Kdf Construction, Inc

National Labor Relations Board - Board Decisions

Oct 22, 1984

272 N.L.R.B. 891 (N.L.R.B. 1984)

KDF CONSTRUCTION 891
KDF Construction, Inc and Eastern Indiana Dis
trict Council of Carpenters, a/w United Broth
erhood of Carpenters and Joiners of America
Case 25-CA-16160
22 October 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 17 July 1984 Administrative Law Judge
Richard H Beddow Jr issued the attached deci
sion The Respondent filed exceptions and a sup
porting 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 and to adopt the recommended Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis
missed
' We find it unnecessary to pass on the Respondent s exception to the
judge s failure to find Stephen Ramsey was not a bona fide employee
within the meaning of the Act because the judge found the Respondent
did not violate Sec 8(a)(3) and (1) by failing to lure Ramsey
DECISION
STATEMENT OF THE CASE
RICHARD H BEDDOW JR Administrative Law Judge
This matter was heard in Muncie Indiana on April 11
and 12 1984 Subsequently briefs were filed by the par
ties The proceeding is based on a charge filed on Janu
ary 25 1984 by the Eastern Indiana District Council of
Carpenters a/w the United Brotherhood of Carpenters
and Joiners of Amenca AFL-CIO The Regional Direc
tor s complaint issued on March 7 1984 alleges that Re
spondent KDF Construction Inc of Muncie violated
Section 8(a)(1) and (3) of the National Labor Relations
Act by interrogating employees regarding their union ac
tivities membership and sympathies and by failing and
refusing to hire Stephen Ramsey because of his union ac
tivities
On a review of the entire record in this case and from
my observation of the witnesses and their demeanor I
make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is a recently organized general contractor
which admittedly provided services in excess of $50 000
to an Indiana company which in turn sold and shipped
goods valued in excess of $50 000 to points outside Indi
ana during a relevant period Accordingly it is and has
been an employer engaged in commerce within the
meaning of Section 2(2) (6) and (7) of the Act It also is
admitted that the Carpenters Union' is a labor organiza
tion within the meaning of Section 2(5) of the 'Act
II THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent was organized in January l83' by
majonty owner and president Gary Kirkhn who is ac
lively engaged in conducting its day to day business af
fairs including the hiring of employees Hiring is also a
function performed by the Company s only other super
visor construction superintendent Fred Ellis Kirkhn ex
ercises final authority but relies heavily on Ellis recom
mendation inasmuch as Ellis is a former carpenter ac
quainted with many other construction workers in the
Muncie area 1
Kirklin formerly worked for Ornn Kirklin and Sons
Inc as a job manager That company is also a general,
contractor and has been a signator to several bargaining
agreements with the Carpenters Union Ellis also was
formerly an employee and Kirklin s father is a vice presi
dent of the latter company who also serves on the
Union s health and welfare and pension board
Respondent has had between 8 and 15 employees 3 or
more of whom were carpenters by trade It is not a sig
nator to any agreement with the Carpenters Union how
ever it has received no recognition or bargaining request
from any unions and Kirklin testified that he would not
have any objection to negotiating with a union if it rep
resented his employees
Steven Ramsey is a full time salaried professional orga
mzer employed and paid by CHOP (Coordinated Hous
ing Organizational Program) an organization of two dis
tnct councils (the Eastern Indiana District Council and
the Wabash Valley District Council) and two locals (La
fayette Local 215 and Elkhart Local 565) of the Union
Ramsey s vaned organizing techniques included on
occasion, attempts to hire on with construction compa
Ines in order to make contact with employees
During 1983 Ramsey who is a journeyman carpenter
worked 2 weeks for Stemberger Construction in Septem
ber and 2 days for Fogelman Construction in October
He quit the jobs either because he got tired of working
because his organizational, activities had gone as far as
they could or a combination of the two The Respond
ent was selected as a potential target for torganization
and on July 26 he visited the jobsite where a facility was
being constructed for Pinebrook Recording Studio He
spoke with Superintendent Ellis using a composite story
of actual and fabricated personal work history , Ramsey
testified he told Ellis he was a carpenter moving back to
Muncie from Kokomo and lokmg for a job Ellis then
said they might have something and asked about his ex
penence
Ellis testified that Ramsey said he was looking for em
ployment and when asked by Ellis about his experience
1 All following dates are in 1983 unless otherwise specified
272 NLRB No 136
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said he had 12 years Ellis said he then asked Ramsey if
he had been working and Ramsey replied he had been
working in Kokomo for $8 an hour
Ramsey testified that after discussing his experience
and construction work in general Ellis asked if Ramsey
had been in the Union and Ramsey replied he had been
at several times but was not at present
Ellis agrees that the discussion of experience turned to
whether or not Ramsey was in a union and that he told
Ramsey he used to work union but now he did not Ellis
testified he had assumed Ramsey was not a union man if
he had been working for $8 an hour and Ellis wanted to
confirm if he would be willing to work for less than the
union rate
Ramsey testified that Kirklin then joined them and
Ellis said Ramsey sounded like a pretty good carpenter
whom they should keep in mind if they got any work
down the road Ramsey also said he recognized the
Kirklin name and told Kirklin that his father had worked
for Kirklin s father in the past Kirklin then said they
would consider Ramsey if they got some more work and
Ellis took his name and phone number Ramsey then
gave Ellis the local phone number of his ex wife
Ramsey visited the site again on August 11 and was
told by Ellis they still did not have anything On August
25 he visited a new jobsite and was told that Ellis was in
the hospital and it was not known if Respondent was
hiring or not The next day Ramsey testified he visited
Kirklin s office told the secretary he was a carpenter
looking for work and left his name and the phone
number of the union office after she told him Kirklin was
usually there in the early morning or late afternoon
(This alleged visit was not confirmed by the secretary or
by Ramsey s datebook )
During September Respondent instructed secretary
Tonja Swain to start requesting job applicants to fill out
applications explaining that they thought they would be
needing people for a job Swain recalls that Ramsey
came to the office several times between October and
early December when Kirklin was not in and that on the
first occasion when employee Scott Evans also was
present she told him he needed to fill out an application
Ramsey who was accompanied by another person then
declined the offer of a pen with which to fill it out
saying that he would take it with him and return it when
he came back to talk to Kirklin
Ramsey testified that he visited the jobsite on October
11 spoke to no one but visited again on October 18 He
testified that he asked Ellis Do you remember me9
and right off the bat Ellis asked if he had a union card
explaining that he had tried to call Ramsey at the
number Ramsey had left with Ellis but had been referred
to the number at the union hall by the woman who an
swered the phone and that he had called the hall asked
for Ramsey but hung up after the secretary had said he
was there Ellis then said it looked like they had some
work coming Ramsey said he was still interested and
denied being in the Union saying his ex wife was just
trying to get even with him
Ellis recalls that he and Kirkhn discussed the possibili
ty of asking Ramsey about coming to work and that one
evening near the end of October he called the number
Ramsey had given him getting no answer the first time
Then a woman answered and told him that she did not
know where Ramsey was or that he was not there Ellis
denied making any further attempt to reach Ramsey
Ellis was asked no further questions and gave no testimo
ny pertaining to Ramsey s alleged conversation with him
on October 18
Pamela Ramsey recalled receiving a morning phone
call in mid to late October from a male who asked for
her ex husband She said he did not live there but gave
him a phone number (that of the union hall) where he
could be reached and the caller concluded by saying
that the call was in connection with filling a job opening
She also testified that Ramsey had not called her or
made any arrangement for her to receive messages for
him at her phone number Around Thanksgiving she
spoke with Ramsey about the call and he indicated he
seemed to know about it and that he believed it was
Ellis
Ramsey also testified that on October 19 he visited
Respondent s office asked for Kirklin and left his name
and number with the secretary The next day he alleged
ly visited the office again caught Kirklin in and said he
was looking for a carpenter s job He testified that Kirk
lin then asked if he was in the Union and when he
denied it said that Ellis thought he was Kirklin then
asked if he was willing to work out of town and said he
would be called if they had anything (Notations in Ram
sey s datebook mention visits to Respondent on October
18 and 20 but not on October 19 when it places him in
Lafayette )
Kirklin denied that he ever saw or conversed with
Ramsey in his office or that he ever made the latter
statements attributed to him
During October Respondent entered a subcontracting
type arrangement with another contractor Ellis and
Kirklin began contacting prospective applicants and as
noted an attempt was made to reach Ramsey Appli
cants who had not already filled out an application were
asked to fill out one and then were interviewed by Ellis
Ellis interviewed six applicants, and two, Randy Wal
drath and Mark Dyer were initially selected based on
their experience Ellis evaluation of their skill and abili
ty and whether or not they were known personally by
Ellis or Kirklin Later two other employees Paul
Hadley and Tim Wilson were hired by Kirkhn based on
a similar evaluation
Waldrath testified that in August when going door to
door looking for work he left a resume with Respond
ent He was called by Kirklin in early October and
asked if he was still interested and told to come in and
fill out an application He was then interviewed by Ellis
He was asked about his experience but nothing was said
about unions until he brought up the subject by asking if
it was a union shop Ellis replied in the negative and
nothing else was said on the subject Waldrath testified
he previously had been a union member and questioned
Respondent to find out if he would have to come up
with dues and other fees
Hadley testified that in October he was told by a
friend that Respondent had a spot open and contacted
KDF CONSTRUCTION 893
Kirklin who asked his construction experience He had
no recollection of anything being said during the conver
sation about the union He worked 4 days and was laid
off
On November 8 Charles Ripley a union member for
15 years called Ellis reminded him of where they previ
ously had worked together (on a union job) and asked if
he was hiring Ellis said he did not know as Kirklin was
out of town and asked Ripley to check back Ripley tes
titled that Ellis asked him if he was still in the union said
that he (Ellis) had dropped out and said Respondent was
a nonunion contractor At some later time Kirklin called
him after he visited the office and asked that he fill out
an application and volunteered to send one to him
Ripley picked it up the next day but did not mail it in for
a good while (Ripley s phone records confirm the call
on November 8 and show that he called Ellis again on
November 9 and 15 and that during this period of time
he also made calls to the Union on November 10 15 21
23 and 28)
Ramsey next visited one of Respondent s jobs on Janu
ary 24 1984 where he spoke with one of the employees
The next day the Union started picketing the jobsite and
Ellis observed Ramsey with the other pickets On Janu
ary 27 1984 a local newspaper carried a picture and ar
tide describing union picketing The article discussed
wage rates and quoted Kirklin as saying there was no
policy concerning hiring nonunion labor and you pay a
man what he s worth—not what the union negotiated for
him Kirklm did not recall using those words however
he remembers being asked by a reporter how his pay
rate was established and answering that it was based on
experience what he could afford to pay and what the
market would bear and that almost everyone who
worked for him made a different hourly wage based on
their experience
On January 27 1984 Kirklin called the union hall on
another matter and spoke with Ramsey who had an
swered the phone Ramsey identified himself and said he
was still looking for a job Kirklin said he had not seen
an application from him and that Ramsey needed to fill
one out Ramsey who had filed the instant charge with
the Board 2 days earlier testified he picked up an appli
cation the next day and mailed it in on February 3 or 4
III DISCUSSION
On brief the General Counsel argues that Respondent
illegally interrogated prospective employees about their
union activities citing Russell Stover Candies 221 NLRB
441 (1975) and that it also violated the Act by rejecting
Ramsey as an employee because of its union hostility no
cases cited
Turning first to the evidence of the alleged interroga
non I find that the General Counsel has shown only that
on July 26 Respondent s superintendent Ellis asked if
Ramsey had been in the Union after Ramsey indicated
he had been working for $8 an hour (as noted below I
do not credit Ramsey s testimony regarding an alleged
comment on October 18) that in October in response to
a question from job applicant Waldrath Ellis told him
that Respondent was not a union shop that job applicant
Hadley had no recollection of anything being said about
the union during his job interview and that when known
union member Ripley asked former coworker Ellis on
the phone if Respondent was hiring Ellis asked if
Ripley was still in the union and informed him that Re
spondent was a nonunion contractor Otherwise the
record is devoid of any showing of union animosity on
behalf of the Respondent except for the alleged philo
sophical disdain for collective bargaining said to be at
tnbutable to Kirklm based on an alleged newspaper quo
tation that you pay a man what he s worth—not what
the union negotiated for him In connection with the
latter quotation I credit Kirklin s explanation that he did
not use those exact words and as it appears that the so
called quotation is actually the reporter s condensed
composite interpretation of an interview I find it to be
of no probative nature in supporting the General Coun
sel s purpose of imputing union animus to Respondent
The Board s recent decision in Rossmore House 269
NLRB 1176 (1984) notes its rejection of any per se rule
regarding interrogations and reasserts that the basic test
for evaluating whether interrogations violate the Act is
whether under all the circumstances the interrogation
reasonably tends to restrain coerce or interfere with
rights guaranteed by the Act Here the questions regard
ing union membership took place informally during pre
limmary job inquiries and not in the context of formal
job interviews Also there is no demonstrated back
ground of antiunion sentiment on behalf of the Employ
er At least one applicant raised the subject of unions
himself and otherwise the questions by Superintendent
Ellis were merely innocent spontaneous inquiries occa
sioned by the circumstances of his personal knowledge
of one applicant and an indication by another applicant
that he had been working below union scale The bare
inquiries were not pursued and did not tend to convey
implicit employer displeasure with union membership
Moreover Respondent also established that no new em
ployees were hired prior to October 19 and that after
that date at least two employees who were hired were
known to have been former or current union members
The Respondent is shown to be a new organization
with few employees and no background of questionable
labor practices and under the totality of the circum
stances I find the questions to be noncoercive I further
conclude that the General Counsel has failed to show
that the questions had any reasonable tendency to re
strain or interfere with rights guaranteed by the Act and
accordingly I find that Respondent is not shown to have
violated Section 8(a)(1) of the Act as alleged
Union organizer Ramsey first made his interest in em
ployment apparent to Respondent during July when Re
spondent had no need for additional employees As noted
above there is no showing that Respondent had any
background of union animus that could motivate it to
discriminate against union members However it is
shown that Ellis asked Ramsey about union membership
and Ramsey replied that he had been in the union but
was not at the present Owner Kirklin then joined the
conversation which amiably concluded with an indica
tion that Respondent would keep Ramsey in mind if they
got additional work On October 19 when Respondent
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had its next occasion to hire workers Ellis called
Ramsey at the number Ramsey provided Ramsey was
not available at that number and he had not made any
arrangements for receiving or forwarding messages I
credit the independent recall of Pamela Ramsey that she
referred Ellis to a number where she thought Ramsey
could be reached regardless of Ellis failure to recall that
portion of the conversation However I find no persua
sive reason to refute Ellis denial that he followed
through with an additional call
Ramsey testified that he visited the jobsite on October
18 and engaged in a conversation with Ellis where Ellis
again asked if Ramsey had a union card said they had
some work coming and that he had called Ramsey s
number and spoken to a woman Ellis was not asked
about the conversation and except for a notation in
Ramsey s notebook there is no corroboration of the
event I do not credit Ramsey s testimony in this regard
based on my overall evaluation of demeanor and espe
cially the negative probability rw likelihood that Ellis
would have bothered to call Ramsey and then afterwards
fail to pursue the apparent reason for the call at their
next meeting Ramsey s demeanor while testifying tended
to indicate a carelessness with information and recall of
events and his mannerisms which displayed a cursory
haphazard style Moreover I find his datebook lacking in
consistency and insufficient to fully corroborate his recall
of events in the face of the conflicting testimony by Re
spondent s witnesses
I credit the detailed testimony of secretary Swain who
recalled the circumstance in October under which she
gave Ramsey a job application which he declined to fill
out at the time
I also credit her testimony that she did not see Ramsey
in the office when Kirklin was present In a similar vein
I do not credit Ramsey s testimony that he spoke to
Kirklin in the office on October 20 Although Ramsey s
datebook produced on rebuttal shows cryptic entries for
October 18 and 20 in support of his allegation it incon
sistently fails to place him in Muncie on October 19
when he also allegedly visited the office Also the same
entries in the datebook were made with varied inks and
on balance I am not persuaded that it is an accurate re
liable record of Ramsey s activities and conversations
Ramsey received no further call from Respondent and
he made no further pertinent contact with Ellis or Kirk
lin until January 27 when Kirklin responded to Ramsey s
indication of interest in a job with a request that he
submit an application
Here the General Counsel has shown only that
Ramsey inquired about a job with Respondent that he
was asked a noncoercive question regarding union mem
bership and that he was never hired The record is bare
of persuasive evidence that might tend to show union
animus or unlawful motivation that otherwise might sup
port an inference that Ramsey was not hired for illegal
reasons based on his union membership The record pre
sents nothing more than circumstantial evidence which
fails to go beyond conjecture surmise or suspicion of
discrimination The above evaluation of the record
would be true even if Ramsey s testimony regarding the
alleged additional questions by Ellis on October 18 and
Kirklin on October 20 regarding his union status could
be considered to be credible
I conclude that the General Counsel has not made a
prima facie showing to indicate unlawful motivation or
to support an inference that the Respondent s failure to
hire Ramsey was for an invalid reason Moreover I find
that the record shows that Respondent actually did make
a reasonable effort to contact Ramsey and Respondent
otherwise has shown that it had valid reasons for select
mg other employees including others with a union back
ground similar to the apparent union history Ramsey
represented himself as having Accordingly even if it
could be considered that a prima facie showing was
made by the General Counsel the overall record fails to
show by a preponderance of the evidence that Respond
ent violated Section 8(a)(3) of the Act as alleged and
therefore I must recommend dismissal of the complaint
CONCLUSIONS OF LAW
1 The Respondent KDF Construction Inc is an em
ployer within the meaning of Section 2(6) and (7) of the
Act
2 Eastern Indiana District Council of Carpenters a/w
Brotherhood of Carpenters and Joiners of America is a
labor organization within the meaning of Section 2(5) of
the Act
3 Respondent has not engaged in unfair labor prac
tices within the meaning of Section 8(a)(1) and (3) of the
Act as alleged in the complaint
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed 2
ORDER
It is ordered that the complaint be dismissed in its en
tirety
2 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