J. E. Merit Constructors

National Labor Relations Board - Board Decisions

Mar 29, 1991

302 N.L.R.B. 301 (N.L.R.B. 1991)

301
302 NLRB No. 42
J. E. MERIT CONSTRUCTORS
1 The General Counsel, the Charging Party, and the Respondent have ex-
cepted to some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s crediblity resolutions un-
less the clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d. Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The judge erroneously referred to Union Business Agent John Simoneaux
as Paul Simoneaux.
1 The name of the Respondent appears as amended at the hearing. Ref-
erences in this proceeding to ‘‘J. E. Merit’’ and ‘‘UMC of Louisiana’’ pertain
to the same entity.
2 The Respondent’s reply brief, filed on September 6, 1989, is stricken. Spe-
cial permission not having been granted for such filing, pursuant to the Gen-
eral Counsel’s motion of September 7, 1989, the reply brief has not been read
or otherwise considered since not sanctioned by any relevant provision of the
Board’s Rules and Regulations.
3 The caption is amended to delete Case 15–CA–10561, which has been sev-
ered in order to accommodate a settlement. Thus, a complaint was issued in
that case on charges filed by the International Union of Operating Engineers,
Local 406. During the hearing, the General Counsel, in response to a with-
drawal request, deleted all allegations in that complaint except an independent
8(a)(1) challenging an unlawfully broad no-solicitation rule. That allegation
was the subject of a settlement agreement approved by me, which is in evi-
dence as ALJ Exhs. 3(a) and (b). Compliance having been achieved, by order
of me dated September 28, 1989, the General Counsel’s motion to withdraw
the complaint was granted.
J. E. Merit Constructors, Inc. and International
Brotherhood of Boilermakers, Iron Ship Build-
ers, Blacksmiths, Forgers and Helpers, AFL–
CIO. Cases 15–CA–10661 and 15–CA–10713
March 29, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On January 26, 1990, Administrative Law Judge
Joel A. Harmatz issued the attached decision. The
General Counsel and the Charging Party filed excep-
tions and supporting briefs, and the Respondent filed
cross-exceptions and an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
dismisses the complaint.
Charlotte White and Paul H. Derrick, Esqs., for the General
Counsel.
G. Michael Pharis and Thomas R. Peak, Esqs. (Taylor, Por-
ter, Brooks & Phillips), of Baton Rouge, Louisiana, for the
Respondent.
Michael J. Stapp, Esq. (Blake & Uhlig, P.A.), of Kansas
City, Kansas, for Boilermakers Union.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This pro-
ceeding was heard in Baton Rouge, Louisiana, on June 26,
27, and 28, 1989, on an original unfair labor practice charge
filed on April 11, 1988, and separate complaints issued on
October 11, 1988, in Case 15–CA–10661, and on November
15, 1988, in Case 15–CA–10713, alleging that the Respond-
ent1 violated Section 8(a)(3) and (1) of the Act by refusing
to hire job applicants because of their union affiliation. In its
duly filed answer, the Respondent denied that any unfair
labor practices were committed. Following close of the hear-
ing, briefs were filed on behalf of the General Counsel, the
Charging Party, and the Respondent.
On the entire record in this proceeding, including consider-
ation of the posthearing briefs,2 and my opportunity directly
to observe the witnesses while testifying and their demeanor,
it is found as follows.
I. JURISDICTION
The Respondent is a Louisiana corporation with a place of
business in Baton Rouge, Louisiana, from which it is en-
gaged in industrial construction and maintenance. In the
course of said operations, the Respondent annually provides
services valued in excess of $50,000 to customers in Louisi-
ana, each of which, in turn, manufactures and ships goods
valued in excess of $50,000 directly to customers outside the
State of Louisiana. The complaints allege, the answers admit,
and I find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaints allege, the answers admit, and I find that
the International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers, AFL–CIO,3 and
its Local 582, headquartered in Baton Rouge, Louisiana, are
labor organizations within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
This consolidated proceeding is primarily concerned with
an employer’s failure to act favorably on employment appli-
cations submitted by a craft union during the latter’s initial
organization campaign. These applications presumably were
completed by union members for the purpose of both secur-
ing employment and to further the Union’s organizational
objectives.
The Respondent, formerly known as UMC of Louisiana,
Inc., is a construction contractor whose operations include
heavy maintenance performed at various industrial sites both
within and outside the State of Louisiana. It has historically
operated on a nonunion basis. In this capacity, it routinely
bids against competing contractors, whose number includes
both nonunion and those who do recognize and enter into
agreements with affiliated labor organizations. In 1988, the
302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 See, e.g., Sunland Construction Co., [309 NLRB No. 180 (1989)]; Har-
mony Corp. [301 NLRB 578 (1991)].
5 Notice is taken of the fact that recognition was officially sought at Sunland
on March 8, 1988, and at Harmony, on March 7, 1988.
6 Unless otherwise indicated, all dates refer to 1988.
7 G.C. Exh. 5. These letters included blank employment applications used
by the Respondent in its hiring process, as well as those used by Sunland Con-
struction Co., Inc. and Harmony Corp. Local 582 filed unfair labor practice
charges contesting the hiring practices of all three firms. On September 5,
1989, I issued a decision in Sunland Construction Co., concluding, inter alia,
that Sunland had engaged in a variety of unfair labor practices in combatting
Local 582’s organizational effort. Earlier, Administrative Law Judge Walter
Maloney found that Harmony had discriminated against a single individual
during a similar drive by Local 582. See Harmony Corp., supra.
8 G.C. Exhs. 19(a) and (b). A followup appeared in that newspaper’s Sunday
edition, ‘‘The Sunday Advocate,’’ on April 3. G.C. Exh. 19(c).
9 G.C. Exhs. 7(a)–(ccc). At the hearing, the Respondent conceded, in the in-
terest of expediting the proceeding and only provisionally, that all applications
involved in the case are authentic and were executed for the purpose of obtain-
ing employment. It was agreed, however, that those matters would be subject
to litigation in the event that a compliance proceeding proves necessary, with
the General Counsel, at such time, having the burden of proving both authen-
ticity of the applications and that each reflected a sincere intention of securing
work.
10 A representation to this effect by the Respondent’s counsel is confirmed
at the C.P. Br. 7.
Respondent was involved in work at some 22 jobsites in the
vicinity of Baton Rouge, including the instant Exxon oil re-
finery.
Dating back to 1981, the Respondent has maintained an al-
most continuous presence at Exxon in conjunction with mis-
cellaneous maintenance tasks. Its work force at that facility
is volatile, shifting dramatically, depending on the nature of
the job. Turnarounds, which involve renovation and overhaul
of component parts of the refinery, are the largest and most
complex jobs. As they progress, refinery production oper-
ations are halted, thus, creating a time-critical scenario, caus-
ing the contractor’s manpower needs to swell. To ensure that
the disruption to the customer’s operations be as limited as
possible, the contractor depends on broad scale temporary
hiring of casual labor. Commencing in early March 1988, the
Respondent, at Exxon, was involved in four turnarounds. As
events unfolded, the Respondent’s payroll, during these jobs,
expanded to about 1500 employees, including craftsmen tra-
ditionally represented by building trade unions, including
boilermakers, pipefitters, and welders represented by Local
582.
Local 582’s attempt to organize the Respondent’s projects
at Exxon was a step in its ‘‘Fight Back Program’’ against
several nonunion maintenance contractors operating within
its territorial jurisdiction.4 As was true with other targeted
contractors, Local 582 delayed until the turnarounds were
soon to begin or in progress before showing its hand.5 Ap-
parently, prior to any formal steps to organize, several Local
582 adherents had secured employment with the Respondent,
and were actually on the Exxon job when, by telegram dated
March 7, 1988,6 Local 582 notified the Respondent as fol-
lows:
This is to notify you that the International Brotherhood
of boilermakers Iron Ship Builders Blacksmiths Forgers
and Helpers are actively engaged in organizing your
employees working at the Exxon Plant at Baton Rouge,
Louisiana. The following employees wish to be identi-
fied as members of our organizing committee. They are
among many engaged in organizing on this job. Our or-
ganizing committee is listed below:
John A. Murphy Anthony Vicknair
Charles Clardy Richard R. LeJuen
Jerry Sullivan Carey Taylor
Brian Sellers Leon Kimble
Charles Bowles Ted Bowman
Anthony Polotzola
We remind you that their rights are protected by Sec-
tion 7 of the National Labor Relations Act.
This announcement would be followed by a strategy cen-
tral to the ‘‘strike back’’ campaign. Pursuant thereto, Local
582 solicited its members to seek employment with the Re-
spondent and other targeted employers.7 To that end, by let-
ter dated March 9, Business Agent Paul Simoneaux, appealed
to Local 582 members as follows:
Enclosed you will find three (3) applications for non-
union Contractors. As you know we have started our
‘‘Fight Back Program.’’ We need the membership of
Local 582 to complete the applications and return
[them] to us as soon as possible.
Your cooperation with this matter is imperative.
LETS FIGHT BACK NOT SIT BACK.
If you have any questions please contact the Local
immediately.
On March 14, Simoneaux met with the insurgent employ-
ees, who designated Charles Clardy, Gary Bose, and John
Murphy as the employee leaders of the campaign. They were
given hats, badges, and blank organization cards to assist in
their efforts to organize.
On March 27 and 28, the following ad appeared in the
‘‘State Times,’’ a Baton Rouge newspaper:
UMC OF LOUISIANA
Is now accepting applications for major turn-around
work in the Baton rouge area for all crafts. Turn-around
work will begin in april [sic] & last thru June with a
60 hour work week. If qualified, apply in person.8
Consistent with the appeal set forth in the Union’s letter
of March 9, numerous applications were purportedly com-
pleted by, or on direction of, Local 582 members, and then
delivered to the Union.9 Subsequently, according to the testi-
mony of Simoneaux, on March 29, he delivered 56 applica-
tions to the Respondent’s offsite personnel office in Baton
Rouge. With the exception of Dawson Fontenant and James
Guice, the record does not disclose that these individuals
ever appeared in person at the Respondent’s premises or took
independent steps to secure employment. The Respondent
made no job offers to any within this group. In fact, testi-
mony adduced in its behalf reveals that it was unaware of
the existence of these applications until August, well after
completion of the turnarounds, and hiring incidental thereto.
Three days after the alleged delivery of the applications,
on April 1, the Union filed its initial refusal-to-hire charge.10
The complaints allege that the Respondent’s failure to act
favorably on Simoneaux’s mass submission was founded on
discriminatory considerations and violative of Section
8(a)(3). Similar allegations are made with respect to individ-
303J. E. MERIT CONSTRUCTORS
11 This group included Lawrence Walter Taylor. His application seeks a po-
sition as ‘‘Superintendent of maintenance supervisor.’’ G.C. Exh. 144. While
it is entirely possible that this allegation is beyond the purview of the Act,
such issues will be resolved in any compliance proceeding made necessary by
an appropriate finding of discrimination.
12 Kelly appeared as a witness, but was examined on a limited basis con-
cerning the circumstances surrounding the delivery of the applications.
13 This group originally included a Lawrence Johnson. At the hearing, it was
developed that two individuals by this name were involved, with only one,
having been offered work by the Respondent. The Respondent later agreed that
this was not the Lawrence W. Johnson named in the complaint.
14 The number of vacancies that might have been available for named
discriminatees is a matter for determination in any future compliance proceed-
ing.
15 This refers to an amended unfair labor practice charge in Case 15–CA–
10549–2. R. Exh. 12. The disposition of that charge is unexplained on this
record.
16 The temporary employee was Scott Pharis, who happens to be the son
of the Respondent’s lead counsel.
17 It is not surprising that each side argues that its witnesses be credited be-
cause their testimony was ‘‘uncontradicted.’’
uals who appeared personally at the Respondent’s personnel
office in quest of employment, namely, Dawson Fontenot,
James Guice, Joseph Bergeron, L. J. Garza, A. J. Joseph,
Arthur Ree Richardson, and Von Earl Williams.
The Respondent defends with respect to the mass filing,
as well as the individual filings by Bergeron, Fontenot, and
Guice on grounds that the absence of evidence that it was
aware of these applications, or of any link between them and
the organization campaign, gives rise to a fatal failure of
proof under Wright Line, 251 NLRB 1083 (1981). By way
of defense, it is asserted further that Garza and Williams,
when contacted by the Respondent, indicated that they were
committed elsewhere, while Joseph and Richardson were ac-
tually hired.
B. Concluding Findings
1. The mass applications
a. The filing
As indicated, Business Agent Simoneaux testified that he
delivered 56 applications to the Respondent’s employment
office in Baton Rouge on March 29.11 He describes each as
completed by a qualified journeyman and member of Local
582. Simoneaux was accompanied at the offsite employment
office by Assistant Business Agent John Kelly.12
This step coincided with the Respondent’s placement of
daily classified advertisements seeking all crafts. When the
union representatives appeared about 9 a.m., some 40 to 45
prospects were already in line. Apparently, Simoneaux alone
joined them, but, eventually, because he had an appointment,
he elected to bypass the others, going to the front. He over-
heard someone instructing applicants to complete their appli-
cations and place them in a basket. Simoneaux therefore
dropped the applications in that basket, recalling that he did
not remove the rubberbands which bound them both verti-
cally and horizontally.
b. The refusal to hire
During the hearing, the Respondent conceded that its
records do not disclose that job offers were made to named
discriminatees other than:
Luciano Garza A. J. Joseph
Arthur Ree Richardson Ferrall Alford
Von Earl Williams
The Respondent, also having represented that company
records would reflect such offers, if made, it is inferred that,
with the above exceptions,13 the Respondent took no action
on the employment applications which lie at the core of the
issues of discrimination in this case.
The Respondent also conceded that during the period be-
tween March 29 and May 10, approximately 42 boilermakers
were hired at Exxon, some of this number representing work-
ers recalled or reassigned after a prior layoff from that job.14
The Respondent, through its personnel staff, admits that
these applications were not considered, but claims that they
were not available for consideration, and that even if pos-
sessed within its employment offices, they were not subject
to routine review under its hiring practices, and hence evi-
dence is lacking that steps were taken on behalf of the appli-
cants that would have disclosed their linkage with union or-
ganization.
In this respect, it appears that an April 15 amendment to
a previously filed unfair labor practice charge identified by
name 58 applicants who were allegedly denied employment
for discriminatory reasons.15 According to Personnel Director
Harry Breeden, and his aides, Wanda Taylor and Gerald
Boudreaux, on request of the Respondent’s attorney, a search
was initiated around the first of May to determine whether
those listed in that charge had filed applications or worked
in the past for the Respondent. That search did turn up appli-
cations, but only those bearing names of applicants who had
prior employment with the Respondent. Other than that, none
were found. Later, in August, just prior to a meeting with
a Board investigator, the personnel staff, once more at the in-
stance of the Respondent’s attorney, rechecked the office.
This time, the applications were found, properly filed, one by
one in alphabetical order under the designation, ‘‘boiler-
makers.’’ Neither Taylor, Boudreaux, nor Breeden had pre-
viously reviewed these applications. Boudreaux and Breeden
explained that it was their assumption that all had been filed
by a temporary summer employee.16 As I understand the tes-
timony, these applications, if actually filed on March 29,
would have been located on the first search.17
While anything is possible, for purposes of this case one
might assume that, as described by Simoneaux and Kelly, the
applications of those named in the charge filed on April 15,
and later uncovered in the Respondent’s files, were dropped
in a repository at the employment offices on March 29. What
happened to them thereafter is a matter of speculation which
transcends the dispositive issue in this case.
c. Concluding findings
(1) Preliminary statement
The parties divide initially over the question of whether
the General Counsel has substantiated the initial proof re-
sponsibility under Wright Line, supra. This requires proof
that union allegiance was at least part of the Respondent’s
motive for not hiring from the batched applications. In other
words, the General Counsel must demonstrate that (1) appli-
cations were filed during hiring stages, (2) the Respondent
304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 This is not to say that there is not a fairness issue here, or that it is unten-
able to argue that an employer should be privileged to avoid mass hiring of
applicants whose declared objective is to further organizational interests. Re-
cently, my own reservations concerning the law in this area were recorded in
a companion case involving Local 582, as follows:
It is not farfetched to regard the ‘‘strike back’’ strategy as built upon a
form of entrapment reminiscent of other ‘‘blackmail’’ devices which in
1958 led to enactment of the Section 8(b)(7) strictures on recognition
picketing. It is true that neither picketing, nor secondary activity was di-
rectly involved here. Instead, the employee protections of Section 8(a)(3)
were central ingredients of a scheme whereby an unorganized employer
would be pressured to capitulate, go out of business, or face recurring
union sponsorship of mass applications in the midst of future projects.
From my perspective, a serious question arises as to whether, through the
complaint in this proceeding, the Board has been conscripted as an unwit-
ting conspirator in the effort to achieve union goals—be they organiza-
tional or economic—through pressures, rather than through the statutory
procedures designed to assure that compulsory bargaining begins with
procedures preserving freedom of choice. My own uneasiness with this
possibility offers no comfort to the Respondent. Its avoidance will require
development of an eclectic rationale, to limit the trend reflected under
present Board law. Thus, there can be no question that the members of
Local 582 who completed, signed, and offered applications to the Union,
were implementing their Section 7 right ‘‘to form, join, or assist labor
organizations.’’ As to such a class, I am alerted to no precedent which
might support a withholding of Section 8(a)(3) on the basis of a labor
organization’s motives. Authority, which I am bound to follow, is to the
contrary. Thus, the Board has repeatedly held that employers may not
lawfully refuse to hire paid, full-time, professional union organizers, even
if they seek employment for the ulterior purpose of unionization. See e.g.
H. B. Zachry Co., 289 NLRB No. 117, and cases cited therein at JD, p.
4 (1988) [Fn. omitted].
In passing, it is noted that the Charging Party takes me to task for having re-
quested the parties to brief this very issue. To do so, perhaps, was naive, but
in my opinion the issue might well require deeper insights than simplistic ref-
erences to Sec. 7 might allow. In any event, it certainly is within the adminis-
trative law judge’s province to seek education from the parties, even if the
issue be insubstantial, or the policy, settled.
19 It is noted that, after the submission of briefs here, the Fourth Circuit
Court of Appeals on September 20, 1989, refused to enforce the Board’s Order
in H. B. Zachry Co. v. NLRB, 886 F.2d 70. Although the Court reasoned that
the Board erred in ruling that an employer could be faulted under Sec. 8(a)(3)
for terminating a paid union organizer, no one with such standing is involved
in this proceeding. Accordingly, the court’s rationale is of no relevance to any
issue presented in this case.
20 Notice is taken of the fact that art. XVII, par. 2, of the International con-
stitution precludes members from accepting employment with a nonunion con-
tractor ‘‘without prior written approval of the business manager.’’ The record
does not disclose whether Pedeaux or Efferson were privileged with such ap-
proval during their employment stints with the Respondent.
21 The various complaints do not name these individuals as discriminatees.
knew of their source, (3) it harbored union animus, and (4)
it acted on that animus in failing to hire any from this group.
By way of overview, it is noted that the knowledge issue
is crucial. For, as shall be seen, the credible evidence con-
firms that the Respondent, once aware that organization was
in progress, would have been most reluctant to respond fa-
vorably to the Union’s hiring ploy.
(2) Union animus
The Respondent insists that it freely hired qualified em-
ployees without concern for union status. As an abstraction,
there can be no doubt that its past employment rolls num-
bered many journeymen with such ties. Indeed, when one
considers the pool of skilled craftsmen nurtured through joint
labor-management apprentice programs, one might question
whether major projects could be manned effectively without
tapping that sector of the market. The issue here, however,
has a narrow focus. It tests the hiring practices on the heels
of notification that a particular labor union was engaged in
an active organization drive, thus, raising the question of
whether this supervening event would be addressed by Re-
spondent in developing its future manning strategy. The eco-
nomic realities offer little assurance that it would not.
Thus, the Respondent considers itself as among the class
of contractors which refer to themselves as ‘‘merit employ-
ers.’’ This is nothing more than a ‘‘buzz’’ reference to non-
union shop. It is a calling antithetical to any form of contrac-
tual relationship with traditional building trade unions. In-
deed, one might fairly assume that this class of employers,
at least in the area of costs, enjoys a labor-oriented, competi-
tive edge in an industry where bidding wars generate reve-
nues, and effective performance turns on the ability to attract
competent workers on a casual, short-term basis. The benefit
of operating nonunion in this industry is magnified when one
considers that most industrial maintenance work is more
labor intense than customarily encountered in other forms of
construction activity, with the ratio of labor to material costs
proportionately higher.
There can be little debate that any formal organization
drive by an affiliated labor union challenges this fundamental
economic advantage. It follows that indiscriminate hiring
from that source clearly would enhance the peril.18 In this
light, hiring decisions confronting the Respondent on and
after March 7 may be equated with a choice between suicide
and survival.19
The probabilities underlying this assessment are not to be
lightly dismissed as hypothetical. The instinct for caution in
this area is a documented fact. Thus, Personnel Director
Breeden in July 1988 conducted a labor survey in Charles-
ton, West Virginia, which was then under consideration as a
potential market area. A building industry official in that
area, Floyd Sayre, assisted in the investigation. In his formal
report, Breeden felt it pertinent to highlight Sayre’s rec-
ommendation concerning hiring in Charleston, as follows:
Mr. Sayre stated that as far as manpower, there
shouldn’t be any problem recruiting qualified craftsmen
but all of the applicants should be screened carefully to
avoid any union infiltration. [C.P. Exh. 4.]
The General Counsel and the Charging Party contend that
this is precisely what occurred here. In support, specific testi-
mony has been adduced from two members of Local 582,
Phillip Pedeaux and Leonard Efferson, who worked for the
Respondent as foremen on the Exxon turnarounds.20 Critical
elements of their testimony demonstrates that, following ad-
vent of the Union, the Respondent’s operating officials were
predisposed against hiring members of Local 582 at this site.
Thus, Phillip Pedeaux, before Exxon, had worked several
jobs for the Respondent in the past. He testified that in
March after organizational badges began to appear, his boss,
Charlie Brown, a former member of Local 582, who knew
of Pedeaux’s union affiliation, asked if Pedeaux knew ‘‘any
boilermakers that might want to go to work.’’ Pedeaux gave
him the names of Chester Price, Ronnie Walls, and Damien
Thomas.21 Brown allegedly replied: ‘‘They don’t want to
hire any union people at this time.’’ Brown, who admitted
to seeking names or prospects from all of his foremen, de-
nied making any such statement. He adds that, at the time,
he knew that Pedeaux, like all his foremen, was a member
of Local 582. Brown suggests that his foremen’s hiring rec-
ommendations were short-circuited by a moratorium declared
305J. E. MERIT CONSTRUCTORS
22 According to Brown, hiring from other of Respondent’s sites had the ad-
vantage of avoiding the expense of physical examinations and drug screening.
23 The individual involved, John Duke, was not a member of the Boiler-
makers union. McGhee, a Louisiana resident, was not a member of Local 582.
He was a member of the International, and its National Transient Lodge, an
arm which has geographic jurisdiction throughout the United States.
24 Blanchard, though a known union protagonist, was not among the em-
ployee organizers listed in the Union’s letter of March 9. G.C. Exh. 4.
25 Pedeaux testified that Kenny Hebert, the job superintendent, would enter
the lunch tent while Blanchard was organizing, and stand and watch Blan-
chard. Blanchard was not called and there is no evidence that any employee
was aware of any form of surveillance. Hebert admitted that he appeared in
the lunch tent, but claims that he did so as part of his daily routine, and that
he regularly monitored conditions in that area several times each day. He de-
nied that he ever followed Blanchard around or stared at him in the lunch-
room. While it is entirely possible that Pedeaux might have suspected that
Hebert was engaged in surveillance, he does not disclose that he was told that
this was Hebert’s intent, and based on his uncorroborated testimony, I am not
persuaded that this was the case. Moreover, I credit what I construe to be ade-
quate denials on Hebert’s part that he had ever done so.
26 In any event, the evidence of animus suggested here is cumulative to
other statements imputed by Pedeaux to Brown. The General Counsel correctly
observes that Brown failed to deny the remark concerning Blanchard, but that
was because I foreclosed the Respondent from litigating its defense to that as-
sertion. In fact, the Respondent was impelled to request that evidence be
stricken to the effect that Blanchard, when terminated, was given an excellent
performance review by Brown, who also declared Blanchard ‘‘eligible for re-
hire.’’ However, Respondent’s employment jacket on Blanchard was received
[R. Exh. 21]; it shows that Blanchard was laid off on April 4, but then was
rehired, and again laid off on May 9. It is difficult to imagine that this entry
was false, or that, when made, there was any basis for suspecting that Blan-
chard would be central to testimony that might be produced against the Re-
spondent in this case. In the circumstances, the rehire of Blanchard suggests,
at a minimum, that the Respondent had no inclination, and hence had not de-
clared, that it would act against him in reprisal for union activity.
27 R. Exh. 9. Work orders prepared by the personnel office reflect immediate
action in connection with Leveron’s hiring. R. Exh. 10(a).
on such requests because other jobs were winding down, a
condition that would release craftsmen for transfer.22
Pedeaux describes a second incident occurring in mid-
March when during a supervisors meeting, Mickey McGhee,
also a foreman, recommended an individual for hire. Brown,
according to Pedeaux, asked if the man was union-affiliated.
McGhee said, ‘‘No.’’ Brown allegedly replied, ‘‘That is the
kind of people we are looking for.’’ McGhee confirms that
he recommended an employee to Brown, but denies that their
conversation included any reference to union membership.23
According to McGhee, this conversation, which he places in
February, was the only time he suggested to Brown that an
individual be hired. Brown, despite a hazy recollection of the
incident, insists that he did not question McGhee concerning
the union affiliation of the individual involved.
Although I am concerned as to pressures that might have
been acting on Pedeaux, as to these incidents his testimony
was believed. Brown’s denials thereof were totally
unimpressive. His capacity for recall was precise as to excul-
patory matters, but nonexistent in other critical areas. This
selectivity undermined my confidence in the accuracy of his
accounting. As to these incidents, I believed neither Brown,
nor McGhee.
My impression was different with respect to an alleged
conversation concerning union protagonist Randy Blanchard.
Thus, according to Pedeaux, about 1-1/2 weeks after the
campaign began, Brown remarked that an employee orga-
nizer, Randy Blanchard,24 had engaged in activity that
aroused his ‘‘concern.’’25 Later, according to Pedeaux,
Brown said, ‘‘He was going to get rid of Randy, if he had
to lay the whole crew off.’’ On April 17, according to
Pedeaux, work for the boilermakers at this operation was
completed, and he, together with his crew, were then laid off.
Apparently, Blanchard was laid off 2 weeks earlier on April
4. Neither the layoff of the crew, nor that of Blanchard, are
challenged as discriminatory. In this instance, the prob-
abilities favor Brown and he is given benefit of the doubt.26
Leonard Efferson, another member of Local 582, was
hired by the Respondent in February as a welder, then, on
March 5, he was promoted to foreman on the Exxon job. He
worked until his crew was laid off on March 31.
According to Efferson, at the time of his promotion, on
March 5, he inquired of Project Superintendent Richard Oli-
ver as to whether he would have a crew, but was told ‘‘no’’
because hands were unavailable at the Respondent’s person-
nel office. Oliver asked if Efferson knew of anyone. Efferson
relates that he reacted by leaving the room and contacting
Simoneaux, who apparently referred a foreman (Johnny
Leveron) and five others. When he reported this to Oliver,
the latter, according to Efferson, reacted angrily, admonish-
ing Efferson: ‘‘[T]his wasn’t a union job and for me not to
be calling no hall.’’ Despite this, Efferson testifies to a sec-
ond conversation, some days later, in which he complained
to Oliver about a lack of competent help. He relates that
when Oliver expressed his own concern as to the inability to
obtain qualified help, Efferson suggested: ‘‘All he had to do
was call the Boilermakers Hall and get his qualified people,
the people that he needed.’’
Maintenance Superintendent Gaylon Landrey testified that
on manning Efferon’s job, he asked the latter if he knew of
any available hands, and that Efferson eventually gave him
a list to be put through personnel. Those names, headed by
Leveron, with a contemplated starting date of March 8, were
apparently transcribed by Landrey and submitted to person-
nel.27 According to Landrey, Efferson never told him he had
called the union hall for men.
In the case of Leveron, Oliver testified that he knew
Leveron, who had worked for Oliver in the past, and had
spoken to Oliver directly concerning employment at Exxon.
He specifically denied that Efferson told him that he had
called the union hiring hall, and further denied stating that
caution would be exercised in hiring, or that he did not want
‘‘those people’’ in the plant. Finally, he denied having told
Efferson that help was not available at the employment of-
fice. Efferson’s testimony seemed too pat, was not regarded
as entirely plausible, and in the face of my negative impres-
sion concerning his credibility, the denials by Oliver are
credited.
Efferson also relates that subsequently in early March, be-
fore widespread union activity became evident, in the pres-
ence of Operations Manager Chustz, he was asked by Oliver
to report ‘‘any organizing going on.’’ He was asked for his
loyalty, and, at the time, gave it willingly. When questioned
by Oliver as to union members on his job, Efferson identi-
fied his foreman, Johnny Leveron, as a member of Local
582. The most salient aspect of Efferson’s testimony con-
cerning this session is the following comment he attributes
to Oliver at that meeting: ‘‘Personnel would have to be care-
ful about the applicants that they brought in, that they were
going to have to look over them carefully and screen them
306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 Efferson described Oliver as showing reluctance towards him, evident
from the fact that he was twice asked for his loyalty. Apparently, Oliver had
overcome this by the time he mentioned the screening of applicants.
29 R. Exhs. 11(a), (b), (c), and (d).
30 A possible discrepancy exists between the testimony of Landrey and Per-
sonnel Assistant Wanda Taylor as to who actually contacts those requested by
name. Landrey avers that this was done by personnel, while Taylor states that
it is done by the supervisor involved. The difference does not smack of signifi-
cance, and it was my impression on the face of the record that the contact
is sometimes made in the field and sometimes by personnel. It is also noted
that Landrey suggested that there is a limitation on the number of key person-
nel that can be selected by operating personnel. Taylor was aware of no such
limitation. There probably was none.
31 A sign is posted in the lobby of the employment office which urges appli-
cants to: ‘‘please sign the sign-in log once a week.’’
32 The call-in log is apparently a convenience offered to applicants who re-
side at significant distances from the employment office. Employees are not
notified of this option on a blanket basis, and apparently it is limited to those
who claim an inability to appear each week to sign in.
33 Prior to notice of a major turnaround, the logs are implemented to build
a pool of workers. Thus, when a turnaround becomes imminent, some pros-
pects will be contacted, tested, and screened, to facilitate expedited assignment
when the need arises.
34 Contrary to the General Counsel, the testimony of Wanda Taylor that
there is no ‘‘rule’’ that requires applicants to sign this log, when considered
against the entirety of her testimony, does not detract from the above system
of priorities, and the fact that those who do comply have a greater employment
opportunity than those who do not.
35 An exception to this system of priorities exists in emergency situations
where someone qualified happens to be in the office. In that case, according
to Taylor, availability takes precedence over the listings, and that individual
will be hired. Although Gerald Boudreaux, a personnel recruiter, testified that
he was unaware that this had in fact occurred, contrary to the General Coun-
sel, his testimony does not reflect that he ‘‘insisted that Respondent never
makes hiring decisions in such a manner, regardless of the exigencies.’’
36 The testimony of Connors and Boudreaux as to their diverse methods of
selecting from applications strikes as a matter of personal preference and in
no way undermines the credulity of the above-described system of priorities.
37 According to the credited testimony of Personnel Assistant Taylor, only
three people work in the employment office on a regular basis. Of them, no
one is charged with responsibility for reviewing applications as they are filed.
In fact, she relates, with corroboration from coworker Gerald Boudreaux, and
Personnel Manager Harry Breeden, that applications are reviewed only after
all other sources are exhausted in the effort to fill a vacancy.
38 The applications are maintained only for 6 months. Periodically, the per-
sonnel staff culls the files to remove the dated applications, which are then
placed in storage. Personnel Assistant Wanda Taylor testified that this is done
twice annually. Gerald Boudreaux, a recruiter, testified that he tries to go
for union membership, and that he didn’t want those people
. . . in the plant.’’28
Oliver recalled a meeting in his office attended by Ronnie
Chustz and Efferson. Its purpose was to update Efferson on
the responsibilities of a supervisor during an organization
campaign. Efferson was told, ‘‘Some of the things we want-
ed him to do and things we didn’t want him to do.’’ He
could recall no discussion regarding manning the job. He de-
nied telling Efferson that he had to be careful about appli-
cants or that they would be screened for union membership.
Chustz describes this meeting as having occurred after he
and Attorney Pharis had visited the jobsite to alert super-
vision concerning the organization attempt underway at that
time. Apparently, Efferson, who had recently been made
foreman had not attended those meetings, so Chustz in-
structed Oliver to call him to the latter’s office. He did so,
whereupon Chustz instructed Efferson as to ‘‘the dos and
don’ts of union activities and his responsibilities of the com-
pany.’’ Chustz agrees that neither he, nor Oliver, stated that
the personnel office was screening for union membership, or
that union people were not wanted on the job.
Here again my misgivings concerning Efferson lead me to
prefer the mutually corroborative testimony of Chustz and
Oliver. It is considered unlikely that Oliver, at that time
would have been so careless with a known union member,
whose true loyalties were yet to be identified.
(3) The Respondent’s hiring practices
Notwithstanding the evidence of animus, a question exists
as to whether, under the Respondent’s hiring practices, the
filing of an application, without more, establishes an appro-
priate threshold for a claim of discrimination. In this regard,
it appears that persons looking for work apply at an offsite
personnel office located in Baton Rouge. That operation is
maintained by three full-time employees. They are afforded
advance notice of major turnarounds, with listings of the re-
quired classifications and their number.29
The hiring process begins with onsite management. During
the initial manning, supervisors, pursuant to the Respondent’s
customary procedures, will pick a few key individuals by
name. Such requests, whether in connection with startup or
midjob hiring, are processed through the personnel depart-
ment. Thus, after names are submitted by the job super-
intendent and the individuals contacted,30 they will be sum-
moned to the personnel office for physical examination and
drug screening, and, once cleared, will be sent to the project.
Beyond that, personnel itself is responsible for building an
effective work force to complete the initial manning and to
fill vacancies as they arise in the course of a job. Should su-
pervisors be unaware of candidates for unfilled vacancies, a
blind request will be made that the personnel department pro-
vide the craftsmen, while making all employment judgments
along the way. In this process, personnel’s primary recruit-
ment tool is the ‘‘termination log.’’ This is a listing of em-
ployees laid off in the past from the Respondent’s jobs, who
have good physical and drug screens.
In addition, personnel takes applications from various
craftsmen. These applicants are required to return regularly
to sign an out-of-work log,31 or to contact personnel by tele-
phone, to have their names entered on a ‘‘call-in log.’’32 In
this fashion, the personnel office is kept informed of the ap-
plicants’ continuing availability and interest in employ-
ment.33
In summation, the established system of priorities assigns
primacy to the names furnished by supervision. Beyond that,
applicants are first selected from the termination log. Along
that same line, recruiters will contact supervisors at other of
Respondent’s jobs to identify recently, or soon to be, re-
leased craftsmen. The next source is the out-of-work log,34
then, the call-in log, and finally, the applications.35
The testimony that applications themselves are the last
source to be accessed is aided by a persuasive strain of ra-
tionality.36 Their utility as an initial reference is impeded by
several factors. First, demands on hiring personnel during the
peak hiring periods do not allow for processing the raw ap-
plications into a manageable form.37 During this period, each
day, hundreds of job seekers pass through the employment
office. It is a cycle in which demands on time and energy
of the employment staff does not enable the filing and sort-
ing of applications. Instead, at the end of each day, those
filed are gathered, a rubber band is placed around them, and
they are put in a drawer. Later, after the turnaround season,
they are classified by skill, and then filed alphabetically.38
307J. E. MERIT CONSTRUCTORS
through the files each month for this purpose, but is not free to do so during
the turnaround period.
39 Unquestionably, as counsel for the Charging Party observes, the screening
of applications is unlawful. See, e.g., KRI Constructors, 290 NLRB 802
(1988). And in this case, there is ample room for suspicion that this might
have occurred here. However, that possibility springs immediately from a close
question of credibility pertaining to statements attributed to Brown, a non-
administrative, operating supervisor. Considering the sheer numbers involved,
and the pragmatic, my best judgment accords credence to the Respondent’s
testimony that no review of applications was made except in the process of
filling vacancies after exhaustion of other priority sources. For this reason, I
decline to infer that applications were routinely or otherwise scanned for union
membership.
40 Contrary to the General Counsel and the Charging Party, the Respond-
ent’s job offer to Farrell Alford was not based solely on application. In addi-
tion to filing his March 3 application, Alford had done so earlier on January
20 (G.C. Exh. 14), and thereafter had signed the out-of-work list on five occa-
sions in 1988 prior to the March 5 job offer. Furthermore, I credit Night Su-
perintendent Kenny Hebert’s denial of knowledge as to the hiring practices
used by the personnel department, and therefore reject any conjecture on his
part as to how job candidates were secured.
41 The General Counsel inadvertently states that R. Exh. 24 reflects that two
others, Ronnie Breaux and J. C. Graves, filed applications. This was not the
case.
42 I reject the General Counsel’s assertion that it would have been futile for
the applicant’s to perfect their job claims by signing the weekly log. Here,
there is no evidence that any applicant was apprised of statements attributed
to Respondent’s officials reflecting a bias against hiring members of Local
582.
43 Suspicion emerges from Respondent’s attempt to disassociate the adver-
tisements placed in local newspapers on March 27 and 28 and April 3 from
any imminent need for craftsmen. In this respect, a composite of the testimony
of Breeden, Boudreaux, and Taylor is to the effect that this occurred pursuant
to the Respondent’s practice of advertising for help, irrespective of need, about
twice annually in order to stimulate applications, to get a fresh view of skills
available in the labor market, and to provide capacity to man an unexpected
job which might emerge when other jobs are fully manned. However, the ads
in question specifically define the job, its location, and the fact that it ‘‘will
begin in April and last thru, June with a 60 hour work week.’’ This wording
is specifically addressed to and likely would attract persons with immediate
availability, and stands as an inartful appeal to those seeking employment at
other times. This discrepancy, while hardly inspiring confidence in the wit-
nesses involved, is somewhat redundant. The advertisement is relevant to a
single issue; namely, the Respondent’s employment needs on and after March
29—a fact evident from the Respondent’s concession that at least 42 boiler-
makers were hired in that timeframe. In agreement with the Respondent, the
use of classified advertisements was not tantamount to an admission that it
was hiring on the basis of raw applications. In passing, it is noted that the
testimony of Farrell Alford, who addressed ads placed in February, is of no
aid to the inquiry.
44 Notice is taken of the fact that Local 582’s simultaneous effort to orga-
nize the St. Francisville job of Sunland Construction also included the submis-
sion of batched applications. This, took place at that location initially on
March 9, and then again on March 17 and 25 and April 6. With the exception
of April 6, Local 582 delivered the batched applications at Sunland through
employees who previously identified themselves to Sunland as union organiz-
ers. The open union involvement at Sunland stands in stark contrast with the
low-keyed March 29 action by Simoneaux, who was no stranger to the
Union’s strategy at either jobsite. No explanation is offered as to why Local
582, having identified its Exxon organizers by letter of March 9, while pre-
viously declaring its hand in open, unambiguous fashion pursuant to the em-
ployment strategy at Sunland, would opt for the esoteric, in conjunction with
the applications, at the Respondent’s Exxon jobsite. These contradictions are
no less mysterious than the Respondent’s inability to locate the mass applica-
tions on the initial search.
45 Simoneaux testified that he had no purpose in mind when he declined to
remove the rubberbands.
These circumstances plausibly suggest that the applications
are awkward and inefficient as an immediate hiring source,
and that they are not even arranged to permit an efficient
search until well after manpower demands have subsided.
Furthermore, unlike the termination log, applications provide
no assurance of physical qualifications; and, unlike the sign-
in and call-in logs, they offer no promise of availability in
this industry where craftsmen, over a vast geographic area,
rove between short term jobs.39
My confidence in this system of priorities is strong enough
to survive, and does not necessarily conflict with, an impor-
tant question which emerges from Respondent’s own evi-
dence. Thus, the unlikelihood that Local 582’s applications
would have produced employment was the theme underlying
Breeden’s testimony that, to his knowledge, the applications
themselves were not used by the personnel department to
procure boilermakers, welders, or pipefitters during the
Exxon turnaround.40 However, Boudreaux, who had respon-
sibility for hiring welders, testified that some welders were
hired solely from application. Furthermore, a document pre-
pared for trial by the Respondent, on its face, suggests that
Steve Drury, Hermon Hynes, and Clint Taylor might well
have been hired solely on the basis of their applications [R.
Exh 24]. Although the documented discrepancies were called
to Breeden’s attention, his explanations were speculative and
the Respondent rested without furnishing competent evidence
to refute or explain away the facial implication that these
three boilermakers were hired solely on the basis of their ap-
plications.41 While these incidents do not refute the practice
as defined by Respondent’s witnesses,42 they do demonstrate,
at least presumptively, that the Respondent could not meet
all of its needs from the various logs and requests by
name.43
Accordingly, it is concluded that the General Counsel has
established, prima facie, that Simoneaux’s apparent filing
was sufficient to evoke employment claims which, at a mini-
mum, would charge the Respondent with the obligation to
consider those, which it knew to have union orientation,
equally with others whose quest for employment did not go
further.
(4) The knowledge issue
The ‘‘chink’’ in the General Counsel’s case relates to
whether the proof establishes that the Respondent was aware
that the Union was behind any pending applications. If sub-
stantiated, this element would tie the knot on a robust case
of proscribed discrimination. However, the strong suspicion
generated by the balance of the affirmative case is com-
plicated by the absence of direct evidence that any represent-
ative of the Respondent was aware that union officials had
filed the batched applications prior to the turnaround, or that
its designees had a basis for identifying them with Local
582, or any activity sponsored by that entity.
The testimony of Simoneaux and Kelly as to what they en-
countered on March 29 at the employment office hardly war-
rants the requisite inference. Neither was ostentatious in their
presence. They identified themselves to no one.44 The appli-
cations, though bound, bore no message directly identifying
them with Local 582 or the organizational effort.45
The suggestion that the Respondent could have linked
Simoneaux and Kelly with Local 582 rests on testimony that
their car had ‘‘strike back’’ stickers affixed to the bumpers—
two in the front, two in the back. In addition, both averred
that, on leaving the area, several unidentified persons, ap-
peared on an deck adjacent to the Respondent’s trailer and
observed them, but said nothing. In finding this unpersuasive,
it is noted that neither Kelly, nor Simoneaux suggested that
their vehicle was in a position from which it could have been
308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
46 As a preliminary, I draw no conclusion that the batched applications were
submitted in a form which necessarily would have been recognized by the Re-
spondent as separate and distinct from others filed on March 29. Simoneaux’s
own testimony supports the probability that many applications would have
been filed that day. Credible evidence also establishes that these neutral fil-
ings, like Simoneaux’s, would have been bound by Respondent’s personnel
staff at days’ end. In this light, it is just as easy to infer that his packet was
indistinct from others assembled that day, as it is to assume that it was suffi-
ciently different to attract attention.
47 Of the contractors named in the applications, the record does not, in every
case, identify which is union and which is not. It does appear that at least
nine applicants had prior or current employment with Harmony and Sunland,
both ‘‘merit shop employers.’’
48 This in my opinion created a cogent basis for linking 13 of the batched
applications with Local 582. On the face of these documents, the signer identi-
fied himself, unambiguously, with either that Union or one of its officials. See
G.C. Exhs. 102, 103, 108, 109, 111, 114, 115, 126, 128, 129, 136, 143, and
154. Although a separate, purely independent basis for finding knowledge
would exist as to this group, the inference would assume that their applications
were read by a representative of the Respondent under timely conditions. As
shall be seen, I am not convinced that such was the case.
49 This conclusion is not inconsistent with Boudreaux’s testimony that some
welders were hired strictly from applications. The timing and circumstances
concerning these incidents is undefined. I see no reason to permit a half-baked
suggestion to take precedence over my belief of a practice which, on the
record, is rooted in fully developed, highly probable evidence. Accordingly,
and as these exceptions were not shown to have been a byproduct of any form
of comprehensive search, absent proof that this took place, my judgement is
to accept that applications were not subject to routine review.
50 Dawson Fontenot, an individually named discriminatee in this case, testi-
fied that when he had to stand in line when he filed his application on Feb-
ruary 1.
51 The Charging Party aptly points to the fact that the Board has upheld vio-
lations where specific proof demonstrates that those responsible for hiring, ac-
tually used past union employment as a basis for screening out union mem-
bers. See KRI Constructors, supra. Aside from the absence of proof that appli-
cations were screened, this position is lacking in credible foundation. No at-
tempt was made here to develop a pattern through comparison of the batched
applications with those of the actually hired boilermakers. It is entirely pos-
sible that these documents, as well, showed employment with union contrac-
tors. This flaw is not excused under the holding in Alexander’s Restaurant &
Lounge, 228 NLRB 165, 179 (1977), where the Board recognized that such
employment could demonstrate ‘‘a likelihood of union membership.’’ For, that
decision does not go so far as to suggest that prior union employment raises
a presumption of current union allegiance. Any such notion would fail to take
account of the diverse attitudes held by members, concerning their personal
responsibility towards their union. After all, union hiring halls might mean the
difference between working and spending one’s days at the local employment
service. If all members recognized adherence to union principles as a fair price
for such access, there would be no need for internal constitutional bans on
nonunion employment. Also mitigating against that assumption is the fact that
in the construction industry, dependence on the skills nurtured through the ef-
forts of organized labor would make it difficult to operate without utilizing
people with past employment on union jobs. While I recognize that a similar
dependency was sideswiped in Alexander’s Restaurant & Lounge, supra, that
view is entitled to far less weight when applied to staffing decisions affecting
a restaurant and cocktail lounge, as was involved there. More importantly, un-
like Alexander’s Restaurant & Lounge, no attempt was made by the pro-
ponents of the complaints in this case to subpoena and proffer the applications
of those hired after March 7. Therefore, unlike Judge Pannier, I have received
argument, but not evidence, which would warrant a fairly based finding that
said hiring reflected a pattern of avoiding employment of those with union
jobs in their background. 228 NLRB at 174. Also lacking in merit is the con-
tention that numerous of Respondent’s supervisors had union ties in the past
and therefore would know that individuals whose applications were batched
enjoyed union affiliation. For, there is not a scintilla to suggest that any super-
visor had access to the applications, or was mindful of who filed, or when.
observed by any agent of the Respondent. Moreover, from
the crowded conditions described by Simoneaux, the observ-
ers on the deck would not necessarily have had ties with the
Respondent. In sum, this evidence is too vague to furnish a
reasonable basis for concluding that Respondent knew that
morning that the mass applications had been dropped by
union representatives, or that any had visited the employment
office at that or any other time.
The General Counsel and the Charging Party argue that
the batched applications could be distinguished from the
mainstream of filings on several grounds.46 First, it is argued
that the employment history showed past employment with
union contractors.47 Second, it is contended, that several ap-
plications name Union Representatives Simoneaux and Kelly
as among their references.48
In the circumstances, the content of the applications are of
no avail. For, I consider it unlikely that any were reviewed
prior to the completion of new hiring in connection with the
Exxon turnarounds. Where, as here, an employer has shown
a predisposition to discriminate, the purity of testimony of-
fered in its behalf is never free from doubt. In this instance,
however, the evidence that applications were not routinely
reviewed within that timeframe struck as entirely plausible
and believable.49 During this period, the inventory of raw ap-
plications would swell on a daily basis with the filing of
many additional applications. Indeed, the line of job seekers
was so long on March 29 that Simoneaux could not wait,
opting instead to drop the applications with anonymity.50 Ac-
cordingly, I am convinced that the small personnel staff had
no need to take the time to sort, review, and file each appli-
cation. There is no reason to assume that the logs would
have been overlooked by the hundreds of job seekers, who
presumably were available for work, and who passed through
the employment offices in that period. The logs provided a
less cumbersome vehicle for identifying available prospects,
which short circuited the need to wade through a mass of
unsorted applications. Thus, even if employment histories
and references showed union allegiance or uninterrupted em-
ployment with union contractors,51 since I do not believe that
applications were scanned routinely, I am unwilling to infer
knowledge on this basis.
(5) Analysis
In agreement with the General Counsel and the Charging
Party, the allegations of discrimination begin with my clear
impression that the Respondent would consciously avoid any
action which would further union organization on this or any
other jobsite. Its aversion to the hiring of Local 582 members
as of March 29 is a given.
This, however, is where the inquiry begins. Animus itself
is an element, itself not alone determinative of proscribed
discrimination. The employer must be given a chance to give
effect to its unlawful intent. Unlike its strategy at Sunland,
here, Local 582 did not provide the Respondent that oppor-
tunity. The stealth with which the batched applications were
deposited, nakedly and without fanfare, leaves a record lack-
ing a reasoned basis for inferring that the Respondent was
aware that any applicants were sponsored or supported by
Local 582. Without such a finding, it cannot be concluded
that the general refusal to act favorably on them was actuated
by considerations other than those governing the Respond-
ent’s failure to hire hundreds of others under a legitimate
system of priorities. Accordingly, the General Counsel has
failed to meet its initial burden of proving that union activity
contributed, at least in some measure, to the inaction with re-
309J. E. MERIT CONSTRUCTORS
52 The Charging Party states in its posthearing brief that, ‘‘There is no indi-
cation that . . . [Respondent] could not have hired these individuals at one
of the twenty-one (21) other job locations in the greater Baton Rouge area.’’
On the contrary, the Respondent’s Exxon site was the entire focus of the hear-
ing in this case. The Union’s March 7 letter defining the scope of the organi-
zation drive was limited to that location. The complaints do not appear to
name a single operating supervisor from any other jobsite. While facts con-
cerning the Respondent’s hiring needs and action at that location were litigated
in depth, there was no attempt to explore conditions elsewhere. In con-
sequence, there is no evidence whatever that employees in the crafts rep-
resented by Local 582 were needed and hired at those locations, and if so,
from what sources. This attempt to broaden the scope of the proceedings con-
stitutes a backdoor approach inconsistent with the entire course of the hearing,
and, in any event, the missing evidence all relates to matters within the Gen-
eral Counsel’s initial burden. In the circumstances, the failure to utilize these
applications in connection with possible manning decisions affecting other
jobsites does not support an inference of untoward conduct at those locations.
53 This application was among those identified as having been delivered to
the Respondent’s employment office by Simoneaux on March 29. G.C. Exh.
16. It named Harmony, a nonunion target of the ‘‘Strike Back’’ strategy, as
the most recent employer, but also listed Business Agent Simoneaux as a ref-
erence.
54 In its posthearing brief, p. 17, the Charging Party states that it ‘‘will not
dispute the fact that Respondent hired Local 582 members both before and
after the organizing campaign.’’ This factor complicates the allegations of dis-
crimination in this case, and requires proof rather than speculation that non-
members were preferred over union members.
55 In his prehearing affidavit, Guice attested to the fact that he had seen a
sign at the employment office instructing applicants to sign the ‘‘work list.’’
Though he understood that this was required, he could not recall doing so in
conjunction with his February application.
56 This application was identified as among those delivered by Simoneaux
on March 29.
spect to the 56 applications. The 8(a)(3) and (1) allegation
as to them shall be dismissed.52
2. The individual cases
a. Preliminary statement
The complaints also identify certain individuals as having
been victimized separately by the Respondent’s allegedly un-
lawful hiring practices. Two classes are involved. Thus, three
of those named filed individually and, shortly thereafter, at
Local 582’s behest, again completed applications, which
were included in the batched group deposited by Simoneaux.
The second group of individual discriminatees is limited to
applicants who filed privately, in advance of the union drive,
and apparently without union sanction.
Although not withdrawn, the posthearing brief of the Gen-
eral Counsel makes no attempt whatsoever to assist the ad-
ministrative law judge in analyzing these allegations, nor is
any theory spelled out tending to support discrimination in
the case of these individuals. In some cases, namely that of
Von Earl Williams, and Arthur Ree Richardson, the claims
of discrimination are not reasonably supported, and their con-
tinued maintenance smacks of frivolity.
b. Dual filings
(l) Dawson Fontenot
Fontenant is a journeyman boilermaker and a long-time
member of Local 582. In late December 1987, he personally
appeared at the Respondent’s offsite employment offices and
signed an out of work list. Again on February 1, he went to
that facility, and completed an application [G.C. Exh. 12],
while also signing the out-of-work log.
Fontenot was the subject of an 8(a)(3) allegation in Har-
mony Corp., Case 15–CA–10537, etc. Findings by Judge
Maloney in that case indicate Fontenot was hired by Har-
mony on February 2, 1988, and after a brief layoff, was re-
called. According to Judge Maloney, he was unlawfully ter-
minated on March 26.
Consistent with his employment at Harmony, Fontenant,
after February 1, never again registered on the Respondent’s
sign-in log. However, during his stint with Harmony, he re-
ceived a blank application in the mail from the Union, which
he completed on March 16 (G.C. Exh 13), and a few days
later, personally delivered to Simoneaux.53 This application
listed Simoneaux as a reference, identifying the latter as
‘‘business manager.’’ There was no job offer.
For reasons unexplained by counsel, the complaint dates
the discriminatory refusal to hire as taking place on and after
April 15. In any event, here again, as in the case of the
batched applications, it has not been demonstrated that union
affiliation was a factor contributing to this state of events.
Thus, for the reasons stated in that connection, the proof
does not substantiate that the Respondent would have known
of any revelations set forth in the March 16 application.
In addition, the February 1 filing is too slender a predicate
for an unfair labor practice occurring in mid-April. First, dur-
ing the period prior to March 7, the evidence fails reasonably
to suggest that the Respondent was reticent concerning the
hire of employees who had worked on union jobs. The job
offers to other similarly situated members of Local 582 con-
firm that this was not the case.54 Finally, Fontenot’s failure
to update his interest by registering on the sign-in log after
February 1 strikes me as the overarching, plausible expla-
nation for his lack of success some 2-1/2 months later. Com-
pare the case of Farrell Alford, a member of Local 582 for
more than 26 years, whose applications showed an unbroken
line of union jobs. He applied on January 20, but, unlike
Fontenot, he returned to the Respondent’s employment office
on January 27, February 3, 17, and 24, to sign the out of
work log. He was offered a job on March 3.
In the circumstances, it is concluded that union consider-
ations played no role in the refusal to hire Fontenot since
April 15. The 8(a)(3) allegation in his behalf shall be dis-
missed.
(2) Jams Guice
Guice, also a boilermaker, and member of Local 582, on
February 6, personally filed an application at the Respond-
ent’s offsite employment office [G.C. Exh. 10].55 He also re-
ceived a blank application in the mail from the Union, and
completed it on March 20 [G.C. Exh. 11]. Presumably this
was forwarded to the Union for filing with the Respondent.56
Although he asserts that these filings were against a back-
ground of three or four earlier log signings ‘‘in the last cou-
ple of years . . . when they had plenty of employment,’’ the
record is replete with references to the Respondent’s hiring
of Local 582 members in that timeframe. Beyond that the
content of Guice’s applications would not necessarily iden-
tify him as tightly allied with union interests. His February
6 application reveals employment with a nonunion contrac-
tor, while that of March 20 discloses two distinct instances
of nonunion work. Here again, the allegations of discrimina-
tion are insubstantial and shall be dismissed.
310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
57 The Respondent has documented the fact that Richardson was hired on
June 24 and was actively employed by it at the time of the hearing.
58 Garza could recall signing the out-of-work log on only three occasions—
first, on filing the application; second, 1 week later, and finally, a week before
the hearing.
59 Williams relates that he was given his physical examination that day. He
admits that a physician expressed that his blood pressure ‘‘was a little high.’’
60 Williams denied that he received such an offer. A notation on his applica-
tion apparently made by Wanda Taylor suggests that he was contacted on Jan-
uary 12, 1988, but was working at the time. R. Exh. 23. The issue need not
be resolved.
(3) Arthur Ree Richardson
I am at a loss to understand why this separate allegation
was not withdrawn. Richardson did not appear at the hearing,
and the only evidence offered by the General Counsel are
two applications—one dated January 25, 1988, and the sec-
ond being that dated March 18 application which presumably
was filed by the Union. (G.C. Exh. 145.) Not a scintilla of
evidence, whether or not credible, was been offered which
would support any conclusion that Richardson made direct
efforts, independent of the batched filing, to obtain employ-
ment which were denied for unlawful reasons.57 Other Local
582 members, who applied contemporaneous with his Janu-
ary application, and who spelled out similar job references
were actually hired. The allegation that he was individually
targeted for proscribed discrimination shall be dismissed.
c. Individual filings
(l) Joseph Bergeron
Bergeron has been a member of Local 582 for 15 years.
He is classified as a journeyman welder. He obtained an ap-
plication from the Respondent’s offsite employment office,
which he completed on February 5, and then turned in at that
office. (G.C. Exh. 6(a).) Since filing, he received no offers
of employment. He claims that he signed the out-of-work log
the day he filed his application and ‘‘mostly’’ every Monday
after that—about 10 times. Apart from Bergeron’s using the
union hall to run off a copy of his application, the Union had
nothing to do with this filing. Personnel Director Harry
Breeden testified that he reviewed the termination, sign-in,
and call-in logs, and could not recall seeing his name on any
of these documents.
Bergeron did not impress me as a reliable witness, but, in
any event, his association with unions, could only be gleaned
from his application, which showed prior employment with
union contractors. As in the case of the batched applications,
I am unwilling to assume that this document was reviewed.
Furthermore, during the period in which he filed, the Re-
spondent hired employees with similar references in their ap-
plications, including known union members both at the man-
agerial and journeyman levels. Because the credible evidence
fails to establish that Bergeron, after February 5, registered
on the sign-in log, and as the record provides no reasonable
basis for inferring that union affiliation played any role in the
Respondent’s inaction with respect to this application, the
8(a)(3) allegation in his case shall be dismissed.
(2) Luciano Garza
Garza, also a journeyman welder, is a member of Local
582. He completed and submitted an application at the em-
ployment office on February 1. (G.C. Exh. 6(b).) Thereafter,
he claims to have been called twice,58 but not until 3 or 4
months later. He received a further offer about 2 weeks prior
to the hearing.
Garza’s testimony was not entirely consistent, and on the
face thereof, it is entirely possible that he was offered and
rejected a job some time in March. Indeed, documents of-
fered by the Respondent show that Garza on March 3 was
given a preemployment physical. While denying that he then
was given the opportunity to take a welding test, Garza ad-
mits that he subsequently rejected an offer on the Exxon job.
As for the timing of this offer, in response to examination
by the Charging Party, Garza indicated that he could not re-
member ‘‘when in March of 1988’’ that he was offered em-
ployment. However, he later stated that it was 2 to 4 weeks
after he took the physical. This job offer would have been
made in the context of an application listing an employment
history limited to union contractors.
The allegation of discrimination in his case is without
merit. Convincing testimony fails to disclose that Respondent
would have any basis for associating his application with the
union drive, or that it refused to consider him for employ-
ment on considerations of union affiliation. In fact, he admits
to a job offer, which he rejected. Beyond that, there is no
showing that Respondent had any reasonable basis for con-
sidering him a viable candidate for employment. At the very
least, the Respondent has shown that Garza was afforded the
same treatment he would have been accorded had no form
of union activity emerged. The 8(a)(3) and (1) allegation in
his case shall be dismissed.
(3) Von Earl Williams
Williams, a member of Local 582 for some 40 years, is
a journeyman boilermaker. On January 11, he completed and
filed an application at the Respondent’s offsite employment
office (G.C. Exh. 6(e)).59
Williams had been employed by the Respondent at Exxon
in April 1987 for about 18 days until laid off. In addition
he had employment stints with the Respondent when it oper-
ated under the names Jacobs Engineering and H. E. Weise.
Assuming that Williams was not offered work pursuant to
his 1988 application,60 their is no evidence that any failure
to act on this filing was based on selection criteria differing
from that in effect when he was hired by the Respondent in
the past. Moreover, there is no evidence, nor reasonable basis
for inferring that Respondent was aware that this former em-
ployee, had active union status during that period. In short,
from all appearances on this record, Williams in January
1988 presented no stronger organizational threat than in 1987
or earlier dates when he manifested a will to work nonunion
for the Respondent’s predecessors. The 8(a)(3) and (1) alle-
gation in his case shall be dismissed.
(4) Aljire John Joseph
Joseph, a boilermaker-welder, is a long-term member of
Local 582. On December 21, 1987, he visited the Respond-
ent’s Baton Rouge employment office, obtained a blank ap-
plication, completed it and turned it in. (G.C. Exh. 6(e).) He
claims that he provided the Union with a copy, but was not
among those who completed applications for submission by
the Union. Finally, Joseph avers that, though he signed the
311J. E. MERIT CONSTRUCTORS
61 Joseph also completed and filed an earlier application, dated November
19, 1987. R. Exh. 7.
62 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 objec-
tions to them shall be deemed waived for all purposes.
Respondent’s out-of-work log on more than one occasion, he
did not receive an offer of employment.
On cross-examination, Joseph admitted to having been
hired by the Respondent, but was uncertain as to when, stat-
ing ‘‘it was in the early part before we started organizing the
job.’’61 The Respondent’s records indicate that it employed
Joseph from January 5 to March 3, 1988, at Dow Chemical
jobsite as a class B pipefitter. Thereafter, in addition to filing
an application, according to Breeden, his search disclosed
that Joseph had signed the sign-in log only once, on April
5, 1988.
The 8(a)(3) and (1) allegation in Joseph’s case shall be
dismissed. Joseph’s own employment experience indicates
that prior to the instant campaign, the Respondent did not ex-
clude prospects with a history of employment with union
contractors. On the contrary, the evidence, at least in the
cases of Luciano Garza, Farrell Alford, and Von Earl Wil-
liams, shows that applicants in that category were consid-
ered, offered jobs and actually hired by the Respondent.
While it is true that he had signed the sign-in log after ad-
vent of the Union at Exxon, his prior employment with the
Respondent and the date of his application obscures any fair
assumption that the Respondent would have identified his
quest for work with the Union’s organizational objective.
Thus, there is no reasonable basis for concluding that union
membership was a factor influencing action taken by the Re-
spondent on Joseph’s application, as required by Wright
Line, supra, and the 8(a)(3) and (1) allegations in his case
shall be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Charging Party and its Local 582 are labor organi-
zations within the meaning of Section 2(5) of the Act.
3. The Respondent did not, since April 15, 1988, refuse
to hire the 56 applicants named in the complaint for reasons
proscribed by Section 8(a)(3) and (1) of the Act.
4. The Respondent did not, since April 15, 1988, refuse
to hire Dawson C. Fontenot and James R. Guice for reasons
proscribed by Section 8(a)(3) and (1) of the Act.
5. The Respondent did not, since April 1, 1988, refuse to
hire Joseph E. Bergeron, L. J. Garza, A. J. Joseph, Arthur
Ree Richardson, and Von Earl Williams for reasons pro-
scribed by Section 8(a)(3) and (1) of the Act.
6. The Respondent did not engage in any of the unfair
labor practices set forth in the instant consolidated com-
plaints.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended62
ORDER
The consolidated complaints are dismissed in their en-
tirety.