidence that his preference had been so pro-
nounced that he naturally would have questioned the
basis for Armistead's decision. Indeed, Armistead is Cer-
vantes' superior in the management hierarchy and it is
difficult to draw, in effect, an adverse inference from the
fact that a lower level supervisor failed to ask questions
that might be construed as a challenge by a subordinate
to a decision made by higher management
In sum, there is neither direct nor circumstantial evi-
dence that Respondent, specifically Armistead, had re-
fused to further consider Gardiner for employment be-
cuase of the latter's union or arguably protected activity
when he had worked for Armored While there is a basis
for suspecting that Simmons may have been unlawfully
motivated in advancing his negataive evaluation of Gar-
diner, a preponderance of the evidence does not support
the conclusion that Armistead knew or likely would
have known that fact, assuming that Simmons had been
so motivated As set forth above, absent such a showing
of knowledge, the General Counsel has failed to carry
the burden of showing an essential element needed to es-
tablish a violation of the Act. Moreover, lest it be argued
that this leaves Gardiner without a remedy in a situation
where he may have been deprived of employment be-
cause of Simmons' arguably unlawful motivation, the
short answer is that Gardiner's cause of action rests
against Armored, not Respondent. i 2
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed13
ORDER
It is ordered that the complaint is dismissed in its en-
tirety.
12 In this regard , it is worth restating that Gardiner's denial of employ-
ment with Respondent occurred on February 16 The charge was filed
and the complaint in this matter issued in March The hearing was con-
ducted on August 16 Consequently , as late as the day before the hearing
a timely charge against Armored still could have been filed
13 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses