MJ Mechanical Services, Inc.

National Labor Relations Board - Board Decisions

Jul 15, 1998

325 N.L.R.B. 1098 (N.L.R.B. 1998)

1098
325 NLRB No. 205
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Following the issuance of Judge Amchan’s decision in this case,
the Board issued its decision in an earlier case involving the same
parties. See M.J. Mechanical Services, 324 NLRB No. 130 (Oct. 24,
1997). In that case, the Board found, among other things, that the
Respondent violated Sec. 8(a)(3) by discharging employees after
they announced they were union organizers, by refusing to hire
qualified job applicants because of their union affiliation, by issuing
written warnings to employees for engaging in union activities, and
by imposing a significant travel requirement for union-affiliated job
applicants. The Board also found that the Respondent violated Sec.
8(a)(1) by interrogating job applicants about their union affiliations,
by threatening to discharge an employee for engaging in union ac-
tivities, and by promulgating an overly broad no-solicitation rule
prohibiting employees from engaging in union solicitation during
their breaktimes.
2 We shall amend the recommended Order and notice to conform
to the judge’s finding that the Respondent violated Sec. 8(a)(1) by
establishing policies by which it would no longer distribute job ap-
plications from its Rochester, New York office and by which it
would no longer provide applicants with copies of their applications.
In addition, we shall modify the judge’s recommended Order in ac-
cordance with our decisions in Indian Hills Care Center, 321 NLRB
144 (1996), and Excel Container, Inc., 324 NLRB No. 14 (Nov. 7,
1997).
M.J. Mechanical Services, Inc. and Sheet Metal
Workers’ Local Union No. 46. Cases 3–CA–
19751 and 3–CA–19753
July 15, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
LIEBMAN
On April, 2, 1997, Administrative Law Judge Arthur
J. Amchan issued the attached decision.1 The Respond-
ent and the General Counsel filed exceptions with sup-
porting briefs, and the General Counsel and the Charg-
ing Party filed answering 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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions as modified below2 and to adopt the rec-
ommended Order as modified and set forth in full
below.
We adopt the judge’s findings that the Respondent
violated Section 8(a)(3) and (1) of the Act by failing
and refusing to consider for hire applicants because of
their union affiliation. In doing so, we rely on his find-
ing that the Respondent has failed to rebut the General
Counsel’s showing that union animus was a motivating
factor in the Respondent’s failure and refusal to con-
sider the applicants for hire. Thus, we find it unneces-
sary to pass on the judge’s alternative finding that the
Respondent’s hiring practices were inherently destruc-
tive of the applicants’ Section 7 rights.
We shall amend the judge’s Conclusion of Law to
reflect more accurately the violations found. We also
shall modify the remedy and shall include in our Order
language to conform to that traditionally used in re-
fusal-to-consider cases. See The 3E Co., 322 NLRB
1058 (1997); Ultrasystems Western Constructors, 316
NLRB 1243 (1995); Fluor Daniel, Inc., 304 NLRB
970, 981 (1991); D.S.E. Concrete Forms, 303 NLRB
890, 898–899 (1991). In this connection, we shall per-
mit the Respondent, during the compliance proceed-
ings, to introduce evidence that these discriminatees
would not, in any event, have been hired after the
dates indicated on their application forms. The Re-
spondent shall, however, bear the burden of proving
that the employees hired after the application dates of
the discriminatees actually had superior qualifications
to the discriminatees. See D.S.E. Concrete Forms,
supra.
To remedy the Respondent’s unlawful refusal to
consider these 23 applicants for hire, we shall order it
to consider them for hire and to provide backpay to
those whom it would have hired but for its unlawful
conduct. In addition, if at the compliance stage of this
proceeding it is determined that the Respondent would
have hired any of the 23 employee-applicants, the in-
quiry as to the amount of backpay due these individ-
uals will include any amounts they would have re-
ceived on other jobs to which the Respondent would
later have assigned them. Finally, if at the compliance
stage it is established that the Respondent would have
assigned any of these discriminatees to current jobs,
we shall order the Respondent to hire those individuals
and place them in positions substantially equivalent to
those for which they applied at the jobsite at Tona-
wanda and Rochester. See Ultrasystems Western Con-
structors, supra.
AMENDED CONCLUSION OF LAW
By failing and refusing to consider for hire the 23
applicants named in the complaint, the Respondent has
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(3) and (1) of the
Act. In addition, by establishing policies by which it
would no longer distribute employment applications
from its Rochester office and by which it would no
longer provide applicants with copies of their applica-
tions, the Respondent has violated Section 8(a)(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, M.J. Mechanical Services, Inc., Tona-
wanda, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
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1099M.J. MECHANICAL SERVICES
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(a) Failing and refusing to consider for hire appli-
cants on the basis of their union affiliation or based on
Respondent’s belief or suspicion that they may engage
in organizing activity once they are hired.
(b) Refusing to distribute or provide copies of job
applications to applicants because of the applicants’
union affiliations.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole any of the following job applicants
for any losses they may have suffered by reason of Re-
spondent’s discriminatory refusal to consider them for
hire as determined in the compliance stage of this pro-
ceeding. Offer those applicants, who would currently
be employed but for the Respondent’s unlawful refusal
to consider them for hire, employment in positions for
which they applied. If those positions no longer exist,
Respondent must offer these applicants substantially
equivalent positions, without prejudice to their senior-
ity or any other rights or privileges to which they
would have been entitled if they had not been discrimi-
nated against by Respondent:
James Helch Francis Keatley
Craig Peterson Michael Dubowyk
Edward Reiss Karl-Heinz Haber
George Dailey Mark Miller
William Scott Robert Loewke
Charles Faisst Frederick French
William Dowdle Anthony Patalano
James Ling Robert Capostagno
Nicholas French Ron Sanger
Sean Loewke David Holtfoth
Chris Hollfelder Brian Taylor
Steve Mackie
(b) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(c) Within 14 days after service by the Region, post
at its Tonawanda and Rochester, New York offices
copies of the attached notice marked ‘‘Appendix.’’3
Copies of the notice, on forms provided by the Re-
gional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reason-
able 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 pend-
ency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since April 7, 1995.
(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 that Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail or refuse to consider for hire ap-
plicants on the basis of their union affiliation or based
on our belief or suspicion that they may engage in or-
ganizing activity once they are hired.
WE WILL NOT refuse to distribute or provide copies
of job applications to applicants because of the appli-
cants’ union affiliations.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make whole, with interest, those of the ap-
plicants named below who, as determined in an NLRB
compliance proceeding, are found to have suffered
economic loss as a result of our failure and refusal to
consider them for hire:
James Helch Francis Keatley
Craig Peterson Michael Dubowyk
Edward Reiss Karl-Heinz Haber
George Dailey Mark Miller
William Scott Robert Loewke
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1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1995 unless otherwise indicated.
2 Respondent’s posthearing motion to admit R. Exhs. 6 and 7 is
granted.
3 Johnson left MJ in October 1995 under less than amicable cir-
cumstances. He has rejoined Local 46 and testified on its behalf in
the instant hearing.
Charles Faisst Frederick French
William Dowdle Anthony Patalano
James Ling Robert Capostagno
Nicholas French Ron Sanger
Sean Loewke David Holtfoth
Chris Hollfelder Brian Taylor
Steve Mackie
WE WILL offer those applicants listed above who
would be currently employed by us, but for our unlaw-
ful refusal to consider them for employment, employ-
ment in positions for which they applied. If those posi-
tions no longer exist, we will offer them employment
in substantially equivalent positions, without prejudice
to seniority or any other rights or privileges to which
they would have been entitled if we had not discrimi-
nated against them.
WE WILL notify in writing all applicants listed above
that any future job application will be considered in a
nondiscriminatory manner.
M.J. MECHANICAL SERVICES, INC.
Rafael Aybar, Esq., for the General Counsel.
Thomas S. Gill, Esq. (Saperston & Day, P.C.), of Buffalo,
New York, for the Respondent.
Richard D. Furlong and Adrianne E. Stella, Esqs. (Furlong
and Delmonte, P.C.), of Cheektowaga, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Buffalo, New York, on November 18–22, 1996.
The charges were filed November 24, 19951 and the com-
plaint was issued July 2, 1996.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by all three parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is a construction contractor
specializing in sheet metal installation. Its headquarters are
located in Tonawanda, New York, near Buffalo. It annually
performs services valued in excess of $50,000 in states ther
than New York. Respondent admits and I find that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. I also find that the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The General Counsel and the Charging Party allege that
Respondent (MJ) violated Section 8(a)(1) and (3) in refusing
to hire three members of Sheet Metal Workers Local 46 (the
Union) who applied for a job on April 7, 4 who applied on
April 18, 3 who applied on May 2, 12 who applied on Sep-
tember 19, and 1 who applied on November 29. All of these
individuals applied for work as part of a ‘‘salting’’ campaign
by the Union.
Respondent argues that these applicants were not hired be-
cause M.J. Mechanical does not hire anybody who walks in
off the street and fills out an employment application. Fur-
thermore, the Company contends that it was entitled to refuse
to hire any voluntary organizers from Local 46 on the basis
of its past experiences with the Union and other union
members/voluntary organizers.
The 1994 Union Effort to Salt MJ
Respondent is a large and growing nonunion mechanical
contractor. It employs approximately 165 people, including
approximately 100 craftsmen and has annual gross receipts
between $8 and $10 million (Tr. 320–321, 797). In the sum-
mer of 1994, it began installing the sheet metal duct work
on two large projects in Rochester. One was the construction
of the headquarters for Bausch & Lomb, Inc., a $1.2 million
contract, and the other was at the University of Rochester,
an $800,000 contract. MJ also had some smaller contracts in
the Rochester area (Tr. 907).
Early in 1994, the Sheet Metal Workers International
Union contacted MJ and asked that it enter into an 8(f)
prehire agreement with its Rochester local, Local 46 (R. Exh.
9, p. 4.) MJ declined the offer. As project manager for
Bausch & Lomb, MJ hired James Johnson, a former Local
46 member.3 Johnson hired a number of former and current
members of Local 46. Among them were several members
who were ‘‘salts’’ who intended to organize the employees
on the project. Indeed, one of the hires, Paul Colon, was the
principal organizer for Local 46.
On June 3, 1994, Colon and Steve Derleth informed John-
son that they were union organizers and he immediately fired
them (R. Exh. 9, p. 10). The Union met with higher MJ
management, including Luis Delafuente, the general manager
of the airside (sheet metal) division. MJ agreed to reinstate
Colon and Derleth on June 7. They returned to work on June
13 and shortly thereafter received a warning alleging that
they had been organizing on company time. In response to
the warning Colon and Derleth left the jobsite and returned
the next day on a picket line. On June 28, Colon requested
that Johnson reinstate him; Johnson refused. The Union filed
an unfair labor practice charge over this refusal which was
litigated with other charges before Administrative Law Judge
Raymond P. Green. In his decision, dated July 27, 1995,
Judge Green concluded that Colon’s picketing was not pro-
tected by the Act. He therefore dismissed the unfair labor
practice charge regarding Colon’s dismissal (R. Exh. 9, pp.
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1101M.J. MECHANICAL SERVICES
4 I take judicial notice of only those facts recounted in Judge
Green’s decision that are not disputed by any party.
5 It appears from this record that it is commonplace for construc-
tion workers to remove their hardhats and glasses for short periods
to wipe off sweat.
6 The record in the instant case clearly establishes that Diak’s in-
stallation of the sweep tap backwards was an accident and not an
act of sabotage (Tr. 885). Moreover, this mistake has been made by
many other sheet metal workers and does not pose a fire hazard if
uncorrected. I would note further that there is no evidence establish-
ing that any of the other Union salts in 1994 performed their jobs
incorrectly.
7 I assume the sign was intended to allege that MJ was guilty of
unfair labor practices.
8 Most of the employees hired by Respondent in 1994 and 1995
were paid between $7.50 and $10 per hour. Frederick French, a
third-year union apprentice at the time of the hearing, received
wages of $6.25 per hour (not including fringe benefits) as a first
year apprentice. In December 1996 he was making between $12 and
$13 per hour (not including benefits) (Tr. 611). Edward Reiss, a
union journeyman, was being paid approximately $21 per hour in
1995 (Tr. 701).
17–18, 22). Judge Green’s decision is pending before the
Board upon the filing of exceptions (R. Exh. 10).4
Another union salt, Christopher Diak, began work at the
Bausch & Lomb project in August 1994. On August 4, sev-
eral days after he began work, Diak received a warning al-
leging that he had not worn his hard hat and safety glasses
at all times. Diak contended that he had taken them off for
less than a minute to wipe away sweat (R. Exh 9, pg. 20).5
The same day Diak installed a ‘‘sweep tap’’ backwards6 and
injured his thumb with a hammer. On August 5, Diak an-
nounced he was a ‘‘salt’’ and joined a union picket line at
the jobsite. He was fired by Luis Delafuente that day for list-
ing a nonexistent former employer on his job application and
possibly because Delafuente believed he was a ‘‘salt.’’ Judge
Green found Diak’s salting activities unprotected and dis-
missed the Union’s unfair labor practice charge filed on his
behalf (R. Exh. 9, p. 21).
The Union filed a number of unfair labor practice charges
against Respondent arising out its salting activities in 1994.
Judge Green dismissed most of them. He did find that MJ
violated the Act in discharging Paul Colon and Steve Derleth
on June 3 and in telling them on June 6 that they could not
engage in organizing activities during break periods (R. Exh.
9, pg. 22). During the hearing before Judge Green the Union
held up a large sign outside the courthouse in Rochester. Be-
tween late December 1994 and March or April 1995, union
pickets held up a large sign outside of Respondent’s Tona-
wanda headquarters proclaiming that MJ was ‘‘GUILTY,
GUILTY, GUILTY.’’7
Local 46’s 1995 Salting Campaign
In January 1995, Chris Hollfelder, previously a journey-
man sheet metal worker, became Local 46’s organizer, re-
placing Paul Colon. Upon assuming that post, Hollfelder
went to Respondent’s Tonawanda office, obtained an em-
ployment application and made copies. He also called Re-
spondent’s general manager, Luis Delafuente, on several oc-
casions. He asked Delafuente if Respondent had a need for
the Local 46’s members and also renewed the Union’s re-
quest that MJ enter into a contractual relationship with it.
Delafuente again declined the offer to enter into a prehire
agreement and told Hollfelder that Respondent did not need
any union members.
During one of these telephone conversations, Hollfelder
told Delafuente that his objective was ‘‘to take my
[Delafuente’s] men to a level that they could afford to drive
a decent car, afford to pay their rent, afford to buy Christmas
gifts . . . this is all he wanted and couldn’t I understand that
and isn’t that something that I should want for my own em-
ployees.’’ (Tr. 534.)8
Also during a telephone conversation, Hollfelder told
Delafuente that the Union would distribute handbills to its
customers if it did not sign an agreement with Local 46.
Afterwards, Hollfelder went to several CVS drug stores and
gave copies of a handbill to the store manager. He also faxed
or mailed a copy to CVS corporate headquarters. One of
these handbills read as follows:
WHAT WERE YOU DOING ON
JULY 27, 1995???
CVS CONTRACTOR M.J. MECHANICAL WAS BUSY
BEING CONVICTED BY A FEDERAL GOVERNMENT
ADMINISTRATIVE JUDGE OF MULTIPLE INSTANCES OF
coercion
restraint
AND
discrimination
DIRECTED TOWARDS, INNOCENT, LAW ABIDING CITIZENS
ISN’T IT ENOUGH TO MAKE YOU SICK?
CVS
[R. Exh 1. See also R. Exh. 2.]
Hollfelder also went to a Bausch & Lomb shareholders
meeting and handed a flyer to shareholders as they left the
meeting. He also placed it underneath some windshields. The
flyer read:
BAUSCH & LOMB
SHAME SHAME SHAME
[IN THE CENTER WAS THE PICTURE OF A RODENT
LABELED ‘‘SCAB’’ INSIDE A CIRCLE WITH A LINE
THROUGH IT]
M.J. MECHANICAL, A CONTRACTOR FACING MULTIPLE
FEDERAL
CHARGES OF ILLEGAL RESTRAINT AND COERCION IS
CURRENTLY
WORKING ON THE BAUSCH & LOMB WORLD
HEADQUARTERS.
ASK BAUSCH AND LOMB CEO DANIEL E. GILL (716-338-
6000) ABOUT
M.J. MECHANICAL’S LEGAL TROUBLES. SORE TOPIC.
VERY SORE
TOPIC...
[R. Exh. 3.]
On one occasion, Delafuente told Hollfelder that his sug-
gestions for doing business with Local 46 could not have
come at a worse time given the way MJ’s president, Mike
Poole, and vice president, Jack Bergman, felt about ‘‘the sit-
uation and embarrassment that’s been created with the pick-
eters’’ (Tr. 513–514).
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1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Respondent issued subpoenas to all 23 of the alleged
discriminatees in this case. The Union and the Charging Party
moved to quash these subpoenas. In a conference call just before
trial, I denied the motion to quash with regard to six of the alleged
discriminatees to be chosen by Respondent. I granted the motion to
quash with regard to the others pursuant to Rule 403 of the Federal
Rules of Evidence. However, I advised Respondent’s counsel that if
he thought testimony by more of these applicants would not be un-
necessarily cumulative I would entertain a motion to reconsider my
ruling (Tr. 7–8).
10 Respondent had hired individuals through temporary service
agencies prior to 1995. However, there is no evidence that prior to
the Union’s 1995 salting campaign that MJ had a policy of only hir-
ing ‘‘strangers’’ through temporary agencies, as opposed to appli-
cants who walked into its office (see Tr. 432–433).
Early in April, Hollfelder encountered James Helch a 30-
year old Local 46 journeyman at the union hall looking for
work. Over a quarter of Helch’s 4-year apprenticeship train-
ing related to sheet metal fabrication. Hollfelder asked Helch
if he would consider filing employment applications with
some nonunion contractors. Helch replied affirmatively.
Hollfelder instructed him that he would be expected to try
to organize other employees during nonwork hours. He also
told Helch to do a good job if hired and to try to negotiate
his wage rate. Helch was also told that the Union would sup-
plement his salary if the nonunion contractor paid him less
than union scale.9
Hollfelder also called Local 46 members Craig Peterson,
who had been laid off in February 1995, and Francis
Keatley, who had been laid off on March 15. He asked them
to accompany him to MJ’s offices to file employment appli-
cations. He explained that the purpose of doing so was to or-
ganize MJ employees. On April 7, Helch, Peterson, and
Keatley accompanied Hollfelder to MJ’s office in Rochester.
Hollfelder wore a Local 46 hat. The three journeymen filed
employment applications. Hollfelder asked Respondent’s re-
ceptionist, Natalia ‘‘Natasha’’ Trieste, to copy and initial the
applications. She did so. Trieste understood that the four men
were from the Union. While at the office, Hollfelder talked
to Mark West, the service operations manager of Respond-
ent’s Rochester division. West told Hollfelder that applica-
tions were good for a year or two. Trieste forwarded the
three applications to MJ’s headquarters office in Tonawanda.
Luis Delafuente was informed whenever Hollfelder filed
employment applications or brought union members to Re-
spondent’s offices to do so. He was aware of the connections
of all the alleged discriminatees with Local 46. He was also
aware that the union applicants would try to organize MJ.
The union applications were placed on Delafuente’s chair.
He discarded them without reading them (Tr. 439). Fred
Strasser, who made a number of initial hiring decisions on
Delafuente’s behalf, was not informed of the applications
filed by Local 46 members.
On April 18, Hollfelder took employment applications for
four unemployed union journeymen, Edward Reiss, George
Dailey, Michael Dubowyk, and William Scott, to Respond-
ent’s Tonawanda headquarters. MJ’s Tonawanda receptionist,
Kim Nowak, complied with Hollfelder’s request that she ini-
tial and provide him copies of their applications.
When his application was filed, Reiss had been unem-
ployed since August 1994—with the exception of 15 weeks’
work for his brother-in-law. At some point in his career,
Reiss attended a ‘‘Comet’’ training session put on by the
Sheet Metal Workers’ International Union. He recalled being
told that the Union was trying to have its members hired by
nonunion companies so that they could be part-time organiz-
ers during lunch and breaks. If a nonunion employee showed
interest, the ‘‘salt’’ was to tell them to go to the union hall
to obtain more information (Tr. 702–703). He was given
similar instructions by Hollfelder. Half of Reiss’ 19 years as
a sheet metal journeyman has been spent working in fabrica-
tion shops.
On May 2, Hollfelder accompanied union members Wil-
liam Dowdle, Charles Faisst and Karl-Heinz Haber to Re-
spondent’s Rochester office. The three filed employment ap-
plications and were provided copies of these applications by
Natalia Trieste. Trieste forwarded these applications to Tona-
wanda.
Sometime between May 2 and September 19, a meeting
was held in Respondent’s Tonawanda office. Among those
present at the meeting were Respondent’s president, Mike
Poole, Luis Delafuente, the entire staff of the Rochester of-
fice (Mark and Mary West and Natalia Trieste), Jim Johnson,
Kim Nowak, and Respondent’s counsel, Thomas Gill. At the
meeting, Trieste was told that she was not to hand out any-
more job applications at Rochester. Applicants were to be
told to contact the Tonawanda office. She and Kim Nowak
were also told not to provide copies of employment applica-
tions to any applicants. After the meeting, Trieste continued,
and may have been told that she could continue, to forward
applications or resumes to Tonawanda, if an applicant had al-
ready prepared such a document.
Nonunion Applicants Hired in the Summer of 1995
Between May 2, and September 19, Respondent hired the
following individuals to work as either sheet metal installers
or fabricators. MJ made no reference checks with the prior
employers of any of these individuals (Tr. 229):
Greg Hamilton, who had no prior experience in the indus-
try, was hired as a sheet metal installer on June 2. His pre-
vious two jobs were as a stock clerk in a food store and 7
months as an electrician’s apprentice in 1992. Hamilton was
hired because a friend, Charles Wilson, an MJ employee,
asked Luis Delafuente to hire him.
Donald Olsen was hired as a sheet metal installer on June
15. Luis Delafuente hired him because Olsen’s brother told
Delafuente that Olsen had just completed a rehabilitation
program and needed a job. There is no indication that Olsen
had any prior experience as a sheet metal installer.
David Warren was hired as a sheet metal installer on June
19 at the request of the wife of Fred Strasser, one of MJ’s
project coordinators. Warren’s prior work experience was as
a vehicle driver. He had some training in heating and air-
conditioning repair in 1982–1983, but apparently never
worked in the field. Warren had been terminated by his last
employer in January 1995.
Luis Delafuente hired Richard Prisinzano as a sheet metal
fabricator on June 23 at the request of President Mike
Poole’s wife.
On June 30, Delafuente hired Wayne Thompson as sheet
metal fabricator. Thompson was hired through a temporary
labor services company.10 He left MJ on November 7.
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1103M.J. MECHANICAL SERVICES
11 Several days earlier, Hollfelder had submitted several of these
applications to MJ’s Rochester office.
12 Frederick French, Nicholas French, Brian Taylor, and Ron San-
ger had either been continuously employed in 1995 and 1996 or ex-
perienced only brief periods of layoff.
13 Exh. R-4 indicates that a Local 46 member working for a non-
union contractor would be obligated to quit the employ of that con-
tractor upon notification to do so by the Union.
In July, MJ put a number of individuals who were em-
ployees of Temp Power Temporary Services to work with
sheet metal duct materials on the University of Rochester
project. General Counsel’s Exhibit 47 shows that Peter
Klotzbach, David Korzkowski, and George Ludwig worked
40-hour weeks and some overtime for a period of approxi-
mately 3 months, primarily at the University site, without
being put on MJ’s payroll. Korzkowski submitted an employ-
ment application to Respondent on June 12. He had no prior
experience in the sheet metal industry. After 3 months on the
Temp Power payroll, he was put on the MJ payroll on Octo-
ber 16. General Counsel’s Exhibit 47 also shows that Wil-
liam E. Fleck worked with sheet metal duct at the University
of Rochester for over a month in July and August 1995.
Klotzbach, Ludwig, and Fleck were apparently never trans-
ferred to the MJ payroll. Also see General Counsel’s Exhibit
46, Tr. 777–780.
On July 24, Michael Devay was hired as a sheet metal in-
staller through a temporary services agency. He had no prior
experience in the sheet metal industry and left Respondent’s
employ on October 9.
Delafuente hired Waymon Miles on August 8 through a
temporary labor services company. Miles had 2 years’ expe-
rience with Custom Sheet Metal company. He was or had
been a member of Sheetmetal Workers Union Local 71 in
Buffalo. However there is no evidence that he was a vol-
untary organizer. Due to his prior experience in the industry
Miles’ starting salary was $10 per hour. Inexperienced new
employees were hired at a lower starting salary, some at
$7.50 an hour (Tr. 798–799).
On August 24, Delafuente hired Marcus Wagner as a sheet
metal installer. Wagner was hired on the recommendation of
Don Olsen, who had been hired on June 15, and his brother,
Carl. Wagner’s employment application states that he had 6
years of experience installing aluminum siding and trim.
Delafuente hired Dan Sprowell as a sheet metal installer
on August 30. Sprowell was hired at the request of an em-
ployee of a contractor with whom MJ worked. He stayed
with MJ only for a month.
Raymond Walker was hired as a sheet metal installer on
September 11. Walker was hired because he was the room-
mate of another MJ employee. His job application suggests
that he was employed by two companies when he sought em-
ployment with MJ. One of these companies was a heating
and air-conditioning firm. The application also indicates that
Walker was fired sometime in the past by a firm in the same
industry. Delafuente was not familiar with Walker’s prior
employers and, as noted before, made no inquiries to them
regarding Walker.
Alvin Rhoda, Jim Johnson’s next door neighbor, was hired
as a sheet metal installer on September 18. Rhoda appears
to have had no prior experience in the sheet metal industry.
The September 19 Union Applicants
On September 11 and 12, Union Organizer Chris
Hollfelder went to two or more apprenticeship classes at
Local 46’s union hall and solicited members to fill out MJ
employment application forms. On September 19, he took
such applications from 11 apprentices and one he filled out
himself and submitted them to Respondent at its Tonawanda
office.11 The apprentices whose applications he submitted
were Mark Miller, Robert Loewke, James Ling, Frederick
French, Anthony Patalano, Nicholas French, Robert
Capostagno, Ron Sanger, Sean Loewke, David Holtforth, and
Brian Taylor.
Frederick French, Nicholas French, Ron Sanger, and Brian
Taylor testified at the hearing pursuant to subpoenas issued
by Respondent. Their testimony, which I credit, is consistent
with regards to what they were told by Hollfelder and their
motivation in filling out the MJ employment applications.
Hollfelder told them that the Union was trying to get mem-
bers hired by MJ so that they could talk to MJ’s employees
about the benefits of the Union during breaks and before and
after work. Some were told that the Union would supplement
their income to make up the difference between their MJ sal-
ary and union scale.12 They were not told they had to accept
a job from MJ if offered, but all said they would because
they believed it to be in their long-term interests. At least
some were instructed that if hired they should perform their
work for MJ to the best of their ability.
There is no evidence that any union member received con-
trary instructions. Similarly, there is no evidence that any of
the union members were told how long they would work for
MJ if hired and no evidence that any of them were told they
were to try to get MJ employees to quit their jobs.13 Nich-
olas French, for example, testified that he understood the ob-
jective of the salting campaign was to organize MJ. He also
understood that if he was offered a job with MJ and accepted
it, the Union would have provided his employer another ap-
prentice as a replacement.
Ron Sanger had already proselytized MJ employees about
the benefits of joining the Union. He had worked on the
Bausch & Lomb project for a union contractor whose task
was to balance the sheet metal installation performed by Re-
spondent. On his breaks and at lunch, Sanger had discussed
the differences of working for union and nonunion contrac-
tors with MJ employees. In addition to aiding the Union in
its salting campaign, Sanger testified that he was very anx-
ious to do sheet metal installation work instead of balancing.
Nonunion Applicants Hired by MJ Between
September 19 and November 20, 1995
On September 25, Respondent hired Greg Pontillo as a
sheet metal fabricator. He was hired because he was the son
of an MJ customer.
David Korzkowski was moved to the MJ payroll on Octo-
ber 16. On November 20, James Orlando was hired a sheet
metal fabricator. Another employee of Respondent rec-
ommended Orlando to MJ and told Orlando to seek employ-
ment through a temporary services agency. Orlando was
interviewed by Respondent’s shop superintendent, David
Valesquez. Other than inquiring whether Orlando knew how
to read a tape measure and use a hammer, Valesquez made
no inquiry into his skills or prior employment record. He
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1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 I discredit the testimony of MJ Project Coordinator/Estimator
Fred Strasser that the individuals listed on G.C. Exh. 28 were not
hired to be sheet metal installers and fabricators. The record as a
whole, including the testimony of MJ Project Manager Nicholas
Buerster, establishes they were hired to install sheet metal, not sim-
ply to be laborers.
hired Orlando without having him fill out an employment ap-
plication.
November 29 Application by Union Member
Steven Mackie
On November 29, Chris Hollfelder accompanied union
member Steven Mackie to Respondent’s Buffalo office.
Mackie submitted an employment application which indicates
that he had recently become unemployed. His application
also indicated some experience in both sheet metal fabrica-
tion and installation. There is nothing on his application or
in the record that indicates that Mackie intended to be a vol-
untary organizer, although I assume this to be the case from
the fact that he went to MJ’s office with Hollfelder. I also
infer that MJ made the same assumption.
Hollfelder asked about the status of his employment appli-
cation. Luis Delafuente responded that he would call him if
he needed him. On several visits to MJ’s Rochester office,
Hollfelder received a similar response from Natalia Trieste to
inquiries about the fate of the union members’ job applica-
tions. Neither Hollfelder nor any union applicant was ever
told that MJ did not hire individuals who submitted job ap-
plications at the office (Tr. 542). None of these applicants
was ever told that they would have to go through a tem-
porary services agency to be hired by MJ.
Nonunion Applicants Hired in 1996
In 1996 MJ hired seven more sheet metal installers and
one fabricator. It hired Harry Baker on April 8. Baker had
worked for MJ previously and is the brother of another MJ
employee.
On May 23, MJ hired James Rodriguez, Delafuente’s
brother-in-law, as a fabricator. Rodriguez had some sheet
metal experience but was not skilled in the trade (Tr. 249).
On May 28, MJ put Greg Dolegala on its payroll as a sheet
metal installer. Respondent received Dolegala’s resume unso-
licited from Labor Force, a temporary employment agency.
He had been working for MJ as an employee of Labor Force
since March 11, 1996. Dolegala had prior experience install-
ing heating and air-conditioning units and because of this
was given a higher salary than new hires with no such rel-
evant experience (Tr. 798–799). He was paid $9 an hour
when on the Labor Force payroll and was raised to $10 when
he went on the MJ payroll. In contrast, inexperienced new
hires such as David Korzkowski and David Warren received
a starting salary of $7.50 an hour.14
Delafuente hired Michael Sinatra in June. Sinatra had
worked for MJ previously. Then on June 10 he hired Bill
Patrick, a personal friend who had experience in sheet metal
work. Patrick was not getting along with his previous em-
ployer. On June 24, Delafuente hired Daniel Figueroa
through Labor Force. Figueroa had several years of experi-
ence in the installation of heating and air conditioning sys-
tems.
On August 26, 1996, Delafuente hired Darold Housley to
be a sheet metal installer through a temporary services agen-
cy. Housley had been a member of Sheet Metal Workers
Local No. 58 from September 1973 to January 1994. He was
assigned to projects in the Syracuse area and was paid more
than entry level employees.
MJ also hired Dana Jimmerson as a sheet metal installer
on September 19, 1996. Jimmerson, a Native American of
the Seneca Nation, was hired to work on a project at the res-
ervation. MJ’s contract required it to employ a member of
the Seneca tribe.
Respondent Bore Animus Toward the Union and its
Salting Campaign
The record is replete with evidence of animus on the part
of Respondent towards Local 46 and its voluntary organizers.
At hearing, Luis Delafuente, the general manager of the sheet
metal division, conceded as much on the several occasions:
Q. Were you aware that these employees [the Union
applicants] would have attempted to organize the com-
pany or encourage the other employees to join the
union?
A. Yes, I was, sir.
Q. That didn’t play a factor at all into your decision
not to hire them?
A. It might have played a small factor, but a very
small factor. [Tr. 198.]
A. . . . I’ve been in the HVAC or sheet metal indus-
try for over twenty-five years . . . and I’ve worked in
harmony or alongside of all contractors. And I mean all
contractors. Until I got to Rochester and Local 46 had
a different approach to doing business. And it was
something I [had] never seen before, wasn’t used to.
Q. Can you tell us specifically what are some of the
things that went into your consideration in deciding or
partially deciding not to hire these employees?
A. Well, we had a lengthy court case that occurred
in Rochester, which I sure you’re familiar with. We had
some handouts that Mr. Gill showed you yesterday that
I’m sure you’re familiar with . . . .
. . . .
Q. The handbills?
A. The handbills.
. . . .
A. I have employees that have personally been
threatened by Local 46 members. I’ve been harassed
verbally by Local 46 members. I’ve had—I’ve had to
drive—all I’ve ever wanted to do in my life was build
something, and essentially I came into contact with a
couple of individuals that let me be a part of a respect-
able corporation and we’ve built a nice company out on
Military Road, and it was very offensive for three, four
or five months last winter and spring to drive by a van
out in front of our building that said, ‘‘Guilty, guilty,
guilty’’ prior to a decision being made.
We’ve had instances of on-site—documented in-
stances of sabotage, relative to construction quality, rel-
ative to Local 46 members violating O.S.H.A. stand-
ards, drawing attention to themselves as an M.J. em-
ployee, intentionally breaking O.S.H.A. rules.
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1105M.J. MECHANICAL SERVICES
15 Paul Golding was the Local 46 organizer at the time of the hear-
ing.
16 Donald Miller was Local 46’s business manager between ap-
proximately 1992 and 1995.
17 Respondent’s September 1995 company newsletter indicates
there may other individuals who were hired by MJ’s sheet metal di-
vision during this period (Tr. 564–571, Exh. G.C.–45).
18 Indeed, MJ demonstrated on several occasions a willingness to
ignore its normal hiring procedures when it had an job applicant it
desired. James Orlando and Wayne Thompson, for example, were
not required to fill out an employment application.
Q. So you’re saying that because of these actions,
then, the company will never hire a member from Local
46?
A. No, I didn’t say that, sir. I said it put a bad taste
in my mouth. That’s what I said.
Q. But that went into your consideration as to the
hiring process of these applicants, is that correct?
A. It certainly did, sir. [Tr. 204–205.]
Q. So if these discriminatees show up at your office
tomorrow, and you have work available, you just may
hire them?
A. I’ve got a problem with that, sir.
Q. Why is that?
A. Well, Mr. Hollfelder testified that he hasn’t
changed his practices prior to his taking office as a
union organizer and Mr. Golding15 hasn’t given my
company any indication that they’ve changed their
practices and Mr. Miller16 clearly stated to me on a
number of occasions, it’s public record, that his intent
was to put people in my company, to dislodge my work
force and to steal them away from me. sir.
. . . .
Q. The alleged discriminatees in this lawsuit here, do
you know whether or not they were the individuals who
you claim engaged in sabotage and brought O.S.H.A.
onto your job site?
A. I do know that they used Chris Hollfelder and
came in the door holding his hand, so I just—you
know, I’d have to—I would feel that they were in-
volved in some way, shape or fashion.
[Tr. 327–328., also see Tr. 446–447, 490–491, 530, 952.]
Analysis
Respondent Violated Section 8(a)(1) and (3) in
Refusing to Hire the 23 Union Applicants in this case.
The General Counsel has established that 10 experienced
sheet metal workers who were also Union ‘‘salts’’ applied
for employment with Respondent between April 7 and May
2, 1995. Twelve more salts applied on September 19 and an-
other on November 29. Respondent did not give the slightest
consideration to hiring any of these individuals. Luis
Delafuente, the individual in charge of hiring for MJ’s sheet
metal division, who knew these individuals were union salts,
discarded their applications or copies thereof, without reading
them.
Between April 1, 1995, and November 12, 1996, Respond-
ent hired at least 22 employees, 17 as sheet metal installers,
and 5 as sheet metal fabricators.17 In addition, it used a num-
ber of people, who were at least nominally employees of
temporary labor agencies, to handle duct work on its
projects. Respondent argues that it did not discriminate
against the union applicants but also contends that it was en-
titled to do so due to misconduct by the Union and other vol-
untary union organizers. Respondent concedes that it has no
evidence of misconduct by any of the union applicants in this
case with the possible exception of Chris Hollfelder, Local
46’s organizer, who submitted an application on September
19.
Respondent contends that it did not discriminate because
it did not hire any individual, unknown to it, who submitted
an employment application at its offices in Tonawanda or
Rochester. It only hired individuals, who were known to the
company, or were referred by a temporary labor services
company. MJ’s disregard of the union applications is not ex-
plained solely by its lack of personal contacts with the salts.
Of the individuals it hired, the following had no such contact
with MJ: David Korzkowski, Michael Devay, Waymon
Miles, Greg Dolegala, Daniel Figueroa, Darold Housley, and
Dana Jimmerson. Moreover, in many of the instances in
which new hires came recommended to MJ, there is no indi-
cation that the individual recommending the applicant knew
him in any context other than a social setting. The record is
devoid of any information which would have given Respond-
ent a basis for concluding that the following employees
would be competent sheet metal workers: Greg Hamilton,
Don Olsen, David Warren, Richard Prisinzano, Dan
Sprowell, Alvin Rhoda, Wayne Thompson, and Dana
Jimmerson.
I conclude that in failing to consider the union salts, Re-
spondent was motivated by its animus towards them, which
is amply demonstrated in the record. The testimony quoted
herein makes it absolutely clear that Luis Delafuente was
very angry at Local 46 as a result of its salting campaign,
picketing and handbilling. His testimony makes it equally
clear that he would not knowingly have hired anyone who
might have been a union salt.
Nevertheless, Respondent contends that although it prob-
ably would have discriminated against the 23 Local 46 salts
herein if it had the opportunity, it did not do so. It explains
its decision to hire nonunion strangers to the company as a
nondiscriminatory application of a company policy to hire
such applicants only through temporary service agencies.
However, there is no evidence that MJ had a policy of hiring
nonreferrals only through a temporary services agency and
not hiring individuals who applied for a job at its offices—
at least not until the salts started applying for jobs. More-
over, if it had such a policy and was acting without discrimi-
natory motive, Respondent would have so informed the
union applicants. If a job applicant with skills directly appli-
cable to the employer’s business shows up at its door and
the employer is hiring, it is unlikely it will conceal from the
applicant the means for having his or her application consid-
ered, if acting without a discriminatory motive.18 In this re-
gard, the fact that MJ had not previously hired applicants
who ‘‘walked-in’’ to its offices, does not necessarily indicate
that its failure to hire any Local 46 ‘‘walk-ins’’ was non-
discriminatory. It may well be that prior walk-in applicants
had no experience in the sheet metal industry, or had other
problems.
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1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 A one-time ad hoc hiring preference for relatives, friends and
business acquaintances for short-term tasks, made in the absence of
any evidence of antiunion motivation may not be inherently destruc-
tive of employee rights. A formal company policy that allows an
employer to avoid hiring known union members on all it jobsites
forever is inherently destructive of these rights. See Belfance Elec-
tric, 319 NLRB 945 (1995), and D.S.E. Concrete Forms, 303 NLRB
890, 897–898 (1991).
20 The notion that a union employee would never be interested in
a job that paid less than union scale is undercut by the fact that at
least three of MJ’s employees (Buerster, Housley and Miles) were
former union members who accepted a lower salary in exchange for
the prospect of steady employment.
Respondent’s suggestion that it would not consider an ap-
plicant who had prior experience in the sheet metal industry,
or would hold such experience against the applicant is con-
tradicted by its own hiring practices. It not only hired indi-
viduals with prior sheet metal or related experience, it paid
them more than it paid inexperienced individuals. MJ’s fail-
ure to advise the union applicants that it only hired ‘‘walk-
ins’’ through temporary agencies (if this was the case) indi-
cates that Respondent intended to screen them out of the hir-
ing process. Casey Electric, 313 NLRB 774, 775 (1994).
In conclusion, I find that the General Counsel has estab-
lished a prima facie case that Respondent failed to consider
the alleged discriminatees for employment and refused to
hire them due to antiunion animus. Fluor Daniel, Inc., 304
NLRB 970, 971 (1991). Respondent has failed to satisfy its
burden under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981). It has not shown that it would
have failed to hire the discriminatees in the absence of their
union affiliation and Respondent’s understanding that they
would be encouraging MJ employees to join Local 46.
Respondent’s defense, to the extent that it relies on its hiring
policy in favor of applicants referred or recommended to it,
fails because this policy is inherently destructive of employee
section 7 rights. Therefore, Respondent’s failure to hire the
alleged discriminatees violates the Act regardless of evidence
of employer animus.
I conclude that Respondent’s cannot rely on its policy on
giving preference to applicants who have been referred to it
as a justification for its refusal to hire the alleged
discriminatees in this case. In NLRB v. Great Dane Trailers,
388 U.S. 26, 34 (1967), the Supreme Court held that the
Board can find an unfair labor practice without proof of
antiunion motivation if it can be concluded that the employ-
er’s discriminatory conduct was ‘‘inherently destructive’’ of
important employee rights. If the adverse effect on these
rights is comparatively slight, antiunion motivation must be
proved to sustain the charge if the employer has come for-
ward with evidence of legitimate and substantial business
justifications for its conduct.
In cases in which the adverse effects on important em-
ployee rights is not comparatively slight, proof of antiunion
motivation is not necessary even if a legitimate and substan-
tial business motivation is established. H. B. Zachry Co., 319
NLRB 967 at 981 (1995). I conclude that Respondent’s hir-
ing policy insofar as it gives preference to applicants rec-
ommended or referred to it is inherently destructive of im-
portant employee rights and that the adverse effect of this
policy is not comparatively slight.19
The right to seek employment free from discrimination on
the basis on union membership and/or proclivity to engage
in protected conduct is one of the most basic rights accorded
by the National Labor Relations Act. Respondent’s hiring
policy, which allows it to avoid hiring union members or ac-
tivists by simply having anyone vouch for a nonunion (or
nonsalt) applicant seriously diminishes that right. Depending
on the number of new employees an employer needs and the
number of available applicants in its locale, a preferential
system for recommended or referred applicants can effec-
tively insulate an employer from union sympathizers—as it
did in this case.
When Edward Reiss’ application was filed with MJ on
April 18, he had been unemployed since the previous August
with the exception of 15 weeks work for his brother-in-law.
In filing an application with MJ, Reiss was motivated by a
desire to help Local 46 organize Respondent’s work force.
However, it is quite possible that he would also have liked
to get a job, any job.20 His right and that of the other union
applicants to be considered for employment on a nondiscrim-
inatory basis was severely compromised by MJ’s preferential
treatment of any applicant referred to it.
Respondent was not entitled to discriminate against the
union salts on the basis of alleged prior misconduct by the
Union or other voluntary organizers.
In NLRB v. Town & Country Electric, 116 S.Ct 450
(1995), the United States Supreme Court held that a paid
union organizer is an employee within the meaning of the
Act, and is thus entitled to the protection afforded employees
against discrimination on the basis of union or concerted pro-
tected activity. Although an employer may in some instances
refuse to hire or reinstate employees who are guilty of mis-
conduct against it, an employer cannot discriminate against
the alleged discriminatees in this case on the basis of mis-
conduct committed or allegedly committed by other union
members, including voluntary organizers. Brown & Root
USA, Inc., 319 NLRB 1009 (1995).
Respondent suggests that it is entitled to discriminate
against the union applicants because their activities would be
performed pursuant an objective stated by the Union in the
past, namely depriving MJ of its employees. All this record
shows in that regard is that in 1994 union salts were able
to persuade one MJ employee to join the Union. When he
did so the Union assigned him to work for a union contractor
who needed an apprentice. He could have, however, been as-
signed to continue working for MJ as a salt. Union salts
were able to convince another MJ employee to visit the
union hall, but he did not join.
In trying to convince MJ employees to join Local 46, the
salts were exercising rights granted to them by Section 7 of
the Act. There is no suggestion that they coerced, interfered
with, or restrained MJ employees in the exercise of their
rights. The salts merely told MJ employees about the benefits
of belonging to the Union and referred them to the union
hall. One apparently decided that joining was in his best in-
terests and the other reached the opposite conclusion.
Local 46’s objectives are no different from that of any
union. Its members are engaging in concerted activity to pro-
tect their wage rates and benefits. Their objective is to pre-
vent contractors such as Respondent from threatening these
benefits by restricting the supply of labor it can obtain at
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1107M.J. MECHANICAL SERVICES
21 I give no credence to Respondent’s argument that Local 46’s ac-
tivities were unprotected because they did not seek to improve the
lot of MJ’s employees. If MJ signed a collective-bargaining agree-
ment with the Union, the compensation of current MJ employees
might well increase. Moreover, the NLRA protects the right of union
members to defend their wage rates so long as they do so by legal
methods.
Similarly, I disagree with Respondent’s argument that Local 46
could not bargain in good faith with MJ. Respondent makes this
claim because the Union’s collective-bargaining agreement (cba) re-
quires it to offer all employers who are party to the agreement, any
terms that are more advantageous to MJ than the existing cba. Re-
spondent’s December 6, 1996 motion to admit Respondent’s Exhibits
6 and 7. It is impossible to say what the Union might do in negotia-
tions with Respondent. Conceivably Local 46 might make conces-
sions to MJ that it would then accord to other union contractors.
Secondly, the Union is not required in bargaining to recede from an
announced position if it reasonably believes that position to be fair.
Kankakee-Iroquois County Employers’ Assn. v. NLRB, 825 F.2d
1091, 1094 (7th Cir. 1987).
22 Respondent has not established that any union member has en-
gaged in sabotage, intentionally violated OSHA regulations or threat-
ened any employee of Respondent with violence. At worst the record
indicates that Paul Colon, on one occasion, engaged in organizing
activities on company time in 1994 and that the Union was able to
persuade one MJ employee to join Local 46. That employee quit
MJ’s employ to be placed with a contractor who had signed a collec-
tive-bargaining agreement with the Union.
rates below that set forth in its collective-bargaining agree-
ments. As Chief Justice Stone noted, ‘‘[a] combination of
employees necessarily restrains competition among them-
selves in the sale of their services to the employer.’’ Apex
Hosiery Co. v. Leader, 310 U.S. 469, 502 (1941). The Na-
tional Labor Relations Act allows employees to collectively
attempt to restrict the labor supply in such a manner. If the
alleged discriminatees herein convince MJ employees to join
the Union and to withhold their labor from MJ unless MJ
pays union scale, they would be exercising rights explicitly
granted by the Act.21
Moreover, Respondent is simply incorrect in arguing that
Local 46 was trying to drive it out of Rochester by depriving
it of labor. It is abundantly clear that if MJ entered into an
8(f) agreement with the Union, it would have been provided
with an adequate supply of labor to complete any project it
undertook in the Rochester area. The issue between MJ and
the Union was not whether Respondent worked in Rochester,
it was whether Respondent worked in Rochester with em-
ployees who made significantly less in wages and benefits
than union employees.
MJ has defenses to a salting campaign other than discrimi-
nating against the Union salts. It may be able to convince
its employees that working nonunion is to their advantage.
Several MJ employees gave up their union membership be-
cause they apparently believed their opportunity for steady
employment was better without it. Further the record herein
indicates that Local 46 members at times suffered through
significant periods of unemployment. The Union’s ability to
place an unlimited number of MJ employees with union con-
tractors would appear to be restricted by the lack of full em-
ployment of its existing membership.
Respondent also contends that it was entitled to discrimi-
nate because the Union could tell any of the salts to quit
MJ’s employ at any time and they would have to do so. This
contention was answered by the Supreme Court in Town &
Country, supra, as follows:
If a paid union organizer might quit, leaving a company
employer in the lurch, so too might an unpaid orga-
nizer, or a worker who has found a better job, or one
whose family wants to move elsewhere.. . . A com-
pany disturbed by legal but undesirable activity, such as
quitting can offer its employees fixed-term contracts,
rather than hiring them ‘‘at will.’’. . . or it can nego-
tiate with its workers for a notice period. [116 S.Ct at
456–467.]
Respondent’s personnel manual states that ‘‘all employees
are employed at the will of the Company for an indefinite
period. Employees may resign from the Company at any
time, for any reason, and may be terminated by the Company
at any time, for any reason, and with or without notice.’’ (R.
Exh. 16, p. 8.) As General Counsel’s Exhibit 28 dem-
onstrates, a number of MJ’s employees have worked for it
for a very short time: Wayne Thompson, a little over 4
months; Mike Devay, 2-1/2 months; and Dan Sprowell, 1
month. In addition, MJ utilized employees of temporary
labor agencies, who worked on its projects for what appear
to be periods of 1–3 months. In light of this record, I con-
clude that MJ’s reliance on a concern that union salts would
work for only short periods of time is pretextual.
Respondent was not Entitled to Discriminate Against
Chris Hollfelder
The issues regarding Chris Hollfelder, who was a full-time
organizer for Local 46 at the time he applied for work with
MJ, are somewhat different than those concerning the other
alleged discriminatees. There is no alleged prior misconduct
by the 22 other union applicants that Respondent can argue
justifies it refusal to hire them. Indeed, all this record shows
is that each of these individuals was committed to encourage
MJ employees to join the Union. Respondent cannot dis-
criminate against them for this reason. AJS Electric, 310
NLRB 121 fn. 2 (1993).
Hollfelder, of the other hand, is a full-time organizer, who
distributed handbills and assisted in the picketing of MJ
headquarters, both endeavors which Respondent found very
offensive. I cannot assume that Hollfelder was not a bona
fide job applicant merely because he was a full-time union
organizer. It appears that the Bausch & Lomb and University
of Rochester contracts were two of the biggest projects with-
in Local 46’s jurisdiction. I infer that Local 46 viewed MJ
as a grave threat to the economic well-being of its members
unless it agreed to a prehire agreement with the Union. It
may be true that Hollfelder and the Union deemed organizing
these projects worthy of Hollfelder’s full attention even it re-
quired him to install sheet metal for 8 hours or more each
day to do so. In this regard, it is important to note that
Hollfelder was in fact a sheet metal installer for his entire
employment career until January 1995.
Secondly, Respondent is unable to point to any prior activ-
ity by Hollfelder that was illegal or just cause to discriminate
against him.22 While his distribution of handbills to MJ cus-
tomers may be upsetting to Respondent, it does not violate
Act, Service Employees Local 399 (Delta Air Lines), 293
NLRB 602 (1989). The fact that MJ may find this and other
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1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of Hollfelder’s activities offensive is not enough to justify its
refusal to hire him. The issue in this case is analogous to the
question of what type of misconduct justifies an employer’s
refusal to reinstate a striker. Unless Hollfelder did something
or said something that may reasonably tend to coerce or in-
timidate MJ employees or its managers, Respondent is not
entitled to refuse to hire him, Nickell Moulding, 317 NLRB
826 (1995). There is no evidence of this nature in the instant
record.
Respondent violated section 8(a)(1) in refusing to hand out
employment applications at its rochester office and in in-
structing its receptionists not to provide applicants copies of
their employment applications.
Sometime between May and September 1995, Respondent
held a meeting in which it instructed its Rochester personnel
that they were no longer to give out employment applica-
tions. Respondent’s Tonawanda and Rochester receptionists
were also instructed not to provide copies of employment ap-
plications. Delafuente testified that the meeting was called as
a result of the salting campaign and the Union was dis-
cussed. From this I infer that the new policies were moti-
vated by a desire to make it more difficult for union mem-
bers to apply for work with MJ.
Both of these new policies interfered with the employees’
Section 7 rights and therefore violated Section 8(a)(1) as al-
leged. As to the first change in policy, Local 46 members
are likely to live near Rochester. Requiring them to go to
Tonawanda to obtain an employment application obviously
complicates the application process. With regard to the sec-
ond policy, employers may choose not to make copies of
employment applications for nondiscriminatory reasons.
However, it is clear from this record that the reason for Re-
spondent’s decision not to provide copies was to interfere
with the salting campaign. Indeed, there appears no other
reason for the establishment of this policy. As Natalia Trieste
testified, the cost of providing such copies was not a ration-
ale for its implementation.
CONCLUSION OF LAW
By refusing to consider for employment and refusing to
hire the 23 union members named in the complaint, Re-
spondent has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (3). By es-
tablishing policies by which it would no longer distribute
employment applications from its Rochester office and by
which it would no longer provide applicants with copies of
their applications, Respondent violated Section 8(a)(1).
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent violated Section 8(a)(1)
and (3) of the Act by refusing to consider 23 applicants for
employment, I shall order Respondent to consider them for
hire and to make whole those discriminatees whom the Re-
spondent would have hired, for any losses sustained by rea-
son of the discrimination against them, including amounts
they would have earned on other jobs to which Respondent
subsequently would have assigned them. If it is shown at the
compliance stage of this proceeding that the Respondent, but
for the discrimination, would have assigned any of these
discriminatees to present jobs, the Respondent shall hire
those individuals and place them in positions substantially
equivalent to those for which they applied. 3E Co., 322
NLRB 1058 (1997). Backpay shall be computed on a quar-
terly basis as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), and shall be reduced by net interim earnings,
with interest computed in accordance with New Horizons for
the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]
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