Jobsite Staffing and Jobsite Personnel

National Labor Relations Board - Board Decisions

Sep 29, 2003

340 N.L.R.B. 332 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 332
The Second Shift, Inc. d/b/a Jobsite Staffing and Job-
site Personnel, Inc., a single employer and Inter-
national Brotherhood of Electrical Workers,
Local Union 756, AFL–CIO. Case 12–CA–17521
September 29, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER AND WALSH
On October 10, 2002, Administrative Law Judge Kelt-
ner W. Locke issued the attached bench decision. The
General Counsel and the Union each filed exceptions and
the Union filed a supporting 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 brief and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order and
to adopt the recommended Order as modified and set
forth in full below.1
The complaint alleges, inter alia, that the Respondent
violated Section 8(a)(3) and (1) of the Act by refusing to
hire and refusing to consider for hire 17 job applicants.
The judge found that the Respondent violated Section
8(a)(3) and (1) by refusing to hire five applicants, Barry
Bostwick, Jonathan Carnes, Robert Murphy, Phillip Pelc,
and Stephen Williams.2 The judge dismissed complaint
allegations that the Respondent violated Section 8(a)(3)
and (1) by refusing to hire 13 other job applicants.3 The
judge further found that the Respondent violated Section
8(a)(3) and (1) by refusing to consider for hire all 18 job
applicants.4

1 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144 (1996),
and to include our customary expunction remedy, which the judge
omitted.
2 One of the applicants who the judge found that the Respondent
unlawfully refused to hire, Bostwick, was not alleged as a discriminatee
in the complaint.
3 The 13 applicants were John Barrington, Richard Buffington,
Christopher Downs, Bruce Evans, Jamie Eyler, Richard Forrester, John
Gambone Sr., John Gambone Jr., Jason Harrison, Robert Higley, Eric
Law, Ken Mortensen, and James Warren.
4 The judge included Bostwick in the refusal-to-consider violation as
well as the refusal-to-hire violation, although he was not alleged as a
discriminatee in the complaint. Thus, the total number of applicants
who the Respondent unlawfully refused to consider, as found by the
judge, was 18.
The judge also found that the Respondent violated Sec. 8(a)(1) by
informing employees that it was futile for union applicants to apply for
work, maintaining a work rule prohibiting employees from discussing
their wage rates with each other, and interrogating employees concern-
ing their union membership, activities, and sympathies. The judge
dismissed the remaining 8(a)(1) allegations.
The Union filed exceptions regarding the refusal-to-
hire allegations that the judge dismissed, the judge’s spe-
cific findings in dismissing the refusal-to-hire allegation
regarding applicant Christopher Downs, the judge’s find-
ing that the Respondent unlawfully refused to hire Barry
Bostwick, and the judge’s remedy for the refusal-to-
consider violations. The General Counsel filed excep-
tions contending that the judge’s notice to employees
failed to contain remedial language consistent with his
conclusions of law and Order.
In his decision, after setting forth the framework estab-
lished in FES, 331 NLRB 9 (2000), for analyzing alleged
refusal-to-hire violations, the judge found that the Gen-
eral Counsel had established the first FES element re-
garding all the alleged discriminatees: the Respondent
was hiring at the time that they submitted applications.
Regarding the second FES element, the judge found that
Bostwick, Carnes, Murphy, Pelc, and Williams had ex-
perience or training relevant to the announced or gener-
ally known requirements of the positions for which they
applied but that the record fell short of establishing this
element for the 12 alleged discriminatees who did not
testify at the hearing.5 The judge did not address whether
this element was established regarding alleged discrimi-
natee Christopher Downs, who testified at the hearing.
Regarding the third FES element, the judge found that
animus contributed to the Respondent’s decisions not to
hire applicants known to be associated with the Union.
The judge further found, however, that the record did not
establish that the Respondent knew about the union af-
filiation of some of the applicants. In particular, the
judge found that the Respondent did not know of the
union affiliation of Christopher Downs at the time that he
submitted his application and the Respondent decided
not to hire him.
Although the judge dismissed the refusal-to-hire alle-
gations regarding 13 of the applicants on the basis that
the record did not show that they had relevant training
and experience and/or that the Respondent knew about
their union affiliation, the judge failed to make particu-
larized findings or to discuss or analyze the evidence in
reaching these conclusions, other than evidence regard-
ing the Respondent’s knowledge of Downs’ union af-
filiation. Thus, as the Union points out, in finding that

No exceptions were filed regarding the judge’s disposition of the
8(a)(1) allegations or his findings that the Respondent violated Sec.
8(a)(3) and (1) by refusing to hire applicants Carnes, Murphy, Pelc, and
Williams and by refusing to consider for hire all 18 applicants. Thus,
these violations are not in issue.
5 The 12 alleged discriminatees who did not testify were John Bar-
rington, Richard Buffington, Bruce Evans, Jamie Eyler, Richard Forres-
ter, John Gambone Sr., John Gambone Jr., Jason Harrison, Robert
Higley, Eric Law, Ken Mortensen, and James Warren.
340 NLRB No. 43
JOBSITE STAFFING 333
relevant training and experience was not shown regard-
ing the applicants who did not testify, the judge failed to
address evidence that the Respondent ran newspaper ads
seeking “electricians” and that Union Business Manager
Williams testified that all 14 alleged discriminatees who
applied for jobs on July 31, 1995, were licensed electri-
cians and had served in apprenticeship programs.6
Further, the judge found that the record did not estab-
lish that the Respondent knew about the union affiliation
of “some” of the applicants and cited Downs as an “ex-
ample” of one such applicant.7 The judge, however,
failed to identify any other applicant whose union affilia-
tion was not shown to be known by the Respondent.
Thus, we cannot determine which, if any, of the judge’s
other dismissals was predicated, in whole or part, on the
basis that the applicant’s union affiliation was not shown
to be known by the Respondent or what evidence the
judge relied on in reaching such a conclusion.
Accordingly, as the judge’s decision fails to set forth
sufficient findings and rationale, we shall remand this
proceeding to the judge for a written analysis of the evi-
dence and the legal issues regarding the elements of rele-
vant training and experience and employer knowledge
with respect to the refusal-to-hire allegations that the
judge dismissed in his bench decision. See Dyna-
tron/Bondo Corp., 326 NLRB 1170 (1998).
If, on review of the record on remand, the judge de-
termines that the Respondent violated Section 8(a)(3)
and (1) by its refusal-to-hire any of the applicants with
regard to whom the judge previously dismissed refusal-
to-hire allegations, the judge shall further determine
whether the record shows that the Respondent had job
openings for which such applicants had relevant training
and experience and the number of such openings, and the
judge shall provide an appropriate remedy based on such
findings. FES requires such an analysis to determine
whether an affirmative backpay and instatement remedy
may be ordered. FES, supra at 14.
Additionally, in his bench decision, the judge found
that the Respondent violated Section 8(a)(3) and (1) by
refusing to consider for hire all 18 job applicants, but, as
the Union notes, the judge failed to provide the remedy

6 All but one of the refusal-to-hire allegations that the judge dis-
missed concerned applicants who applied for jobs on July 31, 1995.
The 14 individuals who applied for jobs on July 31, 1995, were John
Barrington, Richard Buffington, Bruce Evans, Jamie Eyler, Richard
Forrester, John Gambon Sr., John Gambone Jr., Jason Harrison, Robert
Higley, Eric Law, Ken Mortensen, Robert Murphy, James Warren, and
Stephen Williams. The judge dismissed the refusal-to-hire allegations
regarding all of these individuals except Murphy and Williams. The
other refusal-to-hire allegation that the judge dismissed concerned
Christopher Downs, who applied for a job on October 27, 1995.
7 Judge’s decision, slip op. at 3.
called for in FES for refusal-to-consider violations. FES,
supra at 15; see, e.g., Mainline Contracting Corp., 334
NLRB 922, 924–925 (2001). In his supplemental decision
on remand, the judge, therefore, shall provide the appro-
priate remedy for this violation.8 However, when both a
refusal-to-hire and a refusal-to-consider for hire violation
are found regarding the same applicant and an instatement
and backpay remedy is ordered for the refusal-to-hire
violation, the remedy for the refusal-to-consider violation
is subsumed by the broader refusal-to-hire remedy.
Gothic Stone Masonry, 339 NLRB No. 116, slip op. at 1
fn. 3 (2003). Thus, no additional refusal-to-consider rem-
edy is required regarding applicants Carnes, Murphy,
Pelc, and Williams, as there are no exceptions to the
judge’s findings that the Respondent unlawfully refused
to hire them and that they should be instated and made
whole. Accordingly, we shall not remand the refusal-to-
consider violations regarding applicants Carnes, Murphy,
Pelc, and Williams.
In view of the Union’s exception, we shall also remand
the judge’s finding that the Respondent violated Section
8(a)(3) and (1) by refusing to hire applicant Barry Bost-
wick, as the judge failed to explain his basis for finding
this violation even though it was not alleged in the com-
plaint. On remand, the judge shall reconsider this finding
and, regardless of the outcome, shall explain the basis for
his disposition of it.
As noted above, no exceptions were filed to the
judge’s findings that the Respondent violated Section
8(a)(3) and (1) by refusing to hire applicants Carnes,
Murphy, Pelc, and Williams or to the judge’s findings
that the Respondent violated Section 8(a)(1) by inform-
ing employees that it was futile for union applicants to
apply for work, maintaining a work rule prohibiting em-
ployees from discussing their wage rates with each other,
and interrogating employees concerning their union
membership, activities, and sympathies. There is no rea-
son to delay the disposition and remedying of these un-
contested violations pending the outcome of the remand
that we are ordering. Accordingly, we shall issue a final
order with respect to these violations.
We shall sever the complaint allegations that we are
remanding, i.e., the refusal-to-hire allegations that the
judge dismissed and the refusal-to-consider allegations,
other than those concerning applicants Carnes, Murphy,
Pelc, and Williams, plus the refusal-to-hire violation that
the judge found concerning Bostwick.9 Although no ex-
8 The merits of the refusal-to-consider violations are not to be revis-
ited on remand. As noted above, no exceptions were filed regarding
them.
9 In remanding, we are not passing on the Union’s exceptions to the
judge’s specific findings in support of his dismissal of the refusal-to-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 334
ceptions were filed regarding the merits of the refusal-to-
consider violations, we shall sever them, except those
concerning Carnes, Murphy, Pelc, and Williams, because
the remedy for them may be subsumed by the remedy for
refusal-to-hire violations if, and to the extent that, the
judge, on remand, finds any additional refusal-to-hire
violations. Kaminski Electric & Service Co., 332 NLRB
452, 454 (2000).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, The Second Shift, Inc. d/b/a Jobsite Staffing
and Jobsite Personnel, Inc., a single employer, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Informing employees, including job applicants, that
it was futile for union applicants to apply for work.
(b) Interrogating employees, including job applicants,
concerning their union membership, activities, and sym-
pathies.
(c) Maintaining a work rule prohibiting employees
from discussing their wage rates with each other.
(d) Refusing to hire job applicants or consider them for
hire because of their union membership or 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 from the date of this Order, offer
Jonathan Carnes, Robert Murphy, Phillip Pelc, and
Stephen Williams instatement to the positions for which
they applied or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges.
(b) Make Jonathan Carnes, Robert Murphy, Phillip
Pelc, and Stephen Williams whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the
remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusals to
hire Jonathan Carnes, Robert Murphy, Phillip Pelc, and
Stephen Williams and, within 3 days thereafter, notify
them in writing that this has been done and that the re-
fusals to hire them will not be used against them in any
way.

hire allegation regarding Christopher Downs. As we are setting forth a
new notice to employees, we need not pass on the General Counsel’s
exceptions to the judge’s notice.
(d) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Rescind its work rule prohibiting employees from
discussing wages with each other, and rescind and ex-
punge any warnings or other discipline imposed for vio-
lation of this rule.
(f) Within 14 days after service by the Region, dupli-
cate and mail to all current employees and former em-
ployees employed by the Respondent at any time since
July 31, 1995, and post at its facility in Altamonte, Flor-
ida, and at all other places where notices to employees
customarily are posted, copies of the attached notice
marked “Appendix A.”10 Copies of the notice, on forms
provided by the Regional Director for Region 12, 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.
(g) 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
comply.
IT IS FURTHER ORDERED that the issues of
whether the Respondent violated Section 8(a)(3) and (1)
of the Act by refusing to hire and/or refusing to consider
for hire John Barrington, Barry Bostwick, Richard
Buffington, Christopher Downs, Bruce Evans, Jamie
Eyler, Richard Forrester, John Gambone Sr., John Gam-
bone Jr., Jason Harrison, Robert Higley, Eric Law, Ken
Mortensen, and James Warren are severed from the rest
of this proceeding and remanded to Administrative Law
Judge Keltner W. Locke for the purposes described
above. The judge shall prepare and serve on the parties a
Supplemental Decision containing findings of fact, con-
clusions of law, and a recommended Order in accordance
with this order of remand. Following service of the Sup-
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the 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.”
JOBSITE STAFFING 335
plemental Decision on the parties, the provisions of Sec-
tion 102.46 of the Board’s Rules and Regulations shall
be applicable.
APPENDIX B
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
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 inform employees, including job ap-
plicants, that it is futile for union applicants to apply for
work.
WE WILL NOT interrogate employees, including job
applicants, concerning their union membership, activities
and sympathies.
WE WILL NOT maintain a work rule prohibiting em-
ployees from discussing their wage rates with each other.
WE WILL NOT refuse to hire job applicants or con-
sider them for hire because of their union membership or
sympathies.
WE WILL NOT in any like or related manner interfere
with, coerce, or restrain our employees in the exercise of
their rights under Section 7 of the Act.
WE WILL, within 14 days from the date of the
Board’s Order, offer Jonathan Carnes, Robert Murphy,
Phillip Pelc, and Stephen Williams instatement to the
positions for which they applied or, if those positions no
longer exist, to substantially equivalent positions.
WE WILL make Jonathan Carnes, Robert Murphy,
Phillip Pelc, and Stephen Williams whole for any loss of
earnings and other benefits suffered as a result of our
unlawful discrimination against them, less any net in-
terim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful refusals to hire Jonathan Carnes, Robert
Murphy, Phillip Pelc, and Stephen Williams, and WE
WILL, within 3 days thereafter, notify them in writing
that this has been done and that the refusals to hire them
will not be used against them in any way.
WE WILL rescind our work rule prohibiting employ-
ees from discussing wages with each other, and rescind
and expunge any warnings or other discipline imposed
for violation of this rule.
THE SECOND SHIFT, INC. D/B/A JOBSITE
STAFFING AND JOBSITE PERSONNEL,
INC., A SINGLE EMPLOYER
Thomas Brudney, Esq., for the General Counsel.
Stephen Williams, for the Charging Party.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard
this case on August 26–27 and September 11, 2002, in New
Smyrna Beach, Florida. After the parties rested, I heard oral
argument, and on September 12, 2002, issued a bench decision
pursuant to Section 102.35(a)(1) of the Board’s Rules and
Regulations, setting forth findings of fact and conclusions of
law. In accordance with Section 102.45 of the Rules and Regu-
lations, I certify the accuracy of, and attach hereto as “Appen-
dix A,” the portion of the transcript containing this decision.11
The complaint in this case, as amended, alleges that Respon-
dent unlawfully discriminated against certain job applicants
because of their union activities. In the bench decision, I con-
cluded that evidence supported findings that Respondent dis-
criminated against some, but not all, of these named individu-
als. The bench decision further stated that after further review
of the evidence, I would make specific findings in this certifica-
tion regarding the individuals affected by the unlawful dis-
crimination.
In making such findings, I follow the analytical framework
established by the Board in FES, 331 NLRB 9 (2000). This
decision requires the General Counsel to prove during the hear-
ing on the merits (rather than later during a compliance hear-
ing) that a respondent discriminated against an identified appli-
cant because of that person’s union or protected activities. The
FES decision also lists the elements which the General Counsel
must prove to carry the government’s initial burden. Specifi-
cally, the General Counsel must show

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 announced or generally known requirements of the posi-
tions for hire, or in the alternative, that the employer has not
adhered uniformly to such requirements, or that the require-
ments were themselves pretextual or were applied as a pretext
for discrimination; and
3. That antiunion animus contributed to the decision not to
hire the applicants.

11 The bench decision appears in uncorrected form at pages 215
through 238 of the transcript. The final version, after correction of oral
and transcriptional errors, is attached as Appendix A to this Certifica-
tion. [Omitted from publication.] These corrections include the inser-
tion of three paragraphs inadvertently omitted from the discussion of
complaint par. 5(c).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 336
Once the General Counsel has established these elements by
a preponderance of the evidence, the burden shifts to the re-
spondent to establish that it would not have hired the applicant
in question even in the absence of union or other protected
activity. In the present case, although Respondent filed an-
swers to the complaint, it did not appear at hearing. Thus, Re-
spondent did not present any evidence to support an argument
that it would have rejected the alleged discriminatees even in
the absence of union activity.
For the reasons discussed below, I conclude that the General
Counsel has satisfied the FES standards with respect to job
applicants Barry Bostwick, Jonathan Carnes, Robert Murphy,
Phillip Pelc, and Stephen Williams. Noting the absence of
evidence which might rebut the General Counsel’s case, I find
that Respondent unlawfully refused to hire these individuals
beginning on the dates of their applications, which are listed to
the right of their names:

Barry Bostwick November 2, 1995
Jonathan Carnes September 22, 1995
Robert Murphy July 31, 1995
Phillip Pelc October 1995
Stephen Williams July 31, 1995

Further, I conclude that the evidence does not establish that
Respondent unlawfully refused to hire the other individuals
alleged to be discriminatees in the complaint. These conclu-
sions are based on the following analysis under the FES
framework.
For all of the alleged discriminatees, the General Counsel
has established the first FES element. The evidence clearly
establishes that Respondent was hiring at the time these persons
submitted applications.
With respect to the second FES element, the record estab-
lishes that Bostwick, Carnes, Murphy, Pelc, and Williams had
experience or training relevant to the announced or generally
known requirements of the positions for which they applied.
The record falls short of establishing this element for individu-
als who did not testify at the hearing.
With respect to the third FES element, the record clearly
shows that antiunion animus contributed to the decision not to
hire applicants known to be associated with the Union. Evi-
dence of this animus includes the statements violating Section
8(a)(1) of the Act made by Respondent’s supervisor and agent,
Henry Gee. The bench decision discusses these statements at
length.
The General Counsel must do more, however, than prove the
existence of animus. The Government also must connect that
animus with Respondent’s decision to reject a particular job
applicant. When evidence shows that Respondent knew about
the job applicant’s union membership or activities, the connec-
tion appears obvious. In the present case, however, the record
does not establish that Respondent knew about the union af-
filiation of some of the job applicants.
For example, Christopher Downs did not disclose his union
affiliation when he applied for work with Respondent on about
October 27, 1995. No credible extrinsic evidence establishes
that Respondent had learned about Downs’ union ties from
some other source, or even suspected as much. Therefore, I
conclude that the Government has not proven the third FES
element.
Of course, it is possible that work opportunities arose after
Respondent learned about Downs’ connection with the Union,
and that Respondent passed over Downs in favor of other ap-
plicants for this reason. Downs disclosed his union affiliation
about a week after his initial job interview, when he returned to
Respondent’s office to inquire again about employment.
However, during this second conversation, Manager Gee
made a statement to Downs which indicates that Respondent
rejected Downs’ application for a lawful reason, Downs’ earlier
failure to tell the truth when Gee asked him, during the initial
job interview, if he knew a “Jim Downs.” In response, Downs
had told Gee that he did not know a “Jim Downs,” but he had
failed to disclose that a “James Downs” was his brother.
According to Downs, when he visited the Respondent’s of-
fice the second time, Gee explained that Respondent had not
hired him because of this earlier lack of candor. Crediting
Downs, I find that Gee made this statement.
Rejecting a job applicant for perceived untruthfulness does
not violate the Act. Therefore, even were I to conclude that the
General Counsel had established all three FES elements, I
would still find that Respondent would not have hired Downs
in any event for this lawful reason.
Another witness, Barry Bostwick, was nearby during this
conversation between Gee and Downs. Bostwick’s testimony
suggests Gee told Downs that he knew Downs was associated
with the Union. However, Bostwick’s testimony was vague
and, based on my observations of the witnesses, I do not credit
it.
In sum, the evidence does not establish that Respondent
unlawfully refused to hire the job applicants identified in the
complaint except for Barry Bostwick, Jonathan Carnes, Robert
Murphy, Phillip Pelc, and Stephen Williams.
The complaint also alleges that Respondent unlawfully re-
fused to consider job applicants for hire because of their union
membership, activities, or sympathies. To establish such a
violation, the General Counsel must show (1) that the respon-
dent excluded applicants from a hiring process; and (2) that
antiunion animus contributed to the decision not to consider the
applicants for employment.
The evidence establishes that Respondent excluded Barry
Bostwick, Jonathan Carnes, Robert Murphy, Phillip Pelc, and
Stephen Williams from the hiring process and that antiunion
animus contributed to the decision not to consider them. Addi-
tionally, the evidence establishes that Respondent unlawfully
refused to consider for hire the other job applicants named as
discriminatees in the complaint. Therefore, I conclude that the
Government has established that Respondent violated Section
8(a)(3) and (1) by refusing to consider job applicants for hire,
as alleged.
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, including posting the notice to em-
ployees attached hereto as “Appendix B.”
JOBSITE STAFFING 337
Additionally, it appears that Respondent may have ceased
business in whole or in part. In accordance with the Board’s
policy in Excel Container, Inc., 325 NLRB 17 (1997), I rec-
ommend that Respondent be ordered to mail a copy of the no-
tice to each person employed by Respondent on July 31, 1995,
the date of the first unfair labor practice.
Respondent must also rescind its unlawful rule that prohib-
ited employees from discussing their wages.
The remedy must also undo the harm caused by Respon-
dent’s unlawful discrimination against five job applicants
whom it denied employment. The appropriate remedy for a
refusal-to-hire violation is a cease-and-desist order, and an
order to offer the discriminatees immediate instatement to the
positions for which they applied or, if those positions no longer
exist, to substantially equivalent positions, and to make them
whole for losses sustained by reason of the discrimination
against them. Therefore, the recommended order below pro-
vides both that Respondent should instate Barry Bostwick,
Jonathan Carnes, Robert Murphy, Phillip Pelc, and Stephen
Williams, and that Respondent should make them whole for
losses they suffered because of the unlawful discrimination.12
As discussed above, the evidence also established that Re-
spondent unlawfully refused to consider job applicants for hire.
In FES, 331 NLRB 9 (2000), above, the Board instructed that if
job openings arise after the beginning of a hearing on the mer-
its, the General Counsel must initiate a compliance proceeding
to determine whether the discriminatees would have been se-
lected for the openings in the absence of the proven discrimina-
tory failure to consider them for employment.
In the present case, Respondent’s failure to appear at the
hearing makes it impossible to determine from the present re-
cord whether job openings have arisen. Such issues must be
deferred to the compliance stage of this proceeding.
CONCLUSIONS OF LAW
1. The Second Shift, Inc., doing business as Jobsite Staffing,
was, at times material to the complaint, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. On or about February 29, 1996, The Second Shift, Inc.,
doing business as Jobsite Staffing, established Jobsite Person-
nel, Inc. as a subordinate instrument to and a disguised con-
tinuation of The Second Shift, Inc., doing business as Jobsite
Staffing.
3. At all material times since about February 29, 1996, The
Second Shift, Inc., doing business as Jobsite Staffing and Job-
site Personnel, Inc., have been affiliated business enterprises
with common officers, ownership, directors, management, and
supervision; have administered a common labor policy; have
shared common premises and facilities; have interchanged per-
sonnel with each other; and have held themselves out to the
public as a single integrated business enterprise.
4. At all material times since about February 29, 1996, The
Second Shift, Inc., doing business as Jobsite Staffing and Job-

12 Backpay shall be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as set forth in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
site Personnel, Inc., collectively referred to herein as “Respon-
dent,” are and have been alter egos and a single employer
within the meaning of the Act.
5. At all material times, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
6. The Charging Party, International Brotherhood of Electri-
cal Workers, Local Union 756, AFL–CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
7. The Respondent violated Section 8(a)(1) of the Act by the
following conduct: Informing employees that it was futile for
union applicants to apply for work; interrogating employees
concerning their union membership, activities and sympathies;
maintaining a work rule prohibiting employees from discussing
their wage rates with each other; refusing to hire or consider for
hire Barry Bostwick, Jonathan Carnes, Robert Murphy, Phillip
Pelc, and Stephen Williams.
8. The Respondent violated Section 8(a)(3) of the Act by re-
fusing to hire Barry Bostwick, Jonathan Carnes, Robert Mur-
phy, Phillip Pelc, and Stephen Williams.
9. The Respondent violated Section 8(a)(3) of the Act by re-
fusing to consider job applicants, including Barry Bostwick,
Jonathan Carnes, Robert Murphy, Phillip Pelc, and Stephen
Williams, for hire, because of their union membership, sympa-
thies, or activities.
10. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
11. The Respondent did not engage in the unfair labor prac-
tices alleged in the consolidated complaint not specifically
found herein.
APPENDIX A
This decision is issued pursuant to Section 102.35(a)(10) and
Section 102.45 of the Board’s Rules and Regulations. The
evidence establishes that Respondent violated Section 8(a)(1)
and (3) of the Act, although not in every instance alleged in the
Complaint.
Procedural History
This case began on November 7, 1995, when International
Brotherhood of Electrical Workers, Local Union 756 filed its
initial charge in this proceeding. For convenience, I will refer
to this labor organization as the “Union” or the “Charging
Party.”
The Union’s unfair labor practice charge identified the em-
ployer as “The Second Shift, Inc. doing business as Jobsite
Staffing,” a temporary employment agency with an office in
Altamonte Springs, Florida. For convenience, I will refer to
this corporation as “Jobsite Staffing.” The original charge al-
leged that this employer unlawfully refused to consider certain
job applicants for hire because of “their support, affiliation, or
presumed membership and activities on the Union’s behalf.”
On April 29, 1996, the Union amended this charge.
On June 27, 1996, after investigation of the charge, the Re-
gional Director of Region 12 of the National Labor Relations
Board issued a Complaint and Notice of Hearing, which I will
call the “Complaint.” In issuing this complaint, the Regional
Director acted on behalf of the General Counsel of the Board,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 338
whom I will refer to as the “General Counsel” or as the “gov-
ernment.”
On March 20, 1998, the Union again amended the unfair la-
bor practice charge. This amendment named as the employer
“The Second Shift, Inc. d/b/a Jobsite Staffing/Jobsite/Jobsite
Personnel.”
On August 6, 2001, the General Counsel issued an Amended
Complaint, which named as Respondent both The Second Shift,
Inc. d/b/a Jobsite Staffing and Jobsite Personnel, Inc., as a sin-
gle employer. For simplicity, I will refer to this latter corpora-
tion as “Jobsite Personnel.” Additionally, for convenience, I
will refer to this Amended Complaint simply as the “Com-
plaint.”
On August 17, 2001, Jobsite Personnel, Inc. filed an Answer
to this Amended Complaint. On August 21, 2001, Jobsite
Staffing filed an Answer to the Amended Complaint.
On December 27, 2001, the Regional Director issued an Or-
der postponing the hearing in this matter indefinitely. On
March 19, 2002, the Regional Director issued an Order sched-
uling the hearing to begin on August 26, 2002.
On August 26, 2002, hearing opened before me in New
Smyrna Beach, Florida. Respondent did not appear. Counsel
for the General Counsel stated on the record that more than a
year previously, the lawyer for Jobsite Staffing had informed
him that this company had gone out of business in July 1996.
Further, Counsel for the General Counsel quoted this attorney,
Gary S. Betensky, as saying that he no longer represented this
client and that “neither he nor his client would show up at the
hearing, whenever it would be.”
Additionally, the General Counsel stated on the record that
in about March 2001, the attorney for Jobsite Personnel, Inc.
had stated that he no longer represented this client, which was
defunct, and that he would not appear at the hearing on this
client’s behalf.
Affidavits of service establish that the General Counsel sent
copies of the Order Setting Date and Time of Hearing and the
Order Setting Location of Hearing by regular mail to both Job-
site Staffing and to Jobsite Personnel, Inc. The General Coun-
sel stated on the record that the Regional Office had mailed
these orders to the last known addresses of the two corpora-
tions, but that the Postal Service returned both orders undeliv-
ered.
Records of the Florida Division of Corporations indicate that
Jobsite Personnel, Inc. filed annual reports for 2001 and the
preceding four years, but that Jobsite Staffing did not, which is
consistent with the representation by its former attorney that the
corporation was defunct.
The addresses to which the General Counsel had mailed the
pleadings were the addresses listed for the registered agents of
the Respondent corporations in the records of the Florida Divi-
sion of Corporations. However, as already noted, the Postal
Service returned these documents undelivered.
Counsel for the General Counsel also stated that in August
2002, two agents from the Board’s Miami office visited three
other addresses where they believed Jobsite Personnel or Job-
site Staffing might be doing business. However, they found no
one at these locations.
Concluding that the General Counsel had tried all reasonable
means to locate and serve the Respondent, I allowed the Gen-
eral Counsel to proceed with the government’s case. See Beta
Steel Corp., 326 NLRB 1267, 1267 fn. 3, 1268 (1998); Quality
Hotel, 326 NLRB 83, 83 fn. 4 (1998).
The General Counsel presented witnesses on August 26,
2002. The next day, the General Counsel requested an ad-
journment so that it could serve a subpoena on a company
which had been a customer of Respondent, to obtain additional
evidence regarding Respondent’s impact on interstate com-
merce, necessary to establish that Respondent had met the
Board’s standards for assertion of jurisdiction, as alleged in the
Complaint. I granted an adjournment to September 9, 2002.
The General Counsel thereafter moved for an additional ex-
tension of time and I extended the recess until September 11,
2002, when the hearing resumed. Respondent did not appear
when the hearing resumed.
The General Counsel completed the presentation of the gov-
ernment’s evidence on September 11, 2002 and also presented
oral argument on that date. Today, September 12, 2002, I am
issuing this bench decision.
Issues Relating to Jurisdiction and Status of the Parties
In the Answers to Amended Complaint filed by Jobsite Staff-
ing and Jobsite Personnel, both corporations denied the allega-
tions in Complaint paragraph 1, related to the filing and service
of the charge and amended charges. However, as already dis-
cussed, neither of these corporations appeared at the hearing,
and the affidavits of service of the charges remain unrebutted.
Based upon this evidence, and noting the presumption that
government agencies conduct business in a regular manner, I
find that the General Counsel has established the allegations in
Complaint paragraphs 1(a), 1(b) and 1(c).
Complaint paragraph 2(a) alleges that at all material times,
Respondent Jobsite Staffing, a Florida corporation with offices
and places of business located in Altamonte Springs, Florida
and at various other locations in Florida, had been engaged in
the business of supplying temporary labor to employers in the
construction industry throughout the State of Florida. Jobsite
Staffing denied this allegation on the basis that the Complaint
did not specify what time period constituted “at all material
times.” However, Jobsite Staffing’s Answer did contain the
following admission:
Respondent admits that at one time it did have an office in Al-
tamonte Springs, Florida and at other locations within the
State of Florida and had been engaged in the business of sup-
plying temporary labor . . . .
Additionally, Jobsite Staffing attached as an appendix to its
Answer, and specifically incorporated by reference, a March
18, 1996 letter to a Board attorney from Jobsite Staffing’s at-
torney at that time. This letter and its attachments establish that
Jobsite Staffing was in the business of supplying temporary
labor to other employers, and that on September 25, 1995, it
opened an office at Port Orange, Florida.
Based on these documents and the uncontradicted testimony
of Barbara Scott, whom I find to have been a supervisor and
agent of Jobsite Staffing in 1995, I find that the General Coun-
sel has proven the allegations in Complaint paragraph 2(a).
JOBSITE STAFFING 339
Complaint paragraph 2(b) alleges that at all material times
since on or about February 29, 1996, Jobsite Personnel, a Flor-
ida corporation with offices and places of business located in
Port Orange, Florida and in Altamonte Springs, Florida, and at
various other locations in the State of Florida, has been engaged
in the business of supplying temporary labor to employers in
the construction industry throughout the State of Florida.
Jobsite Personnel’s Answer generally denied the allegations
in Complaint paragraph 2, but did include this admission:
“With regard to Paragraph 2(b) of the Complaint, Respondent
admits that in 1996 Respondent was incorporated and started its
business in the State of Florida supplying temporary labor to
construction contractors, however, Respondent denies the re-
maining allegations of said Paragraph 2(b).”
In addition to this admission and the records of the Florida
Division of Corporations, certain other evidence also supports
the allegations in Complaint paragraph 2(b). The General
Counsel introduced into evidence certain Dun and Bradstreet
“Business Information Reports” concerning Jobsite Personnel.
Such reports, of course, constitute hearsay which might not be
competent evidence under the Federal Rules of Evidence.
However, Section 10(b) of the National Labor Relations Act
requires adherence to the Rules of Evidence only so far as
“practicable.”
The record does not establish that Jobsite Personnel is de-
funct, and it filed a report with the Florida Division of Corpora-
tions in 2001. It’s failure to appear at the hearing, notwith-
standing that it filed an Answer to the Complaint, creates a
situation in which it is not practicable to follow the Rules of
Evidence strictly. Therefore, I will rely on the Dun and Brad-
street reports, but only to the extent that they confirm or cor-
roborate other evidence in the record.
Additionally, the General Counsel relies on admissions in a
response to an inquiry which a Board agent sent both to Robert
Renner, at Jobsite Staffing, and to Robert Renner Jr. at Jobsite
Personnel. Other evidence in the record establishes that Robert
Renner Jr. is the son of Robert Renner.
The Board agent’s inquiry is dated May 7, 1999. On the
second page, below the Board agent’s signature, Robert Renner
answered in handwriting and dated the response May 27, 1999.
Along with the letter, which Renner sent back to the Board
agent, he enclosed documents.
In his response, Renner cautioned that “the information pro-
vided is from me and me alone. I cannot speak for Jobsite Per-
sonnel, Inc.” In view of this caveat, I first must determine
whether statements by Robert Renner, the father, constitute
admissions attributable to Jobsite Personnel. A report which
Jobsite Personnel filed with the Florida Secretary of State on
April 23, 1999 lists Robert B. Renner as president of the corpo-
ration and Robert B. Renner Jr. as its registered agent.
Although the report gives the same address for both Renners,
that address is the principal place of business of Jobsite Person-
nel. From the fact that the report identifies the registered agent
as “junior” but does not use this designation for the corpora-
tion’s president, I conclude that the report is referring to two
separate individuals and that the Robert B. Renner shown as
corporate president is the same person who sent the May 27,
1999 response to the Board agent. Further, I conclude that on
May 27, 1999, Robert B. Renner was a corporate officer and
therefore, that his statements concerning Jobsite Personnel
constitute admissions binding on that corporation, notwith-
standing his disclaimer.
The documents enclosed with Renner’s response state that
on February 29, 1996, “with his father’s approval, Robert B.
Renner, Jr. started JobSite Personnel, Inc.” They also indicated
that unlike Jobsite Staffing, the new corporation did not provide
fringe benefits to its employees, so that it could compete with a
rival which also did not pay fringe benefits. However, the
documents do establish that Jobsite Personnel engaged in the
same business as Jobsite Staffing, providing temporary workers
to other employers.
Based upon all of this evidence, I find that the government
has proven the allegations raised in Complaint paragraph 2(b).
Complaint paragraph 2(c) alleges that “On or about February
29, 1996, Respondent Personnel was established by Respondent
Staffing as a subordinate instrument to and a disguised con-
tinuation of Respondent Staffing.”
Complaint paragraph 2(d) alleges that “At all material times
since on or about February 29, 1996, Respondent Staffing and
Respondent Personnel have been affiliated business enterprises
with common officers, ownership, directors, management and
supervision; have administered a common labor policy; have
shared common premises and facilities; have interchanged per-
sonnel with each other; and have held themselves out to the
public as single-integrated business enterprises.”
Complaint paragraph 2(e) alleges that Jobsite Staffing and
Jobsite Personnel “are, and have been at all material times, alter
egos and a single employer within the meaning of the Act.”
The Answers of both Jobsite Staffing and Jobsite Personnel
deny the allegations in Complaint paragraphs 2(c), 2(d) and
2(e).
As described above, the documents included with Robert
Renner’s May 27, 1999 response to the Board agent states that
“with his father’s approval, Robert B. Renner, Jr. started Job-
Site Personnel, Inc.” Additionally, these documents include
organization charts for Jobsite Staffing and Jobsite Personnel.
The chart for Jobsite Staffing indicates that Robert B. Renner
(the father) was president of that corporation, that James Ste-
vens was vice president of operations, that Pam Anderson was
operations assistant, and that Lois M. Renner was accounting
manager.
The chart for Jobsite Personnel lists Robert B. Renner Jr. as
president and Robert B. Renner Sr. as “consultant.” It shows
Lois M. Renner as accounting manager. Pam Anderson, who
held the position of operations assistant at Jobsite Staffing,
appeared on the Jobsite Personnel chart as operations manager.
The fact that Lois M. Renner served as accounting manager
in both corporations indicates common oversight of the finan-
cial affairs of both entities. Additionally, documents which
Jobsite Personnel filed with the Florida Secretary of State list
Lois Renner as a corporate officer, specifically, treasurer–
secretary. She was, in effect, chief financial officer of that
corporation.
The fact that Pam Anderson, who reported to the Jobsite
Staffing operations manager, served as operations manager at
Jobsite Personnel, shows a connection in the operations of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 340
two companies. Although Anderson was in charge of opera-
tions at Jobsite Personnel, her subordinate role at Jobsite Staff-
ing is consistent with a finding that Jobsite Personnel was in a
subordinate role.
Although the organization chart submitted by the senior
Robert Renner on May 27, 1999 indicates that he was a “con-
sultant” at Jobsite Personnel, documents that corporation filed
with the Florida Secretary of State show that during certain
periods, Renner served as Jobsite Personnel’s president.
Newspaper advertisements, as well as the testimony of Un-
ion Business Manager Steven Williams, establish that Jobsite
Personnel invited applicants to inquire about employment by
calling the same telephone number used by Jobsite Staffing.
Moreover, when Williams called this number, the person an-
swering the telephone indicated that Jobsite Personnel was the
same business as Jobsite Staffing.
Even without the testimony of Barbara Scott, who was a su-
pervisor of Jobsite Staffing within the meaning of Section 2(11)
of the Act, the record establishes that Jobsite Staffing and Job-
site Personnel constitute a single employer. Her testimony
bolsters that conclusion.
When asked about the relationship between Jobsite Staffing
and Jobsite Personnel, Scott referred to Robert Renner Jr. as “a
professional name changer. He’s bad about paying taxes, there-
fore he just, taxes and bills, so he just changes his name . . .
which is why I left the company. . . .”
It is not necessary to determine whether Renner is a “profes-
sional name changer” or bad about paying taxes and bills. It
suffices to conclude, based on all the evidence, that the General
Counsel has proven the allegations raised in Complaint para-
graphs 2(c), 2(d) and 2(e). I so find. Because Jobsite Staffing
and Jobsite Personnel are alter egos and constitute a single
employer, I will refer to them together simply as “Respondent.”
Complaint paragraph 2(f) alleges commerce facts to support
the conclusion alleged in Complaint paragraph 2(g), that Re-
spondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act. Respon-
dent denies these allegations.
To establish that Respondent constitutes an employer en-
gaged in commerce, and therefore within the Board’s jurisdic-
tion, the General Counsel relies on records provided by one of
Respondent’s customers, Owen Electric Company, Inc. These
records and the testimony of their custodian establish that dur-
ing a representative 12-month period, Respondent provided
services in excess of $50,000 to Owen Electric, an enterprise
doing business within the State of Florida which is directly
engaged in interstate commerce. I find that the government has
proven the allegations in Complaint paragraphs 2(f) and 2(g).
Complaint paragraph 3 alleges that at all material times, the
Charging Party has been a labor organization within the mean-
ing of Section 2(5) of the Act. Respondent denies this allega-
tion. Based on the testimony of Union Business Manager Wil-
liams, I find that the General Counsel has proven this allega-
tion.
Complaint paragraph 4 alleges that four individuals were, at
all material times, supervisors of Respondent and its agents
within the meaning of Sections 2(11) and 2(13) of the Act,
respectively. These individuals are Robert B. Renner, president
of Jobsite Staffing, Robert B. Renner Jr., president of Jobsite
Personnel, Hank Gee, account executive, and Barbara Scott,
office manager. Respondent denies that these individuals were
its supervisors and agents.
Based primarily on the testimony of Barbara Scott, I find that
she and Hank Gee both possessed the authority to hire employ-
ees, and that in so doing they exercised independent judgment
in the interest of Respondent. I conclude that they were Re-
spondent’s supervisors and agents within the meaning of Sec-
tions 2(11) and 2(13).
Based upon Scott’s testimony and other evidence, including
reports filed with the Florida Secretary of State and admissions
made in documents submitted to the Board, I find that Robert
B. Renner and Robert B. Renner, Jr. were Respondent’s super-
visors and agents within the meaning of Sections 2(11) and
2(13) of the Act.
The Unfair Labor Practice Allegations
On July 31, 1995, a rented van pulled up at Respondent’s of-
fice in Altamonte Springs, Florida and discharged 14 men.
Inside the office, they told Manager Barbara Scott that they
were there to apply for work.
Assistant Business Manager Stephen Williams had planned
this visit earlier the same day, almost on the spur of the mo-
ment. Calling a telephone number which appeared in a help
wanted ad, Williams had reached Scott. From her, Williams
had learned that Respondent needed 11 electricians to refer to
employers in the Daytona Beach area.
During the telephone call, Scott had indicated that Respon-
dent planned to open an office in the Daytona Beach area to
serve these employers, and suggested that Williams wait a cou-
ple of weeks until that office opened. When Williams replied
that he did not want to wait, Scott had suggested that if he came
to Respondent’s Altamonte Springs office, he could apply
there.
Williams brought 13 Union members with him as part of an
organizing strategy known by its acronym, “COMET.” The
strategy entailed sending union members to apply for work with
a targeted employer. Sometimes, the applicants would appear
at the employer’s office wearing clothing which clearly identi-
fied their affiliation with the union. Other times, a union mem-
ber would apply for work without revealing this link. If an
employer hired applicants not known to be associated with the
Union but passed over applicants wearing union insignia, the
disparate treatment would indicate to the Union that this em-
ployer had discriminated in violation of the Act.
On July 31, 1995, the 14 men who entered Respondent’s of-
fices wore caps and T-shirts clearly proclaiming their Union
identity. Complaint paragraph 5(a) alleges that on this occa-
sion, Respondent, by Barbara Scott, told employees that they
could not talk about the Union on the job. Respondent denied
this unfair labor practice allegation and all other unfair labor
practice allegations in the complaint.
According to Assistant Business Manager Williams, another
person employed by Respondent had come out of an interior
office and had begun talking with the job applicants. This per-
son suggested that the applicants wait until Respondent’s Day-
tona Beach office opened in two weeks, when Scott interjected
JOBSITE STAFFING 341
that they could go on strike if they wanted to but if they did,
they’d be replaced.
Williams testified that Scott told the men they were not al-
lowed to talk union except at lunch time. Williams asked,
“Are we not allowed to talk about other issues, such as hunting
and fishing?” According to Williams, Scott replied, “You’re
not there to talk. You’re there to work.”
For several reasons, to the extent that Scott’s testimony con-
flicts with that of other witnesses, I credit Scott. She appeared
at the hearing under subpoena, and did not have an interest in
the outcome of the case.
Additionally, as discussed above, Scott did not testify fa-
vorably about one of Respondent’s principals, Robert Renner
Jr., but called him a “name changer” who tried to avoid paying
bills and taxes. She had left Respondent’s employment after
becoming dissatisfied with Renner’s practices. Clearly, Scott
demonstrated no motivation to shade her testimony to protect
her former employer.
Moreover, based upon my observations while she testified, I
formed the impression that Scott tended to speak her mind
without regard to how it might affect the listener. On the one
hand, she said that she liked applicants who belonged to the
Union because they had superior work experience. On the
other hand, she expressed distaste for what she perceived to be
an attempt by the Union’s business manager to enlist her help
in getting her former employer in trouble. She testified that
even though she did not like her former employer, she remained
surprised by what she interpreted to be a Union effort to em-
broil that company in unfair labor practice charges.
In sum, Scott’s testimony and, indeed, her demeanor as a
witness lead to the conclusion that when she testified, she took
the attitude “let the chips fall where they may.” Her opinion
regarding the Union’s motivation is merely that—opinion—and
has little relevance to the issues I must decide. However, I
conclude that when she testified regarding what she did, saw
and heard, such testimony was as faithful to the facts as her
memory allowed.
For all these reasons, I conclude that Scott’s testimony is re-
liable and credit it. Therefore, I find that she did not make the
comment attributed to her by Williams, and I recommend that
the Board dismiss the allegation raised in Complaint paragraph
5(b).
Complaint paragraph 5(c) alleges on or about October 24,
1995, at its Port Orange office, Respondent, by Barbara Scott,
threatened employees that union applicants would not be hired.
To establish this allegation, the General Counsel relies on the
testimony of Daniel Fischer, who applied for a job as an elec-
trician. Fischer testified that sometime in October 1995 he
telephoned the Respondent and identified himself as applicant
with union connections. The person with whom he talked told
him to call back later to speak with someone named Barbara,
whom I presume to be Barbara Scott.
The next day, Fischer used the state employment service as
an entree to a job interview. According to Fischer, he spoke
with Scott, who did not realize he was the same person who had
called the previous day and identified himself with the union.
Fischer quoted Scott as saying that the Respondent’s owner
was antiunion and so they would stall union applicants rather
than hire them. Fischer said he concealed his union member-
ship and was hired. However, for the reasons I have already
discussed, I have concluded that Scott is a very reliable witness.
Based on my observations of the witnesses, I credit Scott rather
than Fischer. Additionally, Fischer’s version is somewhat im-
plausible absent corroboration, which is not present. Therefore,
I find that Scott did not make the statements which Fischer
attributed to her.
Scott’s testimony is not limited to a denial of such an allega-
tion. Scott credibly testified that the Respondent’s president
had given her instructions not to discriminate against anyone on
the basis of union activity or other factors such as race or sex.
Crediting that testimony, I find that Scott neither engaged in
unlawful discrimination nor made statements to suggest that
she did.
As I will discuss later, the record does establish that Respon-
dent engaged in certain unfair labor practices. However, an-
other of its managers, Hank Gee, committed these violations
and at a different location from where Scott worked.
I recommend that the Board dismiss the allegations raised by
Complaint paragraphs 5(a), 5(b), and 5(c).
Complaint paragraphs 6(a) through 6(e), together with Com-
plaint paragraph 10, allege that Respondent, by its supervisor,
Hank Gee, made a number of statements in violation of Section
8(a)(1) of the Act.
Complaint paragraph 6(a) alleges that on about October 20,
1995, in a telephone conversation, Respondent, by Hank Gee,
stated to employees that it was futile for union applicants to
apply for work. Robert Murphy testified that on that date, he
was present when Assistant Business Manager Williams tele-
phoned Respondent’s office and spoke with Gee. Murphy testi-
fied without contradiction that Williams told Gee that he had
two men present in the office who were ready to come down
for job interviews. Gee declined, saying that he wanted men
who would stay working for him and not be subject to recall.
Gee did not testify and Murphy’s account of this conversation
is uncontradicted.
As testimony of other witnesses establishes, Gee stated, on
numerous occasions, that persons who belonged to the union
were “subject to recall.” Although this phrase is cryptic, Gee
considered it a disqualification.
Electrician Phillip Pelc also provided testimony which sup-
ports the allegations in Complaint paragraph 6(a). Pelc testified
that late in October 1995, he telephone Respondent’s office and
spoke with Hank Gee concerning employment for himself and
some friends. At this point, Pelc did not identify himself as a
Union member. Gee replied that he had plenty of work in
Volusia County and that Pelc could bring others with him to
apply for work.
A half hour later, Pelc, Assistant Business Manager Wil-
liams, and some others made a call to the same number from
the Union hall. Williams actually placed the call, and when he
reached Gee, Williams said that he was union and that they had
plenty of people ready to work. Pelc testified that Gee replied
that the unions were subject to recall and that Gee didn’t want
any guys subject to recall to be working for Second Shift or
Jobsite Staffing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 342
Considering that Gee used the phrase “subject to recall” as
synonymous with union membership, and conveyed that mean-
ing to the people with whom he spoke, I find that Gee violated
the Act by explaining a refusal-to-hire Union adherents in these
terms. I conclude that the government has established the vio-
lation alleged in Complaint paragraph 6(a) and recommend that
the Board find that Respondent thereby violated Section 8(a)(1)
of the Act.
Complaint paragraph 6(b) alleges that on October 20, 1995,
at its Port Orange office, Respondent, by Hank Gee, interro-
gated employees concerning their union membership, activities
and sympathies.
Later on the same day Pelc had telephoned the Union hall, in
late October 1995, he went to the Respondent’s office. Pelc
was not wearing any clothing which identified him with the
Union. Pelc testified that Gee had him fill out an application
form with a question on the back related to Union membership.
Additionally, during the job interview, Gee asked Pelc if he
were subject to recall. Gee explained that if Pelc were a Union
member, he would be subject to recall and said, “we don’t want
a union member working here because of that.” (tr 103)
After filing the application, Pelc waited for a call from Re-
spondent to inform him of a work assignment. On several oc-
casions he telephoned Respondent but did not get a work as-
signment, except on one occasion Gee called to tell Pelc about
a work opportunity in Melbourne, Florida. Pelc declined this
work because it was too far away.
Finally, sometime in November or December 1995, Pelc re-
turned to Respondent’s office and told Gee that he was a Union
member, a fact also obvious on this occasion from the emblems
on Pelc’s shirt and cap. Pelc testified that Gee said, “we fig-
ured there was a problem with your application. That’s why we
couldn’t hire you.”
Based on Pelc’s uncontradicted testimony, which I credit, I
find that the government has established the violation alleged in
Complaint paragraph 6(b), and recommend that the Board find
that Respondent thereby violated Section 8(a)(1) of the Act.
Complaint paragraph 8 alleges that Respondent discrimi-
nated against a number of job applicants, including Pelc, be-
cause of their Union membership. I further conclude that Re-
spondent refused to hire Pelc because of his affiliation with the
Union.
Complaint paragraph 6(c) alleges that on about October 27,
1995, Respondent, by Gee, interrogated employees concerning
their union membership, sympathies and activities. Electrician
Christopher Downs testified that on that date, he drove to Re-
spondent’s Port Orange office and filled out a job application.
In handwriting on the back of the application appeared a ques-
tion about the application’s union membership. Downs an-
swered this question in the negative.
Downs testified that Gee also asked him about his Union
membership and Downs again denied it. Downs’ testimony is
uncontradicted and I credit it.
Relying on Downs’ testimony, I conclude that the govern-
ment has proven the allegation raised in Complaint paragraph
6(c) and recommend that the Board find that Respondent
thereby violated Section 8(a)(1) of the Act.
Complaint paragraph 6(d) alleges that on or about November
30, 1995, at its Port Orange office, Respondent, by Gee, impli-
edly informed employees that they would not be hired due to
their union affiliation. My initial review of the evidence does
not indicate Gee made such a statement on that date, but I will
examine the record further before issuing the certification of
this bench decision.
The record does establish that on about November 2, 1995,
Gee spoke with electrician Christopher Downs, who had sub-
mitted a job application on October 27, 1995. A handwritten
question on the back of that form had asked Downs about his
union affiliation, which Downs had denied. When Downs did
not hear from Respondent, he returned to Respondent’s office
on November 2, 1995 and spoke with Gee.
Downs told Gee that he was a Union member. Gee said that
he “didn’t have a problem” with hiring union electricians, that
he had received plenty of applicants from the Union hall, but he
just didn’t have a place for them. This testimony is uncontra-
dicted and I credit it.
Based on this testimony, I conclude that Respondent thereby
violated Section 8(a)(1) of the Act and recommend that the
Board so find.
Complaint paragraph 6(e) alleges that on about January 29,
1996, at its Port Orange office, Respondent, by Gee, impliedly
threatened employees that Union applicants would not be hired.
My initial examination of the evidence does not disclose a vio-
lation at that time, but I will review the record again before
issuance of the Certification of this bench decision.
Complaint Paragraph 7 alleges that Respondent maintained
in effect a rule prohibiting employees from discussing their
wage rates among themselves, under penalty of termination.
Former employee Fischer’s testimony establishes the existence
of this rule. Although I did not credit Fischer’s testimony con-
cerning statements attributed to Barbara Scott, I do credit
Fischer’s testimony regarding the work rule, because it is cor-
roborated by a copy of the rule itself, which is in evidence as
General Counsel’s Exhibit 19.
This prohibition clearly interferes with employees’ rights to
engage in the protected, concerted activity of discussing work-
ing conditions. See, e.g., Phoenix Transit System, 337 NLRB
[510] (2002). I recommend that the Board find that Respondent
thereby violated Section 8(a)(1) of the Act.
Complaint paragraph 8 alleges that since on or about October
27, 1995, Respondent, by use of its job application, interrogated
applicants about their Union membership. As already noted,
credible evidence establishes that applicants were asked to
answer a handwritten question on the back of the application
concerning their union affiliation. I conclude that the govern-
ment has established this allegation, and recommend that the
Board find that Respondent thereby violated Section 8(a)(1) of
the Act.
Complaint paragraph 9 alleges that on various specified
dates, Respondent refused to consider for hire and/or to hire 17
job applicants identified by name. Respondent has denied this
allegation.
The evidence establishes that Respondent unlawfully refused
to consider for hire, or to hire, at least some of these applicants,
most notably Christopher Downs and Robert Murphy. After
JOBSITE STAFFING 343
further review of the record, I will make specific findings with
respect to each of the 17 applicants in the Certification of
Bench Decision.
When the transcript of this proceeding has been prepared, I
will issue a Certification which attaches as an appendix the
portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the Find-
ings of Fact, Conclusions of Law, Remedy, Order and Notice.
When that Certification is served upon the parties, the time
period for filing an appeal will begin to run.
The hearing is closed.
PROCEEDINGS
(Time Noted: 10:35 a.m.)
20
JUDGE LOCKE: Hearing will be in order. This decision is
issued pursuant to Section 102.35(a)(10) and Section 102.45 of
the Board’s Rules and Regulations. The evidence established is
that Respondent violated Section 8(a)(1) and (3) of the Act,
although not in every instance alleged in the complaint.
Procedural History
This case began on November 7, 1995, when International
Brotherhood of Electrical Workers Local Union 756 filed its
initial charge in this proceeding. For convenience, I will refer
to this labor organization as the Union or the Charging Party.
The Union’s unfair labor practice charge identified the Em-
ployer as the Second Shift, Inc., doing business as Jobsite Staff-
ing, a temporary employment agency with an office in Alta-
monte Springs, Florida. For convenience, I will refer to this
corporation as Jobsite Staffing. The original charge alleged
that this Employer unlawfully refused to consider certain job
applicants for hire because of “their support, affiliation, or pre-
sumed membership in activities on the Union’s behalf.”
On April 29, 1996, the Union amended this charge.
On June 17, 1996, after investigation of the charge, the Re-
gional Director of Region 12 of the National Labor Relations
Board issued a complaint and notice of hearing, which I will
21
call the Complaint. In issuing this Complaint, the Regional
Director acted on behalf of the General Counsel of the Board,
whom I will refer to as the General Counsel or as the Govern-
ment.
On March 20, 1998, the Union again amended the unfair la-
bor practice charge. This amendment named as the Employer
the Second Shift, Inc., d/b/a Jobsite Staffing/Jobsite/Jobsite
Personnel.
On August 6, 2001, the General Counsel issued an amended
complaint which named as Respondent both the Second Shift,
Inc., d/b/a Jobsite Staffing and Jobsite Personnel, Inc., as a
single Employer. For simplicity I will refer to this latter corpo-
ration as Jobsite Personnel. Additionally, for convenience, I
will refer to this amended complaint simply as the Complaint.
On August 17, 2001, Jobsite Personnel, Inc., filed an answer
to this amended Complaint.
On August 21, 2001, Jobsite Staffing filed an answer to the
amended Complaint.
On December 27, 2001, the Regional Director issued an or-
der postponing the hearing in this matter indefinitely.
On March 19, 2002, the Regional Director issued an order
scheduling the hearing to begin on August 26, 2002.
On August 26, 2002, hearing opened before me in
New Smyrna Beach, Florida. Respondent did not appear.
Counsel for the
22
General Counsel stated on the record that more than a year
previously the lawyer for Jobsite Staffing had informed him
that this company had gone out of business in July 1996. Fur-
ther, Counsel for the General Counsel quoted this attorney,
Gary S. Betensky as saying that he no longer represented this
client and that “neither he nor his client would show up at the
hearing whenever it would be.”
Additionally, the General Counsel stated on the record that
in about March 2001, the attorney for Jobsite Personnel, Inc.,
had stated that he no longer represented this client, which was
defunct, and that he would not appear at the hearing on this
client’s behalf.
Affidavits of service established the General Counsel sent
copies of the order setting date and time of hearing and the
order setting location of hearing by regular mail to both Jobsite
Staffing and to Jobsite Personnel, Inc. The General Counsel
stated on the record that the Regional Office had mailed these
orders to the last known addresses of the two corporations but
that the Postal Service returned both undelivered.
Records of the Florida Division of Corporations indicate that
Jobsite Personnel, Inc., filed annual reports for 2001 and the
preceding four years but that Jobsite Staffing did not, which is
consistent with the representation by its former attorney that the
corporation was defunct. The addresses to which the General
Counsel had mailed the pleadings were the
23
addresses listed for the registered agents of the Respondent
corporations in the records of the Florida Division of Corpora-
tions. However, as already noted, the Postal Service returned
these documents undelivered. Counsel for the General Counsel
also stated that in August 2002, two agents from the Board’s
Miami Office visited three other addresses where they believed
Jobsite Personnel or Jobsite Staffing might be doing business.
However, they found no one at these locations.
Concluding that the General Counsel had tried all reasonable
means to locate and serve the Respondent, I allowed the Gen-
eral Counsel to proceed with the Government’s case. See Beta
Steel Corporation, 326 NLRB 1267, 1267 Footnote 3, 1268
(1988); Quality Hotel, 326 NLRB 83, 83 Footnote 4 (1998).
The General Counsel presented witnesses on August 26,
2002. The next day the General Counsel requested an ad-
journment so that it could serve a subpoena on a company
which had been a customer of Respondent to obtain additional
evidence regarding Respondent’s impact on interstate com-
merce necessary to establish that Respondent had met the
Board standards for assertion of jurisdiction as alleged in the
complaint. I granted an adjournment to September 9, 2002.
The General Counsel thereafter moved for an additional ex-
tension of time and I extended the recess until September 11,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 344
2002, when the hearing resumed. Respondent did not appear
when the hearing resumed.
24
The General Counsel completed the presentation of the Gov-
ernment’s evidence on September 2001 and also presented oral
argument on that date.
Today, September 12, 2002, I am issuing this bench decsion.
Issues Relating to Jurisdiction and Status of the Parties
In the answers to amended Complaint filed by Jobsite Staff-
ing and Jobsite Personnel, both corporations denied the allega-
tions in Complaint paragraph 1 related to the filing and service
of the charge and amended charges. However, as already dis-
cussed, neither of these corporations appeared at the hearing
and the affidavits of service of the charges remain unrebutted.
Based upon this evidence and noting the presumption that
Government agencies conducted business in a regular manner, I
find that the General Counsel has established the allegations in
Complaint paragraphs 1(a), 1(b) and 1(c).
Complaint paragraph 2(a) alleges that at all material times,
Respondent, Jobsite Staffing, a Florida corporation with offices
in places of business located in Altamonte Springs, Florida, and
at various other locations in Florida had been engaged in the
business of supplying temporary labor to employers in the con-
struction industry throughout the State of Florida. Jobsite
Staffing denied this allegation on the basis that the Complaint
did not specify what time period constituted a “at all material
times.” However, Jobsite Staffing’s answer
25
did contain the following admission:
“Respondent admits that at one time it did have an office in
Altamonte Springs, Florida, and at other locations within the
State of Florida and had been engaged in the business of sup-
plying temporary labor.”
Additionally, Jobsite Staffing attached as an appendix to its
answer and specifically incorporated by reference, a March 18,
1996, letter to a Board Agent from Jobsite Staffing’s attorney at
the time. This letter and its attachments established that Jobsite
Staffing was in the business of supplying temporary labor to
other employers and that on September 25, 1995, had opened
an office at Port Orange, Florida.
Based on these documents and the uncontradicted testimony
of Barbara Scott, whom I found to have been a supervisor and
agent of Jobsite Staffing in 1995, I find that the General Coun-
sel has proven the allegations in Complaint paragraph 2(a).
Complaint paragraph 2(b) alleges that at all material times
since on or about February 29, 1996, Jobsite Personnel, a Flor-
ida corporation with offices and places of business located in
Port Orange, Florida, and in Altamonte Springs, Florida, and at
various other locations in the State of Florida, has been engaged
in the business of supplying temporary labor to employers in
the construction industry throughout the State of Florida. Job-
site Personnel’s answer generally denied the
26
allegations in Complaint paragraph 2 but did include this ad-
mission:
“With regard to Complaint paragraph 2(b) of the Complaint,
Respondent admits that in 1996 Respondent was incorporated
and started this business in the State of Florida supplying tem-
porary labor to construction contractors. However, Respondent
denies the remaining allegations of said paragraph 2(b).”
In addition to this admission and the records of the Florida
Division of Corporations, certain other evidence supports the
allegations in Complaint paragraph 2(b). The General Counsel
introduced into evidence certain Dun & Bradstreet “Business
Information Reports” concerning Jobsite Personnel. Such re-
ports, of course, constitute hearsay which might not be compe-
tent evidence under the Federal Rules of Evidence. However,
Section 10(b) of the National Labor Relations Act requires
adherence to the Rules of Evidence only so far as practicable.
The record does not establish that Jobsite Personnel is defunct
and it filed a report with the Florida Division of Corporations in
2001. Its failure to appear at the hearing, notwithstanding that
it filed an answer to the Complaint, creates a situation in which
it is not practicable to follow the Rules of Evidence strictly.
Therefore, I will rely on the Dun & Bradstreet reports but only
to the extent that they confirm or corroborate other evidence in
the record.
27
Additionally, the General Counsel relies on admissions in re-
sponse to an inquiry which a Board Agent sent to both to
Robert Renner at Jobsite Staffing and to Robert Renner, Jr., at
Jobsite Personnel. Other evidence in the record establishes that
Robert Renner, Jr., is the son of Robert Renner.
The Board Agent’s inquiry is dated May 7, 1999. On the
second page below the Board Agent’s signature, Robert Renner
answered in handwriting and dated the response May 27, 1999.
Along with a letter which Renner sent back to the Board Agent,
he enclosed documents. In his response, Renner cautioned that
“the information provided is from me and me alone. I cannot
speak for Jobsite Personnel, Inc.”
In view of this caveat, I first must determine whether state-
ments by Robert Renner, the father, constitute admissions at-
tributable to Jobsite Personnel. A report which Jobsite Person-
nel filed with the Florida Secretary of State on April 23, 1999,
lists Robert B. Renner as president of the corporation and
Robert B. Renner, Jr., as its registered agent. Although the
report gives the same address for both Renners, that address is
the principal place of business of Jobsite Personnel. From the
fact that the report identifies the registered agent as Jr., but does
not use this designation for the corporation’s president, I con-
clude that the report is referring to two separate individuals and
that the Robert B. Renner shown as corporate president is the
same person who sent the May 27, 1999, response
28
to the Board Agent.
Further, I conclude that on May 27, 1999, Robert B. Renner
was a corporate officer and, therefore, that his statements con-
cerning Jobsite Personnel constitute admissions binding on that
corporation notwithstanding his disclaimer. The documents
enclosed with Renner’s response state that on February 29,
1996, “with his father’s approval, Robert B. Renner, Jr., started
Jobsite Personnel, Inc.” They also indicated that unlike Jobsite
JOBSITE STAFFING 345
Staffing, the new corporation did not provide fringe benefits to
its employees so that it could compete with a rival which also
did not pay fringe benefits. However, the documents do estab-
lish that Jobsite Personnel engaged in the same business as
Jobsite Staffing, providing temporary workers to other employ-
ers.
Based upon all of this evidence, I find that the Government
has proven the allegations raised in Complaint paragraph 2(b).
Complaint paragraph 2(c) alleges that “on or about February
29, 1996, Respondent, Personnel, was established by Respon-
dent, Staffing, as a subordinate instrument to and a disguised
continuation of Respondent, Staffing.”
Complaint paragraph 2(d) alleges that “at all material times
since on or about February 29, 1996, Respondent, Staffing, and
Respondent, Personnel, have been affiliated business enter-
prises with common officers, ownership, directors, manage-
ment and supervision, have administered a common labor
29
policy, have shared common premises and facilities, have inter-
changed personnel with each other and have held themselves
out to the public as single integrated business enterprises.”
Complaint paragraph 2(e) alleges that Jobsite Staffing and
Jobsite Personnel “are and have been at all material times, alter
egos in the single employer within the meaning of the Act.”
The answers of both Jobsite Staffing and Jobsite Personnel
deny the allegations in Complaint paragraphs 2(c), 2(d) and
2(e). At described above, the documents included with Robert
Renner’s May 27, 1999, response to the Board Agent states that
“with his father’s approval, Robert B. Renner, Jr., started Job-
site Personnel, Inc.” Additionally, these documents include
organization charts for Jobsite Staffing and Jobsite Personnel.
The chart for Jobsite Staffing indicates that Robert B.
Renner, the father, was president of that corporation and that
James Stevens was vice president of operations, that Pam
Anderson was operations assistant and that Lois M. Renner was
accounting manager.
A chart for Jobsite Personnel lists Robert B. Renner, Jr., as
president and Robert B. Renner, Sr., as consultant. It shows
Lois M. Renner as accounting manager, Pam Anderson who
held the position of operations assistant at Jobsite Staffing,
appeared on the Jobsite Personnel chart as operations manager.
The fact that Lois M. Renner served as accounting manager
30
in both corporations indicates common oversight of the finan-
cial affairs of both entities. Additionally, documents which
Jobsite Personnel filed with the Florida Secretary of State lists
Lois Renner as a corporate officer, specifically, treas-
urer/secretary. She was, in effect, chief financial officer of that
corporation.
The fact that Pam Anderson who reported the Jobsite Staff-
ing operations manager served as operations manager at Jobsite
Personnel shows the connection in the operations of the two
companies. Although Anderson was in charge of operations at
Jobsite Personnel, her subordinate role at Jobsite Staffing is
consistent with the finding that Jobsite Personnel was in a sub-
ordinate role.
Although the organization chart submitted by the Senior
Robert Renner on May 27, 1999, indicates that he was a con-
sultant at Jobsite Personnel, documents that corporation filed
with the Florida Secretary of State show that during certain
periods, Renner served as Jobsite Personnel’s president.
Newspaper advertisements, as well as the testimony of Un-
ion business manager, Stephen Williams, established that Job-
site Personnel invited applicants to inquire about employment
by calling the same telephone number used by Jobsite Staffing.
Moreover, when Williams called this number, the person an-
swering the telephone indicated that Jobsite Personnel was the
same business as Jobsite Staffing.
31
Even without the testimony of Barbara Scott, who was a su-
pervisor at Jobsite Staffing within the meaning of Section 2(11)
of the Act, the record establishes that Jobsite Staffing and Job-
site Personnel constitute a single employer. Her testimony
bolsters that conclusion. When asked about the relationship
between Jobsite Staffing and Jobsite Personnel, Scott referred
to Robert Renner, Jr., as “a professional name changer. He’s
bad about paying taxes, therefore, he just—taxes and bills, so
he just changes his name, which is why I left the company.”
It is not necessary to determine whether Renner is a “profes-
sional name changer” or bad about paying taxes and bills. It
suffices to conclude based on all the evidence that the General
Counsel has proven the allegations raised in Complaint para-
graphs 2(c), 2)(d), and 2(e).
I so find because Jobsite Staffing and Jobsite Personnel are
alter-egos and constitute a single employee, I will refer to them
together simply as Respondent.
Complaint paragraph 2(f) alleges commerce facts to support
the conclusion alleged in Complaint paragraph 2(g) that re-
spondent has been an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. Respondent
denies these allegations.
To establish that Respondent constitutes an employer en-
gaged in commerce and, therefore, within the Board’s
32
jurisdiction, the General Counsel relies on records provided by
one of Respondent’s customers, Owen Electric Company, Inc.
These records and the testimony of their custodian establish
that during a representative 12-month period, Respondent pro-
vided services in excess of $50,000.00 to Owen Electric, an
enterprise doing business within the State of Florida, which is
directly engaged in interstate commerce. I find that the Gov-
ernment has proven the allegations in complaint paragraphs 2(f)
and 2(g).
Complaint paragraph 3 alleges that at all material times, the
Charging Party has been a labor organization within the mean-
ing of Section 2(5) of the Act. Respondent denies this allega-
tion.
Based on the testimony of Union business manager Wil-
liams, I find that the General Counsel has proven this allega-
tion.
Complaint paragraph 4 alleges that four individuals were at
all material times, supervisors of Respondent and its agents
within the meaning of Sections 2(11) and 2(13) of the Act,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 346
respectively. These individuals are Robert B. Renner, president
of Jobsite Staffing, Robert B. Renner, Jr., president of Jobsite
Personnel, Hank Gee, accounting executive, and Barbara Scott,
office manager. Respondent denies that these individuals were
supervisors and agents.
Based primarily on the testimony of Barbara Scott, I find that
she and Hank Gee both possessed the authority to hire
33
employees and that in so doing, exercised independent judg-
ment in the interest of Respondent. I conclude that they were
Respondents supervisors and agents within the meaning of
Sections 2(11) and 2(13).
Based upon Scott’s testimony and other evidence, including
reports filed with the Florida Secretary of State, and admissions
made in documents submitted to the Board, I find that Robert
B. Renner and Robert B. Renner, Jr., were Respondents’ super-
visors and agents within the meaning of Section 2(11) and
2(13) of the Act.
The Unfair Labor Practice Allegations
On July 31, 1995, a rented van pulled up at Respondent’s of-
fice in Altamonte Springs, Florida, and discharged 14 men.
Inside the office they told manager Barbara Scott that they were
there to apply for work. Assistant business manager Stephen
Williams had planned this visit earlier the same day, almost on
the spur of the moment. Calling a telephone number which
appeared in the help wanted ad, Williams had reached Scott.
From her Williams had learned that Respondent needed 11
electricians to refer to employers in the Daytona Beach area.
During the telephone call, Scott had indicated that Respon-
dent planned to open an office in the Daytona Beach area to
serve these employers and suggested that Williams wait a cou-
ple of weeks until that office opened. When Williams replied
that he did not want to wait, Scott had suggested that if he
34
came to Respondent’s Altamonte Springs office, he could apply
there. Williams brought 13 union members with him as part of
an organizing strategy known by its acronym, COMET. The
strategy entails sending union members to apply for work with
a targeted employer. Sometimes the applicants would appear at
the employer’s office wearing clothing which clearly identified
their affiliation with the union. Other times, a union member
would apply for work without revealing this link. If an em-
ployer hired applicants not knowing to be associated with the
union but passed over applicants wearing union insignia, the
disparate treatment would indicate to the union that this em-
ployer had discriminated in violation of the Act.
On July 31, 1995, the 14 men who entered Respondent’s of-
fices wore caps and T-shirts clearly proclaiming their union
identity. Complaint paragraph 5 alleges that on this occasion
Respondent, by Barbara Scott, told employees that they could
not talk about the union on the job. Respondent denied this
unfair labor practice allegation and all other unfair labor prac-
tice allegations in the complaint.
According to assistant business manager Williams, another
person employed by Respondent had come out of an interior
office and had begun talking with the job applicants. This per-
son suggested that the applicants wait until Respondent’s Day-
tona Beach office opened in two weeks, when Scott interjected
that they could go on strike if they wanted to but if they did,
35
they’d be replaced.
Williams testified that Scott told the men that they were not
allowed to talk union except at lunchtime. Williams asked, are
we not allowed to talk about other issues, such as hunting and
fishing. According to Williams, Scott replied, “You’re not
there to talk, you’re there to work.” For several reasons to the
extent that Scott’s testimony conflicts with that of other wit-
nesses, I credit Scott. She appeared at the hearing under sub-
poena and did not have an interest in the outcome of the case.
Additionally, as discussed above, Scott did not testify favorably
about one of Respondent’s principals, Robert Renner, Jr., but
called him a name changer who tried to avoid paying bills and
taxes. She had left Respondent’s employment after becoming
dissatisfied with Renner’s practices. Clearly Scott demon-
strated no motivation to shade her testimony to protect her for-
mer employer.
Moreover, based upon my observations while she testified, I
formed the impression that Scott tended to speak her mind
without regard to how it might affect the listener. On the one
hand, she said that she liked applicants who belonged to the
union because they had superior work experience. On the other
hand she expressed distaste for what she perceived to be an
attempt by the Union’s business manager to enlist her help in
getting her former employer in trouble. She testified that even
though she did not like her former employer, she remained
36
surprised by what she interpreted to be a union effort to embroil
that company in unfair labor practice charges.
In sum, Scott’s testimony and indeed her demeanor as a wit-
ness lead to the conclusion that when she testified, she took the
attitude “let the chips fall where they may.” Her opinion re-
garding the union’s motivation is merely that, opinion. It has
little relevance to the issues I must decide. However, I con-
clude that when she testified regarding what she did, saw, and
heard, such testimony was as faithful to the facts as her mem-
ory allowed.
For all these reasons, I conclude that Scott’s testimony is re-
liable and credited. Therefore, I find that she did not make the
comment attributed to her by Williams and I recommend that
the Board dismiss the allegation raised in Complaint paragraph
5(b).
Complaint paragraph 5(c) alleges that on or about October
24, 1995, at its Port Orange office, Respondent, by Barbara
Scott, threatened employees that union applicants would not be
hired. However, for the reasons I have already discussed, I
have concluded that Scott is a very reliable witness. Scott’s
testimony is not limited to a denial of such an allegation. Scott
credibly testified that Respondent’s president had given her
instructions not to discriminate against anyone on the basis of
union activity or other factors such as race or sex.
Crediting that testimony, I find that Scott neither engaged
JOBSITE STAFFING 347
37
in unlawful discrimination or made statements to suggest that
she did. As I will discuss later, the record does establish that
Respondent engaged in certain unfair labor practices. How-
ever, another of its managers, Hank Gee, committed these vio-
lations at a different location from where Scott worked.
I recommend that the Board dismiss the allegations raised by
Complaint paragraphs 5(a), 5(b), and 5(c).
Complaint paragraphs 6(a) through 6(c), together with Com-
plaint paragraph 10, allege that Respondent, by its supervisor,
Hank Gee, made a number of statements in violation of Section
8(a)(1) of the Act.
Complaint paragraph 6(a) alleges that on about October 20,
1995, in a telephone conversation, Respondent, by Hank Gee,
stated to employees that it was futile for union applicant’s to
apply for work. Robert Murphy testified that on that date, he
was present when assistant business manager Williams tele-
phoned Respondent’s office and spoke with Gee. Murphy testi-
fied without contradiction that Williams told Gee that he had
two men present in the office who were ready to come down
for job interviews. He declined, saying that he wanted men
who would stay working for him and not be subject to recall.
He did not testify and Murphy’s account of this conversation is
uncontradicted.
As testimony of other witnesses establishes, Gee stated on
numerous occasions that persons who belong to the union were
38
“subject to recall.” Although this phrase is cryptic, Gee con-
sidered it a disqualification.
Electrician, Philip Pelc, also provided testimony which sup-
ports the allegations in Complaint paragraph 6(a). Pelc testified
that late in late October 1995, he telephoned Respondent’s
office and spoke with Hank Gee concerning employment for
himself and some friends. At this point, Pelc did not identify
himself as a union member. He replied that he had plenty of
work in Volusia County and that Pelc could bring other[s] with
him to apply for work. A half hour later Pelc, assistant busi-
ness manager Williams, and some others, made a call to the
same number from the union hall. Williams actually placed the
call and when he reached Gee, Williams said he was union and
that they had plenty of people ready to work. Pelc testified that
Gee replied that the unions were subject to recall and that Gee
didn’t want any guys subject to recall to be working for Second
Shift or Jobsite Staffing.
Considering that Gee used the phrase, subject to recall, as
synonymous with union membership and conveyed that mean-
ing to the people with whom he spoke, I find that Gee violated
the Act by explaining refusal-to-hire union adherents in these
terms.
I conclude that the Government has established the viola-
tions alleged in Complaint paragraph 6(a) and recommend that
the Board find that Respondent thereby violated Section
8(a)(1) of the Act.
39
Complaint in paragraph 6(b) alleges that on October 20,
1995, at its Port Orange office, Respondent, by Hank Gee, in-
terrogated employees concerning their union membership ac-
tivities and sympathies. Later on the same day, Pelc had tele-
phoned the union hall. In late October 1995, he went to Re-
spondent’s office. Pelc was not wearing any clothing which
identified him with the union. Pelc testified that Gee had him
fill out an application form with a question on the back related
to union membership.
Additionally during the job interview, he asked Pelc if he
were subject to recall. He explained that if Pelc were a union
member, he would be subject to recall and said, “we don’t want
a union member working here because of that.” After filing the
application, Pelc waited for a call from Respondent to inform
him of a work assignment. On several occasions he telephoned
Respondent but did not get a work assignment, except on one
occasion he called to tell Pelc about a work opportunity in Mel-
bourne, Florida. Pelc declined this work because it was too far
away. Finally, sometime in November or December 1995, Pelc
returned to Respondent’s office and told Gee that he was a
union member, a fact also obvious on this occasion from the
emblems on Pelc’s shirt and cap. Pelc testified that Gee said,
“we figured there was a problem with your application, that’s
why we couldn’t hire you.”
Based on Pelc’s uncontradicted testimony, which I credit, I
40
find that the Government has established the violation alleged
in Complaint paragraph 6(b) and recommend that the Board
find that respondent thereby violated Section 8(a)(1) of the Act.
Complaint paragraph 8 alleges that Respondent discrimi-
nated against a number of job applicants, including Pelc be-
cause of their union membership. I further conclude that Re-
spondent refused to hire Pelc because of his affiliation with the
union.
Complaint paragraph 6(c) alleges that on or about October
27, 1995, Respondent, by Gee, interrogated employees con-
cerning their union membership, sympathies, and activities.
Electrician Christopher Downs testified that on that date, he
drove to Respondent’s Port Orange office and filled a job ap-
plication. In handwriting on the back of the application ap-
peared a question about the applicant’s union membership.
Downs answered this question in the negative. Downs testified
that Gee also asked him about his union membership and
Downs again denied it. Downs’ testimony is uncontradicted
and I credit it.
Relying on Downs’ testimony, I conclude that the Govern-
ment has proven the allegations raised in Complaint paragraph
6(c) and recommend that the Board find that Respondent,
thereby, violated 8(a)(1) of the Act.
Complaint paragraph 6(d) alleges that on or about November
30, 1995, at its Port Orange office, Respondent, by Gee, impli-
edly informed employees that they would not be hired due to
their union affiliation. My initial review of the evidence does
41
not indicate Gee made such a statement on that date, but I will
examine the record further before issuing a certification in this
bench decision.
The record does establish that on or about November 2,
1995, Gee spoke with electrician Christopher Downs who had
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348
submitted a job application on October 27, 1995. A handwrit-
ten question on the back of that form had asked Downs about
his union affiliation, which Downs had denied. When Downs
did not hear from Respondent, he returned to Respondent’s
office on November 2, 1995, and spoke with Gee. Downs told
Gee that he was a union member. Gee said that he didn’t have
a problem with hiring union electricians, that he had received
plenty of applicants from the union hall but he just didn’t have
a place for them. This testimony is uncontradicted and I credit
it.
Based on this testimony, I conclude that Respondent thereby
violated Section 8(a)(1) of the Act and recommend that the
Board so find.
Complaint paragraph 6(e) alleges that on about January 29,
1996, at its Port Orange office, Respondent, by Gee, impliedly
threatened employees that union applicants ordered not be
hired. My initial examination of the evidence does not disclose
a violation at that time, but I will review the record again before
issuance of the certification of this bench decision.
Complaint paragraph 7 alleges that Respondent maintained
in effect, a rule prohibiting employees from discussing their
wage
42
rates among themselves under penalty of termination. Former
employee Fisher’s testimony establishes the existence of this
rule. Although I did not credit Fisher’s testimony concerning
statements attributed to Barbara Scott, I do credit Fisher’s tes-
timony regarding the work rule because it is corroborated by a
copy of the rule itself, which is in evidence as General Coun-
sel’s Exhibit 19. This prohibition clearly interferes with em-
ployee’s rights to engage in the protected concerted activity of
discussing working conditions. See e.g. Phoenix Transit Sys-
tem, 337 NLRB 78 (May 10, 2002).
I recommend that the Board find that Respondent thereby
violated Section 8(a)(1) of the Act.
Complaint paragraph 8 alleges that since on or about October
27, 1995, Respondent, by use of his job application, interro-
gated applicants about their union membership. As already
noted, credible evidence establishes that applicants were asked
to answer a handwritten question on the back of the application
concerning their union affiliation.
I conclude that the Government has established this allega-
tion and recommend that the Board find that Respondent
thereby violated Section 8(a)(1) of the Act.
Complaint paragraph 9 alleges that on various specified
dates, Respondent refused to consider for hire and/or to hire 17
job applicants identified by name. Respondent has denied this
allegation. The evidence establishes that Respondent unlaw-
fully
43
refused to consider for hire or to hire at least some of these
applicants, most notably Christopher Downs and Robert Mur-
phy. After further review of the record, I will make specific
findings with respect to each of the 17 applicants in the certifi-
cation of bench decision.
When the transcript of this proceeding has been prepared, I
will issue a certification which attaches as an exhibit the por-
tion of the transcript reporting this bench decision. The certifi-
cation also will include provisions relating to the findings of
fact, conclusions of law, remedy, order, and notice. When that
certification is served upon the parties, the time period for filing
an appeal will begin to run.
The hearing is closed.
(Whereupon, at 11:15 a.m., the hearing in the above-entitled
matter was closed.)
[Recommended Order omitted from publication.]