Hartman Bros. Heating & Air-Conditioning

National Labor Relations Board - Board Decisions

Dec 12, 2000

332 N.L.R.B. 1343 (N.L.R.B. 2000)

HARTMAN BROS HEATING & AIR CONDITIONING 1343
Hartman Brothers Heating & Air-Conditioning, Inc.
and Sheet Metal Workers’ International Asso-
ciation Local Union No. 20, a/w Sheet Metal
Workers’ International Association, AFL–CIO.
Cases 25–CA–24361–1, Amended and 25–CA–
24361–3
December 12, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On August 17, 1998, Administrative Law Judge Jerry
M. Hermele issued the attached decision. The Respon-
dent and the General Counsel filed exceptions and sup-
porting briefs, and the Respondent filed an answering
brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions, as
modified, and to adopt the recommended Order as modi-
fied.3
1. The complaint alleged, inter alia, that the Respon-
dent discharged employee Michael Starnes on or about
October 12, 1995,4 in violation of Section 8(a)(3) and
(1). In his opening statement at the hearing, the General
Counsel explained his theory of the case that the Re-
spondent violated the Act when “Starnes was immedi-
ately sent home, or discharged” after he informed the
Respondent’s general manager, Richard Hartman, that he
was a union organizer and intended to organize the Re-
spondent’s employees.
The judge dismissed the complaint allegation pertain-
ing to Starnes. In doing so, the judge found that the
General Counsel had not alleged as unlawful the Re-
spondent’s act of sending Starnes home immediately
after he announced that he was a union organizer. In-
stead, the judge treated the complaint allegation as di-
rected to conduct occurring later in the day on October
12—when, after sending Starnes home, the Respondent
informed him that it had received a report that Starnes’
driving record was poor and that, therefore, he was dis-
charged.5

1 On June 13, 2000, the Board issued a “Notice and Invitation to File
Briefs” in light of the Board’s decision in FES, 331 NLRB No. 20
(2000). Both the Respondent and the General Counsel filed supple-
mental briefs.
2 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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 reversing the findings.
3We shall modify the judge’s recommended Order to conform to the
violations found, to add an expunction remedy, and to conform to In-
dian Hills Care Center, 321 NLRB 144 (1996).
4 All dates are in 1995 unless noted otherwise.
Contrary to the judge, we find that the complaint alle-
gation that Starnes was unlawfully discharged encom-
passed the Respondent’s act of sending Starnes home on
October 12, particularly in light of the General Counsel’s
remarks in his opening statement, as noted above.
More particularly, the General Counsel’s theory of the
complaint is that the Respondent effectively discharged
Starnes when it sent him home on October 12 based on
Starnes’ statements about organizing the Respondent’s
employees.6 Although we find, as a factual matter, that
Starnes’ actual discharge occurred a few hours after he
was sent home—when the details of his poor driving
record were revealed—we find that the “sending home”
of Starnes was placed at issue in this proceeding and was
fully litigated. Thus, both Starnes and Hartman testified
in detail regarding the circumstances surrounding Hart-
man’s sending Starnes home, and the judge made find-
ings of fact concerning this event.
Specifically, the judge rejected the Respondent’s con-
tention that Starnes was sent home because he was in-
subordinate. Indeed, the judge expressly found that the
Respondent’s act of sending Starnes home immediately
after Starnes announced that he was a union organizer
and intended to organize the Respondent’s employees
satisfied the General Counsel’s initial evidentiary burden
to show that Starnes was unlawfully discharged under
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981).
Put another way, the judge found that the “sending
home” of Starnes was a factual element of the subse-
quent discharge later that day. Although the act of send-
ing Starnes home may have been something short of a
formal “discharge,” we find, on this record, that the law-
fulness of that incident is properly before us for consid-
eration. While we agree with our dissenting colleague
that the General Counsel’s framing of the complaint and
his explanations regarding the alleged violation as to
Starnes are not a model of clarity, we find that the Re-
spondent was put on notice that the sending home of
Starnes was at issue in this proceeding. Moreover, we
note that the dissent does not contend that the Respon-
dent was prejudiced or misled in any fashion.
5 The General Counsel concedes that once the Respondent learned of
Starnes’ poor driving record Starnes’ employment was properly termi-
nated.
6 In his brief in support of exceptions, the General Counsel states
that Starnes’ being sent home immediately following his organizing
announcement “was the discharge in issue.”
332 NLRB No. 142
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1344
Accordingly, in these circumstances, we find that the
events of October 12 were pleaded and fully litigated,
that the record established that Starnes was sent home
because he announced his intent to organize the Respon-
dent’s employees, and that the Respondent failed to es-
tablish that it would have taken the same action regard-
less of Starnes’ union activities.7 Inasmuch as Starnes
was sent home because of his exercise of union and pro-
tected concerted activities, we find that the Respondent
violated Section 8(a)(3) and (1) when it sent Starnes
home on October 12.8
2. The complaint also alleged that the Respondent re-
fused to hire, or consider for hire, applicant James Till
because of his union membership and activities. For the
reasons below, we adopt the judge’s findings that the
Respondent violated Section 8(a)(3) and (1) of the Act
by refusing to hire Till and by refusing to consider him
for hire.9
As found above in section 1, the Respondent unlaw-
fully directed Michael Starnes to go home and leave the
jobsite on October 12. After he departed, Starnes went to
the union hall that day and informed Union Organizers
Till and Kereszturi, who then went to the jobsite (accom-
panied by Starnes) to apply for a position with the Re-
spondent. The Respondent did not hire either Till or
Kereszturi for the position formerly occupied by Starnes.
According to Richard Hartman, he “didn’t really dig
into” Till’s job application on October 12 because of
concerns that Kereszturi was not a bona fide applicant
and Till’s association with Kereszturi. Till’s application,
on its face, revealed that he was employed as a union
organizer.
In FES, 331 NLRB No. 20 (2000), the Board recently
issued a decision setting forth the framework for analysis
of refusal-to-hire and refusal-to-consider violations.
With respect to a discriminatory hiring case, the Board
held that:

7 We adopt the judge’s findings, based on his implicit credibility
findings, rejecting the Respondent’s contention that Starnes was sent
home for insubordination.
8 Because Starnes’ employment was lawfully terminated on receipt
of the report revealing his poor driving record, as the General Counsel
concedes, we shall not order the Respondent to reinstate Starnes, and
we shall limit his backpay to any work hours that he may have lost on
October 12.
9 The complaint also alleged that the Respondent refused to hire, or
consider for hire, applicant John Kereszturi. In adopting the judge’s
dismissal of the complaint allegation as to Kereszturi, we do not rely on
the judge’s conclusion that Kereszturi was not a bona fide job applicant
or that Kereszturi applied in bad faith. Instead, we rely on the judge’s
crediting of testimony that the Respondent preferred applicants with
less experience who were easier to train and, therefore, that Kereszturi
was overqualified based on his listing of 26 years of job experience.
[T]he General Counsel must show that antiunion ani-
mus was a motivating factor in the decision not to hire,
and that there was at least one available opening for the
applicant. The showing of an available opening entails
a showing that the applicant had experience or training
relevant to the announced or generally known require-
ments of the opening.

. . . .

The employer may [then] meet its burden by proving
that the applicants did not have the skills or imprecise
qualifications it was seeking, regardless of their rele-
vant experience and training, or that others who were
hired had superior qualifications, and that it would not
have hired them for that reason even in the absence of
their union affiliation or support. [Slip op. at 4–5.]

As to a discriminatory refusal-to-consider, the Board
held that:

[T]he General Counsel bears the burden of showing the
following at the hearing on the merits: (1) that the re-
spondent excluded applicants from a hiring process;
and (2) that antiunion animus contributed to the deci-
sion not to consider the applicants for employment.
Once this is established, the burden will shift to the re-
spondent to show that it would not have considered the
applicants even in the absence of their union activity or
affiliation. [Slip op. at 7.]

We are satisfied that that the parties litigated, and the
judge considered, the General Counsel’s evidentiary bur-
den consistent with the FES framework, both as to re-
fusal-to-hire and refusal-to-consider allegations, and also
litigated and considered the Respondent’s defenses, con-
sistent with the FES framework. Specifically, as to the
refusal-to-hire allegation, the judge found that the Re-
spondent had union animus and that the Respondent of-
fered a false and pretextual reason for not hiring Till.10
Further, in rejecting the Respondent’s contention that Till
was overqualified,11 the judge expressly found that Till
was qualified. Moreover, it is clear that a job opening
was available when Till applied on October 12—the po-
sition vacated when the Respondent discharged Michael
Starnes that day. Finally, the judge found that the Re-
10 The judge discredited Hartman’s explanation that Till was re-
jected, in part, because of concerns that he was not a bona fide appli-
cant.
11 As the judge found, Till had less experience than Michael Starnes,
whom the Respondent hired 2 days before rejecting Till as overquali-
fied.
HARTMAN BROS HEATING & AIR CONDITIONING 1345
spondent otherwise failed to show that it would not have
hired Till even in the absence of his union affiliation.
Thus, as to the refusal-to-hire allegation, the General
Counsel established that union animus was a motivating
factor, and that there was an available opening for which
Till had relevant experience or training. The Respondent
then failed to meet its burden of proving that Till did not
have the skills it was seeking or that others who were
hired had superior qualifications and that Till would not
have been hired even in the absence of his union affilia-
tion.
As to the refusal-to-consider allegation, the General
Counsel established that the Respondent effectively ex-
cluded Till from the hiring process and that union animus
contributed to the decision. Indeed, the Respondent con-
cedes in its brief that the Respondent “did not spend
much time reviewing or considering” Till’s application.
The Respondent then failed to show that it would not
have considered Till even in the absence of his union
affiliation.
Accordingly, we find that the Respondent violated
Section 8(a)(3) and (1) by refusing to hire Till, and by
refusing to consider him for hire, because of his union
affiliation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent, Hart-
man Brothers Heating & Air-Conditioning, Inc., New
Haven, Indiana, its officers, agents, successors, and as-
signs, shall take the action set forth in the order, as modi-
fied below.
1. Insert the following as paragraph 1(b) and reletter
the subsequent paragraph.
“(b) Sending home employees because of their exer-
cise of union and protected concerted activities.”
2. Substitute the following for paragraphs 2(a), (b), and
(c) and reletter the subsequent paragraphs.
“(a) Within 14 days from the date of this Order, offer
employment to James Till for the position he applied for
on October 12, 1995, or, if that position no longer exists,
to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges to which
he would have been entitled if he had not been discrimi-
nated against.
“(b) Make James Till and Michael Starnes whole for
any loss of pay and benefits they may have suffered as a
result of the discrimination against them, to be computed
as set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
“(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful sending
home of Michael Starnes and the unlawful refusal to hire
and consider for hire James Till, and within 3 days there-
after notify them in writing that this has been done and
that the unlawful actions will not be used against them in
any way.
“(d) Within 14 days from the date of this Order, notify
James Till in writing that any future job application will
be considered in a nondiscriminatory way.”
3. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER HURTGEN, dissenting in part.
The complaint alleged that the Respondent violated the
Act by discharging Starnes. My colleagues conclude that
this allegation has no merit. I agree. My colleagues,
however, reach out for an issue that is not framed by the
pleadings, viz., whether the antecedent act of sending
Starnes home was unlawful. They answer in the affirma-
tive and find a violation. I would not reach out for the
issue.
The complaint alleges that the Respondent discharged
Starnes. It does not allege the antecedent act of sending
him home. My colleagues say that this defect was cured
by the General Counsel’s explanation of the complaint at
the hearing. In explaining this matter, the General Coun-
sel said that “Starnes was immediately sent home or dis-
charged.”
I do not agree that the explanation was sufficient. The
General Counsel did not move to amend the complaint.
That simple step would have avoided confusion, and that
simple step was not taken.
Further, even the explanation was ambiguous. The
General Counsel did not say that Starnes was sent home
and that he was subsequently discharged. Instead, the
General Counsel framed his comment in the alternative.
Thus, one could reasonably infer that he was talking
about the same act, and was characterizing that act in
alternative ways. Contrary to this, the General Counsel
now takes the position that the act of sending Starnes
home and the subsequent act of discharge were each
unlawful.
My colleagues seek to rescue the General Counsel, but
they only make matters worse. As summarized above,
the General Counsel alleged only that the discharge of
Starnes was unlawful. The General Counsel then ex-
plained at trial that the discharge or the act of sending
Starnes home was unlawful. My colleagues then note a
third possible contention, i.e., that sending Starnes home
was the same as the discharge. And, finally, my col-
leagues say that after sending Starnes home, the Respon-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1346
dent received a report that his driving record was poor
and then decided to discharge him.
In light of the foregoing, my colleagues concede that
the General Counsel’s presentation was “not a model of
clarity.” In truth, it was a hopeless muddle, and my col-
leagues have not salvaged the situation.
In sum, a clear amendment to the complaint was called
for, and a garbled explanation was given. I would insist
on appropriate pleading and procedures. I therefore
would not reach the issue resolved by my colleagues.1
On another matter, I agree with my colleagues that the
Respondent did not unlawfully refuse to hire union or-
ganizer John Kereszturi. However, unlike my col-
leagues, I also adopt the judge’s finding that Kereszturi
was not a bona fide applicant because he applied for a
job with the Respondent in bad faith. The judge found
that Kereszturi had listed information on his employment
application that raised substantial doubts about its legiti-
macy. I agree with the judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to consider for hire and refuse
to hire applicants on the basis of their union affiliation or
our belief or suspicion that they may engage in organiz-
ing activity once they are hired.
WE WILL NOT send home employees because of their
exercise of union and protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
1 The issue here is not whether a charge is broad enough to support a
complaint. That issue is subject to the “closely related” rule. Rather,
the issue here is whether the complaint alleges the violation found. In
my view, this is subject to a stricter test.
WE WILL, within 14 days from the date of the Board’s
Order, offer employment to James Till for the position he
applied for on October 12, 1995, or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privi-
leges to which he would have been entitled if we had not
discriminated against him.
WE WILL make James Till and Michael Starnes whole
for any loss of pay and benefits they may have suffered
as a result of the discrimination against them, with inter-
est.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful sending home of Michael Starnes and the unlawful
refusal to hire and consider for hire James Till, and
within 3 days thereafter notify them in writing that this
has been done and that the unlawful actions will not be
used against them in any way.
WE WILL notify James Till in writing that any future
job application will be considered in a nondiscriminatory
way.
HARTMAN BROTHERS HEATING & AIR-
CONDITIONING, INC.
Steve Robles, Esq., for the General Counsel.
William T. Hopkins, Jr. and Eric H. J. Stahlhut, Esqs. (Gal-
lucci, Hopkins & Theisen, P.C.), Ft. Wayne, Indiana, for the
Respondent.
DECISION
I. STATEMENT OF THE CASE
JERRY M. HERMELE, Administrative Law Judge. This
“salting”1 case involves three union members who attempted to
work for a small nonunion employer in New Haven, Indiana in
October 1995. One got hired but he was terminated after his
very first day on the job. The two others never got hired at all.
Charges were filed on November 30, 1995, but the General
Counsel did not issue his complaint until May 30, 1997, alleg-
ing violations of Section 8(a)(1) and (3) of the National Labor
Relations Act.
This case was tried on May 21, 1998 in Ft. Wayne, Indiana,
during which the General Counsel called four witnesses and the
Respondent called three witnesses. Briefs were then filed by
both parties on June 26, 1998.
II. FINDINGS OF FACT
Hartman Brothers Heating & Air-Conditioning, Inc. is a
nonunion, 18-person business in New Haven, Indiana. It per-
forms residential and commercial work in northeast Indiana and
northwest Ohio, and, over the past year has purchased and re-
1 The term “salting” means a union’s overt, or covert, entry into a
nonunion company to organize that company. Apparently, the term is
analogous to “salting a mine” or “salting the books”–the introduction of
foreign material to exaggerate the amount of ore in a mine or data in
accounts. See Tualatin Electric, 312 NLRB 129, 130 fn. 3 (1993).
HARTMAN BROS HEATING & AIR CONDITIONING 1347
ceived over $50,000 in goods from outside Indiana. Richard
Hartman is the company’s general manager (GC Ex. 1(f); Tr.
12-13). In deciding who to hire, Hartman prefers inexperienced
people so that they can be trained his way (Tr. 14, 36). Another
job requirement is a good driving record (Tr. 18). Since 1990,
Hartman has hired about 10 people, most of whom have been
referred to him by other company employees (Tr. 33-34).
Thomas Tinsley applied for a job with the company on Oc-
tober 4, 1995 (R. Exh. 1). He was referred to Hartman by an-
other employee (Tr. 33). Tinsley was more experienced than
the usual new company employee, and, contrary to his usual
practice, Hartman hired him without first receiving independent
confirmation of his driving record from Hartman’s insurance
agent, Charles Colligan (Tr. 35-37, 132). Colligan later in-
formed Hartman that Tinsley did not have a good driving re-
cord. According to Colligan, a couple of violations within the
past few years makes a driver a high risk for insurance cover-
age (Tr. 136). So, upon learning of Tinsley’s bad record, Hart-
man fired him, after just working one day, October 9, 1995 (R.
Ex. 1, p. 4; Tr. 38-39).
Unbeknownst to Hartman, the Sheet Metal Workers’ Interna-
tional Association, Local Union No. 20, a/w Sheet Metal
Workers’ International Association, AFL-CIO (the Union) had
just commenced a salting campaign against his company with
Thomas Tinsley. After being terminated, Tinsley, a union
member, told fellow union member Michael Starnes of an
opening at Hartman’s company (Tr. 48). Starnes had just ap-
plied for a job at J. O. Mory, Inc., another nonunion employer,
on October 9, 1995 (R. Exh. 2). So, Starnes went to Hartman’s
company on October 10, 1995 and filled out a job application
(GC Exh. 2). It was apparent to Hartman, upon reviewing
Starnes’ application, that Starnes was a union member (Tr. 40).
Indeed, Starnes listed “IBEW” on the application and “Kraus,”
a local unionized employer, as his most recent job. Starnes
worked at Kraus since 1991 and this was his only experience as
a sheet metal worker.
Hartman decided to interview Starnes on the spot. Accord-
ing to Starnes, Hartman asked if he was union and stated that
unions were “bloodsuckers.” But Starnes was hired (Tr. 49-
50). Hartman, however, claimed that he only said that the
company was nonunion and asked Starnes if that would be a
problem because of Starnes’ obvious union membership.
Hartman denied making the bloodsucker remark to Starnes (Tr.
39-40, 121). Upon the completion of the interview, Hartman
offered Starnes a helper’s job for $8 per hour, which was below
his most recent salary at Kraus of $11.08 per hour (Tr. 28, 66-
67). And as with Tinsley, Hartman hired Starnes before his
insurance company’s confirmation of Starnes’ driving record
(Tr. 18, 42).
On Starnes’ first day of work, October 12, 1995, he arrived
shortly before 7:00 a.m. Starnes was assigned to go along with
a two-man crew to a jobsite. Before the crew left, Starnes ap-
proached Hartman at 7:10 a.m. Starnes told Hartman that he
was a union organizer and was there to organize the employees.
Hartman was taken aback by Starnes’ announcement (Tr. 20-
21). According to Hartman, Starnes told him this while stand-
ing just 12-to-18 inches from his face (Tr. 42-43, 122). Ac-
cording to Starnes, he was 5-to-10 feet away (Tr. 77). After the
announcement, Starnes asked if he was going to be fired,
whereupon Hartman said, “[t]hanks a lot.” (Tr. 79). According
to Starnes, Hartman also said that he didn’t want the Union at
his company (Tr. 52). Shocked by Starnes’ statement, Hartman
then retreated to his office to think things over. Hartman then
told Starnes to go home until the driving report came (Tr. 21-
22, 43, 53).
Starnes then went to the union hall to inform fellow organiz-
ers John Kereszturi and James Till of the morning’s events (Tr.
53). Till had also filled out a job application at J.O. Mory, Inc.
on October 9, 1995 (R. Ex. 3).2 All three men then went to
Hartman’s company, the latter two to fill out job applications.
Kereszturi wore his union jacket and Till wore a union cap (Tr.
83-84, 105, 107). Upon asking secretary/bookkeeper Cheryl
Brandtmueller if they were hiring, she said she did not know
but would give them applications (Tr. 130). According to
Starnes and Till, she said Hartman was not hiring (Tr. 55, 108).
However, Kereszturi testified that she said they were hiring (Tr.
84).
Kereszturi stated in his job application that he had 26 years’
experience in the heating/air conditioning business, was an
organizer, lived in Waynedale, Indiana, and had an office in
South Bend (GC Exh. 3). Till disclosed thereon that he worked
for the Union and had overall job experience since 1992 (GC
Exh. 4). Hartman was in the office and saw the two men fill
out applications. But no interview was granted. According to
Hartman both men had too much job experience. Also, he was
suspicious that Kereszturi listed Waynedale as a city because it
is only an area outside of Ft. Wayne. Further, Kereszturi listed
South Bend, which is 80 miles away, as his office address.
Thus, he decided not to interview Kereszturi. And because Till
was with the suspicious Kereszturi, Hartman testified that he
likewise decided not to interview Till (Tr. 23-24, 28-29). How-
ever, Hartman did not mention the matter of Kereszturi’s South
Bend address in his 1997 affidavit explaining the reason for not
interviewing Kereszturi. But he did state in the affidavit that
Till was overqualified as well (Tr. 31-32).
Kereszturi actually lives in South Bend and he testified that
he intended to move to Ft. Wayne if Hartman offered him the
job at $8 per hour. As a union organizer, Kereszturi currently
spends one day a week each in Gary, South Bend, and Ft.
Wayne. But he claimed he would give up that aspect of his
union job if he went to work for Hartman. However, he would
continue to do union work at night and on the weekends (Tr.
88-90, 100-01). In the past 3 years, Kereszturi has submitted
applications to 50 employers, all nonunion, and received only
two job offers. He worked at these two jobs for a total of only
12-to-15 days (Tr. 91-92, 101). He has received $31,000 from
various nonunion employers to settle unfair labor practice
charges (Tr. 103).

2 Kereszturi also filed a job application with J. O. Mory. Starnes,
Till, and Kereszturi all filed failure to hire charges against J. O. Mory.
But in a Decision issued on July 17, 1997 (JD–110–97) Judge Earl E.
Shamwell, Jr. dismissed the General Counsel’s complaint regarding all
three men. Kereszturi eventually worked for J.O. Mory for just two
days in 1996.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1348
Later on October 12, the driving report on Starnes was is-
sued, and it revealed four violations since 1990 (R. Ex. 6).
Upon receiving it, Hartman called Starnes and told him he was
terminated, with 4 hours’ pay for his brief tenure that morning
(Tr. 43-44, 56).
III. ANALYSIS
The Respondent’s alleged illegal discriminations against Mi-
chael Starnes, John Kereszturi, and James Till require different
analyses, but there are general principles common to all three.
Employers cannot discriminate against qualified job applicants
because of an applicant’s union status. Phelps Dodge Corp. v.
NLRB, 313 U.S. 177 (1941). Likewise, employers must fairly
consider for hire paid union organizers, who are otherwise
qualified for the job as well. NLRB v. Town & Country Elec-
tric, 516 U.S. 85 (1995). To prove a violation of the Act, the
General Counsel must establish, by a preponderance of the
evidence, that the employer refused to consider and/or hire the
job applicant because of union animus. Fluor Daniel, Inc., 304
NLRB 970 (1991). Likewise, to prove an illegal discharge of
an employee, the General Counsel must establish, by a prepon-
derance of the evidence, that the employee’s protected activity
was a motivating factor in the decision to discharge the em-
ployee. The burden then shifts to the employer to show, also
by a preponderance of the evidence, that the decisions not to
consider and/or hire, and to discharge, were based on lawful
reasons unrelated to the employee’s union status and/or pro-
tected activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982);
approved in Transportation Management Corp., 462 U.S. 393
(1983).
At the outset, the evidence establishes two things. First, the
Respondent needed an additional employee in October 1995.
Indeed, with regard to both Tinsley and Starnes, Hartman devi-
ated from his established practice of hiring only inexperienced
people and not waiting until confirmation of the applicant’s
good driving record. Second, the Respondent harbored union
animus. At the outset, it is impossible to determine whether
Hartman called unions “bloodsuckers” without any evidence to
corroborate Starnes’ version of his interview with Hartman.
Indeed, Hartman hired Starnes anyway. However, it is very
significant that Hartman sent Starnes home immediately after
Starnes stated that he was a union organizer.3 While the Re-
spondent contends that Hartman did so because Starnes was
insubordinate during this revelation, a close reading of Hart-
man’s testimony does not support such a conclusion. Likewise,
the Respondent’s contention that Hartman sent Starnes home
because his driving record results had not yet come in is illogi-
cal: Hartman hired him 2 days before with this lack of knowl-
edge in mind. Thus, the General Counsel has met his Wright
Line burden.
Turning to the discharge of Starnes, it is concluded that the
Respondent did so for a legitimate business reason. Specifi-
cally, Hartman needed employees to drive, and to drive em-
ployees needed good driving records for insurance purposes.

3 The General Counsel does not allege that this particular action vio-
lated the Act.
Hartman credibly testified about this condition of employment.
Also, he terminated Thomas Tinsley on October 9, 1995 for
having a bad driving record after just 1 day on the job; a termi-
nation that the General Counsel does not allege to be illegal.
Three days later, the Respondent discharged Starnes for an
identical reason, albeit fortuitously following Starnes’ 7:10 a.m.
revelation to Hartman that Starnes was a union organizer.
Thus, it is concluded that Starnes’ discharge did not violate the
Act.
Now we turn to the Respondent’s failure to consider and/or
hire Kereszturi. Having revealed his union animus earlier on
October 12, 1995 when he sent Starnes home for the day, Hart-
man was in no mood to be “salted” later that day with an appli-
cation from another union organizer. As for Kereszturi, he was
no bona fide job applicant. When Starnes returned to the union
hall after being sent home for the day, Kereszturi rushed off to
the Respondent’s business to file an application. Under the
circumstances, his decision was hardly an honest attempt to
land a job with Hartman. Also, Kereszturi’s explanation that he
would gladly curtail his union duties in northern Indiana for an
$8 per hour job is inherently unbelievable. Moreover, his track
record of filing multitudinous job applications with nonunion
employers only, working only sparingly when offered jobs, and
receiving significant amounts of money in settlement of unfair
labor practice charges undermines his credibility. The plain
fact is that Hartman wanted nothing to do with Kereszturi and
Kereszturi wanted nothing to do with Hartman, other than filing
an application and a possible unfair labor practice charge.
Notwithstanding Kereszturi’s bad faith in applying for the
Hartman job, the Wright Line analysis still applies: given
Hartman’s established union animus, did he make his decision
on Kereszturi because of lawful business reasons? Parc Fifty
One Hotel, 306 NLRB 1002 (1992). Upon a thorough review
of the evidence, it is concluded that Hartman’s decision was
lawful. First, Hartman credibly testified that Kereszturi was
overqualified for the $8-per-hour job. Indeed, he listed 26
years of relevant experience in his application, including his
current job with the Union. Even though Kereszturi failed to
state in his application what any of his past jobs paid, it is al-
most certain that Hartman knew what the prevailing union
wage was. And it is an acceptable practice for employers to
avoid hiring “overly qualified or previously more highly paid
employees.” W. R. Case & Sons Cutlery Co., 307 NLRB 1457,
1464 (1992). Moreover, Hartman credibly testified that he
typically wanted inexperienced people whom he could train his
way. Further, Starnes’ job qualifications were far less than
Kereszturi’s. Thus, it was reasonable for Hartman to have
treated both applicants differently. Second, Hartman credibly
testified, albeit he did not mention in his affidavit, that Keresz-
turi’s listing of South Bend and “Waynedale” addresses raised
substantial doubts about the legitimacy of the application. But,
in the Presiding Judge’s view, Kereszturi’s overqualification
was the main reason he failed to receive a job interview; a rea-
son that adequately rebuts the General Counsel’s showing of
union animus.
The Respondent’s rejection of James Till’s application, how-
ever, is a closer call. According to Hartman, Till was rejected
for two reasons: he was overqualified and was associated with
HARTMAN BROS HEATING & AIR CONDITIONING 1349
Kereszturi on October 12. But Till had even less job experi-
ence than Starnes, who was nevertheless hired just two days
before.4 Moreover, the evidence shows that Till was qualified
for the entry level job. Thus, the presiding judge is not per-
suaded that Hartman properly rejected Till because he believed
Till too was not a bona fide job applicant. Rather, given Hart-
man’s union animus and false characterization of Till as over-
qualified, it is far more likely that Till was rejected because he
was associated with union organizer Kereszturi. Accordingly,
because Hartman’s rejection of Till’s application violated Sec-
tion 8(a)(1) and (3) of the Act, the Respondent will be required
to offer that job to Till and to make Till whole for any loss of
backpay.
IV. CONCLUSIONS OF LAW
1. The Respondent, Hartman Brothers Heating & Air-
Conditioning, Inc. is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, Sheet Metal Workers’ International Associa-
tion Local Union No. 20, a/w Sheet Metal Workers’ Interna-
tional Association, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The General Counsel has failed to prove his allegation at
paragraph 5(b) and (c) of the complaint regarding Michael
Starnes.
4. The General Counsel has failed to prove his allegation at
paragraph 5(a) and (c) of the complaint regarding John Keresz-
turi.
5. Pursuant to paragraphs 5(a) and (c), and 6 of the com-
plaint, the Respondent violated Section 8(a)(1) and (3) of the
Act in refusing to hire or consider for hire James Till.
6. The unfair labor practice of Respondent described in para-
graph 5, above, affects commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
ORDER
Accordingly, IT IS ORDERED that Hartman Brothers Heat-
ing & Air-Conditioning, Inc., New Haven, Indiana, its officers,
agents, successors, and assigns, shall5
1. Cease and desist from
(a) Failing to consider for hire and refusing to hire applicants
because of their union affiliation or Respondent’s belief or
suspicion that they may engage in organizing activity once they
are hired.

4 It is not important what Till listed his current salary as on the job
application. The Respondent contends that Till understated his current
salary in order to seem a more attractive candidate for the $8-per-hour
job. Till testified that the listed amount seemed low because it was
after taxes. But Till clearly revealed his union status on the application
and Hartman no doubt knew the prevailing union wage.
5 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.
(b) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act:
(a) Offer immediate employment to James Till for the posi-
tion he applied for or, if nonexistent, to a substantially equiva-
lent position.
(b) Make James Till whole for any loss of pay and benefits
he may have suffered, to be computed as set forth in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
(c) Notify James Till in writing that any future job applica-
tion will be considered in a nondiscriminatory manner.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay, if any, due under the terms of
this Order.
(e) Within 14 days after service by the Region, post at its
New Haven, Indiana, office copies of the attached notice
marked” Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 25, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since October 12, 1995.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
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.”