Holo Krome Co.

National Labor Relations Board - Board Decisions

Mar 31, 1989

293 N.L.R.B. 594 (N.L.R.B. 1989)

594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Holo Krome Company and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America (UAW), Local
376 Case 39-CA-31121
March 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On March 17, 1988, Administrative Law Judge
James F Morton issued the attached decision The
General Counsel has filed exceptions and a sup-
porting brief and the Respondent has filed cross-ex-
ceptions Both parties have also filed answering
briefs 2
The National Labor Relations Board has delegat
ed 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, and
conclusions only to the extent consistent with this
Decision and Order
The judge granted the Respondent's motion to
dismiss the complaint on the ground that the evi-
dence offered by the General Counsel was equally
susceptible to lawful and unlawful "meanings" and
there was an insufficient basis for him to choose
the unlawful meaning over the lawful one In find-
ing the General Counsel had not established a
prima facie case, the judge observed that if the
General Counsel had met her burden, he would
have found that the Respondents evidence was not
persuasive We disagree with the judge's analysis
and his conclusion
The essential facts are not in dispute The Union
conducted an organizing campaign at the Respond-
ent's plant in West Hartford, Connecticut, in the
spring of 1985 Both Pace and Rutkauski, who had
been employed by the Respondent for 11 and 8
years respectively, were active in the campaign
They both distributed union literature Pace also at-
t We note that the judge incorrectly referred to Subregion 39 as
Region 29 and Region 39
2 The Respondent in its answenng brief contends that the General
Counsel s exceptions do not comply with Sec 102 46(b)(1) and (c) of the
Board s Rules and Regulations in that the General Counsel included ar
gument and citation in some exceptions did not state specific grounds for
others and did not clearly correlate her supporting brief to the numbered
exceptions Although the General Counsels exceptions do not conform in
all respects with pertinent sections of the Board s Rules and Regulations
they are not so deficient as to warrant disregarding them Barkman Con
tracting 276 NLRB 1062 fn 1 (1985) We will however ignore any part
of an exception that presents argument or citation
We make no determination whether Rutkauski had one or two applica
Lions or whether the judge erred in not distinguishing between the former
positions held by Pace and Rutkauski because resolution of these matters
is not essential to resolution of this case
tended a representation case hearing on behalf of
the Union and served as the Union's observer at
the election In May 1985 the Union lost the elec
tion, after which Pace went over to George Camp-
bell, then a maintenance mechanic, and offered to
shake his hand, saying "no hard feelings " Camp
bell replied that he "didn't say that" and then
turned and walked away
In November 1985, the Respondent had a gener-
al layoff that affected Pace and Rutkauski In April
1986 the Union filed a charge (Case 39-CA-3024)
alleging that the Respondent had violated the Act
by laying off Pace and Rutkauski and by failing to
recall them On June 13, 1986, the Regional Direc-
tor notified the Union that it was not going to issue
a complaint in the matter
On Thursday, June 26, 1986, Rutkauski called
Daniel Wing, the Respondent's director of industri-
al relations, inquiring about any job openings
Wing informed him that there were none at the
present time Rutkauski replied that he was inter-
ested in any hiring the Respondent might be doing
Wing admitted knowing that there was an opening
for a toolcrib attendant and that it occurred to him
that Rutkauski might be interested in the job Nev-
ertheless, he told Rutkauski that the Respondent
was not hiring
On Friday, June 27, Wing received a requisition
for two machine setup and operator jobs, i e , a
trimmer operator and a centerless grinder operator
Wing testified he was in a "rush" to place newspa
per ads for these positions as soon as he received
the requisition The ads were placed with the
newspaper on that same day An ad was also
placed for the toolcrib attendant Wing, however,
never contacted Rutkauski regarding these open
ings even though the Respondent had a practice of
hiring by word of mouth These ads ran from Sat-
urday, June 28, to Monday, June 30 On June 30,
Pace called Wing regarding the openings he had
seen advertised Wing advised him to come in and
apply any time before 4 30 p in On July 1, 1986,
George Campbell, who by then had been promoted
to plant manager, told Wing to stop taking applica-
tions for the advertised positions because the Re
spondent planned to transfer an employee from the
second shift to fill the trimmer position and to
automate the grinder
On Wednesday, July 2, Pace went to the Re-
spondent's plant to apply Wing took Pace into his
office and asked him what job he was applying for
Pace answered the one that was advertised Wing
then angrily threw several newspaper advertise-
ments on the desk and asked Pace to pick one
When Pace picked one of the machine operator po-
sitions, Wing told him that the position was already
293 NLRB No 65
HOLO KROME CO
taken Pace stated that he was still interested in any
other job that might be available Wing then asked
Pace what job he was really seeking Pace re
sponded that he wanted his old job back Wing
told him that that was not possible because the Re-
spondent did not have any recall policy The two
then argued over whether there were any recall
rights Before leaving, Pace stated that he was still
interested in any opening Wing testified that Pace
displayed "not a very good attitude " Specifically,
he referred to Pace's argument about the recall
policy 3
On July 3, Rutkauski, who had heard through
some friends at the plant of the operator positions,
brought in his application for those openings How
ever, Wing told him that the Respondent had
stopped taking applications for those positions
Rutkauski stated that he was still interested in
working for the Respondent and to keep him in
mind for any future openings
At the time of the hearing no new employees
had been hired for the machine operator positions
At Plant Manager Campbell's urging, the trimmer
position was filled by transferring employee John
Ovrahim, a trimmer operator on the second shift
who had received low evaluations Campbell as-
serted that the grinder position was not filled be-
cause of plans possibly to automate the function of
that machine
In August 1986, Respondent hired a former em-
ployee, Richard Fecto, as a header operator Fecto
had quit the Respondent twice before and had low
ratings on his evaluations Neither Pace nor Rut-
kauski was considered for that position 4
On September 29, 1986, a complaint was issued
in this case
On December 31, 1986, Wing wrote to Pace and
Rutkauski, stating that there was an opening for a
degreaser and that if they were interested they
should contact him by January 6, 1987 Rutkauski
contacted Wing by January 6 and was hired He
began work on January 19 5 Later in January an-
other opening came up and Wing attempted to
contact Pace by phone several times, but was un-
successful On January 28, he sent Pace a certified
letter stating that he had tried unsuccessfully to
reach him by phone, that there was a position
available, and that if Pace was interested he should
contact him by January 30 Pace did not do so
a In Case 39-CA-3024 the Union had similarly argued that the Re
spondent had such a policy
4 Both Pace and Rutkauski had received high ratings on their evalua
tions and were good employees The Respondent contended that this was
a highly skilled position for which it had trouble hiring and retaining em
ployees It claimed that neither Pace nor Rutkauski was qualified
5 The judge incorrectly noted the date that Rutkauski started work as
January 17
595
Since January 30, 1987, the Respondent has not
considered Pace for any position
In April 1987, Pace asked Wing about a possible
job vacancy that he had heard about from one of
the Respondent's employees Wing informed Pace
that the opening was not going to be filled, that
Pace's chances of being hired by the Respondent
were nil, and that Wing would deny ever having
made such a statement
On the basis of these facts, the judge reached the
conclusion that the best that could be said of the
General Counsel's case was that the Respondent
knew of the discriminatees' union activities and
was aware that they were named in the charge
filed by the Union concerning the Respondent's
layoffs (Case 39-CA-3024) He found, however,
that given the absence of a preexisting policy of
preferential recall, there was insufficient basis for
him to find an unlawful motive for the failure to
hire Pace and Rutkauski The General Counsel
argues that the judge failed to consider critical
facts in deciding that the evidence was equally sus-
ceptible to lawful and unlawful meanings We find
merit in this argument and we disagree with the
judge's finding that the General Counsel failed to
establish a prima facie case
The General Counsel submitted significant evi-
dence demonstrating the Respondent's animus that
was not discussed by the judge It is clear that the
Respondent made known its opposition to union
representation during the organizing campaign 6
Further, Plant Manager Campbell showed his hos-
tility toward the union effort and toward Pace spe-
cifically when he refused to shake Pace's hand
after the election In addition, Director of Industri
al Relations Wing, who handled Pace's and Rut-
kauski's requests for work, described Pace as
having a bad attitude" about preferential recall
(which was also the subject of the Union's charge
against the Respondent in Case 39-CA-3024), and
showed his irritation at Pace's request for a job by
throwing newspaper ads at him and asking him
what particular job he wanted Subsequently, when
Pace asked Wing about a job opening in April
1987, Wing responded that they were not going to
fill the position Wing further stated that Pace's
chances of ever returning to the Respondent's
employ were "nil" but that he would deny ever
having told Pace that
6 Although such statements do not independently violate the Act they
can serve as the basis for finding animus Sun Hardware Co 173 NLRB
973 fn 1 (1968) enfd 422 F 2d 1296 (9th Cir 1970) Accord General
Battery Corp 241 NLRB 1166 1169 (1979)
In finding antiunion animus in this case Member Cracraft does not rely
on the fact that the Respondent took the position during the election
campaign that it preferred that its employees not be represented by the
Union and expressed that view to its employees
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In addition to the above evidence of animus,
there are a number of unexplained inconsistencies
or shifts in the Respondent' s treatment of the dis-
cnminatees ' requests for work When Rutkauski
called Wing on June 26, 1986, asking about any job
openings that the Respondent might have, Wing
said that he had none Wing, in fact, knew of at
least one opening (toolcrib attendant), which he ad-
mitted Rutkauski might be interested in, but he did
not mention it to Rutkauski Furthermore, the Re
spondent admitted that it had a policy of hiring by
word of mouth, but the following day when Wing
received the requisitions for the operator positions,
he did not contact Rutkauski, who had j ust ex-
pressed a keen interest in returning to the Respond-
ent's employ and who, according to the Respond-
ent's own records, had been regarded as a very
good employee Instead , Wing placed ads in the
newspaper for these positions Additionally, when
Pace called on June 30, Wing told him to come in
and apply, however, when he did so only 2 days
later, he was told that the jobs were already filled
When Rutkauski came in to apply for the jobs the
following day, he was also informed that the jobs
were no longer available The Respondent asserted
that the jobs were closed because Plant Manager
Campbell (who had essentially told Pace he har-
bored hard feelings after the election) wanted to
fill one by a transfer and the other by automation
In sum , the General Counsel presented evidence
showing that the Respondent opposed the union
effort in which the discriminatees had been promi-
nently involved, that Plant Manager Campbell was
hostile to Pace after the election, that when Rut
kauski contacted Director of Industrial Relations
Wing about a job only 2 weeks after the Union's
case against the Respondent had been dismissed,
Wing told Rutkauski that the Respondent was not
hiring, even though he knew of an opening in
which Rutkauski might be interested Further,
Wing did not contact Rutkauski when Wing re-
ceived a job requisition the very next day, even
though the Respondent had a practice of hiring by
word of mouth When both Pace and Rutkauski re
sponded to the Respondent's newspaper ads shortly
after they appeared, they were told that the jobs
were not available The General Counsel's evi
dence also showed that the advertised jobs were
not filled because Campbell, who had shown hostil-
ity toward Pace, urged that they be filled by trans-
fer or be replaced by automation, that Wing dis
played anger toward Pace while Pace was apply
ing for a job because of Pace's position on prefer
ential recall , and that Wing described Pace as
having a bad attitude because of his position on
recall and later told Pace that his chances of ever
returning to the Respondent's employ were nil
Contrary to the judge, we do not find that this evi-
dence, considered as a whole, is equally susceptible
to a finding that the Respondent's motives were
unlawful and a finding that they were lawful 7 In-
stead, we find that the evidence warrants the infer-
ence that the Respondent did not inform the discri
minatees about job openings and changed its deci
Sion to fill openings because it did not want to hire
the employees who, contrary to the Respondent's
wishes, had previously attempted to bring in a
union and who had been involved in a Board
charge against the Respondent advocating a posi-
tion on preferential recall that the Respondent op
posed
We further find that the inference of unlawful
motivation is compelled by the Respondent's fail-
ure to give a credible explanation of its reasons for
refusing to hire Pace and Rutkauski In this regard,
we find that the judge erred in finding that the
"precise and formalized framework" of Wright
Line, 251 NLRB 1083 (1980), enfd 622 F 2d 899
(1st Cir 1981), cert denied 455 US 989 (1982),
prevented him from considering the Respondent's
asserted reasons for the refusal to hire when deter-
mining whether the General Counsel had estab-
lished a prima facie case The Board's decision in
Wright Line did not disturb the well-established
principle that if the stated motive for a discharge
(or refusal to hire) is false, the trier of fact may
infer that there is another motive that the employer
wishes to conceal-an unlawful motive-where the
surrounding facts tend to reinforce that inference
Id at 1088 fn 12 Shattuck Denn Mining Corp v
NLRB, 362 F 2d 466 (9th Cir 1966), Baumgardner
Co, 288 NLRB 977 fn 4 (1988), enfd mem 866
F 2d 1411 (3d Cir 1988) We find that the evidence
reviewed below is indicative of the falsity of the
Respondent's various asserted reasons for not offer-
ing jobs to Pace and Rutkauski until after an unfair
labor practice complaint had issued concerning
them, and we also find that this evidence of falsity
reinforces the inference that the Respondent's true
reasons were unlawful
For these reasons, we find that the General
Counsel established a prima facie case that Pace
and Rutkauski were denied employment because of
their protected activity The burden, therefore,
shifted to the Respondent to establish that it would
not have hired Pace and Rutkauski even in the ab-
sence of their union activities or involvement in
Board proceedings In that regard, we agree with
' We note that although the judge made much of the fact that the Re
spondent offered jobs when they became available it was only after the
Subregion had issued a complaint that the Respondent offered positions
to Pace and Rutkauski
HOLO KROME CO
the judge's finding that the Respondent's reasons
for not hiring Pace and Rutkauski are not persua-
sive First, the Respondent contended that the ad-
vertisements were a mistake Campbell, who is or
dinarily in charge of approving such requisitions,
did not do so in this instance because his assistant,
Tortoro, bypassed him and went directly to Vice
President Bononi, who approved the requisitions
Bononi, who, if Respondent is to be believed, must
have known of Campbell's plan to automate the
grinder, nevertheless unquestioningly signed the
requisitions that he received from Tortoro Fur
ther, it was only after Pace and Rutkauski ex-
pressed an interest in returning to the Respondent's
employ that Campbell retracted the openings The
Respondent's quick change of course raises ques-
tions concerning its motive in denying employment
to Pace and Rutkauski With respect to Wing's fail-
ure to mention a job opening that he thought
would interest Rutkauski or his failure to contact
Rutkauski when he received the job requisitions,
the Respondent offered no explanation
Second, the Respondent failed to produce any
documentary evidence of a specific plan to auto-
mate the grinder or of John Ovrahim's alleged re-
quest to transfer 8 It produced a broadly worded
memo dated October 21, 1985, that stated that it
would be more efficient to use high speed equip-
ment, automation, and robotics That memo, how-
ever, made no specific reference to the grinder or
any other machine, the cost of automation, a time-
frame for this procedure, or any other specific in
formation Moreover, a request for the necessary
equipment was not made until July 16, 1986, 2
weeks after Pace and Rutkauski were denied em-
ployment
On these grounds, we conclude that the Re
spondent failed to meet its burden under Wright
Line We therefore find that the Respondent violat
ed Section 8(a)(1), (3), and (4) of the Act by failing
and refusing to hire its former employees Pace and
Rutkauski
CONCLUSIONS OF LAW
1 The Respondent is an employer within the
meaning of Section 2(2), (6), and (7) of the Act
2 The Union is a labor organization as defined in
Section 2(5) of the Act
3 By refusing to hire Guiseppe (Joe) Pace or
John Rutkauski because of their activities on behalf
of the Union or because they were named in an
8 The Respondent alleged that Ovrahim had a longstanding request to
transfer but did not produce any written evidence of this Nor did it
produce any testimony or affidavit from Ovrahim or his supervisor as to
this request It is also unexplained why the Respondent would allow an
employee who had received poor evaluations to transfer to a more de
manding job
597
unfair labor practice charge filed with the Board
by the Union, the Respondent has engaged in
unfair labor practices violative of Section 8(a)(1),
(3), and (4) of the Act
4 The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order the
Respondent to cease and desist and to take certain
affirmative action necessary to effectuate the poli-
cies of the Act Specifically, we shall order that the
Respondent offer Guiseppe Pace immediate and
full employment to the position for which he is
qualified and in which he would have been em-
ployed but for the discrimination against him, with-
out prejudice to his seniority or any other rights
and privileges to which he would be entitled absent
the discrimination against him We shall also order
that the Respondent make Guiseppe Pace whole
for any loss of earnings or other benefits from the
date he would have been employed but for the dis
crimination against him until the date of a proper
offer of reemployment9 and that the Respondent
snake John Rutkauski whole for any loss of earn-
ings or other benefits from the date he would have
been employed but for the discrimination against
him until the date of his reemployment on January
19, 1989, with backpay to be computed in the
manner set forth in F W Woolworth Co , 90
NLRB 289 (1950), and with interest to be comput-
ed in the manner set forth in New Horizons for the
Retarded, 283 NLRB 1173 (1987) Finally, we shall
order that the Respondent remove from its records
any references to the unlawful refusal to rehire
Guiseppe Pace and John Rutkauski, provide them
with written notice of such removal, and inform
them that the unlawful refusal to rehire will not be
used as a basis for future personnel actions con-
cerning them See Sterling Sugars, 261 NLRB 472
(1982)
ORDER
The National Labor Relations Board orders that
the Respondent, Holo-Krome Company, West
Hartford, Connecticut, its officers, agents, succes
sors, and assigns, shall
1 Cease and desist from
9 The Respondent asserts that Guiseppe Pace has no right to reemploy
ment because he effectively declined the Respondents bona fide job
offers in late January 1987 and that his right to backpay ended at that
time The effect of the Respondents attempts to contact Pace and its
written offer of January 28 1987 on the Respondent s liability is a matter
best left to the compliance stage of this proceeding
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Refusing to hire, reemploy, or otherwise dis
criminate against employees because of their engag
ing in protected activity
(b) Refusing to hire, reemploy, or otherwise dis-
criminate against employees because they filed
charges with, or otherwise aided and assisted, the
National Labor Relations Board in the performance
of its functions
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Offer Guiseppe Pace immediate and full em-
ployment to the position for which he is qualified
and in which he would have been employed but
for the discrimination against him, without preju-
dice to his seniority or any other rights and privi
leges to which he would be entitled absent the dis-
crimination against him, and make Guiseppe Pace
and John Rutkauski whole for any loss of earnings
and other benefits suffered as a result of the dis
crimination against them, in the manner set forth in
the remedy section of this decision
(b) Remove from its files any reference to the
unlawful refusal to hire Guiseppe Pace and John
Rutkauski and notify the employees in writing that
this has been done and that the unlawful refusal to
hire will not be used against them in any way
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(d) Post at its West Hartford, Connecticut facili-
ty copies of the attached notice marked "Appen
dix "10 Copies of the notice, on forms provided by
the Regional Director for Region 34, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate
ly 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
10 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 Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to hire, reemploy, or other-
wise discriminate against employees because of
their protected activities
WE WILL NOT refuse to hire, reemploy, or other-
wise discriminate against employees because they
file charges with, or otherwise aid and assist, the
National Labor Relations Board in the performance
of its functions
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Guiseppe Pace immediate and
full employment to the position for which he is
qualified and in which he would have been em
ployed but for the discrimination against him, with-
out prejudice to his seniority or any other rights
and privileges to which he would be entitled absent
the discrimination against him and WE WILL make
Guiseppe Pace and John Rutkauski whole for any
loss of earnings or other benefits they may have
suffered because of the discrimination against them,
with interest
WE WILL remove from our files any reference to
the refusal to hire Guiseppe Pace and John Rut-
kauski and notify them in writing that this has been
done and that evidence of their unlawful refusal to
hire will not be used as a basis for future personnel
actions concerning them
HOLD KROME COMPANY
Thomas M Meiklejohn Esq for the General Counsel
Fredrick L Dorsey Esq and Burton Kainen Esq (Siegel
O Connor Schiff Zangari & Kamen P C), of Hartford
Connecticut for Holo Krome Co
DECISION
STATEMENT OF THE CASE
JAMES F MORTON, Administrative Law Judge The
issues are whether Holo Krome Co (Respondent) in vio
lation of Section 8(a)(1) (3), and (4) of the National
Labor Relations Act, refused to employ Guiseppe (Joe)
HOLO KROME CO
Pace and John Rutkauski on and since 1 July 1986 be
cause of their activities on behalf of International Union,
United Automobile , Aerospace and Agricultural Imple
ment Workers of America (UAW) Local 376 (the Union)
and also because the Union had filed an unfair labor
practice charge on their behalf 1
On the entire record , including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel and Respondent,
I make the following
FINDINGS OF FACT
I JURISDICTION AND LABOR ORGANIZATION STATUS
The pleadings establish, and I find, that Respondent's
operations annually meet the Board s nonretail standard
for the assertion of jurisidiction in this case I also find,
based on the pleadings, that the Union is a labor organs
zation as defined in Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background
Respondent manufactures industrial fastners and relat
ed items at its plant in West Hartford, Connecticut
Joe Pace began working for Respondent in 1974 and
was employed as a maintenance mechanic in early 1985
when the Union was attempting to organize Respond
ent's employees John Rutkauski started with Respondent
in 1977 and was also employed in early 1985 as a mainte
nance mechanic Both Pace and Rutkauski actively sup
ported the Union s organizational effort Respondent was
aware of their activity, including their handing out union
leaflets outside the West Hartford plant In March 1985
the Union filed a petition in Case 39-RC-589 for an elec
tion among the approximately 170 production and main
tenance employees of Respondent at that location Pace,
at the Union's behest attended the hearing held in that
representation case by the Board s Office in Hartford
In the ensuing campaign Respondent expressed to its
employees its preference that they not select the Union
as their collective bargaining representative Respondent
did not seek, by any act that would interfere with, re
strain, or coerce its employees as to their rights under
Section 7 of the Act to influence their choice
' The actual wording of the complaint is that Respondent refused to
rehire them because of their activities in behalf of the Union and be
cause said employees filed charges with the Board Respondent in its
brief would dismiss the 8(a)(4) allegation as no formal amendment to the
complaint was made to reflect that the Union had filed the charge on
their behalf Respondent also appears to contend that Sec 8 (a)(4) does
not encompass an allegation of discrimination based on the filing of a
charge by another on behalf of an employee I find no merit in either of
those contentions The General Counsel stated clearly at the hearing that
Respondent was alleged to have violated Sec 8(a)(4) discriminating
against Pace and Rutkauski because the Union had filed an unfair labor
practice charge naming them as alleged discnminatees Respondent was
on full notice of the nature of the alleged wrong and it litigated the
matter in full In these circumstances a formal amendment of the com
plaint is not essential to a resolution of the issue See Service Merchandise
Co 278 NLRB 185 (1986) Nor does Sec 8(a)(4) protect only employees
who themselves file charges See Norris Concrete Materials 282 NLRB
289 (1986)
599
Pace served as the Union s observer at the election
Respondents present plant manager, George Campbell
was then a maintenance mechanic and he was Respond
ent s observer The Union lost the election When it was
over, Pace offered to shake Campbells hand, saying no
hard feelings Campbell then answered that he didn t
say that he turned and walked away from Pace
In November 1985, Respondent laid off Pace and Rut
kauski 2 The Union filed an unfair labor practice charge
in Case 39-CA-3024 which charged Respondent with
unlawfully laying them off and failing to recall them to
work On 13 June 1986, Region 29 issued a letter notify
ing the Union that it refused to issue a complaint The
Region determined inter alia that no evidence exists
that Respondent has a policy of recalling laid off em
ployees The incidents that gave rise to the instant case
occurred shortly after the issuance of that letter
B The Alleged Unlawful Refusals to Employ
The General Counsel adduced the following evidence
in support of the complaint in this case
On 26 June 1986 Rutkauski asked Daniel Wing, Re
spondent s director of industrial relations whether Re
spondent was doing any hiring Wing replied Not at the
present time' Rautkauski then told him that he was in
terested in being hired Two days later, ads appeared in
local newspapers in which Respondent announced it was
looking for production machine operators with setup and
operating experience and also for a toolcrib attendant on
its second shift Those ads ran on Saturday June 28 to
Monday June 30
Wing testified under Section 611(c) of the Federal
Rules of Evidence He related that, when he talked to
Rutkauski on 26 June he was not aware that Respondent
would be advertising on 28 June for machine operators
or for a toolcnb attendant The General Counsel does
not contend that Respondent unlawfully failed or refused
to hire Rutkauski on 26 or 28 June The General Counsel
does contend that, by the events in the following week,
when taken in overall context, Respondent has been
shown to have unlawfully refused to hire Pace and Rat
kauski
On 30 June Pace telephoned Wing He said that he
saw the newspaper ad and told Wing he was interest
ed Wing told him that he had to fill out a job applica
tion Pace asked what was the best time to do this Wing
told him anytime before 4 30'
The General Counsel does not allege that by requiring
Pace to fill out an application form Respondent placed
an unlawful condition as to any right to be considered as
a new employee The General Counsel did adduce testi
mony that Leo Carrier an employee who quit Respond
ent s employ in November 1985, returned in January
1986 without having to fill out an application form
There is no other evidence before me
On another point, while the General Counsel stipulat
ed that Respondent does not have a policy of recalling
2 Respondent s brief states that they were laid off with others as part of
a general layoff The Union filed an labor practice charge protesting the
layoff then of Pace Rutkauski and one other employee
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees from layoff, the General Counsel offered testi
mony regarding employee Richard Fecto that seemed at
first to be challenging the stipulation As it turned out,
the General Counsel noted that Fecto was hired in
August 1986, although he had received a relatively poor
job rating when previously in Respondents employ The
General Counsel also sought to show that Fecto had
been discharged by Respondent for cause in 1985, the
evidence I credit however, is that Fecto had left Re
spondent s employ in 1985 of his own volition Further,
Fecto did fill out an application form on his being hired
in August 1986 His a header operator a highly skilled
job and one that Respondent has great difficulty in filling
with qualified applicants N
The evidence as to employees Carrier and Fecto was
offered by the General Counsel as beanng on Respond
ent s motive with respect to the following events
On 2 July Pace went to Respondents plant, filled out
an application form, and told Wing that he was interest
ed in the machine setup operators job, one of those ad
vertised over the preceding weekend Pace testified that
Wing told him that that job was already taken and that
there was no job available for him at this moment
Wing testified that he told Pace that he had completed
his interviews for the two available positions
Rutkauski came to Respondents office on 3 July 1986
He filled out two applications-one for the position of
trimmer operator and the second for the position of cen
terless grinder operator Rutkauski testified that he filled
out those two applications because he had been told by
friends of his in Respondents employ that Respondent
has such openings Wing told him that he had stopped
taking applications for those positions
The General Counsel does not contend and offered no
evidence that Respondent hired employees for any of the
positions advertised
Pace and Rutkauski told Wing that their applications
were filed for any job that opened up On 31 December
1986 Wing wrote to each of them advising that Re
spondent had an opening for a degreaser operator on the
second shift and that although they had applied for
openings on the first shift they should let him know by 6
January 1987 if either was interested Rutkauski applied
on 6 January 1987 and was hired The complaint as
amended indicates he began work on 17 January 1987
Pace also applied for that job he was told that Rutkauski
had already accepted it
On 28 January 1987 Wing wrote a certified letter to
Pace which stated that he had been unsuccessful in
trying to reach Pace by telephone concerning a job op
portunity for which he was qualified and which request
ed Pace to contact Wing by 30 January if he has any in
terest Pace testified that his wife told him that Wing had
telephoned and would call again In order to explain
why he did not respond to Wing's letter of 30 January
Pace related that he took leave from his new job with
another employer and that he had gone all over
Canada for a vacation without his wife and son I find
Pace s explanation fanciful and do not accept it as being
offered seriously If it was I reject it as incredible It
seemed to me to be an oblique effort on Pace s part to
show his disdain for the formal manner with which Re
spondent was dealing with him after 11 years service
The parties stipulated at the outset of the heanng that
since about 30 January 1987 Respondent has not consid
ered Pace for any position of employment notwithstand
ing that it has job openings for which he was qualified
Related to that stipulation is Pace s testimony that in
April 1987 he was told by Wing at a bowling alley that
his chances of ever being hired by Respondent are nil
and that Wing would deny ever having told this to Pace
Pace testified that he had asked Wing if Respondent was
going to hire a replacement for an employee who was
leaving Respondents employ in mid April, and that
Wing told him that Respondent was not going to fill that
job The complaint before me does not allege that Re
spondent since about 1 April 1987 unlawfully failed or
refused to consider Pace for employment
C Analysis
The General Counsel has the burden of making a
prima facie showing sufficient to support the inference
that conduct engaged in by an employee and protected
by the Act was a motivating factor in an employer s
decision, which adversely affected that employee Wright
Line 251 NLRB 1083 1089 (1980) The Board there
went on to state that once the General Counsel has es
tablished a prima facie case, burden will shift to the em
ployer to demonstrate that the same action would have
taken place even in the absence of the protected con
duct Finally, the Board, in Wright Line, observed that
this more precise and formalized framework will serve
to prescribe the necessary clarification of [its] desired
process while continuing to advance the fundamental
purposes and objectives of the Act This allocation of the
burden of proof was held clearly reasonable See NLRB
v Transportation Management Corp 462 U S 393 (1983)
In Wright Line the Board stated it was appropriate to set
forth there a test of causation for cases alleging viola
tions of Section 8(a)(3) of the Act In Shell Ray Mining
286 NLRB 466 (1987) the Board applied the Wright Line
test in deciding whether the employer there had violated
Section 8(a)(4) of the Act
In applying this test the Board has held that where
the proffered evidence is equally susceptible to two dif
ferent meanings one lawful and the other unlawful and
where the record as a whole provides an insufficient
basis to choose the unlawful meaning over the lawful
meaning, the General Counsel will not have met her
burden of establishing a prima facie case See Pullman
Power Products Corp 275 NLRB 765 (1985)
In the case before me the protected activities of Pace
and Rutkauski in early 1985 were known to Respondent
It engaged in no lawful acts then toward them or anyone
else Its layoff of Pace and Rutkauski in November 1985
was motivated solely by economic considerations It ob
viously was aware that the Union had named them in an
unfair labor practice charge which protested their layoff
along with that of at least one more employee It did not
thereafter engage in any conduct independently coercive
of employee rights under Section 7 The question before
me is whether the General Counsel has established prima
HOLO KROME CO
facie a causal nexus between the protected activities of
Pace and Rutkauski in early 1985 (and also between their
being named in the unfair labor practice charge which
was dismissed on 13 June 1986) and their not being hired
in early July 1986 3
The General Counsels brief asserts that Pace was also
engaged in protected activity on 2 July 1986, when he
restated the Unions view found by Region 39 to be
without meet in its letter dismissing the Union s unfair
labor practice charge that Respondent had a policy of re
calling laid off employees Pace s testimony makes clear
that the discussion on recall rights took place after he
was told that there was no longer an opening
The evidence adduced in the General Counsels case
in chief discloses that, when there was a job opening for
which Pace or Rutkauski was qualified and that job was
actively filled, both were offered the job Rutkauski ac
cepted it In January and February 1987 Wing made re
peated efforts to reach Pace to offer him a job Pace did
not bother to respond to any of those efforts The best
that can be said of the General Counsel s case in chief is
that Respondent advertised openings in late June and did
not hire either Pace or Rutkauski for them If they had
had preferential recall rights under a preexisting policy,
that might have been enough to warrant a bare inference
that they were not hired because of activities protected
by the Act It may be, however, that some evidence of
disparate treatment would also be needed and there was
none Cf Enterprise Aggregates Corp, 276 NLRB 71
(1985) The evidence offered as to employee Leo Carri
er s rehiring is too inconclusive to show clear disparate
treatment
3 The General Counsel s brief asserts that Pace was also engaged in
protected activity on 2 July 1986 when he restated the Union s view
found by Region 39 to be without merit in its letter dismissing the
Union s unfair labor practice charge that Respondent had a policy of re
calling laid off employees Pace s testimony makes clear that the discus
sion on recall rights took place after he was told that there was no longer
an opening
601
At best, the evidence offered by the General Counsel
is equally susceptible to meanings, both lawful and un
lawful and there is an insufficient basis for me to choose
the unlawful meaning or motive I shall therefore consid
er Respondents motion to dismiss and grant it as the
General Counsel has not here met the burden imposed
on her under Wright Line 4
CONCLUSIONS OF LAW
1 Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act
2 The Union is a labor organization as defined in Sec
tion 2(5) of the Act
3 The General Counsel has failed to establish prima
facie that Respondent failed or refused to hire Guiseppe
(Joe) Pace or John Rutkauski on about 2 or 3 July 1986,
because of their activities on behalf of the Union or be
cause they were named in an unfair labor practice charge
filed with the Board by the Union and thus the evidence
offered by the General Counsel is insufficient to establish
that Respondent engaged in unfair labor practices viola
tive of Section 8(a)(1), (3), or (4) of the Act as alleged
[Recommended Order for dismissal omitted from pub
lication ]
4 Had the General Counsel met her burden I would be disposed to
find that Respondent had not affirmatively rebutted it If it be said that
the approach used in deciding this case may be rigid it is nonetheless
within the precise and formalized framework advocated in Wright Line
supra See also John J Hudson Inc 275 NLRB 874 875 ( 1985) Paten
thetically I should note that the evidence offered by Respondent in its
case in support of its explanation for not hiring Pace or Rutkauski in
July 1986 was not very persuasive The relevant testimony is not in dis
pute except perhaps for Plant Manager Campbells testimony that he dis
ciplined Foreman Tortora for bypassing him Campbell s account is not
credible Initially he gave me the impression that he had disciplined Tor
tora severely When asked about it he said in a tone that conveyed that
he had taken draconian measures against Tortora that he did not care to
comment on it at the time Later he testified he orally reprimanded Tor
tora I would find that he did not