Masiongale Electrical-Mechanical

National Labor Relations Board - Board Decisions

Dec 20, 2001

337 N.L.R.B. 42 (N.L.R.B. 2001)

42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Masiongale Electrical-Mechanical, Inc. and Indiana
State Pipe Trade Association and United Asso­
ciation Local 172, a/w United Association of
Journeymen and Apprentices of the Plumbing
and Pipe-Fitting Industry of the United States
and Canada, AFL–CIO and Indiana State Pipe
Trades Association and United Association Lo­
cal 661, A/W United Association of Journeymen
and Apprentices of the Plumbing and Pipe-
Fitting Industry of the United States and Can­
ada, AFL–CIO. Cases 25–CA–25119, 25–CA–
25246, 25–CA–25446, and 25–CA–25731
December 20, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On October 2, 2000, Administrative Law Judge Bruce
D. Rosenstein issued the attached supplemental decision.
The Respondent filed exceptions and a supporting brief.
The General Counsel filed limited exceptions, a support­
ing brief, and an answering brief.
The National Labor Relations Board has considered
the supplemental decision and the record in light of the
exceptions and briefs and has decided to affirm the
judge’s rulings, findings,1 and conclusions2 and to adopt
the recommended Order as modified and set forth in full
below.3
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 correctly observes in exceptions that the judge erred
in stating that, unlike all of the union applicant discriminatees in this
case, none of the nonunion employees whom it hired in the period from
January 1995 to August 1998 had indicated on their applications that
they had plumbing licenses or experience as journeymen plumbers.
The record shows that the applications of as many as 14 nonunion
applicants indicated that they had licenses. This factual error does not
affect the validity of the judge’s analysis, however, because at least 40
of the nonunion applicants hired—twice as many as the 20 union appli­
cants not hired or considered for hire—still did not state that they held
licenses or had journeyman experience.
2 Consistent with the judge’s analysis of the issues presented on re­
mand, Conclusion of Law 3 should have stated that the Respondent
unlawfully refused to employ and consider (rather than or consider) for
hire each of the named discriminatees.
3 We shall modify the language of the recommended Order and no­
tice to place the remedial provisions in their traditional order and, as
requested in the General Counsel’s limited cross-exceptions, to include
language omitted from the judge’s recommended notice. We shall also
modify the remedial recordkeeping provision in the recommended
For the reasons more fully articulated in the judge’s
decision, we agree that the Respondent unlawfully failed
to hire and consider for hire 20 union applicants. See
FES, 331 NLRB 9 (2000), and Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). Contrary to our dissenting
colleague, we find that the Respondent’s professed reli­
ance on certain hiring rules was a discredited, post hoc
pretext for its real discriminatory motivation.
On March 28, 1997,4 union organizer Thomas Neal
submitted to the Respondent the applications of 13 union
members as well as his own application.5 Each of these
applications had been completed and signed in January.
The application form used by these applicants stated,
“Applications will be considered current for 30 days.”
The form offers no further clarification as to whether the
30 day period began on the application date or on the
submission date.6 The Respondent’s sole witness, owner
Ken Masiongale, claimed that he immediately rejected
the 13 applications because they were more than 30 days
old when submitted. The judge specifically discredited
this testimony. As previously stated, we find no basis for
reversing the judge’s credibility resolutions.
Furthermore, it is clear from the credited evidence that
the Respondent did not require applicants even to fill out
an application form as a prerequisite to being hired as a
plumber or plumbers assistant. Some individuals, in­
cluding covert union applicants, were hired “on the spot”
without prior review of any application forms.
For instance, union organizer Neal delivered his job
application with the batch of applications on March 28.
As previously stated, Masiongale admits to having disre­
garded these applications immediately upon receipt.
Neal, however, called the Respondent on April 15 to
inquire about his application. The Respondent’s recep­
tionist took his name and number, informing him that he
would have to talk to the owner. That evening, Respon­
dent’s superintendent, Michael Woods, left a voice mes­
sage for Neal. Neal phoned Woods on April 17. Neal
told Woods that he had a plumber license and prior re­
lated experience. Woods offered Neal a job at $14 per
hour and told him to report on Monday morning at a par­
ticular jobsite.
Later that evening, Neal called Woods to inform him
that he had a friend, Anthony Bane, who also had a
Order in accordance with our recent decision in Ferguson Electric Co.,
335 NLRB 142 (2001).
4 Unless otherwise noted, dates are in 1997.
5 There is no dispute that during the relevant time period the Re­
spondent filled in excess of 20 plumber positions.
6 We note that the Respondent relied on its 30-day rule only in de­
fense of its failure to hire or consider for hire the 13 union applicants
whose applications were filed on March 28, 1997.
337 NLRB No. 4
MASIONGALE ELECTRICAL-MECHANICAL 43
plumber’s license and was interested in working. Woods
said that Bane should call him, which Bane did. During
this phone conversation, they agreed that Bane would
also be hired at $14 per hour and should report to work at
the jobsite with Neal the following Monday. Although
both men were asked to provide their driver’s license
numbers for background checks, neither submitted a
written job application before being hired. The only ap­
plication on file for Neal was the so-called “stale” appli­
cation completed in January and submitted in March.
Neither applicant revealed his union affiliation during
this application process. In sum, Respondent hired Bane
without first requiring him to fill out any forms, and it
hired Neal either without requiring an application or by
relying on the “stale” application Masiongale claims to
have disregarded. In any case, Respondent’s actions
clearly undercut its articulated defense of reliance on a
neutral practice of requiring “fresh” applications in order
to hire plumbers.7
Similarly, when covert union organizers Jeffrey Jehl
and Gary Gravit had earlier applied for work in Decem­
ber 1996, they were both hired without benefit of any
prior review of written applications. Although Gravit
was given a job application to take with him and fill out,
he was hired by phone prior to submitting it. Despite
having no plumbing license, Jehl was hired on the spot
when Gravit brought him to the jobsite unannounced on
his first day of work. The record therefore indicates that
the Respondent did not rely on written application
forms —whether “fresh” or “stale”—when making hiring
decisions concerning these applicants who had not made
their union affiliations known to the Respondent.
We note further that the Respondent did not offer any
affirmative evidence to demonstrate it relied on a “stale­
ness” criteria to reject any applicants other than the overt
union applicants in question. Therefore, we affirm the
judge’s credibility-based finding that the Respondent’s
reliance on a so-called “30-day rule” was a post hoc,
pretextual justification for its refusal to hire any union
applicants.
The Respondent’s claim that it failed to hire another
seven union applicants because of a rule disqualifying
persons with a history of higher wages is similarly un-
7 Although the Respondent required both Neal and Bane to fill out
application forms when they reported for work on April 21, the hiring
decisions were made prior to any evaluation by the Respondent of these
“fresh” applications. Both Neal and Bane were unlawfully terminated
by the Respondent after being subjected to a series of independent
8(a)(1) violations, subsequent to the Respondent learning that they were
both union organizers. Masiongale Electrical-Mechanical, 331 NLRB
534 (2000). These violations included the imposition of new hiring
policies requiring Neal and Bane to submit to background checks and
to interviews with a private investigator.
founded. The record indicates the Respondent did hire
nonunion applicants who had similarly high wage histo­
ries during the relevant time period.8 Furthermore, the
version of the application form used by four discrimina­
tees who applied for work with the Respondent in Au-
gust did not even request wage history information, and
it was not volunteered by the discriminatees.
In short, we disagree with the dissent’s premise that
the Respondent has met its Wright Line burden of show­
ing that, notwithstanding its manifest union animus, its
rejection of the 20 union-affiliated job applicants was
based on valid, neutrally-applied hiring criteria. There is
no need here to contest the dissent’s discussion of the
general legitimacy of a 30-day rule or a wage history rule
in the construction industry. The question is not whether
the Respondent showed that it could have lawfully failed
to hire or consider for hire these union applicants, but
rather whether the Respondent showed it would have
done so in the absence of the protected activity. See,
e.g., Filene’s Basement Store, 299 NLRB 183, 185
(1990). In the circumstances of this case, we agree with
the judge that the Respondent’s alleged legitimate rea­
sons for failing to hire or consider the union applicants
were pretextual.
Indeed, we find that the Respondent’s own evidence
tends to prove rather than disprove the complaint’s the­
ory of discriminatory antiunion motivation. As previ­
ously stated, the Respondent’s hiring records disclose
instances in which it hired apparent nonunion applicants
without regard for the alleged hiring criteria. We are not
persuaded by our dissenting colleague’s attempts to ex-
plain or minimize these deviations, but that matters little
in the ultimate analysis. The Respondent’s evidence still
does not show even a single instance when it failed to
hire an apparent nonunion applicant for any reason.
Conversely, this evidence shows only that it failed to hire
known union applicants. Furthermore, the Respondent’s
unlawful imposition of additional hiring criteria when it
learned that it had unwittingly hired covert union appli­
cants Neal and Bane underscored the extent of its will­
ingness to invent or distort hiring criteria in order to
avoid hiring union members. Far from proving reliance
on legitimate, nondiscriminatory criteria in its hiring
practices, the Respondent has really demonstrated only
that it has refused to hire any known union applicants.
We therefore affirm the judge’s findings that the Re-
8 For example, the job applications of hired plumbers John Seering
and Brett Williams show that they earned $24.50 and $23 per hour,
respectively, on prior jobs. The job applications of at least six other
applicants hired by the Respondent contained wage histories that in­
cluded wages in the $16–17 per hour range. These also exceed the
Respondent’s purported maximum range of $13–15 per hour.
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent’s refusal to hire and to consider the 20 overt
union member applicants violated Section 8(a)(3) and (1)
of the Act.
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, Masiongale Electrical-Mechanical, Inc.,
Muncie, Indiana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to hire applicants and to consider them
for hire because of their union affiliation;
(b) 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, offer
William Rogers, Christine Britton, Geoff Paluzzi, Rod­
ney Boyle, Mark Darnell, Charles Atkinson, Jeryl Cooke,
Edward Meinzen, Merlin Rice, Charles Gates, Joseph
Beatson, James Poulson, Roger Hodson, Bruce More-
house, Duane Harty, Michael Bowen, Denny Smith, Wil­
liam Fortwengler, James Salmon, and Stacey Stockton,
instatement to the positions for which they applied, or, if
those positions no longer exist, to substantially equiva­
lent positions, without prejudice to their seniority or any
other rights or privileges to which they would have been
entitled if the Respondent had not discriminated against
them.
(b) Make the above-named discriminatees whole for
any loss of pay and benefits they may have suffered as a
result of the discrimination against them, to be computed
in the manner set forth in the remedy section of the
judge’s decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful refusal
to hire and consider for hire the above-named discrimina­
tees and, within 3 days thereafter notify them in writing
that this has been done and that the unlawful actions will
not be used against them in any way.
(d) Within 14 days from the date of this Order, notify
the above-named discriminatees in writing that any fu­
ture job application will be considered in a nondiscrimi­
natory way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig­
nated by the Board or its agents, all payroll records, so­
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to determine the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facility in Muncie, Indiana, copies of the attached
notice marked “Appendix.”9 Copies of the notice, on
forms provided by the Regional Director for Region 25,
after being signed by the Respondent’s authorized repre­
sentative, shall be posted by the Respondent immediately
upon receipt 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 no­
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re­
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since December 16, 1996.
(g) 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.
Contrary to my colleagues and the judge, I find that the
General Counsel has not met his burden of establishing
either that the Respondent unlawfully failed to consider
or to hire the 20 alleged discriminatees. Specifically, I
find that the General Counsel failed to overcome the Re­
spondent’s rebuttal showing that it did not consider or
hire the 20 applicants because their applications were
“stale” or because of their high wage-rate history. Ac­
cordingly, I would dismiss these Section 8(a)(3) allega­
tions.
It is well settled that an employer does not violate the
Act where it rejects applicants for employment based on
facially valid and evenly applied hiring criteria. Among
such lawful criteria are limitations on the period during
which applications will be considered. For exa mple, the
Board has held that an employer may lawfully maintain
and apply a rule that applications for employment will
remain active for only 30 days. See, e.g., Eckert Fire
Protection, 332 NLRB 198, 199 (2000). The rationale
behind such a rule is that employees in the construction
9 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.”
MASIONGALE ELECTRICAL-MECHANICAL 45
industries are an often-transient group who will seek
work wherever it may exist. “They frequently move from
job to job, applying even out of their home states, and
accept jobs without notice to the employers to whom
they may have applied.” Id. at 218. This makes it ineffi­
cient and impractical for employers to consider stale ap­
plications. This was recognized by the Sixth Circuit in
NLRB v. Windemuller Electric, 34 F.3d 384 (6th Cir.
1994), which noted that applications to construction site
jobs that were about 3 months old, were “hoary with
age” by industry standards, and it was unlikely that such
stale applicants would seriously be considered where the
applicants had not contacted the employer since filing.
Similarly, the Board has found that an employer does
not violate the Act when it rejects applicants because the
wage rates previously earned by those applicants exceed
that which the employer is offering. Wireways, Inc., 309
NLRB 245, 246 (1992); Northside Electrical Contrac­
tors, 331 NLRB 1564 fn. 2 (2000). The rationale behind
a wage-history policy is that it prevents employee turn-
over. As recognized in Wireways, if an employer “of­
fered an employee a job at less wages than the employee
was accustomed to receiving, the employee would either
be less productive or would leave for the first job paying
more.” Id. at 250. Similarly, the wage policy reduces the
time an employer need spend in negotiating with em­
ployees over wage rates. Id.; See Clock Electric, Inc. v.
NLRB, 162 F.3d 907, 915 (6th Cir. 1998), where appli­
cant Gelski was hired rather than higher wage earners
with whom the employer would have had to negotiate
downward. (“It was evident from the face of Gelski’s
application that expenditures of time or resources on
starting wage negotiations would be unnecessary.”)
Such 30-day application cutoffs and wage-history
policies have been found to justify a refusal to consider
or hire applicants who do not satisfy these criteria, absent
evidence that the criteria have been discriminatorily mo­
tivated or disparately applied in order to avoid hiring
union applicants. Here, in defense to the complaint alle­
gations, the Respondent has shown that its failure to con­
sider or hire the 20 alleged discriminatees was based on
their failure to meet Respondent’s hiring criteria. The
General Counsel failed to establish that no such criteria
existed, or that the criteria were disparately applied.
1. 30-day rule
At all relevant times, the Respondent’s preprinted ap­
plication form clearly stated that applications for em­
ployment would be considered current for only 30 days.1
1 The Respondent’s application forms—which otherwise appeared to
be generic, preprinted forms, contained specific Masiongale hiring
provisions. Included in Masiongale’s hiring provisions—which were
The record clearly establishes that the applications of 13
of the alleged discriminatees were untimely under the
express terms on the application form. 2 Thus, the 13
each completed an application form in early January
1997 and tendered the form to the Union. The Union
then dropped off this batch of 13 applications at the Re­
spondent’s office on March 28, 1997, well after the 30-
day period specified on the application form. The Re­
spondent testified, without contradiction, that it placed
these “stale” applications in its inactive files.3
Although the judge rejected the Respondent’s “stale”
application defense, he pointed to no evidence—nor,
indeed, any claim by the General Counsel—that the 30-
day rule was discriminatorily adopted or disparately en-
forced. Rather, the judge rejected the 30-day rule solely
on the basis that it was a “belated defense . . . never
mentioned to the employees when they filed their appli­
cation .. . or anytime thereafter.” I find no factual or
legal support for this conclusion. First, these applicants
never presented themselves to the Respondent when
submitting their applications. Rather, the Union merely
dropped off their applications in a batch, long after the
forms were completed. In these circumstances, I find
that the failure of the Respondent to personally notify
these 13 individuals, with whom it had never had con-
tact, does not undermine its defense. See, e.g. NLRB v.
Windemuller Electric, supra at 34 F.3d 388 (“unlikely
[employer] would seriously consider applications . . .
where the applicants had not contacted the Company
since filing.”) Further, as a legal matter, the failure of
the Respondent to notify the 13 that their applications
were untimely would support a violation if the Respon­
dent acted disparately, i.e., informed nonunion applicants
when their applications were “stale,” while not notifying
the union applicants. There was neither claim nor evi­
dence of such disparate treatment.
The majority attempts to treat the judge’s unsupported
rationale as a “credibility finding.” It is nothing of the
sort. There was a 30-day rule, and these applicants failed
to meet it. The relevant inquiry is whether the Respon­
set forth in clear, legible print, distinct from the rest of the application
form, was the provision that applications would be considered current
for 30 days. Further, these Masiongale hiring regulations—including
the 30-day provision—were inserted immediately above the space on
the application where applicants were required to sign the form.
2 T hese were the applications of Charles Atkinson, Joseph Beatson,
Michael Bowen, Rodney Boyle, Jeryl Cooke, Mark Darnell, Charles
Gates, Duane Harty, Roger Hodson, Edward Meinzen, Bruce Mour­
house, James Poulson, and Merlin Rice.
3 These applications were “stale” because more than 30 days had
elapsed from the time that they were filled out by the applicant. That
is, the time of “filling out” (rather than the time of deposit with the
employer) is critical, for that former time is the time that the applicant
manifests his interest in employment.
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dent, as it claims, uniformly applied its 30-day rule to all
applicants, union and nonunion alike. If it did, then the
8(a)(3) violations as to the 13 will fail. Thus, having
raised and established this defense—which is amply sup-
ported by the literal language of the application form
itself—the burden then shifted to the General Counsel to
establish that there was no 30-day rule, that it was dis­
parately applied, or that nonunion applicants (unlike the
discriminatees) were informed when their forms became
outdated. No such evidence was introduced. Having
failed in this burden, I find that the 8(a)(3) violations
cannot stand as to these 13 alleged discriminatees.
My colleagues’ seek to undermine the efficacy of the
Respondent’s 30-day rule by arguing that the Respondent
hired some individuals before it received their written
applications. Although my colleagues do not identify the
individuals for whom they make this claim, I shall as­
sume that they are referring to the few applicants who
testified that they: contacted the Respondent about ob­
taining work; were told to come in; and thereafter sub­
mitted written applications. Even assuming that this oc­
curred, I fail to see its relevance to the 30-day rule.
In this regard, I wish to make two points. First, as tes­
tified to by Respondent owner Masiongale, in the con­
struction industry, applications that are even 30 days old
are considered stale. In order to avoid the wasted time
and effort of contacting many applicants who are no
longer available or interested in employment, the Re­
spondent does not consider applications that are more
than 30 days old.4 Certainly, this “staleness” concern is
not implicated where the applicant personally initiates
the contact with the Respondent and is promptly invited
to come in for work. Indeed, in that case the applicant’s
interest and availability is anything but stale.
Second, the fact that a few applicants filled out the ap­
plication forms after purporting to obtain job offers from
the Respondent does nothing to undermine the 30-day
rule. At issue is whether stale applications are consid­
ered. As discussed above, these few applicants had indi­
cated a present desire for work. A written application
was required, and this requirement was met.
In sum, where an applicant personally indicates a pre-
sent intention to work, the Respondent need not be con­
cerned about whether there is an interest at that time.
However, where, as here, the Union submits stale appli­
cations, the Respondent is legitimately concerned about
whether there is a current interest on the part of the ap­
plicant.
4 See also Eckert Fire Protection, supra, where “Respondents had a
policy that they would not consider job applications over 30 days on the
ground that they were not ‘fresh’.”
2. Wage history rule
Similarly, I find that the 8(a)(3) allegations fail as to
the remaining seven applicants 5 who, the Respondent
claims, were not considered or hired because their appli­
cations disclosed that, in their most recent employment,
that they were paid wages far in excess of the $13 to $15
per hour that the Respondent was offering. Again, the
General Counsel did not carry his burden of rebutting
this meritorious defense. The Respondent’s owner, Ken
Masiongale, testified that he did not hire the seven be-
cause of their high wage rates. This testimony was not
contradicted or discredited. Indeed, the record demo n­
strates that these seven alleged discriminatees had listed,
on their applications, that they were most recently em­
ployed at wage rates in the range of $21 to $24 or more
per hour, or with known union contractors. The Respon­
dent also provided uncontradicted evidence that the wage
rate under such union contractors is in the $20 per hour
range, far in excess of the $13 to $15 per hour that the
Respondent was offering. Based on this showing, the
burden shifted to the General Counsel to show that the
Respondent either had no such wage-rate policy, or that
such policy was disparately enforced. Contrary to my
colleagues, I find that the General Counsel did not make
that showing.
Rather, the applications of more than 50 individuals
hired by the Respondent during the period of January
1995 to August 1998 show, with minimal exception (dis­
cussed below), that the Respondent did not hire individu­
als who were paid significantly more than the Respon­
dent was offering. My colleagues’ attempts to establish
the contrary are unpersuasive. Thus, to the extent they
rely on evidence that six employees employed in the
1995–1998 period had previously earned salaries in the
$16–$17 range, they fail to acknowledge several relevant
facts: (1) one of the six had not been paid this higher rate
in his most recent employment (Edward Keiser); (2) two
additional applicants were employed as “crew leaders,”
presumably with a higher rate reflecting that particular
position (Damon Muncie, Matthew Shue); and (3) as to
all six, the wage differential between their previous em­
ployment and the $13–$15 range offered by the Respon­
dent is substantially less than the difference between the
alleged discriminatees’ most recent $21–$24 wage his-
tory and the wages offered by the Respondent.6 And, as
5 These alleged discriminatees are Christine Britton, William Fort­
wengler, Geoffrey Paluzzi, William Rogers, James Salmon, Denny
Smith, and Stacey Stockton.
6 In this regard, while a $17 wage rate is 13 percent higher than a
$15 rate, applicants who previously earned $21 to $24 per hour were
accustomed to salaries 40 to 60 percent higher than the top rate being
MASIONGALE ELECTRICAL-MECHANICAL 47
to the 2 hires out of more than 50 who the majority
claims had wage histories comparable to the seven al­
leged discriminatees, one received that higher rate on an
earlier job (i.e., not his most recent job). Thus, boiled
down to its essence, my colleagues point to one instance
where an individual was hired, in a three and one-half
year period, as establishing that either the Respondent
did not have a wage history policy or that it disparately
enforced it. I disagree. This singular aberration—which,
interestingly, resulted in the hire of an applicant with a
recent history of working on union jobs, is insufficient to
undercut the Respondent’s defense.
3. Final assault on Respondent’s defense
My colleagues’ final assault on the Respondent’s de­
fense that it lawfully did not hire the 20 alleged discrimi­
natees because their applications were stale and/or be-
cause of their high wage history is to claim that there
must be a violation because the Respondent failed to
present evidence that it rejected nonunion applicants on
these bases. I reject this argument. Once the General
Counsel meets his initial burden under FES in a refusal-
to-hire case, the burden shifts to the respondent to show
that it would have made the same hiring decisions even
in the absence of the alleged discriminatees’ union activi­
ties. Here I find that the Respondent clearly met its re­
buttal burden. It established that it had the above-
described hiring criteria, that the 20 alleged discrimina­
tees did not satisfy it, and that those it hired did meet the
criteria.
My colleagues state the Respondent failed to show that
it did not hire any nonunion applicant for any reason.
However, Respondent cannot be faulted for failing to
prove a negative. Respondent affirmatively showed that
those whom it did hire did meet the criteria, and that the
20 alleged discriminatees did not.
Accordingly, I find that the allegations of refusal to
consider and hire violations have not been established as
to these seven alleged discriminatees.
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 National Labor Relations Act gives em­
ployees these rights.
offered by the Respondent. Contrary to my colleagues, I view this
differential as substantial and significant.
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 hire and consider for hire appli­
cants on the basis of their union affiliation.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce you in the exe rcise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order,
offer William Rogers, Christine Britton, Geoff Paluzzi,
Rodney Boyle, Mark Darnell, Charles Atkinson, Jeryl
Cooke, Edward Meinzen, Merlin Rice, Charles Gates,
Joseph Beatson, James Poulson, Roger Hodson, Bruce
Morehouse, Duane Harty, Michael Bowen, Denny Smith,
William Fortwengler, James Salmon, and Stacey Stock-
ton, employment to the positions for which they applied,
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges to which they would
have been entitled if we had not discriminated against
them.
WE WILL make whole the applicants listed above, with
interest, for any loss of pay and benefits they may have
suffered as a result of the discrimination against them.
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 hire and consider for hire the applicants
listed above, and WE WILL, within 3 days thereafter, no­
tify them in writing that this has been done and that the
unlawful actions will not be used against them in any
way.
WE WILL also notify the applicants listed above in writ­
ing that any future job application filed by any of them
will be considered in a nondiscriminatory way.
MASIONGALE ELECTRICAL-MECHANICAL INC.
Steve Robles, Esq., for the General Counsel.

S. Douglas Trolson, Esq. and Malcom M. Metzler, Esq., for the

Respondent-Employer.
Anthony W. Bane, Jeffrey E. Jehl, and Jack Neal Jr ., for the
Charging Party.
SUPPLEMENTAL DECISION AND ORDER
STATEMENT OF THE CASE
BRUCE D . ROSENSTEIN, Administrative Law Judge. This
case was tried before me in Muncie, Indiana, on August 24, 25,
and 26, 1998, pursuant to a consolidated complaint and notice
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of hearing (the complaint) issued by the Regional Director for
Region 25 of the National Labor Relations Board (the Board)
on January 30, 1998. The complaint, based upon a charge filed
on December 23, 1996 in Case 25–CA–25119, and a charge
filed on March 17, 19971 in Case 25–CA–25246, by the Indiana
State Pipe Trades Association and United Association Local
172, a/w United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States and
Canada, AFL–CIO (Local 172 or Union), and an original
charge filed on June 18, in Case 25–CA–25446 and amended
on January 28, 1998, by the Indiana State Pipe Trades Associa­
tion and United Association Local 661 a/w United Association
of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL–CIO (Local
661 or Union), and a charge in Case 25–CA–25731 filed on
November 7, by Local 661, alleges that Maisongale Electrical-
Mechanical Inc. (Respondent or Employer) has engaged in
certain violations of Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act). The Respondent, in its answer
to the complaint, denied that it violated the Act as alleged. On
January 15, 1999, I issued a decision finding that Respondent
discriminatorily discharged two employees, refused to hire or
consider for hire 20 applicants for employment, refused to rein-
state an employee to his former position of employment, and
engaged in numerous independent violations of Section 8(a)(1)
of the Act. On June 30, 2000, the Board affirmed my decision
insofar as it concerned the discharge of the two employees, the
refusal to reinstate an employee to his former position and the
independent violations of Section 8(a)(1) of the Act. See, Ma­
siongale Electrical-Mechanical, Inc., 331 NLRB 534 (2000).
As it concerns the allegation that the Respondent violated Sec­
tion 8(a)(1) and (3) of the Act by refusing to employ or con­
sider for hire 20 union plumber applicants, the Board decided to
remand this issue for further consideration in light of its May
11, 2000 decision in FES, 331 NLRB 9 (2000), setting forth the
framework for analysis of refusal-to-hire and refusal-to-
consider violations. On July 7, 2000, I issued an Order to Show
Cause to the parties for the purpose of determining whether the
record is sufficient to decide the issues presented in light of the
Board’s remand. By supplemental brief dated August 3, 2000,
the General Counsel stated that the record is more than suffi­
cient to support a violation with regard to the 20 union appli­
cants and there is no need, for further submission of evidence
or a reconvened hearing. In a reply dated August 3, 2000, the
Respondent asserted that the General Counsel has not met its
burden of proof as to the applicants who would have been hired
by Respondent. The Respondent, however, did not indicate
that the state of the record was insufficient in any way to issue a
supplemental decision nor did it argue that it was necessary to
reopen the record to obtain additional evidence to decide the
case under the FES framework.
Under these circumstances, I have determined that the cur-
rent state of the record is sufficient to issue a supplemental
decision in this matter.
1 All dates are in 1997, unless otherwise indicated.
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation that performs electrical,
HVAC,2 and plumbing services in the construction industry,
with an office and place of business in Muncie, Indiana, where
it annually purchased and received goods and materials at its
facility in excess of $50,000 directly from points outside the
State of Indiana. The Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that Local 172 and 661 are
labor organizations within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Respondent is a nonunion electrical and plumbing con-
tractor, which has operated in the Greater Muncie area for ap­
proximately 13 years. It is principally owned and run by Ken
Masiongale, the Respondent’s president. The office staff is
comprised of four clericals including Karen Nottingham, who is
responsible for job applications and scheduling interviews for
employment. Superintendent John Blevins coordinates work
responsibilities from the office while Ron Curd and Michael
Woods serve as job ’superintendents in the field. Mike Ma­
siongale, the owner’s son, also serves as a supervisor for the
Employer. Commencing in December 1996 and continuing on
a regular basis through September 1997, the Respondent placed
advertisements in a number of local newspapers seeking to hire
journeymen plumbers and/or licensed apprentices to man its
jobsites including the Springlake Apartment project in Misha­
waka, Indiana, and the Bayshore jobsite in Greenwood, Indiana
(GC Exhs. 2(a)–2(l)). Most of the ads required an applicant to
apply in person but some listed a toll-free telephone number for
inquiries.
1. The overt union member applicants
The above ads prompted a great deal of interest and the busi­
ness agents for Locals 172 and 661, suggested that unemployed
union plumbers submit applications to Respondent. A number
of union members individually contacted the Respondent and
obtained blank job applications. These applications were given
to the respective business agents and were reproduced for dis­
tribution to interested members. In conjunction with the first
three union members who applied and did not conceal their
union affiliation, the Union engaged in informational picketing
at the Springlake Apartment project around December 16,
1996. The picket signs apprised the public that the Respondent
did not pay prevailing or area standard wages. Christine Brit-
ton wore a union jacket when she applied at the Springlake
Apartment project in mid-December 1996. She showed her
plumber’s license to the job superintendent and they discussed
prior job experience. Britton submitted her job application to
the superintendent, who she later learned was named “Ron,”
2 HVAC work is the installation of heating and air-conditioning sys­
tems, including furnaces, air conditioning compressors, and the related
ductwork.
MASIONGALE ELECTRICAL-MECHANICAL 49
with the statement “Voluntary Union Organizer” across the top.
Geoff Paluzzi obtained a copy of Respondent’s job application
from the business agent of Local 172 and went to the Sprin­
glake Apartment project on December 16, 1996, to submit it.
He introduced himself to the job superintendent, who reviewed
his application and commented that he had a good amount of
experience in the plumbing trade and his prior work showed
stability. Paluzzi apprised the superintendent that he previously
was a foreman, a steward and a voluntary union organizer.
Indeed, like Britton, Paluzzi included the phrase “Voluntary
Union Organizer” on the top of his application. The superin­
tendent told Paluzzi that he would hear something in a couple
of days. William Rogers filled out a job application at the un­
ion hall and included the phrase “Voluntary Union Organizer”
across the top. He took the completed application to the Sprin­
glake Apartment project on December 16, 1996, and observed a
number of pickets patrolling in front of the complex. He intro­
duced himself to the job superintendent while wearing a union
jacket with insignia. The superintendent briefly looked over
the application, said that the Respondent needed plumbers and
after Rogers showed him his plumber’s license, informed
Rogers he would get back to him.
None of these individuals were ever contacted by the Sprin­
glake Apartment superintendent or any one else at the Respon­
dent.
Since February 26, 13 unemployed union members with
valid plumbing licenses submitted job applications to Respon-
dent.3 Each of the applications included the phrase “Voluntary
Union Organizer” across the top. Although the Bayshore job-
site was operational from January 1997 to July 1998, the Re­
spondent did not hire any of the 13 union members that applied
for plumber positions.
On August 22, union organizer Anthony Bane met with un­
employed plumbers Denny Smith, William Fortwengler, James
Salmon, and Stacey Stockton4 at the Pizza Hut restaurant to
brief them on how to apply to nonunion employers. Bane dis­
tributed union T-shirts and hats to the employees and suggested
that they insert on the top of any application submitted “Volun­
tary Union Organizer.” The group proceeded to the Respon­
dent’s facility and requested job applications from the recep­
tionist. Each of the employees wore a union T-shirt and in­
serted the phrase “Voluntary Union Organizer” on the top of
their applications. While the employees were filling out their
job applications, Bane asked the receptionist for a list of the
Respondent’s plumbers and their license numbers. The recep­
tionist left the office area and returned with Superintendent
Blevins who apprised Bane that he did not need to show him
such a list. Bane replied that there is a law to this effect. While
this conversation was taking place, Office Manager Karen Not­
tingham came in the front door and asked Bane why he was at
the office. Bane said, “that the employees were filling out job
3 The employees are Rodney Boyle, Mark Darnell, Charles Atkin­
son, Jeryl Cooke, Edward Meinzen, Merlin Rice, Charles Gates, Joseph
Beatson, James Poulson, Roger Hodson, Bruce Morehouse, Duane
Harty, and Michael Bowen.
4 Stockton filed an earlier application with Respondent on May 23,
and noted this on his August 22 job application.
applications.” He also asked Nottingham for a list of Respon­
dent’s plumber license numbers. Nottingham said, “Oh, I
know you” and said she was unaware of any law requiring that
a list be provided. The employees submitted their applications
to the receptionist and each received a Xerox copy for their
records. None of these employees was ever called or hired by
Respondent for a plumber position.
2. The hiring of covert union members Gary Gravit
and Jeffrey Jehl
In December 1996, Gary Gravit became aware of job oppor­
tunities at the Respondent’s Springlake Apartment project, and
went to the jobsite to apply for a plumber position. He intro­
duced himself to Superintendent Ron Curd and discussed his
qualifications. Curd gave Gravit a job application that he took
to the union hall and made copies. Curd telephoned Gravit to
offer him a position and inquired if he knew any additional
plumbers. It was agreed that Gravit would start work on De­
cember 16, 1996, at the Springlake Apartment project.
Gravit met union organizer Jeffrey Jehl on December 16,
1996, around 6 a.m. at a local gas station, and Jehl apprised
Gravit about the duties of a voluntary union organizer. He
stressed that Gravit should do excellent work but that he should
try and talk to employees about the Union before and after
work and while on break.
Gravit and Jehl crossed the union informational picket line
when they reported to the jobsite the morning of December 16,
1996. Gravit introduced Jehl to Curd and informed him that
Jehl did not have a plumber’s license but that he was an experi­
enced plumber and could do a good job. Curd said, “if you
know how to do plumbing work, it will be fine.” Gravit handed
his job application to Curd while Jehl filled out his application.
Neither employee revealed their union affiliation or put any-
thing in the job application to identify them as union members.
Curd asked Jehl about his previous wage history and stated he
could pay $13 per hour. Jehl accepted the offer and was hired
on the spot.
3. The events that occurred before Gravit and Jehl revealed
their union affiliation
Gravit was assigned to do journeyman plumbing work while
Jehl worked as a plumber’s helper backfilling excavation where
piping had already been installed. Around 9:30 a.m., Gravit
and Jehl observed two individuals with union insignia hand
papers to Curd while they briefly conversed. A short time later,
Curd approached Gravit and Jehl, and asked whether either of
them knew the union men who were just here. Gravit said, “he
knew one of the employees.” Curd briefly walked away but
then returned and said, “have either of you been a member of
the union before?” Gravit said, “ he worked permit a couple of
times in the past few years. “ Jehl said, “he was never a mem­
ber of Local 172.” Both employees finished work that day
without further incident.
4. The events that occurred after Gravit and Jehl revealed their
union affiliation
The next day Gravit and Jehl arrived at work around 6:40
a.m., and immediately began distributing union literature and
meeting with employees about the Union. Jehl wore a white
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union organizer jacket while Gravit wore a Local 172, baseball
cap. Curd arrived about 10 minutes later, and Jehl apprised him
that he was a union organizer. Curd replied, “that he figured
yesterday that they were union members since he only gave an
application to Gravit that was allowed off site and the two un­
ion guys had job applications.” He also said, “If Masiongale
has to pay union wages they might as well pull off the job, they
would go broke and might as well close up.”
5. The hiring of covert union members Jack Neal Jr. and
Anthony Bane
Local 661 Business Agent Jack Neal Jr., saw one of Respon­
dent’s newspaper advertisements in early January 1997. He
went to Respondent’s office, spoke with Nottingham and
picked up a job application. He took the job application back to
the union hall and made a number of copies that he distributed
to unemployed union members. Indeed, he personally observed
a number of union members’ sign there job applications (GC
Exhs. 14–21). Shortly thereafter, Neal saw another of Respon­
dent’s ads in the Muncie newspaper and telephoned the facility.
He spoke with Ken Masiongale who inquired whether he had a
plumber’s license and encouraged him to get a job application.
Neal went to the facility on January 26, and picked up another
job application that he took with him.
On March 28, Neal personally delivered his employment
application to Respondent’s receptionist along with a number
of job applications that had been completed by unemployed
union members (GC Exhs. 7–21 and R. Exh. 2). On April 15,
Neal telephoned Respondent’s office regarding his job applica­
tion and spoke with Nottingham, who informed him that he
would have to speak with Masiongale. Neal left his name and
telephone number. On the evening of April 15, Superintendent
Michael Woods left a message on Neal’s answering machine.
Neal telephoned Respondent’s office the next day and was
given Wood’s cellular telephone number at the Bayshore job-
site. On April 17, Neal reached Woods at the jobsite and in-
formed him he had a plumber’s license and prior experience
working on apartment projects. Woods offered Neal $14 an
hour and told him he would see him the following Monday at
the Bayshore jobsite to commence work. Later that evening,
Neal called Woods to let him know that he had a friend named
Anthony Bane who also had a plumber’s license and was inter­
ested in working. Woods requested Neal to have Bane tele­
phone him at the jobsite. Woods also requested Neal’s drivers
license number to do a background check and said he would see
Neal on the jobsite next Monday unless he heard from him
before that time.
On April 17, Bane telephoned Woods and informed him he
possessed a plumber’s license and had prior residential and
piping experience. Woods requested Bane’s driver’s license
number and during the conversation it was agreed that Bane,
like Neal, would be hired at $14 an hour. Woods told Bane to
show up at the jobsite the following Monday unless he heard
from him to the contrary. Neither Bane nor Neal made any
reference to their union affiliation during the initial hiring dis­
cussions with Woods.
On April 21, Neal and Bane met for breakfast before pro­
ceeding to the Bayshore jobsite. Woods requested that both
employees fill out job applications along with other paperwork
(GC Exhs. 23 and 24). During initial discussions while filling
out the job applications, Woods informed Neal and Bane that
he needed plumbers as the job was expected to last 18 months.
Woods made a telephone call to the office to inform them that
the two new plumbers were filling out their paperwork and then
would be assigned to Foreman Mike Dalton to commence
work. Although Bane included the fact that he attended the
union apprenticeship program on his application, Woods did
not review the applications before instructing Neal and Bane to
report to Dalton.
6. The events that occurred after Neal and Bane revealed their
union affiliation
Before Neal and Bane left the trailer to report to Dalton, Bane
informed Woods that they were union organizers. Bane testified
that Wood’s demeanor changed dramatically after he apprised
him that they were union organizers. In fact, Woods slammed
both hands down and started out the door. He said, “I want you
to sit in your truck until Mike Masiongale comes to the jobsite.”
Neal and Bane left the trailer but were able to see Woods make a
telephone call. Shortly thereafter, Woods came out to the truck
and told Neal and Bane that the Respondent had a standard hir­
ing procedure that involved a private detective before people
were hired. Bane said, you previously told me that everything
was fine and if I did not hear from you by Friday, to report to
work. Neal said, you did mention a driver license check but
never mentioned anything else. Woods replied, “Well, that is
just part of it.” As they were leaving the jobsite, Bane told
Wood’s that they were there to do a good job. Woods said, “no
you didn’t, you are here to screw up my operation.”
Bane, upon returning home on April 21, retrieved a message
from his answering machine and telephoned Nottingham at
Respondent’s facility. Nottingham told Bane that he needed to
fill out a release for the private detective background check. It
was agreed that the forms would be faxed to Bane who com­
pleted and signed the release and faxed it back to Nottingham.
A meeting with the private detective was scheduled which Bane
was forced to cancel because of a prior commitment. A second
appointment was scheduled but Nottingham cancelled it and
Bane never heard anything else regarding the background
check or a date to resume work at Respondent.
Neal also received a message from Nottingham to sign a re-
lease for a background check. He went the next day to Re­
spondent’s office and signed the release. Shortly thereafter,
Neal met with private detective Bing Crosby for approximately
thirty minutes. During the meeting, Crosby asked Neal about
his union background and affiliation. Neal did not hear any-
thing for about 3 weeks so he telephoned Respondent’s office
on May 21, and spoke with Nottingham. Neal inquired about
the status of his application and Nottingham said, “I thought
you did not want a job.” Neal replied that he wanted a job and
Nottingham said that if you were still interested, Superintendent
John Blevins would be contacting you. On May 22, Neal spoke
with Blevins who requested that he come to the office on May
27. Neal reported to Respondent’s facility on May 27, and
wore a union T-shirt. Blevins requested Neal to fill out addi­
tional paperwork and offered him $13 an hour. Neal apprised
MASIONGALE ELECTRICAL-MECHANICAL 51
Blevins that Woods had previously hired him at $14 an hour.
Neal was directed to watch a safety film and then was intro­
duced to Masiongale who told him he did not like his union
shirt. Blevins told Neal he would not be returning to the Bay-
shore jobsite but would be working out of the shop putting
together shower faucet heads. Neal was directed to the storage
garage and was told he would be working in this area. Blevins
had one of his men come to the garage with a tow motor to
clear out a space for Neal to work in. Since there was no work-
station or benches in the garage, Neal obtained several saw-
horses and some plywood to make a suitable workbench to
perform his assignment. Neal was unable to locate any shower
faucets and apprised Blevins of this fact. Blevins promised to
order some but instructed Neal to cut copper pipe. Neal asked
Blevins the proper dimensions for the copper pipe and Blevins
promised to get back to him. After Blevins provided the re­
quired dimensions, Neal began to cut the copper pipe as in­
structed. Shortly thereafter, Masiongale and Blevins ap­
proached Neal in the garage. Masiongale told Neal, “that he
did not want him talking about the union to his employees,
handing out literature, and did not want him to talk to his em­
ployees about the union on the job, in his office or on his prop­
erty.” He also said, “that he did not want the Union, they
messed with me before.” After Masiongale left the garage,
Neal told Blevins that Masiongale did not have the right to talk
to him like that. Therefore, he was going on strike. He picked
up his tools and left the facility. Neal returned to the facility
the next day and as the door was open observed that the garage
was again being used as a storage facility. Neal also observed
that no one was working in the garage. Thereafter, Neal at-
tempted to telephone Blevins and Woods but Respondent never
returned any of his calls.
A. Analysis and Findings
1. The refusal to hire the employees listed in paragraphs 6(a),
(f), and (j) of the complaint5
In Wright Line, 251 NLRB 1083 (1990), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
established an analytical framework for deciding discrimination
cases turning on employer motivation. The General Counsel
must persuasively establish that the evidence supports an infer­
ence that protected conduct was a motivating factor in the em­
ployer’s decision.6 In FES, the Board held that in order to es­
tablish a discriminatory refusal to hire violation, the General
Counsel must show (1) that the respondent was hiring, or had
concrete plans to hire, at the time of the alleged unlawful con-
duct; (2) that the applicant had experience or training relevant
to the announced or generally known requirements of the posi­
tions for hire, or in the alternative that the employer has not
adhered uniformly to such requirements, or that the require-
5 The employees are William Rogers, Christine Brit tan, Geoff
Paluzzi, Rodney Boyle, Mark Darnell, Charles Atkinson, Jeryl Cooke,
Edward Meinzen, Merlin Rice, Charles Gates, Joseph Beatson, James
Poulson, Roger Hodson, Bruce Morehouse, Duane Harty, Michael
Bowen, Denny Smith, William Fortwengler, James Salmon, and Stacey
Stockton.
6 Manno Electric, 321 NLRB 278 fn. 12 (1996).
ments were themselves pretextual or were applied as a pretext
for discrimination; and (3) that antiunion animus contributed to
the decision not to hire the applicants. In a refusal to consider
case, the Board in FES held that the General Counsel must
establish (1) that the respondent excluded applicants from a
hiring process; and (2) that antiunion animus contributed to the
decision not to consider the applicants for employment. Once
the General Counsel has established these two elements, the
burden shifts to the respondent to show that it would not have
considered the applicants even in the absence of their union
activity or affiliation.
2. Respondent’s knowledge of the applicants’ union affiliation
and its related union animus
The Respondent does not deny that it received the employ­
ment applications listed in paragraphs 6 (a), (f), and (j), with
the exception of Rogers and Paluzzi’s applications. Likewise,
there is no challenge to the fact that all were union members,
and that none were hired. In regard to the Rogers and Paluzzi’s
applications, both employees credibly testified that they went to
the Springlake Apartment project on December 16, 1996, and
personally submitted their application to the superintendent in
charge. Each employee wrote “Voluntary Union Organizer” on
the top of the application and described the physical character­
istics of the superintendent they spoke with which corresponds
with other witnesses description of Ron Curd. Moreover,
Gravit credibly testified that he saw Paluzzi on that date in the
late afternoon talking to Curd, and both Gravit and Jehl testified
that they observed two individuals with union insignia talk to
Curd on that date and hand him papers. Curd did not testify
during the course of the hearing. Accordingly, I credit the un­
rebutted testimony of Rogers and Paluzzi that they submitted
their job applications to Curd. Likewise, this was about the
same time that Christine Britton submitted her application to
Superintendent Curd, which the Respondent acknowledges
receiving. Based on the credible evidence presented, I con­
clude that Rogers and Paluzzi filed applications with Curd and
hold the Respondent accountable for their receipt.
The evidence establishes that the entries on all of the respec­
tive application forms sufficiently notified the Respondent that
the applicants belonged to the Union. In this regard, all of the
employees listed former union employers and each wrote
across the top of the application the phrase “Voluntary Union
Organizer.” In addition, a number of the employees wore un­
ion insignia when making their applications, which served to
alert the Respondent that they were union members. Likewise,
with respect to the applicants that filed applications at Respon­
dent’s facility on August 22, Masiongale testified that he knew
the applicants previously worked for union employers as he
recognized the contractors listed in the applications.
Credible evidence also exists of antiunion animus. As previ­
ously found, Respondent representatives Curd, Woods, Blevins,
and Masiongale engaged in numerous acts of independent Sec­
tion 8(a)(1) conduct during the period between December 16,
1996, and May 27. Likewise, Respondent rejected all of the
overt applications that were submitted and did not grant inter-
views to these individuals. On the other hand, Respondent
considered the covert applications of employees Gravit, Jehl,
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Neal, and Bane, granted interviews to each and hired all of
them. It is also noted that Gravitt and Jehl were hired even
though they did not possess plumbing licenses unlike Britton,
Paluzzi, and Rogers who were much more experienced and
possessed valid plumbing licenses.
Accordingly, I find that the General Counsel has satisfied its
initial burden of persuasively establishing that the alleged dis­
criminatees were not hired because of their union membership.
The Respondent must now establish that its hiring decisions
would have been the same in the absence of union membership.
3. The Respondent’s defenses
The Respondent asserts that its hiring decisions were based
on lawful criteria including, among other things, skill, experi­
ence, employment history, appearance and earning history.
Applying these criteria, the Respondent contends that it hired the
best people available. In this regard, Masiongale acknowledges
that he received and reviewed the applications of the union ap­
plicants that were brought to the office on March 28 (GC Exhs.
7–21), but rejected all of them because they were not considered
current. Since the applications were all signed and dated in
January 1997, and the body of the application states that they
would be current for only 30 days, all the applications were
placed in the noncurrent file and were not considered.
Concerning the job applications that were filed in the office
on August 22 (GC Exhs. 3–6), Masiongale testified that they
were not considered because the earning history was in the
range of $20 an hour and he only considered applicants in the
$13–15 an hour range.
Respondent introduced in evidence 54 job applications for
individuals that were hired from January 1, 1995, to August
1998 (R. Exhs. 5(a)–5(bbb). The documents reveal that none
of these individuals indicated on their job applications that they
possessed valid plumber’s licenses or were certified as licensed
apprentices. In comparing the qualifications of the 20 overt
union applicants to those of the individuals that were hired, it is
readily apparent that the union applicants possessed superior
qualifications.7 Additionally, it is obvious that the Respondent
did not adhere uniformly to the requirements sought in its ad­
vertisements as none of its hires possessed valid plumber’s
licenses or were certified apprentices.8
The Respondent’s arguments are unpersuasive for several
reasons. First, I previously found that Respondent engaged in
numerous independent violations of the Act and note that Ma­
siongale told Neal that he did not want the union. Thus, it is
apparent that the Respondent was dead set against hiring any
individual who it knew openly supported the Union. Thus, I
reject Masiongale’s testimony that the March 28 applications
were not considered because they were stale. I find this to be a
belated defense and note that it was never mentioned to the
employees when they filed their applications on that date or at
anytime thereafter. Second, the Respondent did not present any
evidence as to why the applicants it hired were better qualified
then the overt union applicants. In fact, the evidence in the
7 Each of the 20 union applicants possessed a valid plumber’s license.
8 It is also noted that Respondent hired several covert applicants that
did not hold valid plumbing licenses while at the same time rejecting
overt union applicants that possessed certified plumber licenses.
record conclusively establishes that the 20 union applicants
possessed superior qualifications when compared with Respon­
dent’s hires. Third, it is apparent that the Respondent needed
qualified plumbers to man its jobsites based on statements to
this effect by Curd and Woods and the fact that it hired covert
union applicants Gravit, Jehl, Neal, and Bane. Fourth, contrary
to his direct examination, Masiongale admitted on cross exami­
nation that even though the August 22 job applications did not
mention the wages earned by the applicants, he did not hire
them because the employer’s listed were union contractors and
he knew that their wages exceeded $13 an hour.
Accordingly, I find that the Respondent’s reasons for not hir­
ing any of the 20 overt union applicants are pretextual. Had it
not been for their union affiliation, these individuals likewise
would have been considered for hire. I, therefore, find that the
Respondent violated Section 8(a)(1) and (3) of the Act by refus­
ing to hire or consider for hire the overt union applicants. In-
deed, all of the elements required by the Board in FES to find a
refusal to employ or consider for hire violation have been met in
this case.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 172 and Local 661 are labor organizations within
the meaning of Section 2(5) of the Act.
3. By refusing to employ or consider for hire William
Rogers, Christine Britton, Geoff Paluzzi, Rodney Boyle, Mark
Darnell, Charles Atkinson, Jeryl Cooke, Edward Meinzen, Mer­
lin Rice, Charles Gates, Joseph Beatson, James Poulson, Roger
Hodson, Bruce Morehouse, Duane Harty, Michael Bowen,
Denny Smith, William Fortwengler, James Salmon, and Stacey
Stockton because they were union members, the Respondent
violated Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un­
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu­
ate the policies of the Act.
Having found that the Respondent unlawfully refused to em-
ploy or consider for hire the above noted employees in para-
graph 3 of the conclusions of law, I shall order the Respondent
to offer them instatement and make them whole for any losses
of earnings and benefits they may have suffered as a result of
the Respondent’s unlawful conduct, less any net interim earn­
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re­
tarded, 283 NLRB 1173 (1987).
In accord with FES and Dean General Contractors, 285
NLRB 573 (1987), the Respondent shall have the opportunity,
in compliance proceedings, to show that it would not have
transferred the applicants listed in paragraph 3 of the conclu­
sions of law to other worksites upon the completion of the pro­
ject at which the unlawful conduct occurred.
[Recommended Order omitted from publication.]