Martinson Electric Co.

National Labor Relations Board - Board Decisions

Dec 18, 1995

319 N.L.R.B. 1226 (N.L.R.B. 1995)

1226
319 NLRB No. 144
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
2 We find no merit in the Respondent’s contention that volunteer
union organizers are not employees under the National Labor Rela-
tions Act. See NLRB v. Town & Country Electric, 115 S.Ct. 933
(1995) (mem.) (job applicants who are also paid union organizers are
nevertheless employees within the meaning of Sec. 2(3) of the Act
and are entitled to its protection).
3 We shall modify the judge’s recommended Order to conform it
with his Notice to Employees.
1 All dates refer to 1994 unless otherwise indicated.
Martinson Electric Company and International
Brotherhood of Electrical Workers, Local
Union 915, AFL–CIO. Cases 12–CA–16387, 12–
CA–16636, and 12–CA–16711
December 18, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On June 29, 1995, Administrative Law Judge Albert
A. Metz issued the attached decision. The Respondent
filed exceptions and a supporting 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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Martinson Electric Company, Plant City, Florida, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs accordingly.
‘‘(b) Notify in writing Earnest Baggett, Pat Beall,
Bill Dever, Jim Fales, Raymond Johnson, John Keefer,
Tracy Pierce, Clyde Tucker, Patrick Berry, and Ken-
neth Kitchel that any future job applications will be
considered in a nondiscriminatory manner.’’
Dallas L. Manuel II, Esq., for the General Counsel.
William E. Sizemore, Esq. (Thompson, Sizemore & Gon-
zalez), of Tampa, Florida, for the Respondent.
William A. Dever Jr., of Valrico, Florida, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ALBERT A. METZ, Administrative Law Judge. These con-
solidated cases were heard at Tampa, Florida, on May 8 and
9, 1995. A consolidated complaint issued against Martinson
Electric Company (the Respondent) on January 30, 1995.
The complaint was based on charges filed by the Inter-
national Brotherhood of Electrical Workers, Local Union
915, AFL–CIO (the Union). The charges were filed on July
18, October 4 and 31, 1994.1 The primary issues are whether
Respondent refused to hire employees in violation of Section
8(a)(1) and (3) of the Act and interrogated two employees
concerning their union membership in violation of Section
8(a)(1).
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by counsel for the General Counsel and Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Florida corporation with an office and
place of business at Plant City, Florida, where it is engaged
in the electrical construction business. During the past 12
months Respondent purchased and received goods valued in
excess of $50,000 at Florida locations from other enterprises
located in Florida. Each of these other enterprises had re-
ceived the goods directly from points located outside the
State of Florida. The complaint alleges, Respondent admits,
and I find that Respondent has been at all times material an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The crux of this case is whether the Respondent started
using a temporary employment service to avoid hiring union
electricians. The Respondent is a nonunion electrical contrac-
tor. Prior to January 1994 the Company had always hired its
own employees. In early January, Respondent’s owner, Al-
fred Martinson, heard about a temporary employment serv-
ice, Second Shift, Inc. He checked with his accountant and
allegedly determined that it would be cheaper to use tem-
porary workers. Sometime around January 6, Second Shift
presented Respondent with a document entitled ‘‘General
Agreements.’’ This document was allegedly signed by
Martinson on January 6. (G.C. Exh. 11.)
According to Martinson, Second Shift could not supply his
company with electricians in early January. Respondent had
a large amount of work at the time due to expanding de-
mands at an Albertsons grocery warehouse project. Thus, Re-
1227MARTINSON ELECTRIC CO.
2 See, e.g., Interstate Circuit, Inc. v. United States, 306 U.S. 208,
226 (1939) (‘‘The production of weak evidence when strong is avail-
able can lead only to the conclusion that the strong would have been
adverse.’’); Tendler v. Jaffe, 203 F.2d 14, 19 (D.C. Cir. 1953) (‘‘The
omission by a party to produce relevant and important evidence of
which he has knowledge, and which is peculiarly within his control
raises the presumption that if produced the evidence would be unfa-
vorable to his cause.’’).
spondent ran a newspaper ad between January 15–31 asking
for journeymen electrician applicants.
B. Evidence as to the January 6 ‘‘Agreement’’
There is a dispute as to the meaning of the January 6
agreement involving Second Shift. The Respondent contends
that by signing this document, it was agreeing to use Second
Shift’s services. Counsel for the General Counsel argues the
agreement is not valid and no contract was signed by the
Company until February 15.
The January 6 agreement is not signed by Second Shift
where designated on the first page. The document contains
no term certain that it is to be in effect. The second page
of the exhibit is enlightening. It indicates that the document
was intended as a solicitation:
We appreciate your interest and hope that you will
consider the service and benefits our company has to
offer.
. . . .
If you are considering our services, please complete
the following.
[Space for company name, etc. which has been filled
in by Martinson.]
A representative of Second Shift, Keith Renner, was sub-
poenaed by the Government to testify about the Respond-
ent’s file. There was only one Martinson agreement con-
tained in Second Shift’s records. It bears the date February
15, 1994. (G.C. Exh. 5.) Renner had no knowledge of the
January 6 document.
Martinson acknowledged signing the February 15 agree-
ment. He offered no clear explanation why a second contract
had been executed a little over a month after the first one
was allegedly signed. Respondent did not hire its first worker
through Second Shift until February 16.
In sum, the evidence indicates no contract was con-
summated until February 15. I find that the January 6 docu-
ment was not a contract to use the services of Second Shift.
I further find that the Respondent did not commit to use Sec-
ond Shift until it admittedly executed the February 15 agree-
ment.
C. Alleged Cost Savings from Using a Temporary
Employment Service
Martinson testified that his accountant told him he would
save money by using the temporary service. He has continu-
ously used the service and states that it has saved him an es-
timated ‘‘25–30%.’’ (Tr. 363.)
Respondent must pay a premium to Second Shift for each
employee used. For example, an employee earning a wage of
$10 per hour costs the Respondent $15.06 in payments to
Second Shift. (R. Exh. 2.) Second Shift Representative Keith
Renner testified that his company’s services were designed to
save the client money. He had no knowledge of whether that
was the case with the Respondent.
The Respondent did not call the Company’s accountant to
testify. The Respondent did not offer its books or records
into evidence to support its assertion of cost savings. The
withholding of the testimony of the accountant is particularly
puzzling. He presumably could offer details as to when he
was queried by Martinson, his financial predictions, and the
actual subsequent financial benefits of using Second Shift.
Likewise, the absence of books and records establishing the
claimed cost saving is a serious shortcoming in Respondent’s
defense. This evidence was easily within the command of the
Respondent to produce as part of its case. The evidence goes
to the very heart of Respondent’s economic defense.
Under the adverse inference rule when a party has relevant
evidence within its control which is not produced, that failure
gives rise to an inference that the evidence is unfavorable to
the party. Auto Workers v. NLRB, 459 F.2d 1329 (D.C. Cir.
1972).2 It was not the obligation of the General Counsel to
seek the production of the financial information. It is pre-
sumed a party will act on his own initiative to introduce the
most favorable evidence in its behalf. Auto Workers v.
NLRB, supra at 1345.
Additionally, Martinson’s self-serving testimony concern-
ing his estimate of savings does not negate the adverse infer-
ence. His unsupported impressions are no substitute for the
relevant evidence Respondent withheld:
In terms of the adverse inference rule, it makes not
a whit of difference what Papakos testified to (his per-
sonal knowledge of rehiring records) or, indeed, wheth-
er he testified at all. Regardless of what other testimony
was in the record, the fact remains that Gyrodyne had
within its possession important evidence which it failed
to produce and that an inference that the evidence was
unfavorable naturally attaches to this conduct. [Auto
Workers v. NLRB, supra at 1345–1346.]
I find that the testimony of the Company’s accountant and
the evidence from its books and records would be contrary
to Martinson’s assertion that the use of Second Shift was fi-
nancially advantageous. International Automated Machines,
285 NLRB 1122, 1123 (1987); Master Security Services, 270
NLRB 543, 552 (1984). The Respondent has not shown by
probative evidence that it decided to use Second Shift on the
basis of a calculated economic business justification. Adair
Standish Corp., 290 NLRB 317, 318–319 (1988).
D. Alleged 8(a)(1) Interrogation of January Applicants
In January two union electricians, Jack Poole and Paul
Blankinship, responded to the Company’s newspaper adver-
tisement. Each made a point of concealing his connection to
the Union. Both men were hired.
1. Paul Blankinship
Blankinship applied on January 19 and was interviewed by
Superintendent Bob Sadler. His application listed the union
contractor, Ken Robinson Electric, as a former employer.
After Sadler looked at the application he asked Blankinship
if he were Union. Blankinship said, ‘‘[N]o Sadler then asked
if his father was a union member. Blankinship told him he
was not, that he was retired from the Air Force. Sadler told
1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 It is settled Board law that even if an applicant is a full-time paid
union organizer such person is nonetheless an ‘‘employee’’ within
the meaning of the Act. Sunland Construction Co., 309 NLRB 1224,
1230 (1992); Town & Country Electric, 309 NLRB 1250, 1258
(1992). The Supreme Court has granted certiorari on this issue. See
Town & Country Electric v. NLRB, 34 F.3d 625 (8th Cir. 1994),
cert. granted 116 S.Ct. 450 (1994).
Blankinship he would call him later about possible employ-
ment.
The next day Blankinship was called to come to work. He
arranged to report to the office on January 21. At that time
he was given forms to fill out. He was using Sadler’s office
to do this task when Sadler came and stood in the doorway.
Behind him was owner Alfred Martinson. Sadler once again
asked if Blankinship was affiliated with the Union. When
told no, Sadler asked how he was able to work at Ken Rob-
inson Electric. Blankinship explained that he had been sent
there as a ‘‘white ticket’’ referral from the union hall. (White
ticket referrals are nonunion persons registered on the union
books.)
Sadler denied that he ever asked Blankinship about his
union membership Likewise, Martinson denied overhearing
the conversation of January 21.
I credit Blankinship’s version of the two incidents. By his
demeanor and his detailed testimony he impressed me as giv-
ing an accurate recitation of the two encounters. On the other
hand, the bare denials of Sadler and Martinson were not be-
lievable. I find that in interrogating Blankinship about his
union membership on both occasions, Respondent violated
Section 8(a)(1) of the Act. Electro-Tec, Inc., 310 NLRB 131,
134–135 (1993).
2. Jack Poole
Poole was hired after Blankinship in January. He was also
interviewed by Sadler. Sadler noticed Poole’s application list-
ed a local union contractor, Knight Electric, as a previous
employer. According to Poole, Sadler asked why he had left
Knight Electric. Poole responded that the union was organiz-
ing there so he quit. Sadler replied, ‘‘[T]hat’s just like the
damn Union.’’ Sadler then asked Poole if he had joined the
union while working at Knight Electric. Poole told him no.
Sadler denied interrogating Poole about his union member-
ship.
Poole impressed me as a forthright witness who readily ac-
knowledged his support for the Union and his willingness to
assist its organizing efforts. His demeanor was of a person
who was telling the truth to the best of his recollection. In
contrast, Sadler, because of his demeanor and simple denial
that the event happened, was a less impressive witness. His
disavowal that the conversation took place was not persua-
sive. I credit Poole that Sadler inquired as to his union mem-
bership. I find this questioning is a violation of Section
8(a)(1) of the Act.
E. Union Members Openly Apply for Work on
February 1
At approximately 9:35 a.m. on the morning of February 1,
William Dever, a full-time paid organizer for the Union, was
at Respondent’s office.3 He was accompanied by seven un-
employed union electricians. The union members were Ear-
nest Baggett, Pat Beall, Jim Fales, Raymond Johnson, John
Keefer, Tracy Pierce, and Clyde Tucker. Dever introduced
himself to the receptionist as a union representative. Dever
and the men filled out job applications and turned them in
that morning. On the front page of the applications they
added the words ‘‘Union Organizer.’’ The eight union appli-
cants were never interviewed or contacted by the Respond-
ent.
Martinson admitted that he reviewed the union members’
applications. He acknowledged that he noticed their added
language ‘‘Union organizer.’’
F. Foreman Loggans’ Statements About Hiring
When Jack Poole and Paul Blankinship were hired they
went to work at the Respondent’s Albertson’s warehouse
project under the direction of Foreman David Loggans. Prior
to February 1, Loggans had told them there was much work.
Loggans asked if the employees knew of any qualified elec-
tricians they could recommend. Poole testified that Loggans
had complained of the large amount of work, and that ‘‘he
needed six more men real bad.’’ (Tr. 102.)
At noon time on February 1, however, this solicitation of
recommendations changed. Loggans called the electricians
together at lunch and made an announcement. According to
Poole, Loggans appeared shaken. Poole and Blankinship re-
called that Loggans said that the Company was still accept-
ing applications but was no longer hiring.
Contrary to the Government’s assertion, the Company de-
nies that Loggans is a supervisor or an agent of the Respond-
ent. Loggans, who did not testify, is no longer employed by
the Company. Loggans directed the employee’s work at the
Albertsons project, had a beeper to keep in touch with the
Respondent’s office, coordinated with Albertson’s personnel
to meet the customer’s needs, and was the only person con-
trolling the Respondent’s work force who was consistently
on the job. When Blankinship was hired he was told he
would be working for Loggans. Loggans had a company
truck and wore a company uniform.
I conclude that on the Albertsons’ job Loggans was, at
minimum, the Respondent’s agent. I find that Loggans was
acting as the Respondent’s agent when he made the state-
ments of the increased need for employees. I further find
Loggans was acting as Respondent’s agent when, shortly
after the union group applied, he abruptly announced a
change in the Company’s hiring policy.
G. Respondent’s Hiring Practices After February 1
After the union members made application for work on
February 1, the Respondent did not hire any additional work-
ers until mid-February. On February 15, the Respondent
signed the agreement with Second Shift to supply it with
electricians. The first employee was hired through the tem-
porary service starting February 16. Respondent has contin-
ued to use this and one other temporary service since that
time.
On June 21 and July 27, Respondent placed orders for
electricians and electrician helpers with the State of Florida
Job Services. Two union members applied in August pursu-
ant to Job Service referrals. Both ‘‘overtly’’ made known
their union affiliation.
1229MARTINSON ELECTRIC CO.
1. Patrick Berry
Patrick Berry applied for work on August 3. He put ‘‘vol-
unteer union organizer’’ on his application. Superintendent
Sadler reviewed his application and said that there was a lot
of work coming up. According to Berry, there was no men-
tion of temporary employment services the Company was
using. Sadler said he would call later. Berry never heard
from the Respondent.
Sadler recalled that at the time Berry applied the Respond-
ent was doing its hiring through Second Shift. He did not
contend, however, he told this to Berry. He did remember
discussing Berry’s application with Martinson. He opined
that Berry was well qualified and the Company should send
his application to Second Shift. He also thought they should
contact Berry and tell him to apply through Second Shift in
the hope ‘‘that maybe he would be available to us.’’ (Tr.
460.) Although attempts were allegedly made to contact
Berry, these were unsuccessful. There is no evidence Re-
spondent forwarded Berry’s application to Second Shift as
Sadler suggested.
I find Respondent’s explanation concerning Berry to be
disingenuous and inconsistent with the fact of seeking help
through the State Job Service. It is at best ambiguous why
Respondent would post electrician positions at the Job Serv-
ice, review applications, but then subsequently try to advise
applicants that it was not hiring directly.
2. Kenneth Kitchel
The later experience of Kenneth Kitchel is enlightening of
the Company’s motivation for not hiring directly despite its
state job postings. Kitchel was referred to Respondent by the
State Job Service on August 24.
Kitchel was conspicuously dressed in a union shirt and
wearing an IBEW hat when he arrived at Respondent’s of-
fice. He encountered Superintendent Sadler in the office. Ac-
cording to Kitchel, Sadler on seeing him angrily said, ‘‘What
the hell do you want?’’ Kitchel told him that Job Service had
sent him to apply for a job. Sadler said Respondent was not
hiring that they used Second Shift. Kitchel said he wanted
to fill out an application anyway. Sadler kicked the waste
basket, ‘‘slammed a few things,’’ and said the secretary was
not in so he did not have an application. Kitchel said he
would wait for the secretary. At that point Sadler produced
an application. Kitchel then filled out and left the completed
application at the office. The application notes Kitchel’s em-
ployment with union contractors and his IBEW training.
Kitchel never heard from the Respondent.
Sadler’s version of the encounter is more temperate. He
acknowledged Kitchel’s persistence at obtaining an applica-
tion. Sadler told him that Respondent was not hiring except
through Second Shift, and he gave the telephone number for
the agency to Kitchel. Sadler did not deny Kitchel’s recita-
tion concerning his kicking the wastebasket, slamming
things, and asking, ‘‘What the hell do you want.’’
Kitchel’s testimony is the more credible version of what
happened. Kitchel was forthright in his testimony and by his
demeanor displayed a desire to accurately tell what occurred.
In contrast, Sadler’s testimony glossed over the incident. He
did not deny his anger at having to deal with the insistent
union member. I find Sadler’s open irritation was triggered
by Kitchel’s prominent display of his union clothing. I fur-
ther find that Sadler’s hostility was indicative of Respond-
ent’s attitude towards union members who applied for work.
H. Analysis of Known Union Applicants not
Being Hired
The Government contends that Respondent refused to hire
applicants who were known union members because of that
affiliation. The Respondent defends by arguing it either did
not need additional employees or that it had made the busi-
ness decision to use temporary employment agencies.
The General Counsel has the initial burden of establishing
a prima facie case. This must be sufficient to support an in-
ference that union or other protected activity was a motivat-
ing factor in Respondent’s action alleged to constitute dis-
crimination in violation of Section 8(a)(3). The elements
commonly required to support a prima facie showing of dis-
criminatory motivation under Section 8(a)(3) are union activ-
ity, employer knowledge, timing, and employer animus.
Once such prima facie unlawful motivation is shown, the
burden shifts to Respondent to demonstrate that the alleged
discriminatory conduct would have taken place even in the
absence of the protected activity. If Respondent goes forward
with such evidence, the General Counsel ‘‘is further required
to rebut the employer’s asserted defense by demonstrating
that the [alleged discrimination] would not have taken place
in the absence of the employee[’s] protected activities.’’
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983).
The test applies regardless of whether the case involves
pretextual reasons or dual motivation. Frank Black Mechani-
cal Services, 271 NLRB 1302 fn. 2 (1984). ‘‘A finding of
pretext necessarily means that the reasons advanced by the
employer either did not exist or were not in fact relied upon,
thereby leaving intact the inference of wrongful motive es-
tablished by the General Counsel.’’ Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. sub nom. 705 F.2d 799
(6th Cir. 1982).
The General Counsel has established through the interro-
gations and anger concerning union applicants that the Re-
spondent has animosity towards the Union. The timing of the
Respondent’s cessation of direct hiring in relation to the
Union’s mass applications is also relevant. Likewise, the
newspaper ads and State Job Service postings belie a deter-
mination to exclusively use Second Shift for Respondent’s
hiring needs. Importantly the Respondent has elected to with-
hold evidence within its control supporting its economic jus-
tification for not considering union members for hire. Adair
Standish Corp., 290 NLRB 317, 318–319 (1988). (Respond-
ent did not meet its Wright Line burden, in part, because it
failed to produce relevant business records.) I find that the
General Counsel has met his burden of showing by a prepon-
derance of the evidence that the Respondent refused to con-
sider the February and August applicants for employment be-
cause of their union membership. I further find that such
conduct is a violation of Section 8(a)(1) and (3) of the Act.
Although the complaint alleges that the union members
were refused employment, it is not clear from the record
which persons would have been hired but for the Respond-
ent’s unlawful conduct. Therefore, I limit my findings to a
conclusion that the General Counsel has proven that Re-
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
5 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.’’
spondent refused to consider the 10 men for employment be-
cause of their union affiliation. The details of who would
have been hired, the amount of backpay and to whom offers
of employment should be made can best be resolved at the
compliance stage. Ultrasystems Western Constructors, 316
NLRB 1243 (1995).
CONCLUSIONS OF LAW
1. The Respondent, Martinson Electric Company, is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local
Union 915, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminatorily refusing to consider for employment
on February 1, 1994, Earnest Baggett, Pat Beall, Bill Dever,
Jim Fales, Raymond Johnson, John Keefer, Tracy Pierce,
Clyde Tucker; on August 3, 1994, Patrick Berry; and on Au-
gust 24, 1994, Kenneth Kitchel because of their union mem-
bership, the Company engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(3) and
(1) and Section 2(6) and (7) of the Act.
4. By coercively interrogating job applicants concerning
their union membership, the Respondent violated Section
8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily refused to con-
sider for employment Earnest Baggett, Pat Beall, Bill Dever,
Jim Fales, Raymond Johnson, John Keefer, Tracy Pierce,
Clyde Tucker, Patrick Berry, and Kenneth Kitchel it must
consider them for hire on a nondiscriminatory basis. Re-
spondent must make whole for any loss of earnings and other
benefits any of the employees it would have hired but for its
unlawful conduct. Ultrasystems Western Constructors, supra.
Such backpay shall be computed on a quarterly basis from
the date of the established refusal to hire to the date of a
proper offer of employment, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987). All reinstatement and backpay rec-
ommendations are subject to the procedures discussed in
Dean General Contractors, 285 NLRB 573 (1987), and
Haberman Construction Co., 236 NLRB 79 (1978).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Martinson Electric Company, Plant City,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to consider Earnest Baggett, Pat Beall, Bill
Dever, Jim Fales, Raymond Johnson, John Keefer, Tracy
Pierce, Clyde Tucker, Patrick Berry, and Kenneth Kitchel for
employment because of their membership in a labor organi-
zation.
(b) Coercively interrogating job applicants concerning their
membership in labor organizations.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole Earnest Baggett, Pat Beall, Bill Dever,
Jim Fales, Raymond Johnson, John Keefer, Tracy Pierce,
Clyde Tucker, Patrick Berry, and Kenneth Kitchel for any
losses they may have suffered by reason of Respondent’s dis-
criminatory refusal to consider them for hire in the manner
set forth in the remedy section of this decision. Offer any of
those applicants who would currently be employed, but for
the Respondent’s unlawful refusal to consider them for hire,
positions for which they applied, or if those jobs 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 if they had not been discrimi-
nated against by the Respondent.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its facility in Plant City, Florida, copies of the
attached notice marked ‘‘Appendix.’’5 Copies of the notice,
on forms provided by the Regional Director for Region 12,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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.
1231MARTINSON ELECTRIC CO.
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 refuse to consider applicants for employ-
ment based on our conclusion that they are union sympathiz-
ers.
WE WILL NOT coercively interrogate job applicants con-
cerning their union membership.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL make whole Earnest Baggett, Pat Beall, Bill
Dever, Jim Fales, Raymond Johnson, John Keefer, Tracy
Pierce, Clyde Tucker, Patrick Berry, and Kenneth Kitchel for
any losses they may have suffered by reason of Respondent’s
discriminatory refusal to consider them for hire and WE WILL
offer any of those applicants who would currently be em-
ployed, but for our unlawful refusal to consider them for
hire, positions for which they applied, or if those jobs 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 if we had not dis-
criminated against them.
WE WILL notify in writing Earnest Baggett, Pat Beall, Bill
Dever, Jim Fales, Raymond Johnson, John Keefer, Tracy
Pierce, Clyde Tucker, Patrick Berry, and Kenneth Kitchel
that any future job applications will be considered in a non-
discriminatory manner.
MARTINSON ELECTRIC COMPANY