Micrometl Corp.

National Labor Relations Board - Board Decisions

Apr 26, 2001

333 N.L.R.B. 1133 (N.L.R.B. 2001)

MICROMETL CORP. 1133
Micrometl Corporation and Sheet Metal Workers’
International Association, Local Union No. 20,
a/w Sheet Metal Workers’ International Asso-
ciation, AFL–CIO. Cases 25–CA–24885, 25–CA–
25293, and 25–CA–25603
April 26, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND WALSH
On June 19, 1998, Administrative Law Judge Martin J.
Linsky issued the attached decision. The General Coun-
sel filed exceptions and a supporting brief. The Respon-
dent filed an answering brief in opposition to the General
Counsel’s exceptions. By notice dated June 23, 2000,
the Board invited the parties to file supplemental briefs
addressing the framework for analysis for refusal-to-
consider and refusal-to-hire violations set forth in the
Board’s May 11, 2000 decision in FES, 331 NLRB 9.
On July 13 and 20, 2000, respectively, the Respondent
and the General Counsel filed their supplemental briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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 General Counsel contends that seven nonunion applicants who
had earned more than $10/hour at their previous (or current) jobs were
granted interviews, and that this demonstrates that the Respondent
treated nonunion applicants who made more than $10/hour in their
previous (or current) jobs differently from similarly situated Union
applicants insofar as only one of the alleged 42 discriminatees received
an interview. The General Counsel’s contention is without merit. It is
unclear whether all of the seven nonunion applicants were actually
interviewed, and the circumstances under which these interviews may
have occurred are also unclear. For example, it appears that one of the
seven individuals stated that his current hourly rate/salary “varies”
without revealing his hourly rate/salary. Another individual appears to
have listed his employment history in reverse order. A third individual
did the same, and listed his weekly salary instead of his hourly
rate/salary for his most recent job. Concededly, some of these seven
applications contain a notation indicating that an applicant had been
interviewed. However, as stated above, the General Counsel has not
demonstrated what the circumstances of the interviews were and how
many of the applicants were actually interviewed. In any event, the
General Counsel has not demonstrated, through this contention, that
there was disparate treatment of union and nonunion applicants.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Raifael Williams and Joanne C. Mages, Esqs., for the General
Counsel.
Martin J. Klapper and Michael L. Tooley, Esqs. (Ice, Miller,
Donadio & Ryan), of Indianapolis, Indiana, for the Respon-
dent.
Michael E. Van Gordon, Organizer, of Indianapolis, Indiana,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On Sep-
tember 9, 1996, and February 28, 1997, the charge and first
amended charge in Case 25–CA–24885 were filed. On April
10, 1997, and January 7, 1998, the charge and first amended
charge in Case 25–CA–25293 were filed. On September 12,
1997, and January 7, 1998, the charge and first amended charge
in Case 25–CA–25603 were filed. All charges and amended
charges were filed by Sheet Metal Workers International Asso-
ciation Local Union No. 20, a/w Sheet Metal Workers Interna-
tional Association, AFL–CIO (Union), against Micrometl Cor-
poration (Respondent).
On February 20, 1998, and March 2, 1998, the National La-
bor Relations Board, by the Regional Director for Region 25,
issued an amended consolidated complaint and an amendment
to amended consolidated complaint (collectively, the com-
plaint), which allege, as further amended at the hearing, that
Respondent violated Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act), when it informed an employee it
would not hire applicants for employment who engaged in un-
ion activity, when it refused to hire or consider for hire 42 ap-
plicants for employment because of their union affiliation,
when it discharged employee Ryan O. Witham, and when it
granted each of its employees a bonus of $10.
Respondent filed an answer in which it denied that it violated
the Act in any way.
A hearing was held before me in Indianapolis, Indiana, on
March 18, 19, and 20, 1998.
On the entire record in this case, to include posthearing
briefs submitted by the General Counsel and Respondent and
upon my observation of the witnesses and their demeanor I
make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times Respondent, a corporation, with an of-
fice and place of business in Indianapolis, Indiana, has been
engaged in the manufacture of commercial rooftop accessories
for the commercial heating, ventilation, and air-conditioning
market.
Respondent admits, and I find, that at all material times Re-
spondent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
333 NLRB No. 135
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1134
II. LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that at all material times the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Respondent’s Refusal to Consider for Hire or Hire the Un-
ion Salts
This is a “salting” case. “Salting” is the name given to the
practice of unions sending union members to nonunion em-
ployers seeking employment and once employed the “salt” tries
to organize the employer.
In this particular case 42 overt “salts” applied for work with
Respondent over a 1-year period. When applying for work
these overt “salts” identified themselves on their job applica-
tions as union organizers. They were not hired. The General
Counsel maintains that they were not hired because of their
union affiliation and the refusal to hire or even consider them
for hire was a violation of Section 8(a)(1) and (3) of the Act.
See, e.g., Walz Masonry, 323 NLRB 1258 (1997) enfd. in un-
published opinion by the 8th Circuit on May 4, 1998, Casey
Electric, 313 NLRB 774 (1995).
Respondent maintains, on the other hand, that it did not vio-
late the Act in any way. Rather because of high turnover,
namely, 8 out of 10 employees not staying past their 90-day
probationary period, Respondent decided in late 1995 to hire no
one who made more than $10 per hour on their last job. Ac-
cording to Lisa Tornes, Respondent’s human resources man-
ager, her study of the high turnover at Respondent’s facility led
her to recommend to higher management who adopted her rec-
ommendation that Respondent hire no one who made more than
$10 per hour at their last job. According to Lisa Tornes, im-
plementation of this policy for the 2 years it has been in effect
resulted in reducing Respondent’s turnover rate from 8 out of
10 not staying past 90 days to 6 out of 10 not staying. In other
words, the retention rate doubled.
Tornes also testified that the only requirement to work for
Respondent was that the applicant be 18 years of age or older.
The nature of the work, classified as general laborer required no
particular skills and paid $7 per hour to start. It is stipulated by
the parties to this litigation that all the union applicants were 18
years of age or older when they applied and would have taken a
job with Respondent if offered one. In addition it is clear and
no one disputes the fact that the overt salts were amply quali-
fied to work for Respondent, a sheet metal fabricator in the
heating and air conditioning industry, and Respondent was
hiring when they applied.
More specifically, on March 11, 1996, union applicants
George R. Sears, Robert E. Sharp Jr., Anthony W. Smith, and
Jesse W. Stamper Jr. applied for work with Respondent.
On March 25, 1996, union applicants Don A. Campbell,
Lloyd T. Campbell, Eric J. Edwards, Darlene J. Haemmerle,
Kevin A. Hechinger, Keith A. Peacher, Ryan M. Striby, and
Frank J. Sullivan applied for work with Respondent.
On May 14, 1996, union applicant Tom Akers applied for
work with Respondent.
On May 16, 1996, union applicant Jason A. Wiley applied
for work with Respondent.
On July 31, 1996, union applicant Charles K. Clark applied
for work with Respondent.
On October 10, 1996, union applicants Kenneth R. Brandon,
Keith Allen Beatty, Dorian J. Wilson, Terry L. Netherton, Rus-
sell Dean Miller, and Kenneth Robert Weiner applied for work
with Respondent.
On November 11, 1996, union applicants Kenneth E. Miller
and William Martin Hovermale applied for work with Respon-
dent.
On November 13, 1996, union applicants Dean Lynn
Broyles, William Brian Shields, and Tony Allen Eldridge ap-
plied for work with Respondent.
On March 26, 1997, union applicants Terry Banks, Robert
Bond Jr., Kerry Bowling, Jason Ellis, Robert Gandy, Eric Har-
ris, James G. Holton, Spencer Irving III, Bruce Manley, Mi-
chael John Maynard, Charles W. Miller, James S. Snodgrass,
Tony Turner, David A. Walker, Timothy A. Williamson, and
James Wilson applied for work with Respondent.
The applications or testimony of all 42 overt salts reflected
that they made more than $10 per hour on their last job.
Respondent had in its possession copies of the applications
all but eight of the above applicants. These eight applicants
testified as did a number of other applicants. I find that all 42
overt salts did apply for work with Respondent. Because of
certain stipulations, e.g., the only requirement for the job was to
be 18 years of age or older and all the union applicants were 18
or older, because Respondent’s rationale for not hiring the un-
ion applicants was the fact that they made more than $10 per
hour in their last job, that all the overt salts would have worked
for Respondent if offered a position, and because we have in
evidence the applications of all the alleged discriminatees or
their testimony, I did not permit the General Counsel to call
each and every one of the 42 overt salt discriminatees. The
General Counsel filed a special appeal to my ruling which the
Board denied on June 8, 1998, without prejudice to the right of
the General Counsel to raise the same issues in any exceptions
to my decision. In all 16 of the alleged overt salt discriminatees
did testify.
The skills of the union applicants were never considered in
the decision not to hire them. Rather, the fact that they made
more than $10 per hour in their last job and only that factor kept
them from being considered for employment.
Needless to say this rationale for not hiring the union appli-
cants is suspect on its face because as all parties to these pro-
ceedings acknowledge applicants for employment who are
union members will almost invariably have more than $10 an
hour in their last employment.
Respondent’s rationale can only pass muster if in fact it was
uniformly applied. And, the evidence demonstrates that it was
uniformly applied. During the relevant period from March
1996, when the first overt salts applied for work with Respon-
dent to March 1998 when the hearing in this case began, Re-
spondent hired 198 employees. All but two of the 198 had
made less than $10 per hour in their prior job. The two excep-
tions were Paul Moore and Jerry Mintze. Moore had previ-
ously worked for Respondent and came highly recommended
by some of Respondent’s supervisors. Mintze had a brother
and a nephew both working for Respondent. Exceptions to the
policy were made in the case of only 2 out of 198, Moore and
MICROMETL CORP. 1135
Mintze, for unusual reasons. Interestingly enough both Moore
and Mintze have since quit their employment with Respondent.
Respondent not only turned down the union applicants for
employment but also rejected for employment during the rele-
vant March 1996 to March 1998 timeframe over 1000 other
applicants. Approximately 152 applicants for employment in
this period were rejected because they made more than $10 per
hour in their last job, to include the 42 union applicants in this
case.
Respondent did not even interview applicants for employ-
ment whose applications reflected they made more than $10 per
hour in their last job with one exception. That exception was
union applicant Robert Sharpe. In filling out his application
Sharpe had reversed the order of his employment history and it
read from top down oldest to most recent employment whereas
it should have read top down most recent to oldest. Suffice it to
say Sharpe was interviewed by Lisa Tornes who read his oldest
as his most recent employment. During the interview Sharpe
let her know that the employer he listed as “SMWIA” was the
union and his pay on his most recent job was over $10 per hour.
Tornes claimed he wasn’t hired because of the wage he made
and not because he was union.
I found Lisa Tornes to be a credible witness and conclude
that the policy she thought up (the so-called $10 rule) was im-
plemented to reduce turnover, i.e., a legitimate business reason,
and not as an excuse not to hire applicants for employment who
were union members. Since Respondent failed to consider for
hire or hire the union applicants for employment on grounds
other than their union affiliation, the Act was not violated.
Tornes, by the way, is the person who did all the hiring for
Respondent. Obviously, if Respondent abandons its so-called
$10 rule or overt salts who made $10 or less on their last job
apply to work with Respondent another case may have a differ-
ent result.
Had Respondent not implemented the $10 rule in an across
the board manner I well might have concluded that the Act was
violated.
There was, however, no evidence of union animus, e.g., a
“smoking gun” memo that supported the implementation of the
$10 rule on the grounds, among others, that it would enable
Respondent to remain union free.
The only evidence of animus is a remark alleged to have
been made by supervisor Darrell Hansell shortly before the
discharge of employee Ryan Witham which is discussed below.
I find that Hansell did not make the statement attributed to him.
It is stipulated that applicants for employment were not told
of the so-called $10 rule and with respect to how long their
applications would be active the applicants were told a variety
of different time periods from 30 days to 90 days or simply not
told at all how long their applications would be active.
B. The Discharge of Employee Ryan O. Witham
Salts generally are of two types, i.e., overt and covert. The
overt salts are those who honestly and openly advise the em-
ployer when they apply for work that they are union members
and they desire to organize Respondent’s work force. None of
the overt salts in this case were hired. Covert salts apply for
work with a nonunion employer with the plan to organize the
work force but conceal their union membership and their plan
to organize at the time they apply for work. Ryan O. Witham
was a covert salt. In late March 1996 Witham applied for a
position paying $7 per hour with Respondent. His application
did not reflect that he was affiliated with the union nor did it
reflect that he made over $10 per hour in his last employment.
Witham was interviewed, offered a job, and started work with
Respondent on May 13, 1996. It is conceded by all parties to
this litigation that he was a good worker.
On July 29, 1996 Witham approached his supervisor, Darrell
Hansell, and told Hansell that he had falsified his application,
that he was a union organizer and what was the Company going
to do about it.
According to Witham, Hansell then said words to the effect
that if Respondent knew Witham was union they would not
have hired him. Hansell denies he said this. I credit Hansell
over Witham. Both men testified and both have a motive to
fabricate, i.e., Witham to help the union case and Hansell to
withhold evidence of union animus. Based on their demeanor I
find Hansell the more credible of the two.
Suffice it to say Hansell took Witham to see Jim Lindgren,
vice president of operations for Respondent. Witham told
Lindgren what he had told Hansell and further that before and
after work he was going to hand out union literature and try to
get Respondent’s employees to sign union authorization cards.
Witham went back to work.
Lindgren met with and discussed the Witham matter with
Lisa Tornes, Respondent’s human resources manager, who
reported to Lindgren. They decided to terminate Witham be-
cause of his violation of a company rule which provided that an
employee could be disciplined, up to discharge, for “theft or
dishonesty of any kind.” Respondent had no knowledge of any
employee ever falsifying his or her application for employment
so there was no history of anyone who worked for Respondent
being fired for this. The falsification on Witham’s application
was that he put down he worked some place where he did not in
fact work and he did it knowingly. On the other hand there was
also no evidence that Respondent knew of any employee who
lied on their application for employment and who was not fired.
Respondent pointed to what it claimed were three similar
cases of “theft or dishonesty” and in each case they fired the
individual, i.e., Wayne Brown was fired for clocking in and
later being observed at a liquor store by a supervisor when
Brown should have been working, Angela Hughes was fired for
using a company phone to make 900 calls to a psychic hot line,
and Francisco Rodarte was fired for falsely claiming he had
been injured on the job whereas he had really been injured at
home.
There was no evidence presented of Respondent being aware
of any “theft or dishonesty” by any employee and not firing the
employee.
In light of this evidence I conclude that Respondent did not
violate the Act when it discharged Ryan O. Witham.
C. $10 Gift for Overtime
On July 31, 1996, Respondent presented each of its ap-
proximately 100 employees with a $10 cash bonus for working
a lot of overtime. This minimal cash payment was made after
Respondent found out that Ryan Witham was a union salt who
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1136
wanted to organize Respondent’s employees but before Witham
was discharged. Witham also received the $10 bonus.
Respondent presented evidence through the testimony of
Vice President for Operations Jim Lindgren that he has respon-
sibility for Respondent’s two facilities. One facility is the Indi-
anapolis facility which is the subject of this litigation and the
other is a facility in Sparks, Nevada.
Because employees were working a lot of overtime in both
facilities Respondent decided to make a cash payment as a
bonus. There is a long history of Respondent’s giving bonuses
but never a cash bonus for overtime.
Suffice it to say Respondent gave $10 to each of its employ-
ees in Sparks, Nevada, on July 26, 1996, after deciding to do so
on July 18, 1996. Respondent introduced a requisition for a
sufficient number of $10 bills to pay its employees at both its
Sparks, Nevada, and Indianapolis facilities.
On July 31, 1996, the employees at Respondent’s Indianapo-
lis facility each received a $10 bill and a thank you card for
working alot of overtime.
Since it is conceded that Respondent’s employees had been
working a lot of overtime prior to the payment of the $10 bonus
and since I find that the decision to pay the $10 was made prior
to Respondent learning of Ryan Witham’s intentions to organ-
ize and also prior to the filing of the charges in this case I con-
clude that Respondent did not violate the Act when it gave a
$10 bonus on July 31, 1996, to its employees.
CONCLUSIONS OF LAW
1. Respondent Micrometl Corporation is an employer en-
gaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Sheet Metal Workers’ International Association Local
Union No. 20, a/w Sheet Metal Workers’ International Associa-
tion, AFL–CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent did not violate the Act as alleged in the com-
plaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The complaint is dismissed in its entirety.2

1 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 pur-
poses.
2 The General Counsel’s unopposed motion to correct transcript is
granted and, in addition, there being no objection the affidavit of M.
John Maynard attached to the General Counsel’s brief is ordered to be
placed in General Counsel’s Rejected Exhibit 18.