J. A. Croson Co.

National Labor Relations Board - Board Decisions

Feb 20, 1985

274 N.L.R.B. 149 (N.L.R.B. 1985)

J. A CROSON CO.
J. A. Croson Company and Plumbers Union, Local
No. 59 , United Association of Journeymen &
Apprentices of the Plumbing & Pipefitting In-
dustries of the United States & Canada, AFL-
CIO. Case 9-CA-19674
20 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 21 August 1984 Administrative Law Judge
James J. O'Meara Jr. issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, the Charging Party filed exceptions
and a supporting brief, and the Respondent filed
cross-exceptions and an answering brief to the
General Counsel's exceptions.
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' and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' The judge concluded, and we agree, that 1 February 1983 is the ap-
proprtate date on which the 10(b) period commenced and, therefore, the
charge was timely filed In so finding, we rely also on the fact that there
is no evidence that the Respondent ever notified or advised the inter-
viewees of its decision not to hire them Moreover, the uncontroverted
evidence adduced from the General. Counsel's witnesses established that
during and after the October and November interviews, some of these
individuals were advised by the Respondent that they were being consid-
ered for future employment
DECISION
STATEMENT OF THE CASE
JAMES J. O'MEARA JR., Administrative Law Judge.
This case was tried in Cincinnati, Ohio, on August 25,
1983. Charges were filed by Plumbers Union, Local No.
59, United Association Of Journeymen & Apprentices of
the Plumbing & Pipefitting Industry of the United States
& Canada, AFL-CIO (the Union). That charge, filed on
May 18, 1983, alleges that about November 30, 1982, and
thereafter, the above-named Employer had discriminated
against James Lawson by refusing to employ him be-
cause of his membership in Plumbers Union, Local No.
59. An amended charge was filed on May 27, 1983. This
charge was identical to the original charge except that it
included 11 additional discriminatees. A complaint was
filed on July 11, 1983, alleging that about February 1,
1983, and since that date, the Respondent has refused to
hire 8 of the 12 discriminatees named in the amended
charges because the individuals joined, supported, or as-
149
listed the Union and engaged in concerted activities with
the purpose of collective bargaining or other mutual aid
or protection, and in order to discourage employees from
engaging in such activities and other concerted activities
for the purpose of collective bargaining and/or mutual
aid or protection, in violation of Section 8(a)(1) and (3)
of the Act. The Respondent, in its answer to the com-
plaint, denies that it has violated the Act. It has also filed
a motion to dismiss the complaint on the grounds that
the complaint is barred pursuant to provisions of Section
10(b) of the Act. The Respondent's motion to dismiss
was reserved pending the hearing since such motion was
grounded on the facts composing the alleged unlawful
discrimination.
On the entire record, including my observation of the
demeanor of the witnesses, and in consideration of the
briefs filed by the General Counsel, Respondent, and the
Charging Party, I make the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent is an Ohio corporation with an office
and place of business in Columbus, Ohio. It has been en-
gaged as a mechanical contractor in the building and
construction of commercial and office facilities.
In the course and conduct of its business operations
the Respondent has purchased and received at its facility
in Columbus, Ohio, products, goods, and materials
valued in excess of $50,000 from points outside the State
of Ohio. Respondent admits in its pleading, and I find,
that it is now, and has been at all times material herein,
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act
The Union is now, and has been at all material times, a
labor organization within the meaning of Section 2(5) of
the Act.
I further find that it will effectuate the policies of the
Act to assert jurisdiction in this case.
II. THE RESPONDENT AND ITS BUSINESS
The Respondent is engaged in the contracting business
in the State of Ohio, and elsewhere, where it undertakes
to bid for and perform plumbing contracts as a part of
commercial construction contracts. The plumbing con-
tracts undertaken by Respondent are managed by its vice
president, David Croson. As the Respondent obtains
plumbing contracts, it engages plumbers on an as-needed
basis. Respondent employs three methods in obtaining
plumbing personnel to perform its various contracts:
public notice or ads in local newspapers; referrals from
employees, other contractors, and persons acquainted
with its needs from time to time; and "walk-in applica-
tions." Respondent is a "non-union contractor" having
refused, at least from November 1981, to consider a col-
lective-bargaining contract for its employees.
111. THE CINCINNATI CONTRACTS
In late January 1982 , Respondent was the successful
bidder on the plumbing portion on a construction project
referred to as the Cincinnati hospital project. Again in
274 NLRB No. 31
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 1982, Respondent was the successful bidder for
the plumbing work on the Hamilton County Jail. During
the summer of 1982, these Cincinnati jobs required a low
complement of plumbers, since the Company was then
engaged in doing preliminary work such as drawings, or-
dering of materials, job meetings, and some preparation
necessary to dovetail the work with other trades. In con-
sultation with Respondent's job foreman in Cincinnati, it
was determined that it would be necessary to engage "a
lot of manpower in a very short period of time." Such
manpower was not then available from the Respondent's
usual employees since they were engaged by Respondent
on jobs in Columbus, Ohio, and elsewhere. In order to
obtain new personnel, the Respondent, on October 6,
1982, placed an ad in two of Cincinnati's newspapers.
The ad generated approximately 81 telephone responses
from October 6 to November 1. Of those 81, 50 to 60
filed applications with the Respondent. Approximately
25 to 30 of such applicants participated in a personal
interview, while another 5 or so were interviewed by
telephone.
A week or two after placing the ad in the newspaper,
Respondent's management realized that the estimate of
plumber personnel needed for the Cincinnati jobs made
by the job foreman had changed. The progress of the
new job was slower than anticipated and the need to fill
plumber positions was not materializing. Simultaneously,
other Respondent's employees in Columbus and else-
where were becoming available to an extent not previ-
ously anticipated. Because of this, Respondent deter-
mined that it would not be necessary to hire any of the
plumber applicants generated by the October 6 newspa-
per ad.
On February 1, 1983, Respondent hired West Davis
who was referred to Respondent for employment by a
local plumbing inspector. The reference referred to
Davis as having excellent character, being very honest, a
hard worker, and a member of a minority race (from
which Respondent was required to employ, pursuant to
the terms of its contract).
Respondent later hired two other plumbers on Febru-
ary 1, 1983. Tony Parker was referred to Respondent by
another employee. He came with high recommendations
as to character, honesty, and hard work, and he also was
a member of a minority race. In late February 1983, or
early March, Don Belford, contacted Respondent to
advise him that he had received his plumbers license.
Belford had first applied with Respondent in October or
November during Respondent's ad campaign. Respond-
ent was aware that Belford was working on another con-
struction site where Respondent was also working.
Croson recalled talking to Belford during the fall of 1982
employment campaign in a telephone interview and was
also impressed with Belford's application.
IV. MOTION TO DISMISS COMPLAINT UNDER SECTION
10(B)
The Respondent filed a motion at the onset of the
hearing to dismiss the complaint on the grounds that the
acts on which the complaint issued occurred more than 6
months prior to the filing of the charge with the Board.
The facts comprising the basis of Respondent's motion
were congruous with the evidence of the parties' respec-
tive cases and the 10(b) motion was taken under advise-
ment and argued in the briefs of the parties
The complaint was issued on July 11, 1983, based on a
charge filed on May 27, 1983. That charge alleges that
about November 30, 1982, and thereafter, the Respond-
ent discriminated against 12 potential employees by re-
fusing to employ them because of their membership in
the Union The complaint alleges with specificity that
since about February 1, 1983, Respondent has refused to
hire eight of these potential employees because of their
union membership. Thus, on the face of the complaint,
and the charge on which it was issued, there are no
grounds for dismissal of the complaint pursuant to provi-
sions of Section 10(b).
The Respondent argues that the refusal to hire the
eight discriminatees was made in October and early No-
vember 1982 and, if this refusal is deemed to be discrimi-
nation and an unlawful labor act, that the complaint en-
forcing it is barred by Section 10(b). The General Coun-
sel contends that the unfair labor act of unlawful discrim-
ination in hiring took place after the October-November
period and specifically alleges that such unlawful acts
occurred about, or after, February 1, 1983. It is clear
that any discrimination comprising an unlawful labor act
which occurred in October or November 1982 was
barred by Section 10(b) of the Act since the charge on
which the complaint is based was not filed until May 27,
1983. However, the complaint alleges that the unfair
labor practice comprising the discrimination in hiring
took place about February 1, 1983, and is within the
scope of the charge filed on May 27, 1983. In that
charge the charging party alleged that, "on or about the
3rd day of November, 1982, and thereafter.. . ." Thus, a
charge that discrimination in hiring practices in violation
of the Act occurred about February 1, 1983, is properly
based upon the charge filed on May 27, 1983, and is not
barred by Section 10(b) of the Act
More significantly, the General Counsel does not plead
nor does he argue that the discrimination against the po-
tential employees took place in October or November
1982. Contrariwise, the General Counsel pleads and
argues that the discrimination took place in February and
April 1983.
Accordingly, Respondent's motion to dismiss the com-
plaint on the grounds that it is barred under Section
10(b) of the Act is denied.
V. DISCUSSION AND CONCLUSIONS
The General Counsel has stated the issue framed by
the complaint and the charge in this case as follows:
Whether Respondent violated Section 8(a)(1) and
(3) of the Act on or about February 1 and April 4,
5, and 11, 1983, by refusing to hire the individuals
named in the complaint because of their union
membership.
The method employed by the Respondent to acquire a
body of applications from which to choose in order to
man their two Cincinnati, Ohio jobs was to place a
newspaper ad in two local Cincinnati newspapers. This
J A CROSON CO
method is one of several which the Respondent ordinari-
ly pursues in its quest for employees. The other method
includes the so-called walk-on method where applicants
inquire about the availability of positions, and a third
method is where potential applicants are referred to the
company by current employees and others who are fami-
lar with the company.
A The Ad Campaign
The ad was placed in early October 1982 because the
Respondent had acquired two new Cincinnatti contracts
which it was anticipated would require a substantial in-
crease in their plumber personnel This need for addition-
al plumbers was originally estimated by Respondent
since they were then engaged in other plumbing jobs in
Columbus, Ohio, and elsewhere, and their usual comple-
ment of employees was engaged The procedure fol-
lowed by the Respondent in this instance was as follows:
The applicant in response to the ad usually initiated
contact by telephone A record of such contact was
made by a company secretary and applications were
invited from the caller. After the application was
received or simultaneously with the receipt of the
application, if feasible, the Applicant was inter-
viewed by an employee or Mr. Croson, the vice-
president. An evaluation was recorded on the appli-
cation and the application was then maintained in
the company records.
The details of such employment procedure in the case of
the eight alleged discriminatees is as follows:
John J. Noppert filed his application on October
26, 1982 On that date he was also interviewed by
Mr. Croson. Noppert alleges that during the inter-
view he was asked by Croson whether he was a
member of the local union Noppert replied affirma-
tively. Croson noted Noppert's experience and cata-
gorized his ability as "good" and labeled the appli-
cant as "somewhat possible."
Dale Petit responded to the company ad in Octo-
ber by telephoning the company office. Approxi-
mately one week after his initial contact, Petit was
telephoned by Croson and interviewed During the
interview Petit informed Croson that he was a
member of Union Local 59. Croson told Petit that
his qualifications were "good" and requested that
Petit submit a application for employment. Petit
submitted an application on November 6. No fur-
ther statement either orally or written regarding
union membership appeared in Petit's application or
dialogue with Respondent.
Albert Johnson responded to the ad by telephone
in October 1982, and was requested to meet with
Croson at the jobsite for an application and inter-
view. Another plumber, Ron Garrett , was also in-
terested in a position with Respondent and both ap-
plicants met with Croson in order to fill out appli-
cations and submit to an interview After the appli-
cations were filled out and when reviewed by
Croson, the applicants were asked, "Are you guys
members of Local 59?" Both answered affirmative-
151
ly. Garrett's application clearly disclosed his affili-
ation with Union Local No. 59 After the interview,
Croson characterized the employment possibilities
by noting on the application in regard to Johnson,
"possible" and in regard to Carrett, "somewhat pos-
sible "
Jimmy Lawson also responded to Respondent's
ad. He filed an application and was interviewed by
Croson During the interview Croson noted that
most of the jobs on which Johnson had experience
were union jobs and commented upon this to
Lawson who in turn acknowledged that he was a
union plumber. The application and interview
caused Croson to note the employment possibilities
as "somewhat possible."
Robert Meade applied for employment by filling
out an application on November 2, when he met
with Croson on the hospital jobsite. During the
interview, Meade told Croson that he was "out of
Local 59." Croson stated that it doesn't make any
difference, he was looking for qualified men.
Croson evaluated Meade's application and interview
as "possible."
Robert Morton filed an application on November
2, 1982, when he was interviewed by Croson at the
hospital jobsite. The jobs listed by Meade com-
prised three "union jobs." No dialogue regarding
Local Union No. 59 was raised by either party
during the interview. Croson characterized the em-
ployment possibilities as "possible."
Donald Fourth responded to the ad by contact-
ing the phone number in the ad. He spoke to some-
one on the phone, got a job application, and took it
to the jobsite. The application was allegedly left
with someone on the jobsite and no further record
or knowledge as to the location of this application
is available to this record. Allegedly Fourth turned
the application over to one of the workmen on the
site
Subsequent to the taking of applications as described
above, the Respondent experienced a change in its need
for plumbing personnel. The Cincinnati jobs did not
progress as rapidly as initially anticipated and, as a result,
regular employees of Respondent were becoming avail-
able from other jobs throughout the area on which Re-
spondent's work was being completed. Respondent
deemed that it would be unnecessary to hire any addi-
tional plumber personnel over and above those becoming
available to it who were currently on their payroll on
other jobsites.
Thus at that time there were no jobs available to the
applicants, including the alleged discriminatees. There
was no discrimination in the hiring practices of Respond-
ent. None of the applicants responding to the October ad
of Respondent were hired, notwithstanding their union
affiliation, known or unknown. It appears from the
record, as set forth above, that Respondent had solicited
the applicants and conducted interviews in good faith
and anticipated hiring such employees . Evidence of this
fact is found in the evaluation of the applicants where
Croson had indicated his evaluation of the applicant as
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"possible" or "somewhat possible" with regard to em-
ployment potential It appears that Respondent intended
to add to its complement of plumbers until such need di-
minished Respondent, through Croson, knew to some
extent that the applicants and interviewees were mem-
bers of the local union. Either this fact was discussed
during the interview; it appeared on their application; or
it was reflected by the experience of the applicant in
working on union jobs. It is deemed that Croson, an ex-
perienced contractor, would know to a great extent
which plumbers were members of the local plumbing
union Notwithstanding this scienter, there is no evidence
in this record that this knowledge was used as a factor in
the decision not to hire any of the applicants developed
from the November 1982 ad campaign.
B. Subsequent Random Hirings
After the advertising campaign conducted by Re-
spondent in October 1982, the Respondent filled its com-
plement of plumbers from various sources. Respondent
contends that this complement was primarily obtained by
the transfer of its employees from various completed jobs
to the current job at the Cincinnati jail and hospital. The
record shows that from August 1, 1982, to the date of
this hearing, 19 plumbers and 6 apprentices were on Re-
spondent's payroll on the 2 Cincinnati jobs The General
Counsel has established that eight plumbers, and two ap-
prentices of these, were not currently members of the
plumbers union The status of the remaining 11 plumbers
and 4 apprentices as to union affiliation is not disclosed.
Of these 10 nonunion employees, the record shows the
hiring circumstances of 6. Those six are Callargo,
Knockelman, Godfrey, Davis, Parker, and Balford. Of
these six employees, the cases of three, Davis, Parker,
and Balford are contended by the General Counsel to
constitute specific acts of discrimination against union
plumbers in the hiring practices engaged in by Respond-
ent.
The first of these six whose hiring records are known
is Kenneth Callargo. Callargo applied for employment
during the October campaign conducted by Respondent
through the local advertising The interview, conducted
by David Croson on October 12, resulted in an observa-
tion by Croson that the candidate "looked good." Subse-
quently, and approximately the end of October, an open-
ing on another job for a welder arose in Prebble County,
Ohio. Croson recalling that Callargo was profficient in
welding hired him as a welder on the Prebble County
job. Subsequent to this engagement and after the welding
job in Prebble County was concluded, Callargo was
transferred to the Cincinniti operations of Respondent.
The General Counsel does not contend that the engage-
ment of Callargo was in itself an act of discrimination
against a union plumber.
Richard Knockelman was hired in October 1982, his
resume having been received by Respondent on October
11, 1982. Knockelman, from 1959 to 1981, was self-em-
ployed in the Knockelman Company were he had done
all phases of the business including design, estimating,
and supervision. The Respondent hired Knockelman to
do drafting work in October 1982 and he is currently
listed on the payroll records of Respondent as a plumber.
The General Counsel does not contend that the hiring of
Knockelman in October 1982 is a violation of the Act
Godfrey was an apprentice plumber hired in April
1983. His hiring is not deemed discrimination on the part
of Respondent which violates the Act.
West Davis Jr applied for employment with Respond-
ent on January 28, 1983. He was referred to Respondent
by Fred Robertson, apparently a plumbing inspector
West was interviewed by Marty Schmitt, a plumber em-
ployee of Respondent. Schmitt found West to have had a
Cincinnati license and was a plumber-journeyman Al-
though he had limited experience on commercial work
he was deemed to be eager to learn and familar with all
aspects of journeyman plumbers work. As a result of
Davis' application, reference, and interview, he was
hired by Respondent on February 1, 1983 Respondent
contends that at the time of hiring Davis, it did not com-
pare his qualifications with those of plumbers' applica-
tions which it had on file which arose from the October
1982 ad campaign. It stated that one of the reasons for
hiring Davis is that Davis was a member of a minority
race which would assist the Respondent in maintaining a
biracial mix in its employees There is no evidence other
than conjecture that the Respondent engaged Davis be-
cause he was not a member of the Union. There is no
evidence that Respondent considered Davis' lack of
union affiliation in determining to hire On the contrary,
the determination to hire him was made on the need of
Respondent to maintain the necessary racial mix among
its employees.
On April 1, 1983, Respondent hired Anthony Parker,
who was referred to Respondent by Wilard Barnnett.
Parker was a self-employed plumber from 1979 to 1983.
He was also a member of a racial minority and furthered
Respondent's need to maintain a representative number
of minority race employees pursuant to the provisions of
this contract. There is no evidence in this record that
Parker's experience was compared with the experience
of applicants responding to the October ad campaign of
Respondent or that his experience was compared with
the experience of applicants from that campaign on file
with Respondent
A third employee was hired approximately April 5,
1983, by the name of Donald Balford. Balford was
among the applicants who responded to the 1982 ad
campaign of Respondent. At the time he applied in the
fall he did not have a license as a plumber issued by the
city of Cincinnati. In February 1983, Balford recontacted
Croson and advised him that he had obtained his Cincin-
nati license and was available for work There is no evi-
dence that Balford's experience was measured against
others who had applied for work at the time of the fall
ad campaign.
The General Counsel argues that since Davis, Parker,
and Balford are not members of the Union, the Respond-
ent is discriminating against members of the plumbers
union in the hiring of plumbers in Cincinnati. He argues
that the failure of Respondent to employ plumbers re-
sponding to its ad campaign in the fall of 1982 and the
hiring of three plumbers in February and April 1983, has
made a sufficient showing to support the inference that
J A CROSON CO
protected conduct was a "motivating factor" in the com-
pany's decision, and that the policy of the Board stated
in Wright Line, 251 NLRB 1083 (1980), is applicable As-
suming for discussion that the General Counsel's prima
facie showing is sufficient to invoke Wright Line, it be-
comes the onus of the Respondent to demonstrate that
the same action would have been taken in the absence of
the protected activity. Of the hirees employed by the
Respondent since the acquisition of the Cincinnati con-
tracts only Davis, Parker, and Balford were hired as
journeyman plumbers. Davis and Parker had two unique
qualities applicable to their status. Both Davis and
Parker were recommended for employment by the Re-
spondent by a plumbing inspector and a current employ-
ee of the Respondent, respectively, and both were mem-
bers of a minority race which enabled Respondent to
comply with racial mix requirements of its contract. Bal-
ford had recontacted Respondent after he received his li-
cense which created an opportunity to bring himself,
again, to the attention of Respondent in April 1983. As
above stated, the prima facie showing of the General
Counsel which triggered the onus on Respondent to
show that his reasons for employment of the three
plumbers was not unlawfully motivated, is extremely
weak. Certainly Respondent's evidence that its reasons
for hiring Davis and Parker were without consideration
of their union status is sufficient to meet and discharge
the onus raised by the General Counsel's case. There is
no showing of a nexus in Balford's hiring and his rela-
tionship with a union. It seems apparent that all of Re-
spondent's hiring in the Cinrinnati area for the Cincin-
nati contract comprised random hiring, both as to time
of engagement and as to the nature of the job for which
the individual was employed. The hiring of Balford
cannot be said to establish that Balford was hired be-
cause he was a nonunion plumber. As suggested above,
the employment of the Cincinnati personnel was appar-
ently without a preconceived plan other than the day-by-
day maintenance of sufficient qualified personnel to meet
Respondent's needs. It does not establish that Respond-
ent engaged in discrimination in the hiring of nonunion
plumbers. There is no evidence that the Respondent, in
the course of its hiring, compared the technical qualifica-
tions of Davis, Parker, and Balford with those of plumb-
ers in its file of applicants. Such comparison would not
be expected in the execution, of random hiring as I find
to have been the practice of Respondent at this time.
The General Counsel attempts to buffer the innuendo
of discrimination by contending that Respondent has dis-
played "union animus ." It is clear that Respondent was a
"non-union contractor" and that it had rejected efforts to
persuade it to voluntarily enter into a collective-bargain-
ing agreement with the plumbers union. No petition for
union representation was ever filed by the Union. It is
Respondent's nght to avail itself of the Act in arranging
153
its labor relations and exercising its option not to volun-
tarily enter into a collective bargaining agreement. This
record does not contain evidence of acts on the part of
Respondent which comprise union animus. I find no
"union animus" on the part of Respondent which will
support the General Counsel's theory.
Counsel for the Union argues that the evidence dis-
closed that all of Respondent's employees hired by Re-
spondent in Cincinnati were checked by the union head-
quarters and found nonunion The record discloses from
payroll records that the Respondent employed 19 plumb-
ers and 6 apprentices at its 2 Cincinnati jobs Of these 19
plumbers, 8 were checked by the Union and found not to
be current members. Of the six apprentices, two were
checked, and found not to be current members of the
Union. This evidence does not disclose the status of the
remaining 11 plumbers and 4 apprentices. Counsel's point
might have been persuasive if none of Respondent's em-
ployees were shown to be union plumbers.
From the evidence in this record and in consideration
of the briefs and arguments of counsel, I cannot con-
clude that the hiring practices engaged in by the Re-
spondent resulted in discrimination against union employ-
ees in favor of nonunion employees. I have found that
the employment by the Respondent for plumber-employ-
ees at its Cincinnati base of operations was done at
random and not as a part of discriminatory hiring prac-
tices.
CONCLUSIONS OF LAW
I. J. A. Croson Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Plumbers Union, Local No. 59, United Association
of Journeymen & Apprentices of the Plumbing & Pipefit-
ting Industry of the United States & Canada, AFL-CIO
is a labor organization within the meaning of Section
2(5) of the Act.
3. The General Counsel has failed to establish by a
preponderance of the evidence that Respondent has en-
gaged in unfair labor practices as is alleged in the com-
plaint.
On these findings of fact and conclusions of law
and on the entire record, I issue the following rec-
ommended'
ORDER
It is ordered that the complaint is dismissed in its en-
tirety.
I 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