Horizon Contract Glazing, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 2008

353 N.L.R.B. 136 (N.L.R.B. 2008)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
353 NLRB No. 16
136
Horizon Contract Glazing, Inc. and District Council
of Painters No. 16, Glaziers, Architectural Metal
and Glass Workers Local Union No. 767, Inter-
national Union of Painters and Allied Trades,
AFL–CIO. Case 20–CA–32880
September 25, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On October 4, 2006, Administrative Law Judge Jay R.
Pollack issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Charging
Party filed limited exceptions. The General Counsel
filed a brief in support of the judge’s decision and a brief
in answer to the Respondent’s exceptions. The Respon-
dent filed a reply brief.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs2 and has decided to affirm the judge’s rulings,
findings, and conclusions only to the extent consistent
with this Decision and Order.
As explained below, we reverse the judge’s finding
that the Respondent violated Section 8(a)(3) and (1) of
the Act by refusing to recall union salt Joseph Upchurch
for work after November 8, 2005. Accordingly, we shall
dismiss the complaint.
I. FACTS
The Respondent performs glazing work in Sacramento
and elsewhere in Northern California. Pat Shurnas is the
Respondent’s owner and president. Michelle Klein,
Shurnas’ daughter, is the Respondent’s secretary-
treasurer. The Respondent has employed union members
and was signatory to contracts with the Union for many
years. In 2000, however, Shurnas broke off relations
with the Union due to an economic dispute with the Un-
ion’s new business manager, Gene Massey. Shurnas
testified that he would not sign an agreement as long as
the Union was under Massey’s leadership.

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 We deny motions by the General Counsel and the Respondent to
strike allegedly extra-record statements in each other’s briefs. The
challenged statements are in the nature of arguments based either on
record evidence, the judge’s decision, or reasonable interpretations of
record evidence. See Alaska Pulp Corp., 326 NLRB 522 fn. 1 (1998).
Alleged discriminatee Joseph Upchurch is a paid union
organizer and business representative for the Union. On
October 18, 2005,3 Upchurch applied for work with the
Respondent as a covert salt. He did not disclose his un-
ion background and actual job history, but instead, gave
a false job history with an employer in Louisiana, believ-
ing that it would be difficult to check this reference.
During a job interview with glazing superintendent,
Chris Toepfer, Upchurch said that he had worked for this
employer for 10 years and was a displaced Hurricane
Katrina victim.
Upchurch was hired and began working on October
19. As the employee with least seniority, Upchurch was
laid off for lack of work on October 31. On that same
day, Shurnas directed Klein to call the Louisiana em-
ployer listed on Upchurch’s job application. After Klein
did so, she told Shurnas that, “as far as she could find
out,” Upchurch had not worked for that employer. Shur-
nas testified that he did not take any action at that point
because it wasn’t “a paramount thing.”
On November 1, Upchurch went with another union
organizer to one of the Respondent’s jobsites, where
Upchurch identified himself as a union organizer and
gave employees his union business card. When informed
about Upchurch’s union job and activities, Shurnas de-
cided that Upchurch had falsely claimed to be a Katrina
victim. Nevertheless, later that day Toepfer called
Upchurch and offered him work at a jobsite in Santa
Rosa. Upchurch reminded Toepfer that he had a previ-
ously scheduled vacation. They agreed that Upchurch
would report to work on November 8 at the Santa Rosa
jobsite.
Another subcontractor’s delay caused an unexpected
suspension of the Respondent’s work at the Santa Rosa
jobsite. On November 3, Toepfer left a voice mail for
Upchurch instructing him not to report as originally
planned. Upchurch did not get this message and went to
the jobsite on November 8. Although other employees
told him that he was not supposed to be there, Upchurch
remained at the site for 2 to 3 hours until the morning
break. At that time, he spoke with Klein, who told him
that he was not supposed to be working and should leave
the job immediately. Upchurch insisted that the Respon-
dent had to pay him for time spent on the job that morn-
ing. Klein asked Upchurch how many hours he had been
at the jobsite. Following a heated discussion over how
much Upchurch was owed, Klein agreed to pay
Upchurch for the time he had worked that morning.4

3 All dates referred to 2005, unless otherwise indicated.
4 Klein initially issued a check to the wrong person, but she cor-
rected this action.
HORIZON CONTRACT GLAZING, INC. 137
Upchurch was not recalled to work by the Respondent
after November 8.
II. JUDGE’S DECISION
The judge found that the General Counsel carried his
initial burden of showing that Upchurch’s position as a
union agent was a motivating factor for the failure to
recall or rehire him. The judge initially observed that the
Respondent’s principals, Shurnas and Klein, bore no
animus against unions or union members in general.
They did, however, dislike and distrust the Union’s cur-
rent leadership. The judge reasoned that Upchurch’s
conduct on November 8 in demanding that he be paid
properly reinforced the fact he was “an employee of the
Union [and Massey] and not just a union member.”
Thus, the judge found that the Respondent’s failure to
recall Upchurch was motivated by its animus toward the
Union’s current leadership.
III. ANALYSIS
In cases involving allegations of antiunion discrimina-
tory motivation for employment actions, the General
Counsel bears the initial burden of proving by a prepon-
derance of the evidence that animus against protected
union activity was a motivating factor in the employment
action. If the General Counsel meets this burden, then
the burden of persuasion shifts to the employer to prove
that it would have taken the same action even in the ab-
sence of the protected activity. See Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), and FES, 331 NLRB 9
(2000), supplemented 333 NLRB 66 (2001), enfd. 301
F.3d 83 (3d Cir. 2002).
We assume arguendo that the judge correctly found the
November 8 conversation between Upchurch and Klein
to be the sole reason for the refusal to reemploy
Upchurch.5 However, we find no basis for inferring
animus and antiunion motivation from this conversation.6
The evidence shows that, on November 8, Upchurch had
a heated discussion with Klein over payment for the time
Upchurch spent on the jobsite that morning. Neither
Klein nor Upchurch made any reference to the Union, its
leadership, or Upchurch’s role in the Union. The con-
versation focused on Upchurch’s personal pay demands

5 Accordingly, we need not pass on the Respondent’s argument in
exceptions that its decision not to reemploy Upchurch was justified by
three cumulative factors, including falsification of his job history and
identity as a Katrina victim, as well as his conduct on November 8. We
also note that the General Counsel has not excepted to the judge’s
failure to find that the Respondent raised shifting defenses that warrant
the inference of pretext and union animus as the real reason for the
refusal to reemploy Upchurch.
6 It is now undisputed that the General Counsel has met his initial
burden of proof for all evidentiary elements other than animus.
and Klein’s attempts to satisfy them in spite of her opin-
ion, shared by Shurnas, that Upchurch should never have
reported to the jobsite and was not entitled to any com-
pensation for doing so.
There is no support for the judge’s finding that
Upchurch’s actions on November 8 “reinforced” the rec-
ognition that he was an employee of the Union under
Massey’s leadership. Shurnas and Klein were already
aware of Upchurch’s status. In spite of that knowledge,
Upchurch was offered reemployment on November 1
and, when he declined that offer due to vacation plans,
was given the opportunity to report to work on Novem-
ber 8.7
In sum, there is nothing about the November 8 conver-
sation to show that the Respondent harbored animus to-
ward Upchurch because he worked for the Union’s lead-
ership. Certainly the outcome of that conversation fails
to support the inference of such animus. The Respondent
paid Upchurch for a full day’s work even though neither
Shurnas nor Klein believed he was entitled to it. Clearly,
they were displeased about this. Thus, the only animus
apparently arising from the November 8 conversation
between Klein and Upchurch was the Respondent’s ire at
having to satisfy what it perceived to be an unjustified
personal pay demand.
Based on the foregoing, we find that the General
Counsel has failed to meet his burden of proving that
animus against Upchurch’s union status or activities was
a motivating factor in the Respondent’s decision not to
recall him. We therefore reverse the judge and dismiss
the complaint.
ORDER
The complaint is dismissed.
Micah Berul, Esq. and Cecily A. Vix, Esq., for the General
Counsel.
Thomas A. Lenz, Esq. (Atkinson, Andelson, Loya, Ruud &
Romo), of Cerritos, California, for the Respondent.
Joseph Santos, Organizer, District Council No. 16, Northern
California, of Livermore, California, for the Charging Party
Union.

7 The judge’s finding that Upchurch’s conduct somehow reinforced
the Respondent’s awareness of his association with the Union’s leader-
ship is apparently based on a misreading of Klein’s testimony. The
judge stated that Upchurch gave Klein “an NLRB lecture” during their
conversation. But, neither Upchurch nor Klein testified that the Board
was even mentioned during this exchange. Klein’s description at trial
of Upchurch’s “little NLRB lecture about . . . hours” was obviously
after-the-fact and metaphorical, not literal.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD138
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Sacramento, California, on July 18, 2006. On
February 6, 2006, District Council of Painters No. 16, Glaziers
Architectural Metal and Glassworkers Local Union No. 767,
International Union of Painters and Allied Trades, AFL–CIO
(the Union) filed the original charge alleging that Horizon Con-
tract Glazing, Inc. (Respondent) committed certain violations of
Section 8(a)(3) and (1) of the National Labor Relations Act (the
Act). On April 28, 2006, the Regional Director for Region 20
of the National Labor Relations Board issued a complaint and
notice of hearing against Respondent, alleging that Respondent
violated Section 8(a)(3) and (1) of the Act by failing to recall
from layoff employee Joe Upchurch because he engaged in
union activities or other protected concerted activities. On June
29, the Regional Director issued an amended complaint. Re-
spondent filed timely answers to the complaints, 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. On 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 following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a California corporation with a place of busi-
ness in West Sacramento, California, engaged in the construc-
tion industry as a glass and glazing contractor. During the cal-
endar year ending December 31, 2005, Respondent purchased
goods valued in excess of $50,000 directly from suppliers lo-
cated outside the State of California. 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.
Respondent admits and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent performs glass subcontracting work in the Sac-
ramento area, with projects in other areas of northern Califor-
nia. Respondent was signatory to union contracts for 10 years
until 2000. Respondent enjoyed an amicable relationship with
the Union until there was a disagreement with the management
of the Union. In sum, Respondent contended that Sacramento
was a different market than the San Francisco Bay area while

1 The credibility resolutions 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 witnesses
testifying in contradiction to these findings, 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.
the Union’s management, under the leadership of Gene
Massey, business manager, sought the same benefits and wages
for the Sacramento area. Since 2000, the Union has picketed
Respondent on a regular basis.
Pat Shurnas is president and owner of Respondent. Shurnas
is proud of his past affiliation with the Union and has no ani-
mus against union membership. Shurnas’ dispute is with Gene
Massey, the Union’s business manager and secretary-treasurer,
and Doug Christopher, the Union’s director of services. The
Union has sought to obtain a collective-bargaining agreement
from Respondent but Shurnas has refused to sign an agreement
while Massey is in charge of the Union. Shurnas’ daughter,
Michelle Klein, Respondent’s secretary-treasurer, is also proud
of her past affiliation with the Union. Klein formerly served on
the joint apprenticeship committee, a joint employer-union
apprentice training committee, and would like to serve on that
committee again. Klein, similar to Shurnas, is unhappy with
the way Massey runs the Union.
On October 14, the Union, pursuant to a newspaper adver-
tisement, sent a number of organizers and business agents to
apply for work with Respondent. These employees wore union
hats and shirts and did not hide their union affiliations. These
employees were overt union “salts.” “Salting” is the name
given to the practice of unions sending union members to non-
union employers seeking employment and once employed the
“salt” tries to organize the employer. None of these overt salts
were hired nor were their references checked.
On October 18, Joseph Upchurch, a union organizer and
business representative, applied for work with Respondent.
Upchurch is a certified journeyman glazier.2 While Upchurch
applied to work as a glazier he was also a covert union “salt.”
Believing that union affiliation would eliminate the possibility
of employment, Upchurch did not list employment with union
contractors nor his current employment with the Union on his
job application. Rather, Upchurch listed a false employment
history in Louisiana, believing that Hurricane Katrina would
make checking employment references in that area difficult or
impossible.3 On October 18, Upchurch was interviewed by
Chris Toepfer, Respondent’s glazing superintendent. Toepfer
asked why Upchurch listed only one former employer and
Upchurch answered that he had worked for that employer for
the 10-year history requested by the employment application.
Upchurch was hired on that date and began work the following
day.
During October, Upchurch worked 8 full days for Respon-
dent. During that time Toepfer praised his work. On October
31, Upchurch was laid off for lack of work. Upchurch was laid
off because he was the least senior employee and there is no
contention that there were any issues with his work. Further,
there is no contention that this layoff was related to his union
activities or union membership.
Also on October 31, Shurnas directed Klein to call the em-
ployer in Louisiana listed on Upchurch’s job application.

2 Respondent concedes that Upchurch is a qualified glazier.
3 Upchurch testified that he listed employment in the Hurricane
Katrina area to make checking his references difficult and not to appeal
for sympathy.
HORIZON CONTRACT GLAZING, INC. 139
Shurnas does not normally check references, but testified that
because he had lived in Louisiana and because Upchurch had
worked for one employer for 10 years this interested him.
When Klein called the employer in Louisiana, she was told that
they had no record of Upchurch. Respondent took no action at
that time. Shurnas testified, “I kept it to myself . . . it’s not a
paramount thing.” In fact, the next day, Shurnas instructed
Toepfer to recall Upchurch.
On November 1, Upchurch and Joseph Santos, another union
organizer, went to one of Respondent’s jobsites to organize. At
this time, Upchurch identified himself as a union organizer and
handed out his union business card. That same morning, one of
Respondent’s employees called Toepfer and told him that
Upchurch was organizing for the Union and had handed him
union materials. Toepfer then informed Shurnas of Upchurch’s
activities. At this time, after learning that Upchurch was a un-
ion organizer, Shurnas decided that Upchurch was not a victim
of Hurricane Katrina.
However, on the afternoon of November 1, Toepfer called
Upchurch to offer him work on a jobsite in Santa Rosa, Cali-
fornia. Upchurch reminded Toepfer that he had a previously
scheduled, prepaid vacation to Las Vegas. Toepfer and
Upchurch agreed that Upchurch would report to work on No-
vember 8 at the Santa Rosa jobsite. Upchurch went to Las
Vegas on his vacation.
On November 3, Toepfer left a voice mail for Upchurch in-
structing him not to report to the Santa Rosa jobsite. Upchurch
arrived home from his vacation late on the evening of Novem-
ber 7 and reported to work on the morning of November 8. He
had neglected to check his voice messages. When Upchurch
arrived at the jobsite he was told that there was no work for
him. Later that morning, Upchurch spoke with Klein and was
told that he was not supposed to be on the job. After some
discussion about how much Upchurch was due, Klein agreed to
pay Upchurch for his time that day.4 When he returned home,
Upchurch heard the voice message previously left for him by
Toepfer.
On November 17, Upchurch returned to Respondent’s shop
seeking further employment. Toepfer told Upchurch that there
was no work available for him. Upchurch has not been recalled
by Respondent although Respondent has since hired two em-
ployees to do glazing work for which Upchurch was qualified.5
Shurnas testified that he would not rehire Upchurch because
of the falsification of his job application and because of

4 Klein testified that Upchurch gave her a lecture on the NLRB. She
testified that she was confused about his intentions. Thereafter, Klein
initially issued a check to the wrong person. Klein left Upchurch a
message and then later corrected the situation. Klein stated that she
was concerned that Upchurch would go to the NLRB “about a problem
that wasn’t even our fault.”
5 Respondent stipulated that it hired employees to positions for
which Joseph Upchurch was qualified after November 8, 2005. An
issue arose over the meaning of that stipulation and, therefore, Respon-
dent stipulated that “two people were hired to glazing work.” Respon-
dent further stipulated that “falsification” was the main impediment to
employment with Respondent. In its brief, Respondent argues that it
has not hired any glaziers since November 2005. In view of its stipula-
tions, I gave no credence to that statement in Respondent’s brief.
Upchurch’s behavior regarding the misunderstanding regarding
Upchurch’s reporting to work on November 8. Shurnas further
testified that instead of receiving an apology from Upchurch for
not listening to his answering machine, Respondent was re-
quired to pay Upchurch more than Upchurch needed or wanted.
Shurnas testified that he would not rehire Upchurch “unless
forced to do so.”
B. The Failure to Rehire Upchurch
In cases involving dual motivation, the Board employs the
test set forth in Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989
(1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1983). Initially, the General
Counsel must establish by a preponderance of the credible evi-
dence that antiunion sentiment was a “motivating factor” for
the discipline or discharge. This means that the General Coun-
sel must prove that the employee was engaged in protected
activity, that the employer knew the employee was engaged in
protected activity, and that the protected activity was a motivat-
ing reason for the employer’s action. Wright Line, supra, 251
NLRB at 1090. Unlawful motivation may be found based on
direct evidence of employer animus toward the protected activ-
ity. Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184
(2004). Alternatively, proof of discriminatory motivation may
be based on circumstantial evidence, as described in Robert
Orr/Sysco Food Services, id:
To support an inference of unlawful motivation, the Board
looks to such factors as inconsistencies between the proffered
reasons for the discipline and other actions of the employer,
disparate treatment of certain employees compared to other
employees with similar work records or offenses, deviations
from past practice, and proximity in time of the discipline to
the union activity. Embassy Vacation Resorts, 340 NLRB
[846, 848] (2003).
When the General Counsel has satisfied the initial burden,
the burden of persuasion shifts to Respondent to show by a
preponderance of the credible evidence that it would have taken
the same action even in the absence of the employee’s pro-
tected activity. If Respondent advances reasons which are
found to be false, an inference that the true motive is an unlaw-
ful one may be warranted. Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982). However, Respondent’s defense does not fail simply
because not all the evidence supports its defense or because
some evidence tends to refute it. Merrilat Industries, 307
NLRB 1301, 1303 (1992). Ultimately, the General Counsel
retains the burden of proving discrimination. Wright Line, su-
pra, 251 NLRB at 1088 fn. 11.
In order to establish a discriminatory refusal-to-recall viola-
tion, the General Counsel must establish the following ele-
ments: (1) Respondent was hiring or had concrete plans to hire
or recall at the time of the alleged unlawful conduct; (2) that it
excluded the discriminatee from the hiring or recall process; (3)
that the discriminatee had experience and training relevant to
the generally known requirements of the positions; and (4) that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD140
antiunion animus contributed to the decision not to consider for
recall and to recall the discriminatee. See Landmark Installa-
tions, Inc., 339 NLRB 422 (2003); see also Wayne Erecting,
Inc., 333 NLRB 1212 (2001), citing FES, 331 NLRB 9 (2000).
In the instant case, there is no issue that Respondent hired
employees for glazing work, that Upchurch was qualified for
glazing work,and that Respondent had excluded Upchurch from
recall. The issue is whether Respondent’s actions were moti-
vated by its animus against the Union’s leadership or because
of Upchurch’s falsification of his job application.
In the instant case, Respondent had no animus against union
members or union membership. Respondent, however, admit-
ted animus against Gene Massey and his leadership of the Un-
ion. The overt union salts who applied for work shortly before
Upchurch applied were not hired. Therefore, Upchurch, a un-
ion employee who worked under Massey, was sent as a covert
salt. Believing that if he gave accurate employment history he
would never be hired, Upchurch falsified his application and
was hired.
In Winn-Dixie Stores, 236 NLRB 1547 (1978), the Board
addressed this point and found a violation where a discharge
was allegedly for failing to reveal in a job application previous
employment as a union business representative. The Board
held that the employee’s failure to make such disclosure (em-
ployment by a union) is not analogous to false statements on
other subjects such as education or criminal convictions. It,
therefore, concluded that the evidence of that respondent’s
policy and practice of terminating other employees for falsify-
ing their employment applications, even if proven, did not jus-
tify a finding that the respondent had discharged the employee
for not disclosing his union employment. In Winn-Dixie Stores,
at 1547–1548, the Board held:
For, being aware of Respondent’s hostility toward unions,
[the discriminatee] knew that he must either falsify the infor-
mation as to his employment background or face the probabil-
ity that Respondent would (unlawfully) refuse to hire him.
Certainly the purposes of the Act would not be effectuated by
finding lawful a discharge for failure to disclose information
which, were it the basis for a refusal to hire, would render
such an initial refusal to employ a clear violation of the stat-
ute. Thus, we cannot find that the purposes of the Act would
be served by finding that, after hiring him, Respondent could
lawfully discharge [the discriminate] for failing to disclose his
union employment, but if Respondent had refused to hire him
in the first place for that reason it would have violated the Act.
Accordingly, even if [the discriminatee] were discharged for
the reason asserted by Respondent, we would find it thereby
acted unlawfully.
After Shurnas learned that Upchurch falsified his job appli-
cation, he took no action. Shurnas testified that it was not a
paramount thing. In fact he had Toepfer recall Upchurch the
very next day. Shurnas attempted to recall Upchurch even with
knowledge that Upchurch was organizing the employees on
behalf of the Union.
So what changed? On November 8, Upchurch gave Klein an
NLRB lecture and demanded that he be paid properly. Klein
and Shurnas were displeased by this action. I find by this con-
duct Upchurch reinforced the fact that he was an employee of
the Union (and Massey) and not just a union member. Thereaf-
ter, Upchurch was told that there was no work for him and
Shurnas decided not to recall Upchurch unless forced to do so.
Based on a preponderance of the evidence, I find that the Gen-
eral Counsel has sustained the initial burden of showing that
Upchurch’s employment as a union agent was a motivating
factor for the failure to recall or rehire him.
Thus, the burden shifts to Respondent to establish that the
same action would have taken place in the absence of the em-
ployees’ union activities. Where, as here, the General Counsel
makes out a strong prima facie case under Wright Line, the
burden on Respondent is substantial to overcome a finding of
discrimination. Eddyleon Chocolate Co., 301 NLRB 887, 890
(1991). An employer cannot carry its Wright Line burden sim-
ply 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. Centre Property Management,
277 NLRB 1376 (1985); Roure Betrand Dupont, Inc., 271
NLRB 443 (1984).
Respondent has not shown a policy of discharging employ-
ees for falsification of their job applications. If termination had
been warranted for falsification, Shurnas would have taken
action when he learned of the falsification. Rather, he stated
the matter was not paramount and he had Upchurch recalled the
following day. Shurnas expressed displeasure that Upchurch
allegedly posed as a victim of Hurricane Katrina. Again, Shur-
nas decided on November 1 that Upchurch was not a victim of
Hurricane Katrina but still offered him work in Santa Rosa.
Thus, as stated above, the triggering event appears to be
Upchurch’s “NLRB lecture” and demands for payment for
reporting to work on November 8.
Thus, I find that Respondent did not persuade that Upchurch
would not have been recalled absent his position as a union
employee.
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. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By failing and refusing to recall or rehire Joseph
Upchurch, Respondent violated Section 8(a)(1) and (3) of the
Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent, having discriminatorily refused to recall or
rehire Joseph Upchurch, must offer him reinstatement and
make him whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
HORIZON CONTRACT GLAZING, INC. 141
Respondent must also be required to expunge any and all
references to its unlawful refusal to recall or rehire Upchurch
from its files and notify Upchurch in writing that this has been
done and that the discrimination 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.]