McKee Electric Company

National Labor Relations Board - Administrative Judge Opinions

Oct 19, 2005

31-CA-027113 (N.L.R.B. Oct. 19, 2005)

JD(SF)–71–05
Bakersfield, CA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE

SURGENER ELECTRIC, INC.
dba McKEE ELECTRIC COMPANY

and Cases 31-CA-27113

INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS,
LOCAL 428, AFL-CIO

Rodolfo L. Fong-Sandoval, Esq., of Los Angeles,
California, for the General Counsel.

Larry Adams, Organizer, of Bakersfield,
California, for the Charging Party.

Howard A. Sagaser, Esq., Fresno,
California, for the Respondent.

DECISION

Statement of the Case

JAMES L. ROSE, Administrative Law Judge: This matter was tried before me on July
11, 12, and 13, 2005, on the General Counsel’s Complaint which alleges that in violation of
Section 8(a)(3) of the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq., the
Respondent refused to consider for employment 15 qualified individuals because of their known
affiliation with the Charging Party.

The Respondent generally denied the substantive allegations in the complaint, and
affirmatively contends, without offering factual support, certain constitutional violations and the
running of the Section 10(b) limitation period. The Respondent also contends it had valid
reasons for not considering Larry Adams or anyone whom he recommended, all of which will be
discussed below.

Upon the record as a whole, including my observation of the witness, briefs and
arguments of counsel, I hereby make the following findings of fact and conclusions of law:

I. Jurisdiction

The Respondent is a California corporation with an office and place of business in
Bakersfield, California, from which it has been engaged in the building and construction industry
as an electrical contractor. In the course and conduct of this business, it annually derives gross

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revenues in excess of $500,000 and receives directly from points outside the State of California,
goods products and materials valued in excess of $2,000. The Respondent admits, and I
conclude, that it is an employer engaged in interstate commerce within the meaning of Sections
2(2), 2(6) and 2(7) of the Act.

II. The Labor Organization Involved

The Charging Party, Local No. 428, International Brotherhood of Electrical Workers,
AFL-CIO (herein the Union) is admitted to be, and I find is, a labor organization within the
meaning of Section 2(5) of the Act.

III. The Alleged Unfair Labor Practices

A. The Facts in Brief.

For many years, various locals of the IBEW have sought to organize employees by
having current members (sometimes employees of other companies, sometimes employees of
the local itself) apply for job openings. This process is often referred to as “salting” and is often
resisted by the targeted employer, usually on grounds that the applicants are not bone fide
employees seeking work. This is one such case, but, as always, has its own unique facts.

In late 2004,1 in order to staff a large project in Bakersfield, the Respondent sought the
services of a temporary employment agency called Outsource. Outsource in fact referred
prospective employees to the Respondent, and specifically on November 15 referred five
applicants, including union organizer Larry Adams.

However, the Respondent’s CEO (or General Manager), Lester Surgener, was
apparently unhappy with Outsource and contacted another temp agency called Staffmark.2 On
September 27, Surgener met with Staffmark Branch Manager, Jane Morgan Corvett. According
to Corvett, whose testimony on all material issues I credit3 Surgener told her “he was displeased
with a company called Outsourcing and they were currently sending him resumes and what-not
and so he was looking to partner with another staffing service because the people that the other
service was sending him were not qualified, were union applicants, and also, he did not care for
their contact at that service any longer.”

Corvett testified that the general process her company uses when given an order for
employees is to search her data base, then submit ads in the local and perhaps distant
newspapers (such as Las Vegas in this case) and to post the openings on CalJOBS. When she
gets responses, she will fax the applicant’s resume to her client to see if the client is interested,
and if so she will call the applicant in for a drug and safety test and will then line up an interview
1 All dates are in 2004, unless otherwise indicated.
2 Counsel for the Respondent argues that documents indicate that Staffmark was retained
before Outsource, a fact assertion I find irrelevant and therefore unnecessary to resolve.
3 Corvett, and fellow Staffmark employee, Kelly Lee Richardson, have no stake in the outcome
of this matter and no longer have any kind of a relationship with any of the parties – employers
or employees. Further, they both gave believable accounts of their conversations with the
principals of the Respondent. Finally, observing their relative demeanor, I find Corvett and
Richardson credible and Surgener unworthy of belief. I credit them generally, and specifically,
where there is a direct dispute between what they testified Surgener said in a particular
conversation and what he testified he said, I discredit him and credit them.

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for the applicant with her client. Thus Surgener told her in the September 27 meeting “when I
had a qualified applicant to get it over to Larry (Hansen) and Larry was the person who would
interview and make the decision.”
Kelly Lee Richardson started with Staffmark on Oct 18. In response to the first CalJOBS
ad, Staffmark received eight resumes which she faxed to the Respondent on or about
November 19. She followed up with a call to either Larry or Lester (she was unable to recall
which, but was “positive it was one of the two”) and “I was told at that time that they would not
interview any of these people because they were union employees.”

After this conversation, Richardson placed a second CalJOBS ad which stated, under
job duties, “NonUnion only.” On December 22, Adams called Corvett to complain about the
non-union requirement in the CalJOBS ad. She in turn called Surgener telling him “that it was
my understanding that he had specified to the girls in the office who, in turn, were recruiting
based on his non-union requirement and that we could not do that and so we have to recruit for
him off of qualifications, and he then said that he refused union applicants, and I said, well, then
I cannot do business that way and then he said, well, I’ll speak with my attorney and have him
call you, which I never received a phone call.”

Via Outsource, on November 15 and 16, Adams, Jeff Bode, Joe Furino, Mark Satterfield
and Ronny Jungk, were interviewed by Hansen. During these interviews, each of which was
surreptitiously recorded by the applicants, Hansen said that the applicant was well qualified and
would be hired but for the fact he was a union member and would try to organize other
employees. The essence of Hansen’s statements to these applicants was not denied by him. I
believe that he specifically told the prospective employees that they are qualified (which is
undenied by the Respondent) and that they would be hired but for their union affiliation – that for
them to be hired and attempt to organize other employees would be a problem that the
Respondent “is going to fight you tooth and nail.” (Transcript of Adams interview with Hansen.)

On November 15 Richardson faxed to the Respondent the resumes of Kevin Cole, Tony
Cook, Mike Stein, and on November 19 faxed the resumes of Brett Garcia, Robert Fajardo,
Raymond Mac Neil, Maria Ordaz, Jess Saucedo, Frank Soares and Anthony Urzanqui. These
resumes were refaxed by Corvett on December 22, the Respondent having claimed that it had
not received them earlier. Indeed, at the hearing Counsel seemed to represent that the
Respondent never received these resumes – that “Respondent didn’t have them.” All these
resumes indicated the applicant had union affiliation. None were interviewed by the
Respondent.

During the period November/December, employees whose resumes did not indicate
union affiliation were hired – two through Outsource and two through Staffmark.

B. Analysis and Concluding Findings.

1. The Violation of Section 8(a)(3).

Unquestionably the Respondent had many openings for qualified electricians during the
period November 2004/January 2005 and in fact hired 60. Also unquestionably, the 15
individuals listed in the Complaint were qualified and that the resume of each, submitted to the
Respondent by Outsource or Staffmark, stated the individual’s union affiliation. None of the 15
was hired, whereas at least four individuals whose resumes did not state union affiliation were
hired during this period. I find that Surgener told a Staffmark employee that the Respondent
would not interview those whose resumes showed union affiliation and he told the Staffmark

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Branch Manager that “he refused union applicants.” The Respondent’s predisposition to deny
employment to union members was confirmed during Hansen’s interviews of Adams et al.

On these facts it is abundantly clear that the Respondent refused to consider for
employment individuals who had demonstrated union membership and it thereby violated
Section 8(a)(3) of the Act. E.g., FES (A Division of Thermo Power), 331 NLRB 9 (2000), affd.,
301 F.3d 83 (3d Cir. 2002).

2. The Respondent’s Defenses.

Counsel for the Respondent offered several defenses, none of which I find meritorious
either factually or legally. They will be considered seriatim as they appear in his brief.

Counsel contends that the five individuals interviewed by Hansen tape recorded the
interviews without Hansen’s consent and thereby violated a Privacy Act section in the California
Penal Code, sec. 630-637.6. He then relies on Surgener’s testimony that if this criminal activity
had been known, they would not have been hired or would have been discharged. This
assertion is self-serving and after the fact. Nor would it make these employees unemployable
for purposes of the remedy here. The Board has held that taping of job interviews is protected
activity and, therefore, could not be a basis for refusing to hire an applicant. Braun Electric Co.,
324 NLRB No. 2 (1997).

Further, as quoted by Counsel, this section covers recordings “without the consent of all
parties to a confidential communication.” There is simply no basis to conclude that an
employment interview could be considered a “confidential communication.”4 These were not
“personal” conversations Hansen was having with Adams and the others. He was interviewing
them on behalf of his employer for purposes of potential employment. Counsel cited no
California case holding such interviews to be “confidential communications.”

The second defense as to the five who were interviewed begins with an allegation that
some 20 months prior to the events here Adams attempted “to get an employee of McKee
Electric to steal documents and/or information from McKee’s personnel files.” For this reason,
Surgener testified, he would never hire Adams or anyone whom Adams recommended,
meaning, for purposes of this case, the other four.

This situation arose from an apparent attempt by Adams in January 2003 to organize the
Respondent’s employees during which he asked Rodney York to get him the names and
addresses of employees, if he could do so without getting into trouble. York was an electrician
who at the time was on disability and was working in the office. Surgener procured from York a
statement to the effect that Adams had asked him to steal personal files and then Surgener
called in the Sheriff’s Department. There was no serious investigation and the matter was
dropped.

York was called as witness by the Respondent. While admitting he wrote the statement
at Surgener’s request (being afraid for his job) he denied that in fact Adams asked him to get
anything from employees’ personal files. Adams also denied the substance of York’s earlier
4 Transcripts of these recordings were offered into evidence and rejected (except for that of
Adams to which there was no objection), not because of the alleged violation of the California
Penal Code but because the General Counsel did not give the Respondent a reasonable
amount of time to verify their authenticity.

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statement. I find that Adams did not solicit an employee to engage in criminal activity, but was
engaged activity protected by the Act. It appears that Surgener was using his position in an
effort to build a case against a known union organizer as early as 2003. Since, as noted above,
I do not generally believe Surgener, I conclude that his assertion is bogus and not a legitimate
reason to refuse employment to Adams or those who put Adams as a reference on their
resumes.

By way of an additional defense, because these five were referred by Outsource, and
because Outsource was too expensive, they would not have been hired. I reject this assertion
based on the essentially uncontroverted testimony that Hansen told them they would not be
hired because of their union affiliation.

Hansen is the individual who takes applications and interviews prospective employees.
He testified that Surgener does all the hiring, however, Hansen clearly has the authority to
effectively recommend hiring and does so. On this basis he is clearly a supervisor and, for
purposes of hiring employees at least, an agent of the Respondent. As such his statements
bind the Respondent and show a predisposition by the Respondent not to hire union members.

As to the remaining 10, the Respondent argues that they never filed applications and
therefore could not have not been considered. This argument is based on the assertion that the
Respondent’s inviolate hiring procedure required all prospective employees to file applications
with the Respondent at its office. None of the 10 did so. I reject this argument.

Whatever the Respondent’s prior hiring practice, for the purpose of staffing the
Bakersfield job the Respondent retained employment services and therefore clearly held its
standard practice in abeyance. On retaining Staffmark, the hiring procedure was for Staffmark
to find prospective employees and then fax their resumes to the Respondent. If the Respondent
stated an interest in such a prospect, then Staffmark would screen and test the prospect, and if
this was satisfactory, would then arrange for an interview with the Respondent. The reason
none of the 10 filed an application with the Respondent or came in for an interview was because
the Respondent stopped the process. Staffmark was told that none of these 10 would be
considered because of their union affiliation. The Respondent’s technical argument is without
merit and its refusal to further consider the 10 was violative of Section 8(a)(3).

IV. Remedy

Having found that the Respondent refused to consider for employment 15 qualified
applicants because of their membership in Union, I shall recommend that the Respondent be
ordered to cease and desist such activity and to offer employment to Larry Adams, Jeff Bode,
Joe Furino, Mark Satterfield, Kevin Cole, and Tony Cook, make them whole for any losses
which they may have suffered as a result of the discrimination against them including backpay
commencing on November 15, 2004, and Brett Garcia, Robert Fajardo, Raymond MacNeil,
Maria Ordaz, Jess Saucedo, Frank Soares and Anthony Urzanqui with backpay commencing on
November 19, 2004, until the date they are hired or reject employment pursuant to the formula
set forth in F.W. Woolworth, 90 NLRB 252 (1950), with interest.

Although some applications contained minor errors and/or were out of date, I do not
consider these facts fatal to this remedy. However, material information on the applications of
Ronny Jungk and Mike Stein was false. Jungk had never worked for any of the companies
listed as previous employers and Stein had never worked for the most recent employer he listed
While this false information was not a factor in the Respondent’s refusal to consider them, I

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conclude such goes beyond the trivial and as a matter of good policy, they should not be given
an offer of employment or backpay. It was their choice to falsify their resumes.

Upon the foregoing findings of fact and conclusions of law, I make the following
recommended:

ORDER5

The Respondent, Surgener Electric, Inc., dba McKee Electric Company, its officers,
agents, successors and assigns, shall:

1. Cease and desist from:

a. Refusing to consider for employment qualified applicants because of their
membership in, or affiliation with, the Union or any other labor organization.
b. In any other manner interfering with, restraining or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:

a. Offer employment to Larry Adams, Jeff Bode, Joe Furino, Mark Satterfield, Kevin
Cole, Tony Cook, Brett Garcia, Robert Fajardo, Raymond MacNeil, Maria Ordaz,
Jess Saucedo, Frank Soares and Anthony Urzanqui and make them whole for
any losses they may have suffered as provided in the Remedy section above.
b. Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable
place designated by the Board or its agents, all payroll records, social security
payment records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under the terms of this Order.
c. Within 14 days after service by the Region, post at its each of its facilities copies
of the attached notice marked “Appendix.”6 Copies of the notice, on forms
provided by the Regional Director for Region 31, after being signed by the
Respondent’s authorized representative, 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 notices
are not altered, defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent has gone out of
5 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
6If this Order is enforced by a Judgment of the United States Court of Appeals, the words in
the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”

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business or closed the facilities involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current
and former employees of the Respondent at any time since March 15, 2000.
d. Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps the Respondent has taken to comply.

Dated, San Francisco, California, October 19, 2005.

_______________________
James L. Rose
Administrative Law Judge

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered that we
post this notice and comply with its terms.

Federal Law gives you the right to:

Form, join or assist a union,
Choose representatives to bargain on your behalf,
To act together with other employees for your benefit and protection,
Choose not to engage in any such protected activity.

WE WILL NOT refuse to consider for employment or hire qualified applicants for employment because of
their membership in or affiliation with the Union or any other labor organization.

WE WILL NOT in any other manner interfere with, restrain or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.

WE WILL offer employment to Larry Adams, Jeff Bode, Joe Furino, Mark Satterfield, Kevin Cole,
Tony Cook, Brett Garcia, Robert Fajardo, Raymond MacNeil, Maria Ordaz, Jess Saucedo, Frank
Soares and Anthony Urzanqui and make them whole for any losses they may have suffered as a
result of the discrimination against them, with interest.

SURGENER ELECTRIC, INC.,
dba McGEE ELECTRIC COMPANY
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Resident Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.

11150 W. Olympic Boulevard, Suite 700
Los Angeles, CA 90064
Phone 310-235-7352 (Hours: 8:00 a.m. to 4:30 p.m. (PDT)
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE

THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING
AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (310-235-7123).