J & R Roofing Co.

National Labor Relations Board - Board Decisions

Aug 13, 2007

350 N.L.R.B. 694 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
350 NLRB No. 61
694
J & R Roofing Company, Inc. and United Union of
Roofers, Waterproofers & Allied Workers, Lo-
cal No. 30. Case 5–CA–30193
August 13, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND KIRSANOW
On February 11, 2004, Administrative Law Judge John
T. Clark issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief to the Respondent’s
exceptions, and the Respondent filed a reply 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 exceptions1 and briefs and has decided to
affirm the judge's rulings, findings,2 and conclusions
only to the extent consistent with this Decision and Or-
der.
The judge found, among other things, that the Respon-
dent violated Section 8(a)(3) and (1) of the Act by refus-
ing to hire eight union applicants. For the reasons that
follow, we reverse the judge’s finding and dismiss this
allegation.
Facts
The Respondent is a commercial roofing contractor in
Jessup, Maryland. On August 4 and 5, 2001,3 the Re-
spondent advertised in two newspapers for roofing fore-
men and mechanics. On August 9, a group of nine union
organizers and business agents (eight of whom are al-
leged as discriminatees) applied for work at the Respon-
dent’s facility.
While filling out applications in the reception area, the
applicants engaged in horseplay, as they pushed and
nudged one another in a loud and boorish manner. In

1 There are no exceptions to the judge’s findings that the Respon-
dent violated Sec. 8(a)(1) of the Act by interrogating applicants about
their union membership in its employment application forms and by
threatening to discard the applications of any individual affiliated with
the Union.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) when Respondent’s vice president, Ed Taylor, discarded the
employment applications of union-affiliated applicants, Chairman
Battista notes that the Respondent’s exceptions to this finding are lim-
ited to issues concerning witness credibility.
3 All dates hereafter are in 2001.
addition, one of the applicants inadvertently knocked
over a candy dish.
Five minutes after the applicants began filling out their
applications, the Respondent’s vice president, Ed Taylor,
came out to interview the applicants. Taylor introduced
himself and began speaking with applicant Fred Hammel
about the applicants’ qualifications. Hammel told Taylor
that if the applicants were hired they intended to organize
the Respondent’s employees on their own time. Taylor
responded that the Respondent ran a merit shop and
would not hire anybody affiliated with the Union or any
other labor organization. Taylor told the applicants they
should go to a union company to get the wage rates they
wanted. When Hammel replied that they wanted to work
for and organize the Respondent, Taylor stated that he
might as well “sh-t can” their applications. Applicant
Mike Bailey stated that Taylor “couldn’t do that . . . be-
cause the secretary said they would be held indefinitely.”
Taylor replied, “Watch me,” and dropped the applica-
tions in the trash can.
While the applicants were filling out their applications,
Valerie Lilly, the Respondent’s chief financial officer
and the sister of Respondent’s president and owner4 Jef-
frey Lilly, entered the reception area. Upon her entrance,
at least one of the applicants stated, “Oh baby,” “Yeah, I
want to work here. Mmm, get me some of that,” and
“Boy, I’d like to work here.” Later that evening, Valerie
Lilly told Jeffrey Lilly about these comments.
By letter to each applicant, dated August 14 and signed
by Jeffrey Lilly, the Respondent rejected each of the ap-
plications for employment. The letters stated that the
applicants engaged “in behavior that was inconsistent
with a bona fide attempt to obtain employment,” and
asserted that there was sexual harassment of “a female
member of management.” While the letter also listed
incomplete items on each of the applications, Jeffrey
Lilly claimed that the applicants were rejected solely
because of their behavior.5
The Judge’s Decision
The judge found that the Respondent violated Section
8(a)(3) of the Act by refusing to hire the applicants. The
judge found that the General Counsel met his initial bur-
den under FES, 331 NLRB 9 (2000), supplemented 333
NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002), of
showing that the Respondent was hiring, that the appli-
cants had the experience and qualifications to perform

4 Jeffrey Lilly’s uncontroverted testimony established that he is an
82-percent shareholder of the Respondent.
5 No party disputes the Respondent’s claim that the letters were sent
out. Although all of the applicants credibly testified that they did not
receive the rejection letters, the record shows that the letters were
mailed to the Union’s office.
J & R ROOFING CO. 695
the work, and that antiunion animus contributed to the
Respondent’s decision not to hire them. The judge found
that the Respondent’s proffered reason for not hiring the
applicants, i.e., their misconduct at the facility, was pre-
textual, and therefore the Respondent had not met its
rebuttal burden of demonstrating that the applicants
would not have been hired even in the absence of their
union activity.
In its exceptions, the Respondent repeats its argument
that, even in the absence of their union affiliation, the
applicants would not have been hired because of their
behavior at the facility. Contrary to the judge, we find
merit in this argument.
Discussion
In FES, supra, the Board held that, in order to carry his
initial burden in a case alleging a refusal to hire, the
General Counsel must show
(1) that the respondent was hiring, or had concrete
plans to hire, at the time of the alleged unlawful con-
duct; (2) that the applicants had experience or training
relevant to the announced or generally known require-
ments of the positions for hire, or in the alternative, that
the employer had not adhered uniformly to such re-
quirements, or that the requirements were themselves
pretextual or were applied as a pretext for discrimina-
tion, and (3) that antiunion animus contributed to the
decision not to hire the applicants.
Id. at 12 (footnotes omitted). Once this is established, the
burden shifts to the respondent to prove that it “would not
have hired the applicants even in the absence of their union
activity or affiliation.” Id.
We assume arguendo that the General Counsel has met
his initial burden, and that the burden therefore shifted to
the Respondent. The Respondent contends that it has
met its rebuttal burden because the record shows that the
applicants would not have been hired in any event due to
the sexually harassing statements that were made when
the applicants applied for work. We agree with the Re-
spondent’s contention.
As set forth above, the record shows that the applicants
engaged in loud and boorish conduct, the most signifi-
cant of which was the lewd and sexually offensive com-
ments made about, and in the presence of, Manager Val-
erie Lilly, the sister of the Respondent’s president and
owner, as she entered the reception area. Upon learning
of the harassing comments directed at his sister, Jeffrey
Lilly rejected the applicants, and specifically cited this
conduct in his letters rejecting the applicants.6 Thus, the
record shows the existence of a legitimate reason, relied
on by the Respondent, for its refusal to hire the appli-
cants.
In rejecting the Respondent’s contention that the appli-
cants were not hired due to the conduct directed towards
Valerie Lilly, the judge found that this reason was pre-
textual because of Taylor’s unlawful comments to the
applicants. We agree that Taylor’s statements violated
Section 8(a)(1), as alleged. However, the ultimate hiring
determination rested with Jeffrey Lilly, the Respondent’s
president and owner, who made the decision and signed
the rejection letters. It is clear that Lilly’s decision was
based on the conduct of the applicants, including particu-
larly the comments directed at his sister. This conduct
was wholly separate from any antiunion animus on the
part of Taylor or any other official of the Respondent.
Accordingly, based on the record, we conclude that the
preponderance of evidence does not support the judge’s
finding that the Respondent’s reason for not hiring the
applicants is pretextual. See generally Heiliger Electric
Corp., 325 NLRB 966, 968 (1998) (union applicants’
creation of “sufficiently intimidating and disrespectful”
environment when applying for work privileged a deci-
sion by the employer not to hire the applicants). There is
no showing that the Respondent would have hired a non-
union applicant who made similar remarks about the
owner’s sister or other members of management. Indeed,
common sense suggests that an employer would not do
so. Thus, we find that the Respondent has met its rebut-
tal burden of showing that the applicants would not have
been hired even in the absence of the Respondent’s anti-
union animus. For this reason, we reverse the judge and
dismiss this allegation.7
ORDER
The National Labor Relations Board orders that the
Respondent, J & R Roofing Company, Inc., Jessup,
Maryland, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Telling applicants for employment that it did not,
and would not, hire any person affiliated with the Union,
United Union of Roofers, Waterproofers & Allied Work-
ers, Local No. 30, or any other labor organization.

6 Although the credited testimony establishes that the applicants did
not receive the rejection letters, this fact does not establish that the
Respondent’s asserted reason was pretextual.
7 Because we find that the Respondent relied on a legitimate basis
for refusing to hire the applicants, we find it unnecessary to address the
validity of any other defense raised by the Respondent, including its
contention that the individuals at issue are not bona fide applicants.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD696
(b) Threatening to throw away the application of any
individual affiliated with the Union or other labor or-
ganization.
(c) Throwing into a trash can applications completed
by applicants for employment who were affiliated with
the Union.
(d) Interrogating applicants in the employment appli-
cation forms about their union membership, activities,
and sympathies.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its Jessup, Maryland facility copies of the attached notice
marked “Appendix.”8 Copies of the notice, on forms
provided by the Regional Director for Region 5, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since August 9, 2001.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

8 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT tell applicants for employment that we
have not, and will not, hire any person affiliated with the
Union, United Union of Roofers, Waterproofers & Allied
Workers, Local No. 30, or any other labor organization.
WE WILL NOT threaten to throw away the application
of any individual affiliated with the Union or any other
labor organization.
WE WILL NOT throw away applications for employ-
ment solely because the applicants are affiliated with the
Union or any other labor organization.
WE WILL NOT interrogate applicants in the employment
application forms about their union membership, activi-
ties, and sympathies.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
J & R ROOFING COMPANY, INC.
Christopher R. Coxson and Thomas J. Murphy, Esqs., for the
General Counsel.
Frank L. Kollman and Desmond T. McIlwain, Esqs. (Kollman
& Saucier, P.A.), of Baltimore, Maryland, for the Respon-
dent.
Irwin W. Aronson and Kimberly Neeb, Esqs. (Willig, Williams
& Davidson), of Philadelphia, Pennsylvania, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was
tried in Baltimore, Maryland, on September 9 through 12, and
December 9, 2002. The charge was filed January 28, 2002,1
and the complaint was issued May 28. The complaint alleges
that J & R Roofing Company, Inc. (Respondent) violated Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act (the
Act) by refusing to hire and consider for hire eight job appli-
cants because of their affiliation with the United Union of
Roofers, Waterproofers & Allied Workers, Local No. 30 (the
Union).
The complaint also alleges that the Respondent violated Sec-
tion 8(a)(1) of the Act by telling the applicants that it did not,
and would not, hire any person affiliated with the Union or any
other labor organization; by threatening to throw away the ap-
plications of any individual affiliated with the Union or any
other labor organization; by throwing into a trash can applica-
tions completed by applicants for employment who were affili-
ated with the Union; and by using a written employment appli-

1 All dates are in 2002, unless otherwise indicated.
J & R ROOFING CO. 697
cation form that included a question asking applicants for em-
ployment if they were union members.
The Respondent’s answer denies the allegations. The parties
were afforded a full opportunity to appear at the hearing, pre-
sent evidence, examine and cross-examine witnesses, and file
posthearing briefs.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the counsel for the General Counsel and the Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Maryland corporation, is a roofing con-
tractor in the building and construction industry with an office
and place of business in Jessup, Maryland, where it annually
received goods valued in excess of $50,000 directly from points
located outside the State of Maryland. The Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is a commercial roofing contractor that per-
forms roofing projects at various sites located between Rich-
mond, Virginia and Philadelphia, Pennsylvania. The Respon-
dent advertises employment opportunities in newspaper help-
wanted sections and, at all relevant times, had the following
sign posted outside its facility:
HELP WANTED
FOREMAN
ROOFERS
LABORERS
SHEET METAL MECH.
APPRENTICES
The Respondent also hires individuals who go to the jobsite
looking for work. These individuals are hired by the job fore-
man, without completing an application. Individuals who apply
at the Respondent’s facility are required to complete an applica-
tion. The Respondent admits that at all relevant times the first
page of the application had a question asking if the applicant
was a union member, and if so, to provide the name of the un-
ion and the local. After completion of the application the indi-
vidual is interviewed by a member of management.
In the August 4 and 5, 2001 editions of the Baltimore Sun
and Washington Post the Respondent placed help-wanted ad-
vertisements for roofing foremen and mechanics. The alleged
discriminatees learned of the advertisements and, on August 9,
2001, drove to the Respondent’s facility to apply for work.
B. Events of August 9, 2001
Upon entering the reception area of the Respondent’s facility
Fred Hammel, an alleged discriminatee, told the receptionist,
Cathi Duhamel, that the group wished to apply for employment.
Duhamel distributed the applications. Mike Bailey, an alleged
discriminatee, testified that either he, or another discriminatee,
asked how long the applications were kept on file. Bailey testi-
fied that Duhamel replied that they were kept on file indefi-
nitely. Bailey testified that he thought her response odd, which
is why he remembered it. Duhamel testified that she said that
she thought they were held for a year. I credit Bailey’s version
not only because of his overall testimonial demeanor, but also
because it is consistent with other statements that he made.
The nine individuals (only eight of whom are alleged as dis-
criminatees) began filling out the applications. Because of the
small area the individuals used the entire counter, as well as
occupying chairs in the rear of the reception area. The conduct
of the discriminatees while they were completing their applica-
tions, as well as other matters concerning the events of the day,
are in dispute. There is conflict regarding the sequence of
events, not only between the General Counsel, and the Respon-
dent’s witnesses, but among the Respondent’s witnesses. The
following findings are based on my observation of witness
demeanor, the established or admitted facts, and inherent prob-
abilities and reasonable inferences that may be made from the
record as a whole.
The testimony of the alleged discriminatees is, in essence,
that they conducted themselves in a professional manner. It is
not disputed that discriminatee William Reis caused a candy
dish to fall from the counter and break, that he apologized,
swept up the shards, and offered to pay for the dish. Reis
credibly testified that he was bumped by another discriminatee
which caused him to knock the dish off the counter. Duhamel
admitted that she did not witness the incident but attributed the
cause to the discriminatees “roughhousing.” I credit Reis’ tes-
timony of what happened over Duhamel’s testimony as to her
conclusion as to what happened.
Jacquelyn Ruff the Respondent’s former payroll administra-
tor appeared and gave testimony regarding the alleged dis-
criminatees’ conduct. Ruff’s demeanor appeared to be that of a
truthful witness who was making an honest attempt to recollect
what happened. She is also no longer employed by the Re-
spondent. I found her to be a totally creditable witness. Ruff
testified that she could not recall if she was summoned by Du-
hamel, or went to the reception area on her own because of the
noise. Duhamel also could not remember if she called Ruff or
if Ruff came of her own volition. In any event, Ruff testified
that the men were loud, talking over each other, and playing
around. Duhamel asked Ruff not to leave her “up here by my-
self with all these guys.” Ruff stayed in the reception area for
between 5 to 10 minutes. She left when Vice President Edward
Taylor arrived at the counter. I credit Ruff’s testimony and I
also find it probable that she went to the reception area to in-
vestigate the noise. Had Duhamel felt it necessary to request
assistance I believe Duhamel, as well as Ruff, would have re-
membered such an unusual and presumably memorable, request
for assistance.
Duhamel further stated that she saw Taylor’s enter the build-
ing, at some point after Ruff arrived in the reception area. Du-
hamel went to his office and told him there were applicants in
the reception area, if he wanted to interview them. This was
the normal procedure. She also testified that she told him that
the men were loud, obnoxious, and fooling around. (Tr. 1049–
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD698
1052.) Taylor was unsure if he was summoned by Duhamel or
went forward because of the noise, but he was certain that he
was present when the dish fell. I credit Duhamel’s testimony
that she went to Taylor’s office because she appeared more
certain than Taylor regarding that fact. I also note that Taylor,
after some obfuscation, admitted that he went to the reception
area to interview the men for jobs, as he typically did, if he was
available when applicants applied for work. His admission is
consistent with Duhamel’s testimony as to why she went to his
office. Taylor conversely appeared to have no reservations
concerning the fact that he was present when the dish fell. His
testimony regarding the dish is also consistent with his affida-
vit, and I credit his testimony regarding that fact.
At a point in time after the dish was broken Valerie Lilly, the
Respondent’s chief financial officer, entered the reception area.
Valerie Lilly testified that she went into the area to retrieve her
mail, leave some documents, and to ask Duhamel if she, Lilly,
had any phone messages. Duhamel testified that as Lilly was
approaching the reception area some discriminatees began
mumbling comments under their breath such as “Oh baby.”
“Yeah, I want to work here. Mmm, get me some of that.” (Tr.
1024.) Although Valerie Lilly also overheard the comments
she continued about her business. She testified that she walked
over to Duhamel, spoke with her about assignments that needed
to be performed, received her phone messages, and got her
mail. She then went to her office to return her phone calls.
Although Taylor testified that he was present he only heard one
of the men say, “Boy, I’d like to work here.” His testimony
was consistent with his affidavit. On cross-examination, Lilly
specifically denied that Taylor was present when the comments
were made.
I credit the testimony of the Respondent’s witnesses over the
denials of the eight alleged discriminatees and find that at least
one of the alleged discriminatees made the remarks that were
overheard by the Respondent’s witnesses. As Duhamel ex-
plained, the comments were unusual and stuck in her head (Tr.
1042). I also credit Taylor’s testimony, which is consistent
with his affidavit, regarding this incident, over Lilly’s denial
that he was present.
Valerie Lilly also testified, in contradiction of her affidavit,
that after making the phone calls she again walked past the men
on her way to lunch. Duhamel agreed with Lilly’s recollection.
However, in her affidavit, Lilly stated that she did not exit her
office until the men had departed the reception area. I do not
credit her testimony where it is contradicted by her affidavit.
Not only was the affidavit given at a point closer in time to the
events, but her explanation for the contradiction, that the state-
ment was taken out of context, is not convincing. I also do not
credit her testimony that she told her brother, the Respondent’s
president, about the remarks when they returned from lunch.
Her affidavit states that she told him, along with Vice President
Taylor, that evening. When asked to explain why she failed to
include her initial conversation with her brother in her affidavit
she could only offer that she, “may have mentioned it. . . . I
don’t know” (Tr. 1120).
Frederick Hammel, a union organizer during the relevant pe-
riod and an alleged discriminatee, testified as to his recollection
of events. Hammel said that about 5 minutes after the men
started filling out the applications Taylor entered the reception
area. Taylor stated his name, handed out his business card, and
began talking with Hammel about the applicants’ qualifica-
tions. Hammel testified that it was he who was primarily talk-
ing with Taylor. After the applications were given to Taylor,
Hammel told him that they were union organizers and that if
they were hired they wanted to organize his shop on their own
time. Taylor replied that the Respondent was a merit shop and
that the Respondent would not hire anybody affiliated with the
Union or any other labor organization. He told them to go to a
union company to get the wage rates that they wanted.
Hammel replied that the men wanted to work for, and organ-
ize, the Respondent. Taylor admitted that he responded by
saying that he might as well just “shit can” their applications
right now (Tr. 107) or with a similar statement (GC Exh. 4 at
4). After hearing Taylor’s statement alleged discriminatee
Bailey told Taylor that he, Taylor, “couldn’t do that simply
because the secretary said they would be held indefinitely” (Tr.
201). Bailey further testified that Taylor said “watch me” and
dropped the applications in the trash can. Bailey’s testimony
was corroborated by Hammel and both men specifically stated
that they saw Taylor drop the applications in the trash can as
alleged in the complaint (Tr. 227, 993). The other alleged dis-
criminatees testified that although they heard Taylor’s state-
ments they did not see him actually drop the applications in the
trash can.
Taylor admits he made the statement about discarding the
applications. In Taylor’s version, however, the only response is
laughter by the alleged discriminatee who said they intended to
organize the Respondent (Tr. 166). Duhamel supports Taylor’s
version, but she also specifically denies that Taylor dropped the
applications in the trash can.
I find, based on their demeanor when testifying about this in-
cident, that the alleged discriminatees appear to be more credi-
ble than the Respondent’s witnesses. I find the testimonial
demeanor of Taylor and Duhamel did not appear to be that of
individuals who were making honest and sincere efforts to re-
count the facts to the best of their recollection. Taylor espe-
cially did not appear forthcoming in his testimony. It was only
on cross-examination that he admitted that his reason for com-
ing to the reception area was to interview the men (Tr. 181). I
also note that when testifying he did not specifically deny
dropping the applications in the trash. In addition to her testi-
monial demeanor, I observed that Duhamel appeared uncom-
fortable, and most willing to change her testimony, when she
testified contrary to Taylor (Tr. 1052). In this regard I note that
she Duhamel was only 19 years of age at the relevant time, had
only been the receptionist for a year, and she, “worked for
pretty much everybody in the building.”
Jeffrey Lilly, Respondent’s president and brother of Valerie
Lilly, also testified. He stated that he observed the alleged
discriminatees on his way lunch. He testified that they were
“outrageously noisy,” “pushing one another at the counter, and
one particular guy was hammering the counter for some rea-
son.” However, because he was with individuals with whom he
wished to do business, when asked, “did you stop” he replied,
“No. Unfortunately, you know, I didn’t want our bonding
J & R ROOFING CO. 699
company, let alone a bank, to feel like a roofing operation was
the wild, wild west, so I overlooked it” (Tr. 1080).
Jeffery Lilly states that while he was in the Respondent’s
parking lot, after lunch, his sister told him of the comments.
Upon entering the building Taylor told him of his experience
with the alleged discriminatees. After hearing from his sister,
and Taylor, Lilly “felt like we were set up.” He claims that he
reviewed the applications and then called his attorney. His
attorney advised sending the letters to the alleged discrimina-
tees. The letters mention sexual harassment of a female mem-
ber of management and each letter lists incomplete items on the
individual’s application. The letters all conclude that “for these
reasons” the applications are rejected. (R. Exhs. 17–25.)
Jeffery Lilly admitted that he read and signed the letters and
that, contrary to the statement contained in the letters, the ap-
plicants were rejected solely because of the alleged discrimina-
tees behavior.
C. Analysis and Discussion
1. Alleged independent 8(a)(1) violations
A. Interrogating Applicants about Union Membership
It is undisputed that during the relevant period the Respon-
dent’s employment application contained a question asking if
the applicant was a union member. President Lilly testified that
the application had been used since about 1980 and that he was
unaware that it contained the question about union membership.
The standard for determining if an interrogation is coercive
is whether, under all the circumstances, the interrogation rea-
sonably tends to restrain, coerce, or interfere with rights guar-
anteed by the Act. Furthermore, it is well established that ques-
tions involving union membership and union sympathies, in the
context of job interviews and applications, are inherently coer-
cive and thus interfere with Section 7 rights, and this is true
regardless of whether the applicant is hired. E.g., Action Multi-
Craft, 337 NLRB 268, 276 (2001); Culley Mechanical Co., 316
NLRB 26, 27 fn. 8 (1995); Rochester Cadet Cleaners, Inc., 205
NLRB 773 (1973).
I find that the Respondent violated Section 8(a)(1) of the Act
by interrogating applicants for employment by using a written
application form that contained a question concerning the ap-
plicant’s union affiliation.
2. Telling applicants that the Respondent did not, and would
not, hire any person affiliated with the Union or any labor or-
ganization
The alleged discriminatees all similarly testified that Taylor
told them that he did not and would not hire any person affili-
ated with the Union or any labor organization. Taylor admitted
that some of the alleged discriminatees were wearing clothing
indicating they were union members. Taylor does not deny
making the statement, nor does the Respondent argue to the
contrary in its brief. Counsel for the General Counsel cites
Galloway School Lines, Inc., 321 NLRB 1422 1424 (1996), as
a case where the Board found a violation of Section 8(a)(1)
when the employer’s president told union applicants that the
company was not and would never be Union, and that he would
not hire union workers.
Accordingly, I find that the Respondent has violated Section
8(a)(1) of the Act as alleged in the complaint.
3. Threatening to discard the application of any individual af-
filiated with the Union or any labor organization
Taylor admits telling the alleged discriminatees that he
would “shit can” their applications. Counsel for the General
Counsel contends that this statement indicates that it is futile
for union members to apply for employment with the Respon-
dent and as such violates Section 8(a)(1) of Act. I agree and
find that the Respondent has violated Section 8(a)(1) of the Act
as alleged in the complaint. See generally Little Rock Electri-
cal Contractors, 336 NLRB 146,153 (2001).
4. Discarding the applications of individuals affiliated with
the Union
Having found that it is a violation of Section 8(a)(1) to
threaten to discard the applications of members of labor organi-
zations, it follows that it is also a violation to discard the appli-
cations. Based on the credited testimony of the alleged dis-
criminatees, I find that Taylor dropped their applications in the
trash can, thereby violating Section 8(a)(1) of the Act as alleged
in the complaint.
4. Alleged 8(a)(3) violation
a. Respondent’s failure to hire the applicants
This case involves the practice of “salting.” Salting is when
a union sends a member to apply for employment at a nonunion
employer. The object of the union member is to be hired and
then organize the employer from within. For a more extensive
definition see Tualatin Electric, 312 NLRB 129, 130 fn. 3
(1993), enfd. 84 F.3d. 1202 (9th Cir. 1996). The salting strat-
egy may be overt, as here, where the applicants tell the em-
ployer of their union affiliation and that they will attempt to
organize the employees within the parameters of the Act, or
covert, where the union affiliation and the objective of the ap-
plicants is not announced. Under either scenario applicants
who are also union organizers retain their status as statutory
employees. NLRB v. Town & Country Electric, Inc., 516 U.S.
85 (1995).
In FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir.
2002), the Board set forth the analytical framework for refusal-
to-hire violations. The General Counsel must show that:
(1) that the Respondent was hiring, or had concrete plans to
hire, at the time of the alleged unlawful conduct; (2) that the
applicants had experience or training relevant to the an-
nounced or generally known requirements of the positions for
hire, or in the alternative, that the employer has not adhered
uniformly to such requirements, or that the requirements were
themselves pretextual or were applied as a pretext for dis-
crimination; and (3) that antiunion animus contributed to the
decision not to hire the applicants. [Footnotes omitted.]
[Id. at 12.] Once the General Counsel has established these
elements, the burden shifts to the employer to show that it
would not have hired the applicants even in the absence of their
union affiliation or activities. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD700
The Respondent does not dispute that counsel for the Gen-
eral Counsel has met his burden regarding the first two criteria.
The newspaper advertisements and the help-wanted sign dem-
onstrate concrete plans to hire during the relevant time. The
evidence establishes that the Respondent hired four laborers
and one mechanic on the day that the alleged discriminatees
applied, and that from August 9, 2001, until July 12, 2002, the
Respondent hired 21 mechanics, and 36 laborers. Testimony
was given, and a stipulation between the parties received, estab-
lishing that all the alleged discriminatees are “qualified and
able to perform the work of a journeyman mechanic roofer and
a journeyman mechanic sheetmetal worker as well as the work
as a laborer or apprentice with respect to all work performed by
[the Respondent] during the relevant period” (Tr. 238–239).
With regard to union animus, I have found that the Respon-
dent has violated Section 8(a)(1) of the Act by maintaining an
application form that interrogated applicants about their union
membership; that Vice President Taylor told the alleged dis-
criminatees that the Respondent never had, and never would,
hire union members; that he would discard the alleged dis-
criminatees applications and that he did discard their applica-
tions, because they were affiliated with a union. Accordingly,
the record amply supports a finding that antiunion animus con-
tributed to the Respondent’s decision not to hire the alleged
discriminatees.
b. Respondent’s defenses
The Respondent contends that it would not have hired the al-
leged discriminatees even in the absence of their union affilia-
tion. The Respondent asserts that its “decision not to hire any
of the alleged discriminatees was based solely on their behavior
at the time the individuals applied” (R. Br. 4). I disagree, and
find that the reason advanced by the Respondent for its action is
a pretext. I find the pretext to be additional evidence that the
real reason the Respondent did not hire the discriminatees was
their union affiliation.
The testimony and actions of the Respondent’s witnesses
present the best evidence that behavior was not the real reason
the Respondent did not hire the discriminatees. Duhamel, the
Respondent’s receptionist, testified that she performed her du-
ties in a routine manner, she provided the discriminatees with
applications, and asked Vice President Taylor to interview
them. She had a work discussion with Valerie Lilly, gave Lilly
her phone messages, and did not testify with specificity that the
conduct of the alleged discriminatees was disruptive of her
work. She did not rebuke, or even address the men, concerning
their sophomoric behavior. Although the group was loud and
boorish, Duhamel did not feel it necessary to ask Valerie Lilly
to stay or, as I have found, to summon assistance. When Ruff
arrived in the reception area, Duhamel did not hesitate to leave
Ruff, who was obviously pregnant, alone with the men while
she went to Taylor’s office.
Chief Financial Officer Valerie Lilly testified that she over-
heard crass comments about her as she entered the reception
area. Lilly’s reaction was to do nothing. She did not confront,
she did not turn on her heel and exit the area, she did not tell
Taylor not to hire the men, she did not even give them a look of
disgust. She completed her business, went to her office, and
returned her phone calls.
President Jeffery Lilly observed the group while he was with
banking and insurance representatives. He “overlooked” the
conduct because he did not want his luncheon companions “to
feel like a roofing operation was the wild, wild west.” I find his
statement incongruous.
Taylor observed the discriminatees as he entered the build-
ing. He characterized what he saw as a circus (Tr. 107, 149).
His reaction—he went to his office. Duhamel went to Taylor’s
office, as she usually does “to let him know that there were
people up front filling out applications” (Tr. 1051). Taylor
admitted, albeit grudgingly, that the reason he went forward
was to talk to the applicants. This is also standard operating
procedure. (Tr. 180.) I find Duhamel’s testimony concerning
Taylor’s actions at this point telling. After Taylor came to the
reception area, she states, “[H]e was having conversations with
the applicants in the office asking them their qualifications and
what they do now. Normal questions he would ask any appli-
cant.” Thus, it is apparent that regardless of the discriminatees
conduct the Respondent’s decision not to hire them, as articu-
lated by Taylor’s statement that he was going to shit can their
applications, did not occur until Taylor was told that they were
going to try and organize the employees. Cf. Exterior Systems,
Inc., 338 NLRB 677 (2002) (where the Board adopted an ad-
ministrative law judge’s finding that the conduct of the appli-
cant was disruptive and disrespectful and, based on the credited
testimony of the employer’s witnesseses, found that the Re-
spondent would not have hired the applicant regardless of his
union activity).
I find that letters sent by the Respondent to the discrimina-
tees are self-serving and of no probative value. Furthermore, I
credit the discriminatees denial that they received the letters,
and I credit their testimony that they would have accepted em-
ployment with the Respondent. As Business Agent Hammel
testified, “my job is to organize. I would work there for what-
ever job it is to try to organize” (Tr. 994).1
I have found that the actions of the Respondent’s agents be-
lie it’s contention that it would not have hired the discrimina-
tees even in the absence of their union affiliation or activities.
Accordingly, I find that the Respondent has violated Section
8(a)(1) and (3) as the Act by, since August 9, 2001, reusing to
consider for employment and/or refusing to employee the
named discriminatees because of their union affiliation or union
activities.
CONCLUSIONS OF LAW
1. J & R Roofing Company, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. United Union of Roofers, Waterproofers & Allied Work-
ers, Local No. 30 is a labor organization within the meaning of
Section 2 (5) of the Act.

1 The Respondent also argues, in essence, that the discriminatees are
not “genuine applicants” (R. Br. 19, 21). It is the duty of an administra-
tive law judge to apply established Board precedent. Accordingly, the
analytical methodology I have applied is that expressed by Member
Liebman in her concurring opinion in Exterior Systems, above at 680.
J & R ROOFING CO. 701
3. The Respondent violated Section 8(a)(1) of the Act by:
(a) Telling applicants for employment that it did not, and
would not, hire any person affiliated with the Union or any
other labor organization.
(b) Threatening to throw away the applications of any indi-
vidual affiliated with the Union or any other labor organization.
(c) Throwing into a trash can applications completed by ap-
plicants for employment who were affiliated with the Union.
(d) Using an employment application form that included a
question pertaining to union membership, thereby interrogating
applicants for employment about their union membership, ac-
tivities, and sympathies.
4. The Respondent violated Section 8(a)(3) and (1) of the
Act by its refusal to consider for employment, and/or refusal to
employ the following applicants based on their affiliation with
a labor organization:
Michael Bailey, Fred J. Hammel, Timothy J. Kaisinger, Tho-
mas F. Lowry, Keith Lypka, Joseph Mauro, William V. Reis,
and Clark Shiley.
5. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent unlawfully discriminated
against eight job applicants, I recommend that the Respondent
offer them instatement to those jobs for which they applied and
are qualified, or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to the discriminatees’
seniority or any other rights or privileges that they would have
enjoyed had the Respondent not unlawfully discriminated
against them.
I also recommend that the Respondent be ordered to make
the discriminatees whole for any loss of earnings and other
benefits, computed on a quarterly basis from date that they
would have been hired to the date of proper offer of instate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
[Recommended Order omitted from publication.]