John Cuneo, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1990

298 N.L.R.B. 856 (N.L.R.B. 1990)

856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
John Cuneo, Inc. and Road Sprinkler Fitters Local
No. 669 . Cases 10-CA-13130, 10-CA-13280,
10-CA-13357, and 10-CA-13417
June 25, 1990
SECOND SUPPLEMENTAL DECISION
AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On April 2, 1987, Administrative Law Judge
William N. Cates issued the attached second sup-
plemental decision. The General Counsel filed ex-
ceptions and a supporting brief, and the Respond-
ent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Second Supplemental Decision and Order.
On August 27, 1985, the Board issued its Supple-
mental Decision and Order' in which it determined
the amount of backpay due discriminatee Jerry
Brite. On June 24, 1986, the United States Court of
Appeals for the District of Columbia Circuit vacat-
ed the award of backpay and remanded the case to
the Board to determine, inter alia, whether deliber-
ate misrepresentation on an application for employ-
ment is sufficient to strip an employee of his per-
manent status when he acquired the status by
virtue of the misrepresentation.2 On February 2,
1987, the Board remanded this proceeding to the
judge to permit the Respondent to present evi-
dence, inter alia, that it would not have hired Brite
on a permanent status, if at all, but for its reliance
on Brite's misrepresentation, which was discovered
after his unlawful discharge.3
Pursuant to the remand, the judge reopened the
record to take additional evidence. The judge
found that Brite willfully, deliberately, and inten-
tionally misstated his employment history on the
employment application by stating that he was self-
employed rather than laid off from another compa-
ny (Eclipse) and that the Respondent had a policy
of not hiring applicants who misstate their employ-
ment background. Citing Service Garage, Inc., 256
NLRB 931 (1981), the judge concluded that Brite
had forfeited his entitlement to an award of back-
pay from the Respondent.
' John Cuneo, Inc., 276 NLRB 75 (1985)
2 John Cuneo, Inc v NLRB, 792 F 2d 1181 (D C Cir 1986).
S John Cuneo, Inc., Case 10-CA-13130 (unpublished)
Although we agree with the judge's conclusion
that the Respondent would not have hired Brite
had it known of his misconduct in falsifying his
employment application, we do not find that this
misconduct automatically bars an award of back-
pay.4 Rather, we limit Brite's right to backpay to
the date the Respondent acquired knowledge of
Brite's misconduct, consistent with the remedy ap-
proved by the Board in Axelson, Inc.,5 a strike mis-
conduct case.
Contrary to our dissenting colleague, we do not
perceive our order granting limited backpay rights
as an abuse of our remedial powers or a potential
windfall for Brite.6 In this case we must balance
our responsibility to remedy the Respondent's
unfair labor practice against the public interest in
not condoning Brite's falsification of his employ-
ment application. The record shows that the Re-
spondent hired Brite as a permanent employee and
that but for the Respondent's unlawful refusal to
reinstate Brite, the Respondent would have contin-
ued to employ Brite at least until the Respondent
became aware of Brite's false statement concerning
his employment history on his job application. The
record also shows that the Respondent had a
policy of not hiring applicants who misstate their
employment background on their applications. In
view of this policy, the Respondent probably
would not have retained Brite after it learned of his
misstatement. Under these circumstances, we
would be granting an undue windfall to Brite if we
failed to take into account his misconduct and
granted him reinstatement and full backpay. On the
other hand, relieving the Respondent of all back-
pay liability, including that for the period when the
Respondent had no knowledge of Brite's misstate-
ment and had no lawful reason to fire him, would
provide an undue windfall for the Respondent. Ac-
cordingly, as we have done in similar cases, we
shall terminate Brite's backpay on the date that the
Respondent first acquired knowledge of Brite's fal-
4 We note that in remanding the case to the Board the court expressed
no opinion in response to Cuneo's argument that this kind of deception
should affect an employee's status for remedial purposes. Rather, the
court stated that this was for the Board to consider on remand
5 285 NLRB 862 (1987)
6 We are not persuaded, contrary to our dissenting colleague, that the
backpay remedy in this case should be affected by the fact that the Em-
ployer is only a wrongdoer, not a "serious wrongdoer" guilty of perva-
sive or flagrant violations of the Act
Further, we find American Navigation Co, 268 NLRB 426 (1983), cited
by our dissenting colleague, to be inapposite In that case, the Board held
that discrimmatees found to have willfully concealed from the Board
their earnings from interim employment will be denied backpay for all
quarters in which they engaged in the concealed employment We note
that in fashioning this remedy, the Board balanced the public interest in
the need to discourage claimants from abusing the Board's processes for
their personal gain against the respondent's liability for the consequences
of its unlawful conduct
298 NLRB No. 125
JOHN CUNEO, INC
sification. See East Island Swiss Products, 220
NLRB 175 (1975); A. A. Superior Ambulance, 292
NLRB 835 fn. 7 (1989).'
In finding that Brite is entitled to limited back-
pay, we clarify the judge's factual finding that the
Respondent did not learn of Brite's employment
status with Eclipse until September 1978. The evi-
dence establishes that the Respondent learned at
the September 1978 hearing in the underlying
unfair labor practice case in this matter that Brite
was employed at that time with Eclipse. The Re-
spondent did not learn until April 1983, however,
that Brite was on layoff status with Eclipse at the
time the Respondent originally hired him. Thus,
the Respondent did not discover Brite's misrepre-
sentation at issue here until April 1983. Bobby
Splawn, the Respondent's president, testified that
he first learned of Brite's previous employment
with Eclipse the first week in April 1983. No evi-
dence exists for a determination of the exact date
of Splawn's discovery during that first week in
April. Thus, we establish the date as April 7, 1983,
the last day of the first week of April 1983.11 Ac-
cordingly, we shall order the Respondent to pay
Jerry Brite the amount of $11,557.49, with interest
to be computed in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).9
ORDER
The National Labor Relations Board orders that
the Respondent, John Cuneo, Inc., Chattanooga,
Tennessee, its officers, agents, successors , and as-
signs, shall make whole Jerry Brite by paying him
the sum of $11,557.49, plus interest computed in
7 We note that Axelson overruled cases inconsistent with this remedial
approach. That would include Service Garage, supra, cited by the judge
Although the Board under the particular facts in East Island declined
to do so, in Axelson and subsequent cases the Board has stated that in
limiting backpay rights of a discnmmatee, the burden of proof is on the
employer to establish that the discrimmatee 's conduct would have pro-
vided grounds for termination based on a preexisting lawfully applied
company policy and any ambiguities will be resolved against the employ-
er See Super One Foods No 601, 294 NLRB 462 (1989) Chairman Ste-
phens notes that his dissent in Super One Foods was on grounds not raised
here and that he accepted that allocation of the burden of proof
W. Kelly Gregory, Inc, 207 NLRB 654 (1973), relied on by the Re-
spondent , held in part that the Board will infer that a respondent would
not hire an employee based on the type of omissions made on an employ-
ment application form This holding was implicitly overruled in Axelson
where the Board held that backpay rights will not be automatically
barred based on an employee's misconduct that the respondent learns of
during the backpay period. Rather, the Board held that "we will limit
backpay rights by cutting them off at the time the employer acquired
knowledge of the misconduct if it demonstrates that the misconduct .
is not conduct of a sort that it has tolerated in the past " 285 NLRB at
866 (Emphasis added)
8 Because it is the Respondent 's burden to establish evidence mitigating
its liability , we construe the available evidence in a manner that is most
favorable to the discriminatee
9 We adopt the quarterly amounts for backpay as set forth in John
Cuneo, Inc, 276 NLRB 75 (1985), with the modification of the second
quarter for 1983 in the amount of $280 to conform with our findings
here
857
the manner prescribed in New Horizons for the Re-
tarded, supra, as set forth above.
MEMBER OVIATT, dissenting.
As the Supreme Court noted in Shepard v.
NLRB, 459 U.S. 344, 349 (1983), "Congress has
delegated to the Board the power to determine
when the policies of the Act would be effectuated
by a particular remedy." I cannot agree that the
award of backpay to Brite does effectuate the poli-
cies of the Act and, therefore, I must register my
strong disagreement with the majority.
The administrative law judge found that Brite
"willfully, deliberately, and intentionally" misstated
his employment, history on his application for em-
ployment with the Respondent because he rightly
feared that the Respondent would not hire him if
he told the truth. The judge also observed that
Brite's deception was not limited to the omission of
the fact that Brite had worked for another employ-
er, Eclipse, for most of the time between June 1974
and September 1976, and was on layoff status when
he applied for a job with the Respondent. Brite
went further to cover his, tracks-he falsely
claimed on his application that he was a "self-em-
ployed" carpet installer during the time he was, in
fact, employed at Eclipse. The judge noted that the
Respondent did not become aware that the em-
ployment information proffered by Brite was false
until the hearing in this matter,' and found that
"the Company would not have hired Brite at all
but for its reliance on the untruthful and misleading
information he placed on his application form." In
sum, had the Respondent known that Brite falsified
his application, he would not have been hired. He
would not have gone on strike. He would not have
been, discriminated against. The judge concluded
that Brite had forfeited his right to any backpay.
In my view, to award Brite backpay on these
facts is an abuse of our remedial powers. Had the
Employer been guilty of pervasive or flagrant vio-
lations of the Act, awarding Brite backpay argu-
ably might have some merit on the basis that, as a
serious wrongdoer, the Respondent should not be
permitted to benefit from its own misconduct.
There are no pervasive violations of the Act here,
however. Rather, the Respondent's violation in-
volved only an arguable interpretation of an uncon-
ditional offer to return to work that turned out to
be the wrong interpretation.2 That was unlawful,
i The judge discredited Bite 's testimony on this point because it was
not "reliable or accurate" and also discredited other testimony of Brite's,
finding it "unbelievable" and "without regard for the full truth "
2 The violation was not specifically directed at Brite By happenstance,
he falls into the general category of persons for whom the General Coun-
sel seeks relief
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
but it did not reflect deep-seated hostility to em-
ployee rights or the policies of the Act.3 The
award of backpay to the other strikers who were
not returned to work by this Respondent remedies
the unfair labor practice and effectively vindicates
the policies of the Act.
I disagree with the majority when they posit that
Brite was a permanent hire who would have re-
tained , his employment at least until the Respondent
discovered his deception . In consideration of
Brite's willful falsification of his employment appli-
cation, and the Respondent 's policy against hiring
applicants who misstate their employment back-
ground, the judge found-and the majority
agrees-that Brite never would have been hired
had the truth been known . In these circumstances,
I strongly dispute my colleagues ' claim that divest-
ing Brite of all backpay would provide "an undue
windfall for the Respondent ." In my opinion, the
effect of affording this relief is to compound dis-
honesty. It places a premium on a job applicant's
ability to be devious , conferring the largest mone-
tary awards on those who are most successful in
deceiving a company about their work history. I
cannot believe that Congress intended to condone
this hand -in-the-cookie-jar approach to granting
relief. , In sum , I do not consider it necessary to
reward Brite with backpay to effectuate the pur-
poses of the Act. See American Navigation Co., 268
NLRB 426, 428 (1983).4
Accordingly , I would affirm the decision of the
judge in denying Brite backpay.
3 My colleagues would not consider the nature of the Respondent's un-
lawful conduct when evaluating the propriety of reimbursing Brite In
cases like this, however , where strong competing equities are at play, I
believe that considering the extent of the Respondent 's violation , as well
as the discriminatee 's deceptive acts , best satisfies the mandate of Sec
10(c) Thus, only by evaluating all the circumstances , can the Board most
fully "effectuate the policies of the Act "
4 My colleagues attempt to distinguish American Navigation Co Al-
though American Navigation involved a discrimmatee 's concealment of in-
terim earnings from the Board , rather than , as here , the falsification of an
employment apphcation , the case is important to our analysis because it
shows that the Board will not reflexively order backpay , but will ap-
prove the remedy that most closely effectuates the policies of the Act Id
J. Howard Trimble, Esq., for the General Counsel.
William P. Hutchenson, Esq., of Chattanooga, Tennessee,
for the Company.
SECOND SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. A
hearing in this case was held before me on 4 March 1987
at Chattanooga , Tennessee . I previously issued a Supple-
mental Decision in this matter on 28 November 1984
(JD-(ATL)-88-84) in which I required John Cuneo, Inc.
(Company) to provide claimant Jerry Brite (Brite), an
employee against whom it had committed an unfair labor
practice , $ 16,877.49 in backpay plus interest . The Nation-
al Labor Relations Board (Board) in a Supplemental De-
cision and Order dated 27 August 1985 (276 NLRB 75)
affirmed my rulings , findings , and conclusions as modi-
fied . i In my Supplemental Decision I concluded the
Company was not entitled to litigate Brite's status as a
temporary or permanent employee. The Board rejected
my conclusion that Brite's status as a temporary or per-
manent employee had previously been resolved by the
Board (253 NLRB 1025 (1981)) and court of appeals (681
F.2d 11 (D .C. Cir. 1982)) cert. denied 459 U.S. 1178
( 1983), in the underlying unfair labor practice case.
Therefore the Board examined the merits of that issue in
its Supplemental Decision and Order . The Company
contended before the Board that Brite was a laid -off per-
manent employee of another employer (Eclipse Lookout
Co.) and as such could at best only have achieved tem-
porary status with it even though it considered him to be
and treated him as a permanent employee. The Company
asserted before the Board that it was not aware of Brite's
employment history with Eclipse at the time it hired him
because Brite failed to list Eclipse in the work history
portion of his employment application with it. The Com-
pany advanced two arguments before the Board in sup-
port of its contentions. First, that Brite viewed his em-
ployment as temporary and intended to return to Eclipse
when recalled from layoff by that company. Second, that
if it had known Brite was a laid -off permanent employee
of Eclipse it might have hired him as a temporary em-
ployee or not at all , but it would not have hired him as a
permanent employee. With respect to the first argument,
the Board in its Supplemental Decision and Order con-
cluded the Company had not shown that Brite would
have left its employ and returned to Eclipse had the
Company not unlawfully interrupted his employment.
The Board concluded Brite could have remained with
the Company indefinitely even though he initially ob-
tained his job only because he had been laid off by
Eclipse . The Board held the Company 's unlawful con-
duct deprived Brite of an opportunity to make that
choice. The Board further concluded that Brite's previ-
ous job history had no bearing on his status as a perma-
nent employee entitled to reinstatement and backpay.
The Company petitioned the United States Court of
Appeals for the District of Columbia Circuit for review
of the Board 's Supplemental Decision and Order. The
Company advanced the same two arguments before the
court that it had made to the Board. The court in its 24
June 1986 decision (John Cuneo, Inc. v. NLRB , 792 F.2d
1181) found the Board had properly and adequately dis-
posed of the Company's first argument that Brite viewed
his employment as temporary and that he intended to
return to Eclipse when recalled from layoff. The court
agreed the Company had failed to carry its burden of
proof in that it failed to show Brite would have returned
to Eclipse simply because Eclipse paid higher wages
than it did . The court , however, found the Board had
completely neglected the Company's second argument:
1 The Board did not change the amount of backpay I concluded was
owed Brite
JOHN CUNEO, INC.
that at the time Brite was hired he concealed from it the
fact he was a laid-off Eclipse employee. The court re-
manded the case to the Board. The first issue the court
identified for the Board to consider on remand was
"whether deliberate misrepresentation on an application
for employment is sufficient to strip an employee of his
permanent status when he acquires that status by virtue
of the misrepresentation." 792 F.2d at 1184. The Court
stated that if the Board found that deliberate misrepre-
sentation2 on a job application could , at least in some
circumstances, cause an employee to forfeit his perma-
nent status, it "must then go on to determine whether
[the Company] has provided--or should be afforded an
opportunity to provide-evidence sufficient to demon-
strate that the appropriate circumstances exist in this
case." 792 F.2d at 1184. In this regard the court suggest-
ed the Board determine what the Company must show
to prove it would not have hired Brite as a permanent
employee if it had been aware of his employment histo-
ry. In its remand the court vacated the Board's Order di-
recting the Company to pay Brite $16,877.49 plus inter-
est.
The Board in an unpublished Order dated 6 February
1987 remanded the instant matter to me for the purpose
of taking evidence in accordance with its remand. At
page 3 of its Order the Board stated:
We find, on the facts of this case, that Jerry Brite's
status as a permanent employee, or an employee at
all, may be forfeited if the [Company] can affirma-
tively prove that it would not have hired Brite on a
permanent status, if at all , but for its reliance on
Brite's application whose falsity was discovered
after his unlawful discharge. The [Company] will be
permitted, an opportunity to provide such evidence
[footnotes omitted].
With respect to the Company's burden of proof the
Board at page 4 of its unpublished Order stated:
On remand we will require the [Company] to show
that it does not hire applicants who misstate their
employment background, or that it only hires em-
ployees on layoff on a temporary basis. In this re-
spect, evidence of the [Company's] personnel poli-
cies on these issues, or past practice, would be pro-
bative. [Footnote omitted.]
After addressing the Company's burden of proof the
Board at page 4 of its unpublished Order stated:
The' General Counsel must then show that the
[Company] would ' have hired Brite and retained
him as an employee regardless of the failure to list
the previous employer. The General Counsel might
show that the [Company's] alleged policies were
not uniformally applied, or introduce any other evi-
2 The court concluded - "when Jerry Brite applied for a job with [the
Company] he deliberately misrepresented on his application that he was
unemployed . In fact, Brite was temporarily laid off from work at Eclipse
Lookout Company (Eclipse) and subject to recall at any time " 792 F 2d
at 1183
859
dence indicating that the [Company's] explanation is
unworthy of credence [footnote omitted].
On the entire record in this case3 including my obser-
vation of the demeanor of the witnesses, and after careful
consideration of briefs filed on behalf of the General
Counsel and the Company I make the following
FINDINGS OF FACT
There is no dispute that Brite's employment applica-
tion4 prepared by him on 24 August 19775 was inaccu-
rate. Brite acknowledged he did not indicate on his ap-
plication that he was temporarily laid off from work at
Eclipse.6 He said he did not do so because he feared the
Company would not hire him if he did. Brite not only
left his work history at Eclipse off of his employment ap-
plication but he went further and deliberately misrepre-
sented his work history by claiming he had been a "self-
employed" carpet installer from June 1974 until Septem-
ber 1976. Brite's actual work history reflects he began
his employment with Eclipse on 24 June 1974 and con-
tinuously worked for that company until he was laid off
on 17 October 1975. Eclipse recalled Brite from layoff
on 8 March 1976 and employed him until it again laid
him off on 17 September 1976.7
That the Company placed great reliance on and uti-
lized the information provided by Brite on his employ-
ment application is established by the fact it checked the
references he listed that had anything to do with the
type work he would be performing for the Company.8
From the information' provided by Brite the Company
was able to obtain information about his work skills suffi-
cient to warrant their hiring him as a permanent employ-
ee.9
Company President Splawn stated that the work histo-
ry portion on the employment application form was the
"heart" of the form and it was his personal as well as
company policy not to hire anyone that provided false
information thereon. Splawn testified it was not a written
policy but he said he had personally told each of his
managers and supervisors about the policy.10
8 I have considered all record evidence whether alluded to in this deci-
sion or not
4 The Company has, without exception, since 1975 required prospec-
tive permanent employees to complete an employment application form
5 Brite reported for work on 29 August 1977 He thereafter worked for
the Company until he and others engaged in a strike that started on 21
September of that year
8 The parties stipulated Brite was an Eclipse employee with seniority-
based recall rights that were effective for 2 years, and included the time
in 1977 when Brite was employed by the Company herein
7 Brite was recalled to Eclipse on 6 December 1977 and he worked
there until he voluntarily quit his employment on 6 October 1978
8 Company President Splawn testified it was standard consistently fol-
lowed company policy to contact the employers listed on an applicant's
employment form Splawn specifically stated that if Brite had listed
Eclipse as a prior employer on his application the Company would have
contacted Eclipse because its employees performed work of a like nature
to that performed at the Company herein
' It does not appear the Company had any complaints about Bnte's
work skills.
iii Although Splawn's testimony on this point is somewhat self-serving
I nevertheless credit it Company Vice President of Operations Izell cor-
roborated Splawn's testimony that the Company did not tolerate dishon-
Continued
860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Company Vice President of Operations Charles Izell,
who interviewed and hired Brite,11 testified that if he
had known Brite had "lied" on his employment applica-
tion he would not have hired him as a temporary or per-
manent employee.12
Both Splawn and Izell credibly and without contradic-
tion testified they did not know Brite had worked for or
was on layoff from Eclipse at the time he was hired by
the Company.13
Company President Splawn testified Brite's case was
to his knowledge the only one in the history of the Com-
pany where an applicant had lied on his employment ap-
plication . He testified the Company had, however, dis-
charged a number of employees14 who after having been
hired had in some manner (either orally or in writing)
made false statements to the Company.
Brite testified that Vice President of Operations Izell
talked to him about his employment application after he
had commenced work for the Company and asked him if
he had a welder's certification. Brite said he showed Izell
a copy of a certification he had obtained from Ingalls
Ship Building in Pascagoula , Mississippi , in July 1977.
Brite also testified:
[Izell] found out about me being laid off from
Eclipse and he asked me why I did not put it down
on the [employment] application. This was in
August perhaps early September of '77 . . . I told
him that since I [was] looking for a job . . . I was
afraid if I put down that I laid off from a bigger
company that paid more that they wouldn't have
hired me... .
Brite testified he also told Izell:
I wasn 't even sure I was going to go back be-
cause I have been laid off two different times [at
Eclipse] and . . . I probably wouldn't even go back,
but . . . I had to find out whether I was going to
like [the Company herein] or not.
According to Brite, Izell responded:
Well, he told me that since I had the certification
that that was the hardest thing for his company to
get, a certification in the build[ing] trades and that
he didn't think I'd have any problem me being a
certified welder because the company had a hard
esty Additionally , as will be discussed elswhere in this decision , the evi-
dence is quite convincing that Splawn terminated any employee who
made false statements (whether orally or in writing) to the Company
11 In 1977, at the time Brite was hired , Izell was the Company's pur-
chasing agent
12Izeil stated he would not have hired Bnte because of Company
President Splawn's position on dishonesty
13 Splawn testified he first learned that Brite was working for Eclipse
when Brite so testified in September 1978 at the trial of the underlying
unfair labor practice case Izell learned in 1983 that Bnte had worked for
Eclipse.
14 Splawn specifically named nine employees and gave the following
reasons for their discharge at dates between February 1971 and August
1978' giving false reasons for being away from work, stealing company
payroll checks and forging signatures thereon; misstating the amount of
weight on a company truck , falsifying time records ; falsifying timesheets,
and, giving false reasons for being absent from work
time getting them and keeping them and he let it go
at that.
Company Vice President of Operations Izell denied
having any conversation on any subject with Brite from
the time Brite reported for work in late August until
Brite joined others in a strike at the Company on 21 Sep-
tember 1977. Izell denied learning at anytime prior to
1983 about Brite's status as a laid-off Eclipse employee.
Izell specifically denied ever telling Brite not to worry
about the fact he (Brite) had been an Eclipse employee.
I credit Izell's denials set forth above. I am unwilling
to credit any of Brite's testimony that was contradicted
by other witnesses. In addition to his courtroom demean-
or there are a number of factors that persuade me that
Brite's testimony cannot be considered as reliable or ac-
curate. First, I find unbelievable Bnte's testimony that
Izell only spoke to him about his employment application
after he had already commenced working for the Com-
pany. I am persuaded it is much more probable that, as
Izell testified, he talked with Brite about his application
at the time Brite sought employment and that a shop
foreman even administered a welding test to him at that
time. Secondly, Brite testified he was not told anything
about his employment application. Yet, when confronted
on cross-examination with the fact that he had indicated
on his application that "a friend" had referred him to the
Company he testified "somebody in Cuneo's manage-
ment, such as Izell . . . may have just said just put a
friend" on the application. Brite's attributing such a com-
ment to company management clearly conflicts with his
testimony that he did not receive any instructions about
his application or that Izell did not speak with him about
it until he was already employed by the Company. Fur-
thermore, Brite acknowledged he was not referred to the
Company by a friend. He said he sought employment at
the Company in response to a newspaper advertisement
for a welder on the second shift. However, when compa-
ny counsel asked Bnte what his response would be if he
was told the Company did not prior to his employment
advertise for help in a newspaper Brite stated that maybe
he responded to an advertisement in "something such as
a busy shopper." 15 1 also find unbelievable Brite's testi-
mony that Company President Splawn came to Eclipse
sometime between December 1977 and October ,1978
"apparently to check" on him. I likewise find unbeliev-
able Brite's testimony that after he started work for yet
another company (Lorraine Crane Company) in October
1978 that Splawn came to Lorraine (in 1978) and told
him that he (Brite) was not supposed to be working at
Lorraine, that he was one of Splawn's employees.
Splawn denied ever being at either plant.16
In summary on this factual point I fmd the Company
did not learn of Brite's employment status with Eclipse
until September 1978.
15 Company President Splawn testified, and I credit his testimony, that
he never advertised for help in any paper prior to Bnte 's employment
with the Company I am persuaded that if any such adverstisement had
been run in any paper it would have been produced at trial.
16I am convinced this is yet another example, as I concluded in the
earlier trial , of Bnte saying whatever he perceived or imagined would be
in his best interest without regard for the full truth
JOHN CUNEO, INC. 861
I now turn to the evidence on the issue of-whether the
Company only hires on a temporary basis employees
who are on laid-off status from any other employer.
Company President Splawn testified it was company
policy to hire only as a temporary employee anyone that
was laid off from any other employer. Splawn stated he
made this policy known to his managers and supervisors
and that it was in effect and implemented as early as
1970. With regard to hiring employees that were on laid-
off status from another employer, Splawn testified:
[I]f I hired someone that was on recall from an-
other company, I would hire that person and imme-
diately start looking for a permanent employee and
the minute I found a permanent employee to re-
place him, I would have to lay him off, period.
Splawn stated temporary employees are not eligible for
benefits such as insurance and pension coverage.
Although somewhat self-serving, I credit Splawn's tes-
timony that the Company only hires on a temporary
basis employees on laid-off status from any other em-
ployer. Other record evidence supports such a finding.
For example the Company established that it had, more
than once prior to Brite's employment, hired Wallace
Steel as a temporary employee at a time when he was
laid off from another employer, namely Combustion En-
gineering. Steel testified that each time he informed Vice
President of Operations Izell that he was laid off from
Combustion Engineering and that Izell hired him but
only as a temporary employee without any benefits other
than wages.
Both Splawn and Izell testified, and I find credibly so,
that if they had known Brite was laid off from Eclipse at
the time he made application for employment they
would have hired him anyway but only as a temporary
employee.
Discussion, Analysis, and Conclusions
It is clear that Brite willfully, deliberately, and inten-
tionally misstated his employment history on his applica-
tion for employment with the Company. He did more
than just omit from his application that he was a laid-off
Eclipse employee subject to recall at anytime. He went
further and indicated on the application that he was a
self-employed carpet installer for the approximately 2
years he was actually employed (or subject to recall) by
Eclipse. It is also clear the Company did not learn of
Brite's true work history until long after he was hired.
Based on the credited testimony of Company President
Splawn it is clear the Company, has a policy of not
hiring applicants who misstate their employment back-
ground. Splawn's testimony about such a policy was sup-
ported by the fact the Company has discharged any em-
ployee known to have lied to the Company about any-
thing. The fact the Company did not know of anyone
other than Brite who made, misstatements on an employ-
ment application does not detract from a finding that it
had such a policy. The credited evidence fails to estab-
lish that the Company ratified Brite's misstatements on
his employment application. In Service Garage, 256
NLRB 931 (1981), the, Board, as it has done on several
occasions, held:
[A] discriminatee's right to . . . backpay will be
forfeited if a respondent affirmatively proves that it
would not have hired the employee but for its reli-
ance on application information whose falsity was
discovered subsequent to the employee's unlawful
discharge. W. Kelly Gregory, 207 NLRB 654 (1973);
National Packing Co., 147 NLRB 446, 458 (1964);
Southern Airways Co., 124 NLRB 749, 752 (1959),
modified 290 F.2d 519 (5th Cir. 1961). See also Wes-
tinghouse Learning Corp., 211 NLRB 19 (1974).
The evidence establishes and I find the Company would
not have hired Brite at all, but for its reliance on the un-
truthful and misleading information he placed on his ap-
plication form. Accordingly, I shall recommend that
Brite not be awarded any backpay.17
CONCLUSION OF LAW
As a result of his willful, deliberate, and intentional
misstatements about his employment history on his appli-
cation form, Brite has forfeited his entitlement to an
award of any backpay from the Company.
[Recommended Order omitted from publication.]
17 It is of no moment that the Company would have hired Brite
anyway as a temporary employee if it had known the truth about his em-
ployment history. Bnte, by concealing his employment history, never af-
forded the Company an opportunity to exercise that option.