Lorne G. Seifert, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 24, 2007

05-CA-033393 (N.L.R.B. Sep. 24, 2007)

JD–61–07
Dillsburg, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
LORNE G. SEIFERT, INC.
and Case 5–CA–33393
GREATER PENNSYLVANIA REGIONAL
COUNCIL OF CARPENTERS.
Christopher R. Coxson, Esq., for the General Counsel.
Thomas R. Davies, Esq. (Harmon & Davies, P.C.),
of Lancaster, Pennsylvania, for the Respondent.
Marianne Oliver, Esq., (Gilardi, Cooper & Lomupo, P.A.),
of Pittsburgh, Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was tried in York, Pennsylvania,
on May 2, 2007. The charge was filed December 18, 2006,1 and the complaint was issued
February 26, 2007. The complaint alleges that Lorne G. Seifert, Inc., (Respondent) violated
Section (8)(a)(1) and (3) of the National Labor Relations Act (Act) by refusing to hire and
consider for hire James Saylor and Richard Musko because of their membership in the Greater
Pennsylvania Regional Council of Carpenters (Union or Charging Party). The complaint also
alleges that the Respondent violated Section (8)(a)(1) by telling applicants that they would not
hire union carpenters, and that they would have to submit written proof that they had resigned
from the union before they could work for the Respondent. The Respondent’s answer denies that
it violated the Act.
On the entire record, including my observation of the demeanor of the witnesses, my
credibility determinations based on the weight of the respective evidence, established or admitted
facts, inherent probabilities, and reasonable inferences drawn from the record as a whole and,
after considering the briefs filed by the parties, I make the following

1 All dates are in 2006 unless otherwise indicated.
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FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Pennsylvania corporation, with an office and place of business in
Dillsburg, Pennsylvania, is engaged in the construction industry as a cast-in-place concrete
contractor. During the 12 months preceding the date of the complaint, the Respondent, in
conducting its business operations described above, purchased and received at its Dillsburg
facility products, goods, and material valued in excess of $50,000 directly from points located
outside the Commonwealth of Pennsylvania. The Respondent admits and I find, that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Respondent is a nonunion concrete contractor that has operated in central
Pennsylvania since 1959. Bryan Seifert is employed by the Respondent and is the son of the its
owner. He lacks a job title but claims that his position is akin to a “general manager.” He is an
admitted supervisor and agent of the Respondent within the meaning of Section 2(11) and (13) of
the Act. During the late 1970s or early 1980s Seifert operated his own companies. He operated
Seifert Ltd., from 1993 until 2003. Seifert Ltd. hired union members and would then subcontract
them to nonunion contractors at an hourly rate. Seifert claims that he closed the business in
2003, in part, because of a restriction inserted in the Carpenters Union Agreement that prevented
his type of operation. He admits having an ongoing philosophical battle with the unions
regarding the direction he feels they “should go to help them grow and prosper, which was the
way I was running my business.” After working for a number of contractors Seifert returned to
work for the Respondent on July 5, 2005. He and Melinda Betz, his sister and the Respondent’s
president/secretary/treasurer, operate the business.
B. June 28 Incident
Sometime during the early afternoon of June 28 union representatives Richard Musko
and Vince Weaver arrived at the Respondent’s office and asked to speak with Seifert. Musko
had previously met Seifert once, during his employment by Seifert Ltd., from 1999 to 2000.
Seifert came out and the men introduced themselves as representatives of the Union. Seifert,
who did not appear to recognize Musko, asked them “what the hell were” they doing there.
Weaver stated that they were in the area and noticed that the Respondent was advertising for
carpenters and wanted to introduce themselves. According to Musko and Weaver, Seifert went
ballistic. His voice, already irate, increased in volume, as did the severity of his vulgarities. His
ire was directed at “that f---ing Mike Platt and the f---ing union.” He continued his rant as he
escorted the men to the parking lot and ordered them off the property. As they drove away
Weaver called Platt, the union area coordinator for central Pennsylvania, and related the incident.
Platt was at a loss to explain Seifert’s conduct.
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C. November 17 Incident
On November 17 Musko and James Saylor, also a union counsel representative, applied
for work at the Respondent’s office. They arrived between 9:30 and 10 a.m. Immediately on
arrival they began filling out their applications. Shortly thereafter, Seifert entered the reception
area. He recognized that the applicants were union members from words on their clothes.
Despite his recognition Seifert asked if they were union carpenters and they answered “Yes.” As
Saylor returned his application Seifert asked him if he had been sent by Platt, Saylor said, “No.”
Seifert said that if they wanted to work for the Respondent they “would have to have something
in writing stating that we had dropped out of the union.” Saylor offered to put his “union card in
his boot.” Saylor testified that Seifert said “that wasn’t good enough; that he wanted something
in writing from the union stating that I was no longer in the union. At a later point in the
conversation Seifert said “You can tell Mike Platt he can sue me if he wants but I’m not going to
union carpenters.”
Saylor stated that he had 21 years of experience as a heavy highway concrete carpenter.
Seifert asked if he was willing to give it up to which Saylor responded “if the money was right.”
Musko stated that he was unwilling to forfeit his retirement and walked out with his application.
Both men testified that they would have accepted a position as a carpenter or a finisher had they
received an offer.
III. DISCUSSION
A. Section 8(a)(1) Allegations
The complaint alleges that on November 17 the Respondent acting through Seifert told
Musko and Saylor that they could not work for the Respondent unless they got rid of their union
cards and proved this by giving the Respondent something in writing. The complaint also
alleges that during the same conversation Seifert told Musko and Saylor that the Respondent was
not going to hire union carpenters.
Section 8(a)(1) of the Act provides that it shall be an unfair labor practice for and
employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed
in section 7” of the Act. Section 7 guarantees to employees the right to form, join, or assist labor
organizations. It is well settled that applicants are protected by the Act. E.g., Metta Electric,
338 NLRB 1059, 1062 (2003), enfd. in relevant part 360 F.3d 904 (8th Cir. 2004).
Seifert’s testimony appears to confirm the foregoing allegations. Thus, Seifert admits
telling Saylor that he could not hire him because he was a union carpenter (Tr. 29), and that he
would have to quit the union to get hired (Tr. 30). His testimony regarding those conditions is
consistent with that of Saylor and Musko. It is also corroborated by Betz who testified that she
heard her brother tell the applicants that they would have to “drop their union books” [resign
from the union] to work for the Respondent (Tr. 119–120).
The main dispute appears to center on the fact that Saylor and Musko consistently
testified, on direct and cross-examination, that Seifert told them to provide written evidence that
they had resigned—dropped their union cards or books from the union. Seifert and his sister
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(notwithstanding her admission above) claim that Seifert said that the men needed written
permission from Platt to work for the Respondent. Although this might be a meaningless
distinction. Regardless, I find overall that the testimony of Saylor and Musko is more credible
than that of Seifert and his sister. Both Musko and Saylor had the demeanor of witnesses who
were sincerely trying to relate the discussion as truthfully, frankly, and freely as their recollection
allowed. Musko specifically rejected counsel for the Respondent’s suggestion that Seifert
simply might have told him that he needed to get “permission” from Platt to work for the
Respondent. Musko reiterated that Seifert told them that “we needed something written from
[Platt] saying we dropped our cards or dropped our books.” When asked by counsel if he
recalled “permission” ever being mentioned he replied forcedly and without hesitation that he
did not (Tr. 77).
That exchange is probative because it was Musko who, becoming irritated by Seifert's
insistence that they resign from the Union, abruptly left the office without submitting his
application. It is also this testimony that Seifert’s sister reluctantly corroborated. She testified
after Musko and Saylor. She admitted that she was present for only a few minutes, at the very
end of the discussion. She claims that she was standing “pretty much right beside” her brother. I
find her testimony troubling because it is totally at odds with the testimony of each of the
participants in the discussion. None of them, including Seifert who heard her testimony and
testified after her, mentioned her presence, let alone placing her next to Seifert. This is
especially telling because Saylor and Musko gave detailed testimony as to the placement of the
men in the reception area. Musko only joined Saylor and Seifert toward the end of their
discussion. Moreover, Saylor testified that for a moment he was distracted because he was
trying to identify “a gentleman” who walked into the reception area. Certainly had Betz been
observed in the reception area at least one of the participants would have testified to her
presence.
I also doubt her recall. She places the time at about noon, while Musko and Saylor
testified that it was no later than 10 a.m. Seifert, who listened to all the testimony, initially
agrees “with the people who testified earlier.” Later he states that it was before noon. I credit
Musko and Saylor who appeared to have excellent, detailed, recollections of the incident.
Accordingly, I credit Betz’ testimony only to the extent that it is corroborated by the testimony
of Musko and Saylor, whom I find to be credible witnesses.
Seifert, was initially called to testify by the counsel for the General Counsel and was
thereafter questioned under Rule 611(c) of the Federal Rules of Evidence. A close reading of the
transcript (Tr. 26–34) shows Seifert using “permission” once when talking to Saylor (Tr. 30).
When addressing Musko’s departure his testimony is disjointed. He speaks of hiring 20 men and
then says “but—and then at that point Musko jumped up and said, ‘well, I’m not quitting the
union . . . to come to work here’ and walked out with our application,” (Tr. 31). When
questioned by Respondent’s counsel, after hearing the testimony of all the other witnesses,
Seifert still speaks very little about the November visit. He does make one contrived response to
this very simple, direct, question from Respondent’s counsel: “What percentage of your
conversation was with Mr. Saylor versus Mr. Musko? Seven lines of transcript later Seifert
makes a transition from speaking with Saylor about obtaining permission, to claiming that
Musko “jumped up and stormed out” (Tr. 133). I find this portion of Seifert’s testimony
contrived.
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I also discredit Seifert’s self serving testimony that after recognizing Saylor and Musko
as “union,” because of their clothing, he approached them in the reception area “because I’m
friendly with all of the unions and very familiar and comfortable with them” (Tr. 27–28). Seifert
himself contradicts this statement by his admission that he used profanity immediately on
learning Musko and Weaver’s union affiliation, and escorted them off his property posthaste.
Such internal inconsistencies further detract from Seifert’s credibility.
Seifert’s demeanor when testifying about the closing of Seifert Ltd., the Union’s
Pittsburgh office, and Mike Pratt demonstrates a long held, deep-seated resentment against
unions, union officers in general, and specifically Mike Pratt in his capacity as a union official.
He truly believes that the union was in large measure responsible for him having to close Seifert
Ltd. His anger when testifying was palpable, the tone of his voice and his facial expressions
were those of a biased individual who could not be relied on to provide an accurate recounting of
the events in question. Seifert’s extreme dislike, bordering on hatred, of Platt and the Union
makes it improbable that he would put himself in the position of encouraging anyone to become
beholden to Platt or the Union. I find it more probable that Seifert would want to ensure that
Pratt knew that he was getting union members to resign from the Union.
The Respondent contends that no violation should be found based on Seifert’s statements
to Saylor and Musko “because of his good-faith belief that any effort to hire [Saylor and Musko],
who he reasonably believed to be rank-and-file union members, would be futile based upon his
recent interaction with the Union.” (R. Br. 7–8.) It is well settled that a violation of Section
8(a)(1) does not depend on the employer’s motivation or on the subjective reaction of the
employees or on whether the coercion succeeded or failed. E.g., Sunnyside Home Care Project,
Inc., 308 NLRB 346 fn. 1 (1992).
Accordingly, I find that the Respondent violated Section 8(a)(1) by telling applicants that
they could not be hired unless they resigned from the union, and provided written evidence of
their resignation. E.g., Mastronardi Mason Materials Co., 336 NLRB 1296, 1296 (2001), enfd.
64 Fed. Appx. 271 (2d Cir. 2003). Similarly, Seifert’s statement that he was not going to hire
union carpenters is “a direct avowal of intent to discriminate against union job applicants,” and
as such has a reasonable tendency to restrain and coerce those individuals in the exercise of their
Section 7 rights. E.g., Eastern Energy Services, Inc., 349 NLRB No. 53, slip op. at 6 and
Member Kirsanow’s separate affirmance at fn. 1 (2007).
B. Refusal to Hire Allegations
1. General Counsel’s case
In order to establish a refusal-to-hire violation the counsel for the General Counsel must
show that the Respondent was hiring or had concrete plans to hire, that the applicants had
experience or training relevant to the generally known requirements or announced requirements
for the position, and that union animus contributed to the decision not to hire. The Respondent
admits that it was seeking to hire carpenters, that Saylor and Musko had the requisite
qualifications, and that the Respondent had at least two openings. FES, 331 NLRB 9, 12, 14
(2000), supplemented by 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002). The
Respondent denies that its failure to hire Musko and Saylor was motivated by union animus.
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I disagree and find that the General Counsel has shown a discriminatory refusal to hire
Musko and Saylor. Union animus is amply demonstrated by the testimony of Weaver and
Musko concerning their June meeting with Seifert in the Respondent’s office. Perhaps Weaver
exaggerated Seifert’s use of the “F” word. Even so, after bleeping half of Weaver’s testimony
Seifert’s diatribe still warrants an X rating. I also do not credit Seifert’s dilatory denial that he
used the “F” word. When asked by the Respondent’s counsel to describe the incident “in his
own words” Seifert only stated that he did not “use that much foul language as [Weaver]
indicated (Tr.125). Later, when counsel for the General Counsel was in mid-question, Seifert
blurted out that he did not use the “F” word. In any case it is not the vulgarities themselves but
the hostility and anger that the words and conduct represent that forms the basis for the
Respondent’s union animus.
The Respondent argues that when viewed in context the evidence concerning this
incident demonstrates only Seifert’s legitimate animosity towards “the Pittsburgh Union
officials,” who he believes took steps that negatively impacted Seifert Ltd. I do not appreciate
the distinction. Seifert’s clearly articulated and demonstrated animosity is directed at unions,
and union members acting lawfully in their official capacity as union officers. Seifert’s words
and actions epitomize the very essence of union animus. I consider the Respondent’s defense an
admission. Moreover, Seifert’s coercive statements constitute violations of Section 8(a)(1),
infra, which also demonstrates the Respondent’s animus toward the Union.
As I have found that the General Counsel has met his initial burden under FES regarding
the Respondent’s refusal to hire Musko and Saylor, the burden shifts to the Respondent to show
that it would not have hired them even in the absence of their union affiliation. Jesco, Inc., 347
NLRB No. 92, slip op. at 3 (2006) ( citing FES, supra at 12). In order to establish this
affirmative defense, “[a]n employer cannot simply present a legitimate reason for its action but
must persuade by a preponderance of the evidence that the same action would have taken place
even in the absence of the protected activity.” W.F. Bolin Co., 311 NLRB 1118, 1119 (1993),
petition for review denied 70 F.3d 863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir. 1996).
2. Respondent’s defenses
To this end the Respondent’s main argument, and the only one set forth in the position
statement that it submitted to the Region, is that Seifert’s statements were made on a good-faith
belief, based on past experience, that union members would not be permitted to work for the
Respondent. Accordingly, it is argued that Seifert was not actually refusing to hire the applicants
as much as he was “trying very hard to educate them about their own rules . . . . and to protect
them from possibly getting in trouble” (Tr. 31).
In support of this argument the Respondent presented Philip Ohlin as a witness. Ohlin
has been a member of the Carpenters’ Union since 1983. He is currently a member of
Carpenters’ Local 214. Platt is the regional director of that Local. Ohlin appeared to be a totally
unbiased witness with excellent recall who testified in a candid and forthright manner. I fully
credit his testimony and I do not credit Seifert’s testimony where it differs from Ohlin’s.
Ohlin had worked for Seifert before Seifert began working for the Respondent. Ohlin
testified that he and Seifert met in February 2006 because Seifert called him and wanted to
discuss the hiring Ohlin. At the meeting Seifert offered Ohlin a job. Ohlin did not commit but
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asked Seifert about the possibility of any type of union agreement so that he would be able to
maintain his status. Seifert told him to talk with Platt and see if a limited agreement could be
arranged. Platt told Ohlin that only a full agreement would be acceptable and he rejected any
limited agreement, including renewing the Seifert Ltd., limited agreement. Ohlin asked Platt if
there was any way that he could work for the Respondent and Platt said that if he worked for a
contractor that did not have a signed agreement Ohlin could lose his health and welfare benefits.
When testifying Ohlin emphasized that Platt said “could,” not “would.” He testified that Seifert
never told him that he had to give up his union book to work for the Respondent. Ohlin told
Seifert that he was unwilling to compromise his benefits or union status and he asked if Seifert
would sign a full agreement and Seifert said “No” because he did not trust the Union. On cross-
examination counsel for the Charging Party established that in order to maintain eligibility for
union health and welfare benefits, union carpenters must work a certain number of hours each
year with a signatory employer.
Initially I note that it was Seifert who contacted Ohlin and who offered him a job,
contrary to the Respondent’s position statement. (GC Exh. 30.) It was not Seifert telling him to
get permission from Platt to work for the Respondent based on Seifert’s “extensive experience”
and knowledge of the Union’s contract, constitution, bylaws “and the limits that those documents
placed on Union members.” (GC Exh. 30.) It was Seifert asking Ohlin to see if Platt would,
once again, enter into a special agreement, as Seifert had before with Seifert Ltd. Ohlin never
said, or indicated, that Platt told him that he could not work for the Respondent. Ohlin never told
Seifert that Platt said that he would have to surrender, or give up his “book,” in order to work for
the Respondent. Ohlin never told Seifert he would lose benefits if he worked for the
Respondent. There is absolutely no evidence that anyone ever told Seifert that he could not hire
union carpenters. Ohlin never said or implied that he needed Platt’s “permission to work for the
Respondent. Seifert never explained why he felt it necessary to “educate and protect Musko and
Saylor” but did not feel the need to impart any knowledge to Ohlin.
I find that Seifert placed his own spin on his dialogue with Ohlin and that he did so in
order to disguise the fact that union animus was the motivating factor in the Respondent’s refusal
to hire union carpenters and to place the onus for its unlawful conduct on the Union.
Accordingly the Respondent’s defense fails because it is pretextual. Jesco, Inc., 347 NLRB No.
92, slip op. at 5 (2006) (“The Respondent cannot rebut the General Counsel’s initial showing of
discriminatory motivation with a pretextual explanation.”).
Notwithstanding the Respondent’s singular reason advanced in its position statement, set
forth above, a second reason was articulated at the trial. The Respondent contends that Saylor
was not hired because he checked a box on the application indicating that his expected wage
range was the prevailing wage rate (P/W). (GC Exh. 30A.) Seifert testified that the notation on
the side of the application “No per BKS,” was written by him and the notations “too much $$”
and “no P.W.” was written by “Tina,” presumably Tina Brandt, the Respondent’s human
resource person, (GC Exh. 10.) at his direction. Seifert testified that “they” could come back to
work for the Respondent, after they had obtained written proof of their resignations from the
Union, but that the Respondent could not pay them prevailing wage rates. Seifert admitted that
he never discussed wages with either applicant and that he did not indicate to Saylor or Musko
that even if they submitted written proof that they resigned from the Union that they would not
receive the prevailing wage rate as expected.
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I find that Seifert’s notation “No per BKS,” is short hand for “Books” which the record
clearly establishes equates to “union member.” The Board has found that notations on
applications denoting union affiliation, without more, may support a finding of union animus and
I so find. Allied Mechanical & Electrical Contractors, 348 NLRB No. 80, slip op. at 5 (2006). I
also find that Seifert’s failure to contact Saylor after he learned his salary requirement is
additional support for the finding that the reason advanced by the Respondent is a pretext. Not
only was there no discussion of wages but Seifert admittedly gave the applicants every indication
that the only obstacle to employment with the Respondent was their union membership.
Additionally, it was the Respondent’s newspaper advertisement that caused the men to apply for
work. Every advertisement that that was stipulated into the record emphasizes, “Top Rates” or
“Top Starting Rates” and many also indicate that experienced applicants, like Musko and Saylor,
would get even more “$$$” (GC Exhs 2–11). Clearly, once Seifert reviewed Saylor’s
application he knew, at the very least, that he created a serious misunderstanding. And yet
despite having Saylor’s application containing two addresses and three phone numbers where he
could be contacted—Seifert did nothing. It is ironic that the singular reason advanced as
justification for Seifert’s statements is his professed concern that the union member applicants
appreciate the dire economic consequence they will suffer as a result of the union rules. Yet
Seifert makes no attempt to notify Saylor that his expected wage rate will not be met. Waiting
instead, Seifert admits, until after the applicants have resigned from the Union and returned to
his office before telling them that they also will not be receiving their expected rate of pay. The
Respondent’s conduct removes any vestige of the contention that its actions were taken in “good
faith.” I find this reason to also be a pretext.
Notwithstanding Seifert’s definitive testimony setting forth the above two reasons as the
only reasons the Respondent did not hire the applicants, the Respondent during the trial posited,
yet again, another reason. The operative facts on which this argument is predicated occurred
well before Musko and Saylor applied for employment. Nevertheless, I allowed the Respondent
to proceed.
Shortly after Musko and Weaver visited the Respondent’s office in June the Charging
Party began to solicit the Respondent’s employees to work for union contactors (Tr. 69–71).
Also at an undetermined point in time the Charging Party initiated a public information
campaign in an attempt to make known that the Respondent’s wage rates did not meet area
standards (R. Exh. 4). Based on the foregoing the Respondent asserts that neither applicant is a
bona fide applicant for employment. I reject that assertion, and find that in hindsight the
objections of counsel for the General Counsel and counsel for the Charging Party should have
been sustained. “[E]ven if a disabling conflict exists, it can be an effective defense under FES
only when the employer has proved that it actually relied upon the conflict in refusing to hire the
applicant. Zurn/N.E.P.C., 345 NLRB No. 1 slip op. 6–7 and cited cases (2005). The record
establishes, and it is not argued otherwise, that the Respondent did not rely on any perceived
disabling conflict when it unlawful refused to hire Saylor and Musko on June 28, 2006. I find
that this contention like the other defenses advanced by the Respondent is pretextual—i.,e, the
reason either did not exist or was not actually relied on—and as such cannot form the basis for a
valid rebuttal to the General Counsel’s case. Limestone Apparel Corp., 255 NLRB 722 (1981),
enfd. 705 F.2d 799 (6th Cir. 1982).
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C. Refusal to Consider Allegations
Both the counsel for the General Counsel and the Charging Party argue, as alleged in the
complaint, that additionally the Respondent refused to consider the applications of Saylor and
Musko. An employer’s acceptance of applications generally supports a finding that the employer
considered the applications. Clearly that is the case with Saylor’s application. The Respondent
accepted his application and that Seifert and Brant, the human resource person, reviewed his
application. Presumably the Respondent would have done the same with Musko’s application
had he returned it to the Respondent. Although not an issue I note that the mere fact that Musko
did not submit an application does not disqualify him as a discriminatee whom the Respondent
has refused to consider for hire. He sought work with the Respondent, and in any case it is
obvious from the Respondent’s words and actions, that making formal application would have
been a useless act. Wild Oats Markets, Inc., 344 NLRB No. 86, slip op. at 2 fn. 8 and cited cases
(2005). That said, however, under these circumstances I am unwilling to find a failure to
consider violation. In any case, the “Board does not provide the standard FES for a refusal-to-
consider for hire violation where a more comprehensive instatement and backpay remedy for a
refusal-to-hire violation is appropriate. This is because the limited remedy for a refusal-to-
consider violation is subsumed within the broader remedy for the refusal-to-hire violation. Cola
Electric, 345 NLRB No. 81, slip op. at 1 fn. 2 (2005).
CONCLUSIONS OF LAW
1. The Respondent, Lorne G. Seifert, Inc., is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, the Greater Pennsylvania Regional Council of Carpenters is a labor
organization within meaning of Section 2(5) of the Act.
3. By telling job applicants that the Respondent does not hire carpenters who are union
members the Respondent has violated Section 8(a)(1) of the Act.
4. By telling job applicants that they must resign from the union and submit written
proof of their resignations the Respondent has violated Section 8(a)(1) of the Act.
5. By refusing to hire job applicants on the basis of their union affiliation or other
protected activity the Respondent violated Section 8(a)(1) and (3) of the Act.
6. The foregoing unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent unlawfully refused to hire applicants James Saylor and
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Richard Musko, as carpenters, the Respondent will be ordered to offer them positions as
carpenters and to make them whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them. The duration of their backpay period shall be
determined in accordance with Oil Capital Sheet Metal, 349 NLRB No. 118 (2007). Backpay
shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), plus 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 recommended2
ORDER
The Respondent, Lorne G. Seifert, Inc., Dillsburg, Pennsylvania, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Telling job applicants that the Respondent does not hire carpenters who are union
members.
(b) Telling job applicants that they must resign from the union and submit written proof
of their resignations.
(c) Refusing to hire job applicants on the basis of their union affiliation or other
protected activity.
(d) In any like or related manner interfering with, restraining, 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 the Board’s Order, offer employment to James
Saylor and Richard Musko to the positions for which they applied or if those positions no longer
exist, to substantially equivalent positions, without prejudice to their seniority or any other rights
or privileges to which they would have been entitled absent the discrimination against them.
(b) Make James Saylor and Richard Musko whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them, in the manner set forth in the
remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful refusal to hire James Saylor and Richard Musko, and within 3 days
thereafter notify them in writing that this has been done and that the unlawful refusal to hire will

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 purposes.
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not be used against them in any way.
(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 designated by the Board
or its agents, all payroll records, social security payment records, 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 facility in Dillsburg,
Pennsylvania, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 5, after being signed by the Respondent’s
authorized representative, 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 Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Respondent at any time
since June 28, 2006.
(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.
(g) IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. September 24, 2007
____________________
John T. Clark
Administrative Law Judge

3 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
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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 violated 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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT tell job applicants that we will not hire them because of their union affiliation or
other protected activity.
WE WILL NOT tell job applicants that they must drop their union cards or union books and get
written proof from the union that this was done, and give it to us, before we will hire them.
WE WILL NOT refuse to hire job applicants on the basis of their union affiliation or other protected
activity.
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 the Board’s Order, offer employment to James Saylor
and Richard Musko to the positions for which they applied or if those positions no longer exist,
to substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges.
WE WILL make James Saylor and Richard Musko whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them, in the manner set forth in the
remedy section of the decision.
WE WILL, within 14 days from the date of the Board’s Order, remove from its files any reference
to the unlawful refusal to hire James Saylor and Richard Musko, and within 3 days thereafter
notify them in writing that this has been done and that the unlawful refusal to hire will not be
used against them in any way.
LORNE G. SEIFERT, INC.
(Employer)
Dated By
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(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
103 South Gay Street, The Appraisers Store Building, 8th Floor
Baltimore, MD 21202-4061
Hours: 8:15 a.m. to 4:45 p.m.
410-962-2822.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 410-962-3113.