Mainline Contracting Corp.

National Labor Relations Board - Board Decisions

Aug 2, 2001

334 N.L.R.B. 922 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 922
Mainline Contracting Corp. and International Union
of Operating Engineers, Local No. 17. Case 3–
CA–21198
August 2, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND TRUESDALE
On December 29, 1998, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions, as
further explained below, and to adopt the recommended
Order as modified and set forth in full below.
The Respondent is engaged in the construction indus-
try as a demolition contractor. At all times material to
this proceeding, its employees were not represented by
any labor organization. On December 2, 1997, approxi-
mately 20 members of the International Union of Operat-
ing Engineers, Local No. 17 (the Union) arrived at the
Respondent’s headquarters. They each completed and
submitted copies of the Respondent’s 10-page job appli-
cation. Each union member applicant wrote “voluntary
union organizer” across the top of the application’s front
page, and included additional union forms, including a
resume, cover letter, and union job application.
The Respondent had no formal application and hiring
procedures in December 1997. Sometime after receiving
the batch of union member applications, however, the
Respondent instituted new hiring procedures, including
the following prohibition:

Applicants are forbidden from marking their appli-
cation blanks to show race, color, religion, creed,
sex, national origin, age, legal out-of- work activ-
ity, bankruptcy, or protected concerted under the
National Labor Relations Act. Applications deliv-
ered to Mainline with any such information on them
will not be considered for any purpose. [Emphasis in
original.]

1 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 preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard 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.
The Respondent posted on its door and in its lobby
area a notice describing the new application procedures,
and it distributed copies of the notice to managers who
had hiring authority. The Respondent also began using a
new application form that reiterated the above prohibi-
tion and stated that applications would be valid for only
30 days. A March 6, 1998 letter from the Respondent
informed each of the December 2 union member appli-
cants of the new application procedures. The letter also
stated that the Respondent was not presently hiring and
that their applications would be placed in an inactive file
because they were more than 30 days old.
The judge found that the Respondent violated Section
8(a)(3) and (1) of the Act by adopting and maintaining
new application procedures in order to exclude from con-
sideration for hire the December 2 applicants and in or-
der to avoid more union affiliated applicants. In accord
with H. B. Zachry Co.,2 he found further that the Re-
spondent’s new prohibition against revealing protected
concerted activity was inherently destructive of impor-
tant employee rights. Accordingly, he concluded that the
policy would violate Section 8(a)(1) even if the Respon-
dent had implemented it for valid business reasons and
without a specific intent to discriminate.
The Respondent excepts to the judge’s decision and
argues that it conflicts with the decisions of the courts of
appeals in Boilermakers v. NLRB, supra, and TIC-The
Industrial Co. Southeast v. NLRB, 126 F.3d 334 (D.C.
Cir. 1997). For the reasons fully stated in the judge’s
decision, we agree that the Respondent violated Section
8(a)(3) and (1) by discriminatorily changing its hiring
procedures. Contrary to our dissenting colleague, we
further agree with the judge that, even if there were no
specific evidence of antiunion motivation, the Respon-
dent’s newly instituted policy of excluding from consid-
eration for hire all applicants who reveal their union af-
filiation is inherently destructive of employee rights
within the meaning of well-established precedent.3
2 319 NLRB 967, 968 (1995), enf. denied, sub nom. Boilermakers v.
NLRB, 127 F.3d 1300 (11th Cir. 1997).
3 NLRB v. Great Dane Trailers, 388 U.S. 26, 33–34 (1967); NLRB v.
Erie Resistor Corp., 373 U.S. 221, 228 (1963); H. B. Zachry, supra.
In Boilermakers, supra, the Eleventh Circuit expressly rejected the
Board’s holding in H. B. Zachry that an employer’s policy of excluding
from consideration for hire applicants who write “voluntary union
organizer” or other words to that effect on their application is inher-
ently destructive. Although, as stated below, we find this case to be
distinguishable from Boilermakers, we respectfully disagree with the
Eleventh Circuit and adhere to Board precedent on the “inherently
destructive” issue.
In TIC-The Industrial Co. Southeast, the D.C. Circuit did not address
the issue of whether the employer’s application policy was inherently
destructive of employee rights. The court disagreed with the Board that
the respondent disparately enforced its ban on extraneous information.
334 NLRB No. 120
MAINLINE CONTRACTING CORP. 923
The Respondent’s policy unambiguously penalizes and
deters protected concerted activity. The protected em-
ployee rights enumerated in Section 7 of the Act specifi-
cally include the “right to self-organization, to form, join,
or assist labor organizations, [and] to bargain collectively
through representatives of their own choosing.” The
Supreme Court has stated that:

There is no indication that Congress intended to limit
this protection [of Section 7] to situations in which an
employee’s activity and that of his fellow employees
combine with one another in any particular way. Nor,
more specifically, does it appear that Congress intended
to have this general protection withdrawn in situations
in which a single employee, acting alone, participates
in an integral aspect of a collective process. Instead,
what emerges from the general background of [Sec-
tion] 7—and what is consistent with the Act’s state-
ment of purpose—is a congressional intent to create an
equality in bargaining power between the employee
and the employer throughout the entire process of labor
organizing, collective bargaining, and enforcement of
collective-bargaining agreements.4

It is obvious that the 20 union affiliated applicants in
this case were acting in actual concert and communica-
tion with one another when they concomitantly declared
their organizational objective on their applications to the
Respondent. In this respect, “[t]he placement of ‘volun-
teer union organizer’ on applications is an act of self-
identification, analogous to the display of union insignia,
and represents the type of solidarity that Section 7 was
designed to protect.” H. B. Zachry, 319 NLRB at 980.
Citing the decision of the Eleventh Circuit in Boiler-
makers, supra, our dissenting colleague rejects the union-
insignia analogy, on the ground that only communication
with the employer (and not with fellow employees) is
involved in the display of union affiliation here. On this
view, there is no connection between the display and a
purpose protected by the Act. We respectfully disagree.
The view expressed by the Eleventh Circuit and our col-
league is simply too narrow, in light of the Act’s policies.
Declaring one’s union affiliation to the employer, even
as an applicant for work, is the first step toward seeking
union recognition and engaging in collective bargaining.
Accord: Phelps Dodge Corp. v. NLRB, 313 U.S. 177,
185 (1941) (“[d]iscrimination against union labor in the
hiring of men is a dam to self-organization at the source
of supply”). The declaration puts the employer on notice
that self-organization among his employees is likely to
begin (assuming, of course, that the applicants are quali-

4 NLRB v. City Disposal Systems, 465 U.S. 822, 835 (1984).
fied and are hired). At the same time, it shows the em-
ployer that union adherents may be a significant part of
the qualified labor pool, a fact that may persuade the
employer not to oppose organizing activity. Where, as in
this case, declarations are made in coordinated fashion by
a group of applicants, the activity is clearly concerted
and protected under the Act. Agreeing to make the dec-
laration, and then acting on that agreement, builds “mu-
tual aid and protection.” It ensures that all applicants
share the risk of discrimination and that all, in effect,
mutually pledge to engage in organizing if they are
hired.5
Even if these applicants had been unaware of each
other’s actions, however, we find that an individual em-
ployee applicant’s declaration to a prospective employer
of the intent to organize its employees is an “integral
aspect” of the “collective process,” as described by the
City Disposal Court. As such, it is protected by Section
7 and Section 8(a)(3) against employment discrimina-
tion. There are no logical limits to the contrary view of
the dissent and Eleventh Circuit that there is no “right for
[u]nion applicants to let employers know about their un-
ion affiliation in direct contravention of the employer’s
neutral nondiscriminatory policy prohibiting extraneous
information of any kind.” Boilermakers, 127 F.3d at
1310. If an employer may prohibit the proffer of such
information at the hiring threshold, then presumably it
could impose the same “don’t tell” rule on employees
actually on the job, frustrating their ability to deal with
their employer as a group. Surely such a rule would vio-
late the Act. Yet applicants, too, are employees under
the Act and their declaration of union support serves the
same purposes, albeit at the preliminary stage of the em-
ployment relationship.
Furthermore, for the reasons previously stated by the
judge in H. B. Zachry, id. at 981–982, we give little
weight to the asserted legitimate interest of the Respon-
dent for implementing a hiring rule prohibiting an appli-
cant’s disclosure of union affiliation. The Respondent
contends that it adopted the new rule in order to conform
to Federal antidiscrimination laws and to avoid discrimi-
5 As this case illustrates, job applicants may well be participants in
the “collective process” of organizing. We accordingly disagree with
the contention of our dissenting colleague that the “concerted activity”
analysis underlying City Disposal is applicable only where an actual
employment relationship exists. It is well established that job appli-
cants are protected “employees” for purposes of the Act. E.g., Phelps
Dodge, supra. We see no basis for narrowing the definition of pro-
tected concerted activity in the context of job applications. Cf. Mason-
Rust, 179 NLRB 434, 439–440 (1969), enf. denied on other grounds
449 F.2d 425 (8th Cir. 1971), cert. denied 405 U.S. 1066 (1972) (find-
ing an 8(a)(1) violation based on refusal to hire black applicants who
sought modification of employer’s allegedly discriminatory hiring
practices).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 924
nating in its hiring practices. That justification would
support elimination of any employer inquiries about an
applicant’s union affiliation, but it does not extend to
prohibition of an applicant’s volunteering such informa-
tion. Such disclosure does not itself cause an employer
to discriminate in its employment practices. An em-
ployer cognizant of an employee’s union sentiments is
perfectly capable of making hiring decisions, directing an
employee’s work, and imposing discipline in accord with
the law and without regard for those sentiments, whether
they are for or against unionization.
The obvious real purpose of the Respondent’s ban re-
lates to the prospect of litigation. The Respondent aims
to fetter the ability of applicants and employees to bring
claims of employment discrimination. While this might
have the salutary effect of deterring frivolous claims, it
would also (not coincidentally, we think) make it more
difficult to prove employer knowledge of union activity
even in instances where the employer actually has acted
with union animus. The Act is designed to protect em-
ployees from discrimination, not to protect employers
from discrimination claims. We therefore perceive no
basis for limiting the scope of Section 7 in deference to
the Respondent’s interests.
Although we adhere to H. B. Zachry, supra, on this is-
sue, we find as well that the court cases relied on by the
Respondent are distinguishable from the present case. In
particular, the inherent discriminatory effect of the new
policy at issue in the present case is more overt and spe-
cific than the policies at issue in either Boilermakers or
TIC. Those cases involved a general “no extraneous in-
formation” policy that disqualified, among others, per-
sons who identified their voluntary union organizer
status on their application forms. In contrast, the Re-
spondent’s policy does not on its face generally prohibit
all extraneous information on its application form. The
policy disqualifies from hiring consideration only those
applicants who provide information on their application
about status or activity protected by the Act or by other
Federal statutes. Consequently, a policy purportedly
implemented to avoid discrimination against protected
classes or activity has the exact opposite effect. Regard-
less of relative skills, experience, and training, an appli-
cant who writes “voluntary union organizer” on the ap-
plicant form is excluded from hiring consideration, while
an applicant who makes some other extraneous mark
(such as “I am on a bowling team with many of your
employees”) remains eligible. Further, an applicant who
has arguably relevant, union affiliated training, experi-
ence, and references might be chilled from revealing this
information on the application, thus placing the applicant
at a competitive disadvantage. We think this is far more
likely to occur where an employer’s policy specifically
forbids disclosure of protected concerted activity under
the Act, than where the employer’s policy forbids only
“extraneous” information. Our dissenting colleague’s
interpretive gloss on the application provision ignores the
likelihood that applicants will interpret the provision
more broadly than he does.6 We therefore affirm the
judge’s finding that such a policy is inherently destruc-
tive of Section 7 rights and violates 8(a)(1).
AMENDED REMEDY
We find that the remedy outlined in FES, 331 NLRB 9
(2000), for an unlawful refusal to consider for hire is
appropriate here, in light of the violations found. Ac-
cordingly, we will modify the judge’s recommended Or-
der and notice to comport with FES.7
If it is shown at a compliance stage of this proceeding
that the Respondent, but for the failure to consider the
discriminatees on December 2, 1997, would have se-
lected any of them for any job openings arising after the
beginning of the hearing on October 20, 1998, or for any
job openings arising before the hearing that the General
Counsel neither knew nor should have known had arisen,
the Respondent shall hire them for any such position and
make them whole for any loss of earnings and other
benefits suffered as a result of the discrimination against
them. Backpay shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950), with inter-
est as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Mainline Contracting Corp., Buffalo, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Adopting and maintaining a policy of excluding
from consideration for hire job applicants who disclose
protected concerted activity on application forms.

6 Particularly in this respect, there is a clear distinction between pro-
hibiting an applicant from disclosing an identifying characteristic such
as race or gender and prohibiting the disclosure of union affiliation
(including, presumably, employment-related activity that would neces-
sarily disclose this affiliation). Thus, we disagree with our dissenting
colleague that union activity was “simply another irrelevant factor” that
the Respondent wished to exclude from the hiring process. To the
extent that the Respondent’s efforts to shield itself from lawsuits were
legitimate, in any case, they must give way the Sec. 7 rights implicated
here.
7 We shall also modify the judge’s recommended Order in accord
with Indian Hills Care Center, 321 NLRB 144 (1996).
MAINLINE CONTRACTING CORP. 925
(b) Discriminatorily adopting and maintaining new hir-
ing procedures in order to exclude from consideration for
hire union affiliated applicants and in order to avoid
more union affiliated applicants.
(c) Failing and refusing to consider applicants for em-
ployment on the basis of their union affiliation.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, rescind
the new hiring policies set forth on its new application
form and in its March 6, 1998 letter to applicants.
(b) Consider for hire Francine A. Dole, Steven A.
Everett, James J. Erhardt, Richard Ferraro, Edward M.
Fischer, Mark W. Flowers, Paul R. Heim, Linda R.
Hummel, Angela Lambert, Carl A. Larson, Tracy Myles,
Ellen E. Preischel, David D. Ricotta, Robert C. Slocum,
Stephen S. Smith, Gary R. Swain, Antonio Ventresca,
Kenneth J. West, James W. Yeates, Joe R. Bilger, Robert
Grankowski, Danny L. Hayes, Paul Franklyn Pittorf, and
Kathleen Kirk St. John for future job openings for a pe-
riod of 6 months from the date of this Order in accord
with nondiscriminatory criteria, and notify them, the
Charging Party, International Union of Operating Engi-
neers, Local No. 17, and the Regional Director for Re-
gion 3 of future openings in positions for which the dis-
criminatees applied or substantially equivalent positions
for a period of 6 months from the date of this Order. If it
is shown at a compliance stage of this proceeding that the
Respondent, but for the failure to consider the discrimi-
natees on December 2, 1997, would have selected any of
them for any job openings arising after the beginning of
the hearing on October 20, 1998, or for any job openings
arising before the hearing that the General Counsel nei-
ther knew nor should have known had arisen, the Re-
spondent shall hire them for any such position and make
them whole for any losses, in the manner set forth in the
amended remedy section of this Decision and Order.
(c) Within 14 days from the date of this Order, notify
the discriminatees in writing that any future job applica-
tions will be considered in a nondiscriminatory way.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to
consider the discriminatees for employment, and within 3
days thereafter notify them in writing that this has been
done and that the refusal to consider them for employ-
ment will not be used against them in any way.
(e) Within 14 days after service by the Region, post at
its place of business in Buffalo, New York, and all cur-
rent jobsites, copies of the attached notice marked
“Appendix.”8 Copies of the notice, on forms provided by
pendix.”8 Copies of the notice, on forms provided by the
Regional Director for Region 3, 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. The Respondent shall also duplicate and mail,
at its own expense, a copy of the notice to each of the
discriminatees named above. 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 cur-
rent employees and former employees employed by the
Respondent at any time since December 2, 1997.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

CHAIRMAN HURTGEN, dissenting in part.
I agree with the administrative law judge and my col-
leagues that the Respondent violated Section 8(a)(3) and
(1) by unlawfully modifying its hiring procedures for the
purpose of excluding the discriminatees and other union
applicants from consideration for employment and for
hire. I further agree that, to remedy this violation, the
Respondent is required to rescind these unlawfully moti-
vated procedures. This includes the requirement that the
Respondent rescind, from its applications, the provision
stating that:

Mainline Contracting Corp. is an equal opportunity
employer. If you provide any information not re-
quested on this application form such as race, religion,
color, creed, sex, national origin, age, or protected con-
certed activity under the National Labor Relations Act,
your application will be rejected and not considered for
any purpose.

However, contrary to the judge and the majority, I do
not agree that, even were the above-application provision
not discriminatorily motivated, the Respondent nonethe-
less violated Section 8(a)(1) when implementing it, on
the theory that this provision was inherently destructive

8 If this order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 926
of employees’ Section 7 rights. Instead, consistent with
the analysis in Boilermakers v. NLRB, 127 F.3d 1300
(11th Cir. 1997), I find that this provision is facially neu-
tral and does not interfere with any statutorily protected
employee rights. See also TIC-The Industrial Co. South-
east v. NLRB, 126 F.3d 334 (D.C. Cir. 1997) (no viola-
tion where employer refused to consider applicants not
complying with its neutral application procedures).
In Boilermakers, the court, among other things, denied
enforcement of that portion of the Board’s decision in
H.B. Zachry Co., 319 NLRB 967 (1995), which held that
Zachry violated Section 8(a)(1) by refusing to consider
employment applications which contained extraneous
information. Contrary to the Board, the court found law-
ful a provision on Zachry’s employment application that
specified that applicants were to “PROVIDE ONLY
THE INFORMATION REQUESTED. FAILURE TO
DO SO WILL RESULT IN DISQUALIFICATION OF
YOUR APPLICATION.” The court further found that
Zachry lawfully applied this provision so as to exclude
from consideration those applications on which individu-
als had written “voluntary union organizer.”
In Boilermakers, the court expressly rejected the ar-
gument, advanced here by the judge and my colleagues,
that the application provision inherently destroyed em-
ployee Section 7 rights. Instead, the court found that the
act of writing “volunteer union organizer” was not
analogous to the recognized right of employees to dis-
play union insignia. Cf. Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 803 (1945). The Court held that
while the right to wear union insignia is predicated on the
principle that an employee has the right to communicate
with other employees regarding the employee’s views on
self-organization at the jobsite, the union members ap-
plying at Zachry “did not attempt to communicate their
union affiliation to other employees; they attempted to
communicate that affiliation only to [Zachry].” Hence,
the court found that the interests of self-organization and
solidarity were not implicated. “Any display of union
affiliation in a job application, which is seen only by the
employer, is not linked to a purpose protected by the
Act.” 127 F.3d at 1310.1
In Boilermakers, the court concluded that it knew of
no right of employees to inform potential employers
about their union affiliation in derogation of the respon-

1 I find inapplicable my colleagues reliance on NLRB v. City Dis-
posal, 465 U.S. 822, 835 (1984), for the proposition that the applicants’
writing of “voluntary union organizer” on the individual job applica-
tions was protected as an “integral aspect” of the “collective process.”
City Disposal involves the issue of whether a single employee is en-
gaged in concerted activity when he invokes a provision of a collective-
bargaining agreement. That is not the issue here.
dent’s neutral nondiscriminatory policy.2 Accordingly,
the court found that the challenged application provision
did not violate Section 8(a)(1). I find the court’s rationale
and holding directly applicable to the instant case.
I reject my colleagues’ attempt to claim, as protected,
precisely that conduct which the Eleventh Circuit cor-
rectly concluded was merely an attempt to communicate
union affiliation to the Respondent. Contrary to the ma-
jority, writing “voluntary union organizer” on the appli-
cation did not constitute the first step toward union rec-
ognition because, as found by the court, this conduct
neither implicated the interests of solidarity nor self-
organization, nor did it constitute a purpose protected
under the Act. 127 F.3d at 1310.
Further, in this regard, my colleagues misconceive the
issue. The issue is not whether employees have a Sec-
tion 7 right to declare to their employer their allegiance
to the Union. Even if they have that right, and cannot be
punished therefor, that is not the issue here. The issue
here is whether the Employer must permit employees to
express their allegiance on an employer document,
where, as here, the Employer has a legitimate interest in
“keeping clean” that document.
My colleagues contend that the policy in Boilermakers
is distinguishable because it forbade all extraneous in-
formation, whereas the policy here forbids only informa-
tion concerning a status or activity protected by Federal
statutes. The asserted difference is that a comment such
as “I am on a bowling team” would be forbidden under
the policy in Boilermakers, and permitted under the pol-
icy here.
I disagree with this contention. Even if the prohibition
here is narrower than that in Boilermakers, the distinc-
tion is without legal significance. In both cases, the em-
ployer is seeking to remain ignorant of protected status
and activity. The fact that the policy in Boilermakers is
overly broad for this purpose, while the one here is more
narrow and tailored, is hardly a reason to condemn the
one here.3
2 In Boilermakers, the court found that the application provision was
instituted for the purpose of permitting the respondent to consider only
those factors relevant to the applicant’s job suitability, and not such
proscribed factors as race, disability, or union affiliation. Although
here, unlike in Boilermakers, the application provision was in retalia-
tion against the discriminatees, and to prevent their consideration for
employment, Boilermakers is directly applicable because the judge and
majority additionally find that the application provision is unlawful,
even absent discriminatory promulgation or enforcement.
3 Indeed, I find that the factual differences between the application
provision here and in Boilermakers support rather than undercut the
conclusion that the Respondent’s application provision is facially law-
ful. Thus, in Boilermakers, Zachry sought through its application pro-
vision to prevent itself from improperly using such proscribed criteria
as an applicant’s race, disability, or union affiliation by proscribing
MAINLINE CONTRACTING CORP. 927
In addition, the policy here does not discriminate
against union activity. The employer forbade disclosure
of many factors that are irrelevant to the hiring process.
Union activity was not signaled out for special treatment.
Further, because, there was no discrimination, the “in-
herently destructive” theory of Great Dane4 is not appli-
cable here. That theory only applies where there is a
showing of discrimination.
My colleagues’ contend that, while an employer would
be justified in eliminating questions about an applicant’s
union activities—in an effort to align its hiring practices
with Federal antidiscrimination laws, it lawfully cannot
prohibit applicants from volunteering the same informa-
tion on job applications. The contention has no merit.
As previously discussed, under Boilermakers, supra,
there is no Section 7 right to disclose that information to
the employer. Further, I reject my colleagues’ assertion
that because the disclosure of union activities or pro-
tected status on an application does not in itself cause an
employer to discriminate against job applicants, there is
no need to permit employers to prohibit that information.
That is not a decision for the Board to make. If an em-
ployer determines that it can better comply with laws
against discrimination by eliminating nonresponsive in-
formation from its application forms, the Board has no
role in second-guessing this decision.
Indeed, the Employer is acting consistent with statu-
tory policies. In general, the Act rightfully condemns
employer efforts to interrogate employees about their
union affiliations. In the instant situation, the Employer
bends over backwards so as not to know of union affilia-
tions. In that way, an employer can hire blindly, i.e.,
without regard to union affiliation, religion, etc. In my
view, this is not an effort to “fetter” the ability of appli-
cants and employees to bring claims of employment dis-
crimination. Rather, it is an effort to be able to show that
such claims have no merit, i.e., that the hiring was
blinded.
My colleagues concede that matters such as race or
gender are irrelevant, but claim that the matter of union
affiliation is relevant. I disagree. Discrimination based
on union affiliation, as on these other bases is unlawful,

nonresponsive or extraneous information from the job application. In
so doing, however, it did not explain why it was precluding considera-
tion of applications that contained information that had not been spe-
cifically requested. Here, however, by expressly stating in its applica-
tion provision that it was “an equal opportunity employer,” and there-
fore did not want information on the application on which it lawfully
could not rely in making employment decisions, the Respondent was
affirmatively assuring applicants that their Sec. 7 activities, or other
protected status, would not be the basis for employment decisions.
4 NLRB v. Great Dane Trailers, 388 U.S. 26 (1967).
and the employer thus has a legitimate interest in being
blind as to union affiliation.
Nor do I agree with my colleagues that a reasonable
reading of the Respondent’s application provision would
disqualify applicants who include any information on
their applications which demonstrates their link to un-
ions. First, I note that the court in Boilermakers implic-
itly rejected a similar argument by finding that notwith-
standing the language in the application prohibiting in-
formation that was not specifically sought, the applicants
could still make known their union affiliation by listing,
in response to specific questions, their training in union
apprenticeship programs, their employment by employ-
ers known to be unionized, etc. So too here, the applica-
tion provision merely prevents, in relevant part, appli-
cants from specifically listing their protected concerted
activity (such as “voluntary union organizer”). Cer-
tainly, as in Boilermakers, responsive information such
as that relating to prior employment or training would
not disqualify applicants simply because of some asso-
ciation with a union.5
My colleagues appear to argue that the application
provision must be struck because applicants might be
“chilled” from revealing pertinent requested information
(such as prior training or work experience). I reject their
argument as unsupported and speculative. There is
nothing in the Respondent’s rule which forbids the em-
ployee from revealing relevant training, experience, and
reference. In my view, it is the majority that has cast an
unreasonable interpretative gloss on the application pol-
icy.
Finally, my colleagues contend that the Respondent’s
rule is invalid because its real purpose is to protect the
Respondent against legal claims of unlawful discrimina-
tion in hiring. I find this contention ironic inasmuch as
the evidence strongly suggests that the Union encouraged
the discriminatees to include “voluntary union organizer”
on their applications precisely in order to build its legal
case. Thus, when directing the applicants to put “volun-
tary union organizer” on the forms, the Union stressed
that this was “important to our organizational drive.” In
5 My colleagues attempt to bolster their position by arguing that if an
employer can preclude individuals from writing “voluntary union or-
ganizer” on job application forms, there are no limits to its ability to
restrict employees from expressing any union support. This argument
does not withstand legal scrutiny. It rests on the faulty premise that the
act of writing “voluntary union organizer” on job applications is pro-
tected activity. Like the Eleventh Circuit, I find that it is not. Nothing
in my position, or that of the court, impedes the exercise of Sec. 7
rights.
Similarly, I know of no right of an extant employee to proclaim his
union adherence to an employer where, as here, the Employer wishes,
for a legitimate reason, not to know about that adherence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 928
any event, the role of the Board is not to build a prima
facie case of discrimination. It is simply to find and rem-
edy employer discrimination where that is found.
Accordingly, I find that the Respondent’s application
provision is not per se violative and I would dismiss the
separate Section 8(a)(1) allegation on this point.
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 the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT adopt and maintain a policy of exclud-
ing from consideration for hire applicants who disclose
protected concerted activity on application forms.
WE WILL NOT adopt and maintain new application
procedures in order to exclude from consideration for
hire union affiliated applicants and in order to avoid
more union affiliated applicants.
WE WILL NOT fail and refuse to consider applicants
for employment on the basis of their union affiliation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the new application procedures set forth
on our new application form and in our March 6, 1998
letter to applicants.
WE WILL consider for hire Francine A. Dole, Steven
A. Everett, James J. Erhardt, Richard Ferraro, Edward M.
Fischer, Mark W. Flowers, Paul R. Heim, Linda R.
Hummel, Angela Lambert, Carl A. Larson, Tracy Myles,
Ellen E. Preischel, David D. Ricotta, Robert C. Slocum,
Stephen S. Smith, Gary R. Swain, Antonio Ventresca,
Kenneth J. West, James W. Yeates, Joe R. Bilger, Robert
Grankowski, Danny L. Hayes, Paul Franklyn Pittorf, and
Kathleen Kirk St. John for future job openings for a pe-
riod of 6 months from the date of the Board’s Order in
accord with nondiscriminatory criteria, and notify them,
the Charging Party, International Union of Operating
Engineers, Local No. 17, and the Regional Director for
Region 3 of future opening in positions for which the
discriminatees applied or substantially equivalent posi-
tions for a period of 6 months from the date of the
Board’s Order. If it is shown at a compliance stage of
the Board’s proceedings that, but for our failure to con-
sider the discriminatees on December 2, 1997, we would
have selected any of them for any job openings arising
after the beginning of the hearing on October 20, 1998,
or for any job openings arising before the hearing that the
General Counsel neither knew nor should have known
had arisen, WE WILL hire them for any such position
and WE WILL make them whole for any loss of earnings
and ther benefits sustained as a result of the discrimina-
tion against them, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, notify the discriminatees in writing that any future
job applications will be considered in a nondiscrimina-
tory way.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusal to consider the discriminatees for employ-
ment, and WE WILL, within 3 days thereafter, notify
them in writing that this has been done and that the re-
fusal to consider them for employment will not be used
against them in any way.

MAINLINE CONTRACTING CORP.

Michael J. Israel, Esq., for the General Counsel.
Thomas S. Gill, Esq., of Buffalo, New York, for the Respon-
dent.
Richard D. Furlong, Esq., of Cheekowaga, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge.
This matter was heard in Buffalo, New York, on October 20,
1998. Subsequently, briefs were filed by each party. The pro-
ceeding is based on a charge filed March 20, 1998,1 Interna-
tional Union of Operating Engineers, Local No. 17 (the Union).
The Regional Director’s complaint dated June 25, alleges that
Respondent, Mainline Contracting Corporation, of Buffalo
violated Section 8(a)(1) and (3) of the National Labor Relations
Act (the Act) by implementing a new hiring procedure which,
inter alia, prohibits job applicants from disclosing protected
concerted activities and which informs applicants that they will
not be hired if they disclose protected concerted activities.
On a review of the entire record in this case and from my ob-
servation of the witnesses and their demeanor, I make the fol-
lowing

1 All following dates will be in 1998, unless otherwise indicated.
MAINLINE CONTRACTING CORP. 929
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the construction industry as a
demolition contractor in the Buffalo, New York area.
It annually purchases and receives goods and materials val-
ued in excess of $50,000 directly from points outside New
York and it admits that at all times material it has been an em-
ployer engaged in operations affecting commerce within the
meaning of Section 2(2), (5), and (7) of the Act. It also admits
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Dennis Franjoine is regional manager for the Respondent
and is responsible for work in New York, Pennsylvania, and
Ohio. Vanessa Franjoine is the Respondent’s chief operating
officer. Both Dennis and V. Franjoine testified that in Decem-
ber 1997, there had been no policy concerning the hiring of
people in the field. If D. Franjoine needed someone, he would
ask the supervisor if he knew anyone who was qualified for the
position, and would also ask employees if they knew anyone.
At times they ran ads, but he could not remember when. In
1997, people did not always fill out applications before they
were hired and most of the people hired were by word of
mouth. D. Franjoine did not give the supervisors any instruc-
tions on hiring but testified that the company wanted people
who were experienced in the position to be filled and that
Mainline wanted to know who they were by reputation or by
verifying prior experience through telephone calls. He also
said he had no policy on keeping applications, he kept some
and threw others away, and they stayed on his desk until he
cleaned up. In December 1997, Robert Zuchlewski held a posi-
tion as one of Respondent’s project managers and in February
1998 he became vice president of operations. As project man-
ager he hired certain support staff but had no duties or experi-
ence with hiring employees for the field. Field positions in-
clude those involving the operations of heavy equipment and
require the work skills generally held by operating engineers or
persons identifiable as equipment operators.
On December 1, 1997, union organizer, Christopher
Hollfelder, drove a union member to the Respondent’s Buffalo
office where the member obtained a job application form.
Hollfelder testified that he had learned that Respondent was one
of the contractors that might be involved in a large demolition
job of a plant near the Buffalo airport, and he wanted to make
copies of the job application form available to members of the
Union so that they could apply for work with Respondent. He
made copies at the Union’s office and then directed union
agents to telephone members of the Union who were unem-
ployed to invite them to come to the Union’s office on Decem-
ber 2, to fill out job applications to submit to Respondent.
Approximately 20 members came and filled out copies of
Respondent’s 10-page job application form. Hollfelder in-
structed each member to write “volunteer union organizer” on
the top of the first page of the application form because it was
“important to our organizational drive.” Each member also
filled out several union forms, including a resume, cover letter,
and union job application form to submit to Respondent along
with the application form.
Later that morning, the union members were taken to Re-
spondent’s office in a bus owned by the Union. On arrival,
Hollfelder accompanied the members into the office to submit
their applications. The visit was video taped by member Tim
Hayden. The video tape camera recorded the entire visit and
the video tape was played back during the course of the hear-
ing. The transcription of the audio portion of the video tape is
reflected in the record at pages 33 through 38.
The video tape and Hollfelder’s subsequent testimony shows
that Hollfelder met and spoke with Project Manager
Zuchlewski in the reception area. During their conversation,
Zuchlewski gave Hollfelder his business card. Hollfelder in-
formed Zuchlewski that the applicants were looking for opera-
tor, driver, or laborer work and had completed application
forms with them. Zuchlewski, in an apparent reference to the
video camera, said, “Can I ask what that’s for?” Hollfelder
replied:

“I want to just record the application process if that’s
okay.” Zuchlewski said:
“Well, I don’t see the need for it, really” and
Hollfelder commented: “It’s good records for their unem-
ployment if they have to fill out anything for a job search.”

The applicant then proceeded, one at a time, in an orderly
manner, to submit their applications to Zuchlewski, while
Hollfelder and Zuchlewski continued their conversation.
Zuchlewski said that he would go through the applications and
get in touch with Hollfelder. He verified that Hollfelder was
the contact person to check with for the group and, when
Hollfelder inquired if the applicants could come back and up-
date their applications if necessary, Zucklewski stated that the
applications would be kept on file for approximately 6 months
and that job applications are kept “on file for any future refer-
ence as we need people.” Zuchlewski told Hollfelder to “please
feel free to come back and update” the applications as desired.
Hollfelder and Zuchlewski then discussed job openings.
Zuchlewski said that there were no positions available at the
time, but that there possibility would be an opening for a me-
chanic. As each applicant left and boarded the bus, Zuchlewski
walked outside with Hollfelder where they continued their con-
versation. Hollfelder informed Zuchlewski of his organizing
effort, offered to sit down with Zuchlewski and talk about the
Union. Hollfelder thanked Zuchlewski and told him to have a
nice day.
Subsequently, Hollfelder made several unsuccessful attempts
to reach Zuchlewski by telephone to inquire about the status of
the applications. Then, on January 5, he spoke by telephone
with V. Franjoine, and inquired whether the union members’
job applications were in order and Franjoine confirmed that
they were.
In late January 1998, Hollfelder accompanied three more un-
ion members to Respondent’s office to submit job applications.
Hollfelder found the door to Respondent’s office locked and a
new sign on the door which stated: “Mainline Contracting is
not currently accepting applications or resumes. Thank you for
your interest in Mainline.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 930
In March, each union member who had submitted applica-
tions to Respondent on December 2, 1997, received a letter
from Respondent dated March 6, and signed by Vanessa Fran-
joine.
The letter states that “Mainline is required by law not to dis-
criminate on the basis of race, religion, sex. . . . or protected
concerted act activity under the National Labor Relations Act,”
and that Respondent has “adopted neutral hiring procedures and
we want to tell you what they are.” The letter then sets forth
six items as hiring procedures. Item 4 states as follows:

4. Applicants are forbidden from marking their
application blanks to show race, religion, color, creed,
sex, national origin, age, legal out-of-work activity,
bankruptcy, or protected concerted activity under the
National Labor Relations Act. Applications delivered to
Mainline with any such information on them will not be
considered for any purpose. [Boldface emphasis in origi-
nal.]

The letter ends by informing the applicants that Respondent
is not presently hiring and that their applications would be
placed in an inactive file as they were more than 30 days old.
The Respondent also began using a new application form
which reads as follows on the top of the first page:
APPLICATION FOR EMPLOYMENT
This application must be filled out in our offices. A
photocopy of this application form will not be accepted.
This application is valid for thirty (30) days. If you are
still seeking employment at the end of thirty (30) days,
you must reapply.
Mainline Contracting Corp. Is [sic] an equal opportu-
nity employer. If you provide any information not re-
quested on this application form, such as race, religion,
color, creed, sex, national origin, age, or protected con-
certed activity under the National Labor Relations Act,
your application will be rejected and not considered for
any purpose.

A representative application, that submitted by union member
Francine Dole, on December 2, included a resume (on union
stationary), that indicated that she had 4 years of apprenticeship
course work, 11 years experience as a union journeyperson and
knowledge of backhoes, track hoes, bulldozers, graders, hy-
draulic cranes, and forklifts. She also thereafter listed general
experience on the equipment and recent specific work as a fork-
lift, excavator, and loader operator (with a CDL class I license).
III. DISCUSSION
The General Counsel contends that Respondent violated Sec-
tion 8(a)(1) of the Act by implementing a new hiring procedure
which prohibits job applicants from disclosing protected con-
certed activities and which informs applicants that they will not
be hired if they disclose protected concerted activities, citing
H. B. Zachry Co., 319 NLRB 967, 968 (1995), in which the
Board found that an employer violated Section 8(a)(1) of the
Act by adopting and maintaining a policy to disqualify job
applicants who provided additional unrequested information on
the employer’s job application form, including information that
the applicant is a “volunteer union organizer.” Respondent, on
the other hand, cites Boilermakers v. NLRB, 127 F.3d 1300
(11th Cir. 1997), in which the Eleventh Circuit considered a
petition to enforce the NLRB’s decision in Zachry and found
that writing “voluntary union organizer” on the top of an appli-
cation blank is designed to communicate only with the em-
ployer, and thus is not a right protected by Section 7. The
court, in denying enforcement, concluded:

The right then which the Union and the Board asked us
to recognize, is the right for union applicants to let poten-
tial employers know about their union affiliation in direct
contravention of the employer’s neutral nondiscriminatory
policy prohibiting extraneous information of any kind.
We are not aware of a single court which has recognized
such a right.

This proceeding involves the Respondent’s apparent failure
to consider or hire union affiliated applicants for positions in
the construction industry equipment operators. The Board en-
dorses a causation test for cases turning on employer motiva-
tion, see Wright Line, 251 NLRB 1083 (1980); NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983), however,
the foundation of Section 8(a)(1) and (3) “failure to hire” alle-
gations rest on the holding of the Supreme Court ruling that an
employer may not discriminate against an applicant because of
that person’s union status, Phelps Dodge Corp. v. NLRB, 313
U.S. 177, 185–187 (1941).
This case does not arise in the Eleventh Circuit and I find
that it would be improper for me to rely on a court of appeals
decision instead of relevant Board decisions on the issues, see
Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984), in which the
Board emphasized that “it is a judge’s duty to apply established
Board precedent which the Supreme Court has not reversed,”
citing Iowa Beef Packers, 144 NLRB 615, 616 (1963). See
also Ford Motor Co., 230 NLRB 716, 718 fn. 12 (1977), enfd.
571 993, 996–1002 (7th Cir. 1978), affd. 441 U.S. 488, 493 fn.
6 (1979), and TCI West, Inc., 322 NLRB 928 (1997). Accord-
ingly, I shall follow the Board’s precedent in Zachary, supra,
on this issue and I find that the uncontested record shows that
the Respondent directly and expressly prohibited applicants
from expressing protected concerted activities under the Act on
the application form. In Zachry, supra, the employer prohibited
the provision of additional unrequested information, such as
writing “volunteer union organizer” on its application form and
in the instant case, Respondent’s prohibition also expressly
states that applications delivered to Respondent in violation of
the prohibition will not be considered for any purpose. Accord-
ingly, I find that consistent with Zachry, the Respondent’s new
hiring procedures noted in item 4 of its March 6 letter and at the
top of its new application forms which prohibits and disquali-
fies applicants that disclose protected concerted activity under
the Act are inherently destructive of employee Section 7 rights
and, violate Section 8(a)(1) of the Act, as alleged.
In this connection it also is observed that the right to com-
municate with an employer is not solely a right of an individ-
ual, but also a right enjoyed by the Union as an agent represen-
tative of a collective group of applicants/employees. This is
especially true in the construction industry, where unions and
MAINLINE CONTRACTING CORP. 931
employers can reach 8(f) agreements. In the instant case, union
representative visited D. Franjoine in the summer of 1998 at a
jobsite and apparently sought to discuss the possibilities of such
an agreement but Franjoine indicated that he was too busy. The
law also permits a union to otherwise make nonmalicious, non-
coercive efforts to communicate with a company in an effort to
pressure it to accede to a union’s bargaining demands or organ-
izational efforts or to protest unfair labor practices, see Burns
Security Services, 324 NLRB 485 (1997), and here, the Re-
spondent shows no extraordinary circumstance that would strip
the Union of its rights to engage in organizational activities or
activities to maintain the economic status of its members. By
the same token, the use of union members, not otherwise em-
ployed in the trade, as “salts” does not affect their status as
statutory employees and it does not deprive them or the union
of protection under the Act, compare M. J. Mechanical Ser-
vices, 324 NLRB 812 (1997).
The focus of the court’s disagreement with the Board deci-
sion in Zachry appears to narrowly seize on the individuals
rights to communicate with one another to organize on the job-
site and an analogy with the well established right to display
union insignia in the work place that can be seen by other
workers. However, in a case of this nature, where union appli-
cants are seeking employment, it would appear that identifica-
tion of union status could be communicate to company officials
as well as nonunion employees and have some influence on
their feelings. Moreover, it is not a question of whether this is a
good or bad, or an effective or noneffective technique. Here,
the issue to be decided is the basic question of whether union
affiliated job applicants can be discriminated against by the
establishment of hiring practices that infringe on their rights
and the rights of their representative, the Union, to act on behalf
of their belief. This is not a right that should be read narrowly,
as suggested in the Boilermakers decision supra, relied on by
the Respondent.
Turning to the 8(a)(3) aspect of the complaint the evidence
establishes that the hiring policies expressed in Respondent’s
March 6 letter and set forth in its new application forms were
developed and implemented for discriminatory reasons. V.
Franjoine admitted that the hiring procedures enumerated in the
March 6 letter, including item 4, were not in effect until after
December 2, 1997. Specifically, items (1) that Respondent
would not accepted applications unless there were actual job
openings; (2) that it would post a notice on its door that Re-
spondent is accepting applications; (3) application blanks must
be filled out on the premises on an original application blank;
(5) that only three applicants would be permitted in Respon-
dent’s office at one time; and (6) prohibiting videotaping on the
premises, did not exist as Respondent’s policies until after the
Union’s December 2 visit and all of these policies are tailored
to respond to the Union’s appearance at its office with 20 appli-
cants, each of whom submitted photocopied applications which
had been completed off premises.
The record establishes that Respondent also changed its pol-
icy concerning the time period during which job applications
would remain active. Project Manager Zuchlewski said that the
union members’ applications would be kept on file for future
use and for approximately 6 months. V. Franjoine, more than a
month later, also told Hollfelder that the applications were still
in order. The March 6 letter, however, states that, because the
union members’ applications were more than 30 days old, they
were inactive and that the union members would have to file
new applications.
The Respondent minimizes Zuchlewski’s role in any hiring
of field employees, however, he subsequently was promoted to
a position as a vice president of operations and he clearly repre-
sented himself to the applicants and the union representative as
one who held apparent authority to deal with their concerns.
Moreover, at no subsequent time did the Respondent communi-
cate any refutation of his authority to the Union or the appli-
cants. Accordingly, I find that the General Counsel has made a
showing sufficient to support an inference that the employees’
union or protected concerted activities were a motivating factor
in Respondent’s subsequent decision to change the conditions
under which applicants may seek employment. Accordingly,
the testimony will be discussed and the record evaluated in
keeping the criteria set forth in Wright Line, supra, and Trans-
portation Management, supra, to consider Respondents defense
and whether the General Counsel has carried his overall bur-
den.
As pointed out by the Court, in Transportation Management
Corp., supra:

an 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 ab-
sence of the protected concerted activity.

Here, the Respondent argues that it became concerned with
compliance with antidiscrimination laws. While the application
form in use in December 1997 did include questions concerning
job applicants’ sex and marital status, the Respondent admitted
that during the 10 years the old employment application form
was in use, Respondent had hired women and minorities, but
their hiring had not prompted any review of the Respondent’s
hiring policies. The old form had no items pertaining to unions,
union membership, or concerted activity under the Act and I
find that there was no apparent need to alter the job application
form or change any hiring policy to avoid discrimination on the
basis of any Section 7 activity.
Here, there was one major intervening act, the December 2
visit of Union and the union applicants (followed up by further
inquiries in January), that clearly triggered the Respondent’s
actions and I find that the Respondent’s demonstrated prior lack
of concern over hiring practices belies its expressed reasons and
I find them to be pretextual. Under these circumstances, I find
that the Respondent has failed to persuasively show that it
would have changed its application procedures and provisions
even in the absence of the events which occurred on December
2 and I find that it is thus clear that Respondent’s review of,
and changes to, its hiring practices were motivated by the Un-
ion’s submission of job applications and not by any professed
business concern. The prohibition on applicants’ expression of
union activities on employment applications was motivated by
that action and designed to disqualify from consideration for
hire union members who expressed a desire to engage in orga-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 932
nizing activities. Accordingly, the record establishes that Re-
spondent violated Section 8(a)(1) and (3) of the Act, as alleged.
The establishment of a policy and maintenance of hiring pro-
cedures that discriminate and prohibit considerations of an
applicant who communicates his beliefs or status regarding
protected concerted activity under the Act also must be found
to be a practice designed to preclude consideration of an entire
class of applicants. Accordingly, the Respondent is shown to
have engaged in discriminatory conduct that is inherently de-
structive of important employee rights, see Zachry, supra, and
Great Dane Trailers, 388 U.S. 26, 34 (1967), cited therein.
The Respondent’s asserts that Project Manager Zuchlowski
“was frightened and intimidated by the large group of people in
the lobby” and that he then made up a story about the nature of
the application process to get the applicant out “without physi-
cal violence.” It then relies on the Board’s holding in Heiliger
Electric Corp., 325 NLRB 966 (1998), to contend that the
overall environment created by the union applicants was so
intimidating and hostile as to privilege the Respondent to not
consider them for hire.
Here, I find the Respondent’s argument to be a gross and in-
accurate representation of the record and what actually oc-
curred. What happened here was an almost completely oppo-
site to the factual situation in the cited Heiliger case, where the
union applicants barged past the owner into a back office occu-
pied by a supervisor, where they were repeatedly asked to leave
and they refused to do so, and when express requests to cease
video taping were ignored and, where the video taping was
particularly invasive as it provided close scrutiny of personal
private papers. As pointed out by the Charging Party, the video
tape (GC Exh. 3) shows that the union applicants and their
spokesperson, Hollfelder, were extremely respectful, courteous
and professional.
A reading of the transcript of the audio portion of the video
of that event as well as a viewing of the video shows that
Zuchlewski was not flustered, hostile or defensive while inter-
acting with the union agent and applicants and I do not credit
any of his testimony which attempts to portray the encounter as
being somehow hostile, violent or unlawful on the part of the
Union. The audio demonstrates that when Zuchlewski saw the
video camera he did not request that it be removed or turned off
but merely said, “Can I ask what that’s for.” Hollfelder re-
spectfully replied, “I want to just record the application process
if that okay” and, again, Zuchlewski merely replied, “Will I
don’t see the need for it, really.” Clearly, the Union was not
asked to stop video taping and there is no other indication that
the taping was invasive or illegal in nature.
Here, the Respondent attempts to distort the nature of the en-
counter and, in fact, gives support to the concept that a union
has a valid need to document such events in order to accurately
reflect the actual nature of its application attempt and thus pro-
tect itself and its members from false or misleading claims by
an employer. The video shows that the applicants even lined
up and individually proceed to give their application to
Zuchlewski in a calm, orderly, and uncrowded manner. The
whole procedure was low key, Zuchlewski shook hands as
Hollhelder was leaving and there was no questionable or dis-
ruptive behavior (although a union sticker was placed on the
bumper of what turned out to be Zucklowski’s car which was
parked outside the entrance). Accordingly, I find that the Re-
spondent has failed completely to show that the Board’s deci-
sion in Heiliger has any bearing in this case or that the appli-
cants in any way engaged in improper activity that would act to
deny them the protection of the Act to which they otherwise are
entitled.
On brief, the Respondent also alludes to this court’s refusal
to allow an offer of proof. That did not occur. At the begin-
ning of the hearing I granted petitions by the General Counsel
and the Union to revoke subpoenas by the Respondent which
sought from the Board, among other things, all changes filed by
the Union alleging discriminatory hiring practices. At that time
I also suggested that when the Union’s agent, Hollfelder, was
on the stand he could be asked some questions, which might
generate the information sought. The Respondent’s counsel
then made a statement that if the evidence had been produced it
would show a large number of charges and I then interrupted.
Counsel did not preface his remarks as an offer of proof nor did
he then ask to make an offer of proof but he did assert that I had
denied him that opportunity. I stated that that was an incorrect
representation.
I now reaffirm that conclusion.
Counsel failed to communicate any specific request to make
an offer of proof. Moreover, I had already suggested that any
inquiry could be deferred until a witness was on the stand. At
that point if a specific offer of proof had been advanced it
would have within my discretion (especially upon objection by
the General Counsel or the Union), to reject an offer of proof as
to an adverse witness, see Auto Workers (Borg-William Corp.),
231 F.2d 237, 242 (7th Cir. 1956). Although the Respondent
cross-examined witness Hollfelder, it failed to ask any ques-
tions about the Union’s filing of charges and thereby failed to
avail itself of an opportunity to lay any further foundation. An
offer of proof may be excluded where the nature of the evi-
dence sought to be adduced was made know to the court, as
here, by the description in the subpoena and otherwise was
apparent from the context of counsel’s statements. Moreover,
in this instance the purported offer related to information from
an adverse party, the subject material was of no probable rele-
vancy and it was material from an adverse party that had been
revoked as a valid subject for a subpoena and, under these cir-
cumstances, it was neither a valid nor a viable offer of proof
and a ruling that cuts off debate on the matter does not affect
any substantial procedural right of the Respondent.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By implementing a new hiring procedure which prohibits
job applicants from disclosing protected concerted activities
and which informs applicants that they will not be hired if they
disclose protected concerted activities, Respondent violated
Section 8(a)(1) of the Act.
4. By discriminatorily implementing a new hiring policy be-
cause union members had applied for employment with Re-
MAINLINE CONTRACTING CORP. 933
spondent, the Respondent violated Section 8(a)(1) and (3) of
the Act.
REMEDY
Having found that Respondent engaged in certain unfair la-
bor practices, I shall recommend that it be ordered to cease and
desist therefrom and that it take certain affirmative action set
forth below to effectuate the policies of the Act.
Here, there is no allegation that the Respondent refused to
hire anyone, accordingly, the relief granted will be limited to an
order requiring rescission of the hiring rules found to be illegal
and requiring future consideration of the named applicants or
other union affiliated applicants who may seek employment.
Such consideration shall be for a period valid for 6 months (the
timeframe first announced to the applicants). Otherwise, it is
not considered necessary that a broad order be issued.
[Recommended Order omitted from publication.]