Harco Trucking, LLC

National Labor Relations Board - Board Decisions

Mar 31, 2005

344 N.L.R.B. 478 (N.L.R.B. 2005)

HARCO TRUCKING, LLC
344 NLRB No. 56
478
Harco Trucking, LLC and Scott Wood. Case 32–CA–
20621–1
March 31, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
On January 26, 2004, Administrative Law Judge Jay
R. Pollack issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and the Charging Party each filed an answering
brief. The Respondent filed a brief in reply to the Charg-
ing Party’s answering brief.
The National Labor Relations Board has considered
the decision and the record1 in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions and to adopt the recommended
Order as modified and set forth in full below.2
The judge found that the Respondent violated Section
8(a)(1) of the Act by refusing to hire Scott Wood because
he engaged in protected concerted activity. The Respon-
dent’s sole defense on exception is that it cannot be
found to have unlawfully refused to hire Wood because
the refusal to hire occurred before the date that the Re-
spondent was officially incorporated, and that any unfair
labor practice was committed by Harco Company, an
unrelated entity, not by the Respondent. For the follow-
ing reasons, we reject the Respondent’s defense.
Background
Scott Wood was employed by Harco Company as a
low bed truckdriver and was laid off on December 24,
2002. In March 2003, Wood filed a lawsuit against
Harco Company in California Superior Court alleging
that Harco Company had failed to pay the prevailing
wages on certain of its jobsites. In April 2003, the pre-
vailing wage lawsuit was amended as a class action on
behalf of Wood and other similarly situated drivers em-
ployed by Harco Company. Harco Company subse-
quently entered into bankruptcy proceedings, and the
assets of Harco Company were sold at a bankruptcy auc-
tion in May 2003 to a joint venture named Capurro
Trucking/Sierra Rental and Transport Company and
Harco Trucking LLC. The joint venture was established
by Clint Capurro and Rich Casci.
In mid-May, after the bankruptcy sale, Capurro and
Casci took over the management of the business with the

1 We grant the Charging Party’s unopposed request to take judicial
notice of a copy of the Respondent’s corporate information printed
from the website of the Nevada Secretary of State.
2 We shall modify the judge’s recommended Order and shall substi-
tute a new notice to conform to the Board’s standard remedial lan-
guage.
approval of the Bankruptcy Court, and hired Larry
Chance as dispatcher/manager to assist with the transi-
tion. The joint venture then created a new entity, Harco
Trucking, LLC, the Respondent herein, but the Respon-
dent did not file its Articles of Organization for a Lim-
ited-Liability Company with the Nevada Secretary of
State until May 28, 2003. The Respondent’s corporate
charter was issued on May 29, 2003.
On May 23, 2003, Chance placed an advertisement in
the newspaper for, inter alia, low bed truckdrivers.3 Sub-
sequently, Wood heard that the new management was
seeking to hire drivers and called Chance to express his
interest. He told Chance that he had previously worked
for Harco Company and informed him that he had filed
the pending class action lawsuit. Chance agreed that
Wood should come in the next day for an interview.
When Wood appeared for his interview, Chance told
Wood that his “chances of working here have been
kaboshed [sic].” Chance did not interview Wood and
Wood did not file an application. Chance admitted that
he told Wood that he would not be employed “because of
the pending lawsuit” and that he should not expect to
work until the lawsuit was resolved. Chance also testi-
fied that the lawsuit was a factor in his decision not to
hire Wood. Other drivers were subsequently hired, and
the Respondent advertised again for drivers in July 2003.
The judge found that the Respondent violated Section
8(a)(1) of the Act by refusing to hire Wood because he
engaged in the protected concerted activity of filing and
maintaining the class action lawsuit against Harco Com-
pany.
Analysis
The Respondent’s sole defense before the Board is that
it cannot be responsible for any unfair labor practice that
occurred before it officially came into existence on May
29, 2003. The Respondent argues that it is “undisputed
that the activity upon which the Complaint was based all
took place prior to May 29, 2003.”
We reject the Respondent’s “corporate non-existence”
defense. First, we find that this defense was waived. In
its answer to the complaint, the Respondent admitted that
“[a]t all times material herein since about mid-May
2003, Respondent, a Nevada corporation with a place of
business in Sparks, Nevada, has been engaged in the
business of hauling materials for construction companies
and other companies throughout the western United

3 The ad stated: HARCO-Under New Management. We are look-
ing for Low bed, Flat bed, End dump and bottom dump trained drivers.
Experience a must. Call Larry at 775–331–6161
HARCO TRUCKING, LLC 479
States.” (Emphasis added).4 The Board has held that
admissions in an answer are binding on the respondent,
even where potentially conflicting evidence is intro-
duced. Boydston Electric, Inc., 331 NLRB 1450, 1451
(2000), citing Liberty Natural Products, 314 NLRB 630
(1994), enfd. mem. 73 F.3d 369 (9th Cir. 1995), cert.
denied 518 U.S. 1007 (1996) (where answer admits com-
plaint allegation that an individual is a supervisor, the
General Counsel can rely on that admission and does not
need to litigate that issue); Steelworkers Local 14534 v.
NLRB, 983 F.2d 240, 247 (D.C. Cir. 1993) (where an-
swer admits complaint allegation that striking employees
made an unconditional offer to return to work employer
“took this issue out of the case”). See also, Chipper Ex-
press, Inc., 342 NLRB 1036, 1038 (2004). Cf. D. A.
Collins Refractories, 272 NLRB 931, 932 (1984) (admis-
sion loses its binding effect when an amended pleading is
filed).
The Respondent did not seek to amend its answer to
deny its corporate status or argue its nonexistence de-
fense at the hearing. Rather, the Respondent first made
this argument in its posthearing brief to the judge. Ac-
cordingly, it is untimely raised. See Vencare Ancillary
Services, 334 NLRB 965, 969 (2001), enf. denied on
other grounds 352 F.3d 318 (6th Cir. 2003) (respondent’s
8(g) argument was in the nature of an affirmative defense
that was waived by respondent’s failure to raise it either
in its answer or at the hearing). Thus, the General Coun-
sel was entitled to rely on the Respondent’s answer to
establish that the Respondent was a Nevada corporation
at all material times.
Moreover, the Respondent’s admission of its corporate
existence at the time of the refusal to hire Wood is con-
sistent with the record in this case. Nevada Revised
Statutes Section 78.050 states that a corporation com-
mences its existence “[f]rom the date the articles [of in-
corporation] are filed.” The Respondent’s corporate
charter, issued on May 29, 2003, indicates that the Re-
spondent’s Articles of Organization for a Limited-
Liability Company were filed on May 28, 2003. Further,
the Nevada Secretary of State website confirms that the
Respondent’s date of incorporation was May 28, 2003,
the date that the articles were filed. Thus, we find that
the Respondent came into existence on May 28, not May
29 as argued by the Respondent. Accordingly, if the
unfair labor practice in this case occurred on or after May
28, there would be no merit to the Respondent’s corpo-
rate nonexistence defense. We find that the record sup-
ports such a finding.

4 The Respondent further admitted that “at all times material herein”
Chance was a supervisor and/or agent of the Respondent within the
meaning of the Act.
Wood, whose testimony was credited by the judge, ini-
tially testified that his meeting with Chance occurred at
the “[e]nd of May 2003.” Later in his testimony, how-
ever, Wood stated that he and his attorney filled out the
initial charge the same day he met with Chance. The
initial charge, alleging that the unfair labor practice oc-
curred on “May 28, 2003 and continuing to date,” was
signed by Wood’s attorney on May 29.
We find Wood’s credited testimony sufficient to sup-
port a finding that the events occurred on or after May
28. Although Wood was initially imprecise about when
the events took place (the end of May), his later more
specific testimony, considered together with the date set
forth in the charge, would place the meeting as occurring
on or after May 28. There is no specific evidence that
would establish that the “kibosh” meeting took place
before May 28. Accordingly, we find that the record
supports a finding that the relevant events occurred on or
after May 28, the date of the Respondent’s incorpora-
tion.5
Under all the circumstances, including the Respon-
dent’s admission of corporate status in its answer, its
failure to seek to amend its answer, its failure to argue its
“corporate non-existence” defense at the hearing, and the
fact that the record supports a finding that the unfair la-
bor practices occurred on or after the date of incorpora-
tion, we agree with the judge’s finding that the Respon-
dent violated Section 8(a)(1) by refusing to hire Scott
Wood because he engaged in protected concerted activi-
ties.
ORDER
The National Labor Relations Board orders that the
Respondent, Harco Trucking, LLC, Sparks, Nevada, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to hire employees because
they engage in protected concerted activities within the
meaning of Section 7 of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Scott Wood instatement to the position he would have
held absent the discrimination against him or, if that po-
sition no longer exists, to a substantially equivalent posi-

5 Chairman Battista does not rely on this rationale. He believes that
the record is unclear as to when on May 28 the Articles of Incorpora-
tion were filed and it is unclear when on May 28 the refusal to hire may
have occurred.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD480
tion, without prejudice to his seniority or any other rights
or privileges he would have enjoyed absent the discrimi-
nation against him.
(b) Make Scott Wood whole for any loss of earnings
and other benefits suffered as a result of the Respondent's
unlawful discrimination against him, with interest, as set
forth in the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files all references to the unlawful refusal to hire
Scott Wood, and within 3 days thereafter, notify him in
writing that this has been done and that the unlawful
conduct will not be used against him in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Sparks, Nevada copies of the attached no-
tice marked “Appendix.”6 Copies of the notice, on forms
provided by the Regional Director for Region 32, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since May 28, 2003.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to hire employees because they
engage in protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board's
Order, offer Scott Wood instatement to the position he
would have held in the absence of the discrimination
against him or, if that position no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights or privileges he would have
enjoyed absent the discrimination against him.
WE WILL make Scott Wood whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, with interest.
WE WILL, within 14 days from the date of the Board's
Order, remove from our files all references to the unlaw-
ful refusal to hire Scott Wood, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done, and that the unlawful conduct will not be used
against him in any way.
HARCO TRUCKING, LLC
Karen Reichmann, Esq., for the General Counsel.
Timothy E. Rowe, Esq. (McDonald Carano Wilson), of Reno,
Nevada, for the Respondent.
Mark R. Thierman and Micheline Fairbank, Esqs. (Thierman
Law Firm), of Reno, Nevada, for Scott Wood.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Reno, Nevada, on December 11, 2003. On June
2, 2003, Scott Wood (Wood) filed the original charge alleging
that “Harco Company and its successor in interest, Capurro
Trucking” committed certain violations of Section 8(a)(3) and
(1) of the National Labor Relations Act (the Act). On August
26, 2003, Wood filed an amended charge against Harco Truck-
ing, LLC (Respondent), using the correct name of the charged
HARCO TRUCKING, LLC 481
party. On August 29, 2003, the Regional Director for Region
32 of the National Labor Relations Board (the Board) issued a
complaint and notice of hearing against Respondent, alleging
that Respondent violated Section 8(a)(1) of the Act by failing
and refusing to hire employee Wood because of his protected
concerted activities. Respondent filed a timely answer to the
complaint, denying all wrongdoing.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses,1 and having con-
sidered the briefs submitted by the parties, I make the follow-
ing.
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent is a Nevada corporation, with an office and
place of business in Sparks, Nevada, where it is engaged in the
business of hauling materials for construction companies and
other companies throughout the Western United States. Re-
spondent purchased the assets of this business at the end of
May 2003. Based upon a projection of its operation since May
2003, Respondent will annually provide services valued in
excess of $50,000 to customers who themselves meet one of the
Board’s jurisdictional standards, other than the indirect inflow
or outflow standards. Accordingly, 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.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent purchased the assets of Harco Company, includ-
ing the Harco trademark, in a bankruptcy proceeding in May
2003. Harco Company was engaged in the business of hauling
materials for construction companies and other companies
throughout the western United States. After Respondent pur-
chased the assets of Harco Company it operated the same busi-
ness, out of the same location, using the same equipment. The
employees of Harco Company went to work for Respondent
without any hiatus in employment.
Wood was employed by Harco Company as a low bed truck-
driver. Wood was hired in June 2002 and was laid off on De-
cember 24, 2002. This layoff was due to a seasonal slowdown
and Wood continued to receive health benefits while on layoff
status. In March 2003, Wood filed a lawsuit against Harco
Company in Superior Court in California, alleging, inter alia,
that Harco Company had failed to pay the legally required pre-
vailing wages on certain of its jobsites. In April 2003, the
complaint was amended as a class action lawsuit on behalf of

1 The credibility resolutions herein have been derived from a review
of the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit-
nesses testifying in contradiction to the findings, herein, their testimony
has been discredited, either as having been in conflict with credited
documentary or testimonial evidence or because it was in and of itself
incredible and unworthy of belief.
Wood and the other similarly situated drivers employed by
Harco Company.
Subsequently, Harco Company entered into bankruptcy pro-
ceedings. The assets of Harco Company were sold at a bank-
ruptcy auction to a partnership, which created a new entity,
Harco Trucking, LLC, the Respondent. Respondent was aware
of the class action lawsuit at the time of the asset purchase.
In mid-May 2003, prior to the official takeover of Harco
Company, Respondent took over management of the trucking
business with the approval of the Bankruptcy Court. Respon-
dent operated the business with former Harco Company em-
ployees and equipment and serviced the former customers of
Harco Company. Beginning on or about May 23, 2003, Larry
Chance, Respondent’s dispatcher/manager, placed an adver-
tisement for low bed, flat bed, front end and rear end dump
truckdrivers. Wood learned that the new management of the
Harco Company was seeking to hire drivers and he sought em-
ployment with Respondent.
Wood testified that during the last week of May 2003, he
called Chance to express his interest in driving for Respondent.
According to Wood, he told Chance that he had worked for
Harco Company and had been laid off for the Winter. Wood
testified that he told Chance that he was the driver that had filed
the class action lawsuit against Harco Company. Chance and
Wood agreed that Wood would come in the next day for an
interview. The next day, Wood called Chance from outside the
facility to confirm that Wood was authorized to enter the prop-
erty. According to Wood, when he entered Chance’s office,
Chance was on the telephone. When Chance got off the tele-
phone, he told Wood, “Your plans of working here have been
kyboshed.” Chance did not interview Wood and Wood did not
file a job application. Shortly thereafter, Wood reported these
events to his attorney and the original charge was filed.
Chance testified that he told Wood that the driver would not
be employed by Respondent “because of the pending lawsuit”
and that he should not expect to come back to work “until the
lawsuit was resolved.” Respondent hired other drivers and
placed another advertisement for drivers in July.
Chance testified that he did not hire Wood because other
drivers and employees had indicated that Wood was not a care-
ful driver. Chance admitted that he was originally interested in
hiring Wood. Chance also admitted that an office worker of
Harco Company told him that she would not hire Wood be-
cause of the lawsuit. According to Chance, this conversation
raised a “red flag.” He testified to having conversations with
other employees about Wood’s driving only after speaking with
the office worker. Wood was the only former Harco Company
truckdriver not hired by Respondent. Further, Wood received
no disciplinary action while employed by Harco Company.
I find Wood’s version of these events more credible than that
of Chance. Wood knew that it would aid his case to testify that
Chance told him that he would not be hired because of the law-
suit. Nonetheless, Wood testified that Chance made no such
statement to him. Chance on the other hand, was self-
contradictory in his testimony and at one point attempted to
testify that he did not make the decision not to hire Wood. He
later changed his testimony and stated that he did make that
decision. The circumstantial evidence leads me to conclude that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD482
Chance questioned employees about Wood’s performance after
rejecting Wood as an applicant and as a defense to the instant
charge. Chance’s testimony was very vague as to when he had
conversations about Wood’s work performance. Further,
Chance exaggerated the number of meetings he had with
Wood. Chance testified that he “sugarcoated” the refusal to
hire Wood by referring to the lawsuit rather than Wood’s work
performance. Chance did not explain how telling Wood that he
should not expect to come back to work “until the lawsuit was
resolved,” qualifies as “sugarcoating.” I find that Chance’s
testimony was merely an attempt to explain away a very dam-
aging admission. I credit Wood’s testimony that Chance sim-
ply stated, “Your plans of working here have been kyboshed.”
It appears that any discussions with other employees about
Wood’s work performance occurred after this brief conversa-
tion.
B. Conclusions
Pursuant to Section 7 of the Act, employees have the right to
engage in concerted activities for their mutual aid and protec-
tion. Accordingly, an employer may not, without violating Sec-
tion 8(a)(1) of the Act, discipline or otherwise threaten, re-
strain, or coerce employees because they engage in protected
concerted activities.
In regard to the Section 7 rights of employees filing civil
actions against their employer, the Board has held that the
filing of a civil action by a group of employees is protected
activity unless done with malice or in bad faith. See Trinity
Trucking & Materials Corp., 221 NLRB 364, 365 (1975);
Host International, 290 NLRB 442, 443 (1988). Respon-
dent does not deny that Wood was engaged in protected
concerted activities in filing and maintaining the class action
lawsuit against Harco Company. Rather, Respondent con-
tends that General Counsel has not shown that Respondent
was motivated by that activity in not hiring Wood.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
announced the following causation test in all cases alleging
violations of Section 8(a)(3) or violations of 8(a)(1) turning on
employer motivation. First, the General Counsel must make a
prima facie showing sufficient to support the inference that
protected conduct was a “motivating factor” in the employer’s
decision. Upon such a showing, the burden shifts to the em-
ployer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The United
States Supreme Court approved and adopted the Board’s
Wright Line test in NLRB v. Transportation Corp., 462 U.S.
393, 399–403 (1983).
In FES, 331 NLRB 9, 12 (2000), the Board set forth the fol-
lowing test for a refusal to hire case:
To establish a discriminatory refusal to hire, the General
Counsel must, under the allocation of burdens set forth in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), first show
the following at the hearing on the merits: (1) that the re-
spondent was hiring, or had concrete plans to hire, at the
time of the alleged unlawful conduct; (2) that the applicants
had experience or training relevant to the announced or gen-
erally known requirements of the positions for hire, or in the
alternative, that the employer has not adhered uniformly to
such requirements, 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. Once this is established, the burden
will shift to the respondent to show that it would not have
hired the applicants even in the absence of their union activ-
ity or affiliation. If the respondent asserts that the applicants
were not qualified for the positions it was filling, it is the re-
spondent’s burden to show, at the hearing on the merits, that
they did not possess the specific qualifications the position
required or that others (who were hired) had superior quali-
fications, and that it would not have hired them for that rea-
son even in the absence of their union support or activity. In
sum, the issue of whether the alleged discriminatees would
have been hired but for the discrimination against them must
be litigated at the hearing on the merits. If the General
Counsel meets his burden and the respondent fails to show
that it would have made the same hiring decisions even in
the absence of union activity or affiliation, then a violation
of Section 8(a)(3) has been established. The appropriate
remedy for such a violation is a cease-and-desist order, and
an order to offer the discriminatees immediate instatement
to the positions to which they applied or, if those positions
no longer exist, to substantially equivalent positions, and to
make them whole for losses sustained by reason of the dis-
crimination against them.
In the instant case, Larry Chance, Respondent’s chief witness,
testified that he told Wood that the driver would not be em-
ployed by Respondent “because of the pending lawsuit” and
that he should not expect to come back to work “until the law-
suit was resolved.” However, the credible evidence establishes
that Chance told Wood, “Your plans of working here have been
kyboshed.” Nevertheless, I find Chance’s testimony tantamount
to a confession that Respondent ceased consideration of Wood
for employment because of the class action lawsuit against his
former employer. Not only is such a statement evidence of
hostility toward Wood because of his protected activity, but it
constituted an outright confession of Respondent’s intention to
retaliate against Wood because he engaged in protected con-
certed activities. American Petrofina Co. of Texas, 247 NLRB
183 (1980); See, e.g., NLRB v. L. C. Ferguson, 257 F.2d 88, 92
(5th Cir. 1958), and NLRB v. John Langenbacher, 398 F.2d
459, 463 (2d Cir. 1968), cert. denied 393 U.S. 1049 (1969).
“The Courts pay special attention to such statements against
interest when in the unusual case it occurs that a party admits
that his conduct, otherwise ambiguous, is for improper purpose
or objective.” Brown Transport Corp. v. NLRB, 334 F.2d 30, 38
(5th Cir. 1964).
For the following reasons, I find that the General Counsel
has made a strong prima facie showing that Respondent was
motivated by unlawful considerations in refusing to hire Wood.
Chance was interested in hiring former drivers of Harco Com-
pany and was interested in hiring Wood. However, an office
clerical employee told Chance that she would not hire Wood
HARCO TRUCKING, LLC 483
because of the class action lawsuit. Then Chance told Wood
that his plans were “kyboshed.” Next, Chance spoke to em-
ployees in an attempt to defend the failure to hire Wood. It is
clear that Respondent excluded Wood from the hiring process
and that animus against the protected activitiy (the class action
lawsuit) contributed to the decision not to consider Wood for
employment.
Thereafter, Respondent hired drivers for positions for which
Wood was qualified. Subsequently, Respondent again adver-
tised for truckdrivers for which Wood was qualified. Chance
knew that Wood had driven for Harco Company and was quali-
fied for these driving positions.
The burden shifts to Respondent to establish that the same
action would have taken place in the absence of Wood’s pro-
tected concerted activities. Respondent has not met its burden
under Wright Line. Its assertion that Wood may not have been
a good driver for Harco Company was not sufficient to over-
come the prima facie case. An employer cannot carry its
Wright Line burden simply by showing that it had a legitimate
reason for the action, but must “persuade” that the action would
have taken place even absent the protected conduct “by a pre-
ponderance of the evidence.” Centre Property Management,
277 NLRB 1376 (1985); Roure Betrand Dupont, Inc., 271
NLRB 443 (1984). In other words, the mere presence of le-
gitimate business reasons for disciplining or discharging an
employee does not automatically preclude the finding of dis-
crimination. J. P. Stevens & Co. v. NLRB, 638 F.2d 676, 681
(4th Cir. 1980). Beyond that, “when a respondent’s stated
motive for its actions are found to be false, the circumstances
may warrant an inference that the true motive is an unlawful
one that the respondent desires to conceal.” (Footnote omitted.)
Fluor Daniel, Inc., 304 NLRB 970, 970 (1991). See also Shat-
tuck Denn Mining Co. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966). Here, while it has been shown that certain coworkers
had the opinion that Wood was not careful, there has been no
credible evidence that the opinions of these coworkers was the
actual reason for the discharge. It appears that Chance did not
obtain this information until after he decided that Wood
“should not expect to come back to work until the lawsuit was
resolved.” As stated above, analysis of Chance’s testimony
shows that it cannot be relied upon to show any reason for the
termination of Wood’s interview, rather than the class action
lawsuit. Where, as here, the General Counsel makes out a
strong prima facie case under Wright Line, the burden on Re-
spondent is substantial to overcome a finding of discrimination.
Eddyleon Chocolate Co., 301 NLRB 887, 890 (1991).
Rather, the evidence leads to a conclusion that, prior to the
discussion of Wood and the lawsuit with the office clerical
worker, it appears that Chance was interested in hiring Wood as
a driver for Respondent. White Oak Coal Co., 295 NLRB 567,
570 (1989). See also Jones & McKnight, Inc. v. NLRB, 445
F.2d 97 (7th Cir. 1971). In sum, the General Counsel has
shown that the failure to consider Wood for employment in
May 2003, had been unlawfully motivated. Thereafter, Re-
spondent hired other drivers for positions for which Wood was
qualified. Respondent has failed to credibly show that its re-
fusal to consider Wood for employment and its refusal to hire
Wood had been for a legitimate reason. Therefore, I find that
Respondent’s refusal to hire Wood violated Section 8(a)(1) of
the Act.
It is no defense that Respondent acted without union animus
or a willful intent to violate the Act. The law is well estab-
lished that when it is once made to appear from the primary
facts that an employer has engaged in conduct which operates
to interfere with an employee’s statutorily protected right, it is
immaterial that the employer was not motivated by antiunion
bias or ill intentions.” Fabric Services, 190 NLRB 540, 543
(1971). See also NLRB v. Burnup & Sims, Inc., 379 U.S. 21
(1964); and Time-O-Matic, Inc. v. NLRB, 264 F.2d 96 (7th Cir.
1959). The test is whether the employer engaged in conduct,
which, it may reasonably be said, tends to interfere with the
free exercise of employee rights under the Act. Continental
Chemical Co., 232 NLRB 705 (1977), and American Lumber
Sales, Inc., 229 NLRB 414 (1977).
Further, it is no defense that Respondent did employ certain
former drivers of Harco Company who were named in Wood’s
class action lawsuit. In regard to employer motivation, the
Board has held that an employer’s failure to take action detri-
mental to all known union adherents does not show that its
action against some was not for antiunion reasons. See, e.g.,
Alliance Rubber Co., 286 NLRB 645, 647 (1987); Master Se-
curity Services, 270 NLRB 543, 552 (1984).
Finally, Respondent seeks to avoid liability because the
aborted interview between Wood and Chance occurred prior to
Respondent’s formal takeover of Harco Company’s business
operations. It is undisputed that joint venture which was later
incorporated as Respondent was operating the business with the
approval of the Bankruptcy Court at the time Chance unlaw-
fully eliminated Wood from consideration for employment.
Respondent’s subsequent hiring of other employees, which
forms the basis of the refusal to hire violation, occurred after
Respondent was incorporated and officially operating the busi-
ness.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Scott Wood was engaged in protected concerted activities
within the meaning of Section 7 of the Act in filing and main-
taining a class action lawsuit, on behalf of himself and his co-
workers against his former employer.
3. By failing and refusing to hire Scott Wood because of his
protected concerted activities, Respondent violated Section
8(a)(1) of the Act.
4. The above unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor prac-
tices, I shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirmative action to effectu-
ate the policies of the Act.
Respondent must offer Scott Wood full and immediate rein-
statement to the position he would have held, but for the unlaw-
ful discrimination against him. Further, Respondent must make
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD484
Wood whole for any and all loss of earnings and other rights,
benefits, and privileges of employment he may have suffered
by reason of Respondent’s discrimination against him, with
interest. Backpay shall be computed in the manner set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
provided in New Horizons for the Retarded, 283 NLRB 1173
(1987); See also Florida Steel Corp., 231 NLRB 651 (1977);
and Isis Plumbing Co., 138 NLRB 716 (1962).
Respondent must also expunge any and all references to its
unlawful refusal to hire Wood from its files and notify Wood in
writing that this has been done and that the unlawful refusal to
hire will not be the basis for any adverse action against him in
the future. Sterling Sugars, Inc., 261 NLRB 472 (1982).
[Recommended Order omitted from publication.]