Kamtech, Inc.

National Labor Relations Board - Board Decisions

May 30, 2003

339 N.L.R.B. 97 (N.L.R.B. 2003)

KAMTECH, INC. 97
Kamtech, Inc. and International Brotherhood of Boil-
ermakers, Iron Shipbuilders, Blacksmiths, Forg-
ers and Helpers, AFL–CIO. Cases 25–CA–
25047–1 and 25–CA–25047–2
May 30, 2003
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER
AND ACOSTA
On January 31, 2001, the Board issued its initial deci-
sion in this case, Kamtech, Inc., 333 NLRB 242 (2001),
which in part remanded the findings of Administrative
Law Judge Karl H. Buschmann that the Respondent
unlawfully refused to hire Mitch Dotson and Robert
Young for further consideration in light of FES, 331
NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002).1 In his
initial decision, the judge had found that the Respon-
dent’s supervisor, Wilton Sellers, unlawfully interrogated
Dotson and Young about their union background when
they applied for hire. Based on his credibility findings,
the finding of an unlawful interrogation, and the appli-
cants’ extensive work experience, the judge also found
that after learning they were union members, Sellers told
both applicants they had failed their welding test; that he
used the welding test as a pretext to refuse to hire Dotson
and Young due to their union affiliation; and that both
applicants would have passed the welding test and been
hired had Sellers not applied the test in a pretextual man-
ner. It was also clear from the judge’s initial findings that
the Respondent had job slots for both applicants. Kam-
tech, supra at 248.
On October 23, 2001, Administrative Law Judge Karl
H. Buschmann issued the attached supplemental deci-
sion. The Respondent filed exceptions and a supporting
brief. The General Counsel and the Charging Party filed
answering briefs, and the Respondent filed reply briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s findings2 and conclusions, and to
adopt the recommended Order.3

1 The unremanded portions of the Board’s initial decision were en-
forced in Kamtech, Inc. v. NLRB, 314 F.3d 800 (6th Cir. 2002).
2 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings.
3 We will substitute a new notice in accordance with our recent deci-
sion in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
In his supplemental decision, the judge specifically
found that the Respondent, before becoming aware of
Dotson’s and Young’s union membership, “had decided
to hire them, provided that they passed the welding
test.”4 The judge then found, based on specific credibil-
ity resolutions, that the Respondent pretextually applied
the welding test to deny the applicants employment after
learning about their union affiliation. He therefore reaf-
firmed his conclusion from the original decision that the
Respondent violated Section 8(a)(3) by refusing to hire
Dotson and Young.
The Respondent’s exceptions are limited to the judge’s
credibility findings. It does not contest the finding of
unlawful refusals to hire on any other basis. According
to the Respondent, the Board should credit the testimony
of Respondent’s witness, Sellers, rather than the testi-
mony of Dotson and Young, find that Sellers did not ask
or know about the applicants’ union affiliation, and find
that he fairly applied the welding test in failing them.
As previously stated, the Board will not reverse a
judge’s credibility resolutions unless the clear preponder-
ance of all of the relevant evidence convinces us that they
are incorrect.5 We agree with the judge, based on the dis-
criminatees’ credited testimony that their respective per-
formances in the welding test met the applicable standard
of proficiency, that the welding text was applied in a pre-
textual manner. The judge also cited “the odds . . . against
Young and Dotson, two highly experienced welders, both
failing the same test at the same time and for the same
reason.” He also emphatically discredited Sellers, whom
he found “unconvincing,” “vague,” “inconsistent,” and
“untrustworthy.” His finding of pretext was accordingly
justified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Kamtech, Inc., Woodstock,
New York, and Owensboro, Kentucky, its officers,
agents, successors, and assigns shall take the action set
forth in the Order, substituting the attached notice
marked “Appendix.”

4 In fact, as the Respondent has confirmed, Dotson and Young were
both paid for the day, notwithstanding the Respondent’s last-minute
decision not to hire them.
5 See fn. 2, supra. In addition, the Sixth Circuit rejected the Respon-
dent’s challenge to the judge’s credibility resolution supporting the
finding that Sellers unlawfully asked Dotson and Young about their
union affiliation. 314 F.3d at 812. This finding is the law of the case
and not subject to further review here.
339 NLRB No. 18
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 98
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join or assist a union
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 fail and refuse to hire applicants for em-
ployment because of their union affiliations.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
offer Mitch Dotson and Robert Young employment in
positions for which they applied, or if such positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights and
privileges, if necessary terminating the service of em-
ployees hired in their stead.
WE WILL make Mitch Dotson and Robert Young whole
for any loss of earnings or other benefits suffered as a
result of the discrimination against them, plus interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful re-
fusal to hire Mitch Dotson and Robert Young, and WE
WILL, within 3 days thereafter, notify them in writing that
this has been done and that our unlawful conduct will not
be used against them in any way.

KAMTECH INC.

Michael T. Beck, Esq., for the General Counsel.
Cameron S. Pierce and Eric Smith, Esqs., of Atlanta, Georgia,
for the Respondent.
Michael T. Manley, Esq., of Kansas City, Missouri, for the
Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. On Janu-
ary 31, 2001, the Board issued its Decision and Order affirming
with modifications, the findings, conclusions of law, and the
recommended Order in this case,1 and remanding the allega-
tions concerning the refusal to hire Mitch Dotson and Robert
Young to the judge for further consideration in light of FES,
331 NLRB 9 (2000). The Board accordingly ordered that the
issue, whether the Respondent violated Section 8(a)(3) and (1)
of the Act by refusing to hire Dotson and Young, be severed
from the rest of the proceeding and be remanded for appropri-
ate action, i.e., a supplemental decision setting forth credibility
resolutions, findings of fact, conclusions of law, and a recom-
mended Order, as appropriate on remand.
I have reconsidered the relevant portions of the record in this
case relating to the allegations in the complaint that the Re-
spondent, Kamtech, Inc., “refused to hire or consider for hire
applicants for employment Mitch Dotson and Robert Young,”
and I am satisfied that my decision adequately sets forth the
factual background for an analysis of these issues. To briefly
recapitulate, Mitch Dotson and Robert Young, members of the
Boilermakers Union, Local 40, were unemployed in May 1996.
They went to their union hall in search of work and were told
that Kamtech was hiring. They went to the Company’s
Owensboro, Kentucky project and briefly spoke with John
Webster, piping superintendent. Webster told them that he
would call them if welding positions became available and
made a note of their names. On or about June 4 or 5, 1996,
Johnny Miller, Respondent’s office manager in Owensboro,
called Dotson about a welding job for them. Dotson and
Young promptly reported at 7 a.m. on June 5, 1996, at the con-
struction site. After completing the customary application
process, they took a welding test administered by Wilmer Sell-
ers, Respondent’s quality control person. As reflected in my
decision, Sellers told them that they had failed the test after
asking them, “Are you all union?” (Tr. 431, 485).
The Respondent’s commission of several unfair labor prac-
tices, as found in the underlying decision, clearly established
the Company’s antiunion animus. The decision also estab-
lished that Sellers, acting as Respondent’s agent, interrogated
the applicants during the testing. Sellers’ interrogation of the
applicants in this regard violated Section 8(a)(1), as articulated
in my decision and as affirmed by the Board. That the Respon-
dent refused to hire the two applicants is not disputed. At issue,
however, is whether Respondent’s reasons relating to the weld-
ing test were pretextual or a legitimate business justification.
In FES, supra at 12, the Board restated the elements that the
General Counsel must establish to meet its burden of proof in a
discriminatory refusal to hire case as follows: “(1) that the re-
spondent 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 position for hire, or in the alterna-
tive, that the employer has not adhered uniformly to such re-
quirements, or that the requirements 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.”
The record clearly shows that Kamtech not only considered
these applicants for employment, but that it had decided to hire

1 333 NLRB 242 (2001).
KAMTECH, INC. 99
them, provided that they passed the welding test. Element (1)
has accordingly been established based upon the showing that
the Respondent had called them for employment. At the Re-
spondent’s behest, they had reported for work on the morning
of June 5, 1996. They had completed the necessary steps in the
application process, the written application, the drug test, and
the safety film.
The final step was the welding test, which relates to element
(2) and which I found in my decision to have been applied in a
pretextual manner resulting in the applicants’ dismissal from
the employment opportunity. Neither, reopening the record for
additional testimony, nor subjecting the applicants for retesting,
can resolve the central issue, whether antiunion animus affected
Sellers’ judgment during his evaluation of the tests. That de-
termination depends upon the observations by the individuals
who were present at the time and place of the testing procedure.
In this regard, the record contains the testimony of Sellers,
denying the interrogation of the applicants about their union
affiliation, as well as his version of the welding tests. Juxta-
posed was the testimony of the two applicants who independ-
ently recalled the interrogation about the Union and their test-
ing results. Confronted with conflicting testimony, I carefully
considered the demeanor of the witnesses and the nature of the
testimony, including its plausibility and its consistency.
More specifically, Sellers testified that he required the appli-
cants to weld together or “tack” two steel pipes (coupons), 4
inches long and 2 inches in diameter, at a 45-degree angle. His
instructions to the welders were as follows (Tr. 990):

All I told the welders when they—before they started
tacking it up is that I wanted it flush or better on the inside
of the piece of pipe.

He testified that he examined a weld with a telescopic mirror
and a flashlight, and that he examined Dotson’s test in the same
fashion. He concluded that it was “not acceptable,” because “it
had concave or slip back” (Tr. 996). Sellers similarly examined
Young’s test and also concluded that it was unacceptable for
the same reason, “concavity.” According to Sellers, neither
applicant protested or expressed any disagreement with his
conclusions, nor did they reapply to take the test in 30 days,
even though they were told that they had that option.
Even assuming the accuracy of Sellers’ testimony that as
many as 50 percent of the applicants failed the test, the odds
were against Young and Dotson, two highly experienced weld-
ers, both failing the test at the same time and for the same rea-
sons. Moreover, Sellers’ credibility, aside from his demeanor,
was compromised when testifying about another employee who
had taken a welding test. Richard Griffin had taken a welding
test and passed. Sellers initially testified unequivocally that he
administered a welding test to Griffin and that after he tested
Griffin he “got hired in.” However, when Sellers was con-
fronted during cross-examination with documentary evidence
to the contrary, he changed his story. The Company’s official
welding test form, dated May 28, 1996, was signed by Ricky
Osteen on behalf of Kamtech and specifically showed that the
welding test for Griffin was conducted by Osteen (CP Exh. 6).
Sellers then testified that both he and Osteen had looked at that
test, and that both of them had passed the individual. Accord-
ing to Sellers, this was the only test, among other tests con-
ducted that day, which he and Osteen had passed jointly. Sell-
ers emphatically denied questioning Dotson and Young about
the Union or even mentioning the Union, but he admitted that
he may have asked them about their prior welding jobs or about
their welding experience on boilers.
Seller’s demeanor as a witness was unconvincing. He dis-
played an eagerness to agree with the questions posed by
Respondent’s counsel. Except for his expertise in technical
areas, his testimony appeared vague. His testimony about the
testing of Griffin was contradictory and inconsistent. I find his
testimony with respect to Young and Dotson equally incredible
and untrustworthy.

Young and Dotson had clear and specific recollections of the
events. I find their testimony consistent2 and credible. For
example, Young had carefully observed and examined
Dotson’s test. Young testified as follows (Tr. 431):

Well, him and I both looked in it. With a mirror and
flashlight you can check the weld on the inside. We both
looked in it. I couldn’t see a thing wrong with it. I seen a
lot of welds.
So Mr. Sellers come over there. He looks on it. He
takes about 30 or 45 seconds. He takes a mirror and flash-
light and the looks all in it, you know. Takes about 45
seconds I would say roughly.
And he turned around to Mitch and I and he said—he
turned around at this time and he said, “You all have been
welding boilers?”
And we said, “Yes, sir.”
He said, “Are you all union?”
We said, “Yes, sir.”
So he just—at that time, he turns back around to the
coupon, looks in it about three seconds and said, “You
failed the test.”

After Young completed his own test, he examined it for
about 20 to 30 seconds with the mirror and a flashlight and
concluded that it looked excellent. But Sellers’ reactions, ac-
cording to Young, were as follows (Tr. 432):

So I went and I run—I put the welding path in my test
and Mr. Sellers was there. He come over to it. He looked
in it with his mirror glass for about five seconds and he
said, “You failed the test.”

Dotson similarly testified. He remembered that he com-
pleted his test in 12–15 minutes, and he recalled the following
(Tr. 484):

Well, I got a pen light and a little telescopic mirror and
I always look the inside because that is where it counts. If
the inside is not right, you have got time, you can go back
and fix it.
. . . .
It was perfect.

Having completed his test, Dotson asked Sellers to inspect
the test, and he described Sellers’ reaction as follows (Tr. 485):

2 All witnesses testified pursuant to an order of sequestration.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 100
He looked inside and he looked at it pretty close. I
don’t know—maybe close to a minute.
. . . .
He said, “Are you union?” No, he said, “Are y’all un-
ion?” And I said, “Yes, but now we are working away
(phonetic).”
. . . .
He looked back at it maybe—maybe for about 20 sec-
onds or even less and he started pointing out two or three
places that was bad and he showed me. I never did see
nothing he was pointing at.
. . .
He told me he couldn’t accept it.

Dotson testified that Sellers’ reaction with respect to
Young’s test was the same (Tr. 486):

Well, I just kind of stood out of the way and Bob
started running his test and he got it running and Mr. Sell-
ers just went and he kind peeked at Bob’s and told him he
couldn’t accept his either.

The Respondent has attacked the credibility of these wit-
nesses on several grounds, first, that Young’s testimony ap-
peared inconsistent with Dotson’s recollection that Sellers had
advised them that they could reapply for the job after 30 days.
As articulated in my decision, this minor variation in their tes-
timony did not detract from their otherwise consistent recollec-
tion of the salient facts. Second, the applicants’ tacit accep-
tance of the test results. Here, the Respondent ignored Sellers’
testimony about his reaction to a failed test, i.e., that he never
argued with the person who “busted” him. Third, that the ap-
plications did not reveal their union background. The appli-
cants’ intentionally hid their union affiliation, because they
were concerned about a negative reaction from a nonunion
employer.
The scenario clearly shows that Sellers’ judgment was influ-
enced by the applicants’ admissions that they were union. The
record shows that these applicants were highly skilled. Young
testified that he possessed numerous welding certifications in
virtually every type of welding, tig, stick, and heliarc, and that
he had “taken well over 100 tests, welding tests, nuclear tests,
nuclear reactors, boilers since 73” and that he failed only one
(Tr. 433). Dotson similarly testified that he had been welding
since 1978 and had plenty of experience in heliarc and tube
welding. When asked if he thought that he failed Sellers’ test,
he answered clearly, “No way do I believe I failed it (Tr. 505).
In sum, I find that the General Counsel has also established
element (2) in FES, supra, that the requirements for the posi-
tions were applied in a pretextual manner. These highly ex-
perienced welders would clearly have passed, had the test been
considered in an objective manner. Any doubts in this regard
should in any case be resolved against the interests of the
wrongdoer or the Respondent who committed other violations
of the Act. I further find that the General Counsel has estab-
lished element (3), that antiunion animus contributed to the
decision to fail the applicants and not to hire them. Obviously,
the Respondent failed to establish that it would have rejected
these applicants even in the absence of any union considera-
tions. The factual scenario here is analogous to the Board’s
decision in Fred’k Wallace & Son, 331 NLRB 914 (2000),
finding a violation, where the Respondent offered a position to
an applicant and retracted the offer on learning about his union
activity.
I accordingly conclude that the Respondent violated Section
8(a)(1) and (3) by refusing to hire the job applicants, Mitch
Dotson and Robert Young, because of their union affiliations.
CONCLUSIONS OF LAW
1. The Respondent Kamtech, Inc. is an employee engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Respondent violated Section 8(a)(1) and (3) of the
Act by refusing to hire or consider for hire Mitch Dotson and
Robert Young because of their union affiliation.
3. The aforesaid unfair labor practices are unfair labor prac-
tices within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Section 8(a)(1)
and (3) of the Act, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Having refused to hire or consider
for hire Mitch Dotson and Robert Young, the Respondent must
offer them jobs which they were denied or, if these jobs no
longer exist to substantially equivalent positions at new job-
sites, if necessary and make them whole for any loss of earn-
ings and other benefits as a result of the discrimination in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Kamtech, Inc., Woodstock, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to hire applicants for employment
because of their union affiliations.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Mitch
Dotson and Robert Young employment in positions for which
they applied for, if such positions no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights and privileges; if necessary terminating the
service of employees hired in their stead.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
KAMTECH, INC. 101
(b) Make Mitch Dotson and Robert Young whole for any
loss of earnings or other benefits suffered as a result of the
discrimination against them, plus interest.
(c) Within 14 days from the date of this Order, remove from
its files the following: any reference to the unlawful refusal to
hire Mitch Dotson and Robert Young and, within 3 days there-
after, notify the employees in writing that this has been done
and that the unlawful conduct of the Respondent will not be
used against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payments re-
cords, timecards, personnel records, 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) Within 14 days after service by the Region, post at its fa-
cilities in Woodstock, New York, and Owensboro, Kentucky,
and all other places where notices customarily are posted, cop-
ies of the attached notice marked “Appendix.”4 Copies of the

4 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-
notice, on forms provided by the Regional Director for Region
25, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced or
covered by any other material. In the event that the Respondent
to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that the Respondent has gone
out of business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since June
9, 1997.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”