Serrano Painting

National Labor Relations Board - Board Decisions

Jul 31, 2000

331 N.L.R.B. 928 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 928
Oscar Serrano, a Sole Proprietor d/b/a Serrano Paint-
ing and International Brotherhood of Painters
and Allied Trades, Local No. 86, AFL–CIO.
Case 28–CA–15273
July 31, 2000
DECISION AND ORDER REMANDING
BY MEMBERS FOX, LIEBMAN, AND BRAME
On February 16, 2000, Administrative Law Judge Wil-
liam L. Schmidt issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The judge found that the Respondent violated Section
8(a)(3) and (1) by refusing to employ Michael Paz on or
about June 23, 1998. In the absence of exceptions, we
adopt this finding. We further find that it would effectu-
ate the policies of the Act to sever this uncontested viola-
tion from the issues being remanded here and to issue an
appropriate remedial order. Because Paz was hired for a
specific project, we shall modify the judge’s recom-
mended Order to conform with Dean General Contrac-
tors.1 Accordingly, we shall give a conditional order of
reinstatement, entitling the Respondent to avoid the rein-
statement obligation and terminate the backpay obliga-
tion at the completion date of the project in question if
the Respondent shows in compliance that, under its es-
tablished policies, an employee hired into a position like
the one unlawfully denied Paz would not have been
transferred or reassigned to another job after the project
at issue ended.2
The judge also found that the Respondent did not vio-
late Section 8(a)(3) and (1) by failing to employ or con-
sider Richard Elliott for employment. The Board has
considered the decision and the record in light of the ex-
ceptions and briefs and finds that substantial and material
issues of fact remain unresolved concerning the General
Counsel’s allegation that antiunion animus contributed to
the decision not to employ or to consider Elliott for em-
ployment. In finding no evidence of animus as to Elliott,
the judge stated:
The sum of the General Counsel’s proof in Elliott’s
case is that he applied for work with Paz and disclosed
(either himself or through Paz) his intention to engage
in organizing activities to Respondent’s agent Harris.
The only added evidence in Elliott’s case is that he re-
ceived an inconclusive response from the receptionist
(presumably Harris also) when he later inquired about
his application and that he was never hired.
The judge failed to discuss evidence adduced by the General
Counsel that Elliott had 15 years’ experience as a painter;
that the Respondent stated it hired “everybody that [they]
could” who had some painting experience; and that in the
period after Elliott filed his application, the Respondent
hired 16 people, 10 of whom had no painting experience
listed in their recent work history.3 The judge also failed to
address conflicting evidence about the Respondent’s reason
for failing to hire Elliott. Thus, the Respondent’s owner,
Serrano, stated that when he asked Project Manager Chap-
man about the hiring decisions on Elliott and Paz, Chapman
said that one was sent to a jobsite and never showed up and
that there was some confusion over the other one’s wages.
To the extent that this testimony indicates that Elliott was
either instructed to report to a jobsite or that there was con-
fusion over his wages, it conflicts with the testimony of
Chapman and Field Superintendent Baker that they had no
dealings with Elliott.

1 285 NLRB 573 (1987).
2 See Casey Electric, 313 NLRB 774, 775–776 (1994).
Accordingly, we remand this proceeding to the judge
to resolve these issues. In remanding, we are seeking to
have the judge deal with evidence he previously ignored
and make findings thereon, matters uniquely within the
province of the judge. Therefore, contrary to our col-
league’s assertion, we are not seeking to have the judge
draw different inferences from the evidence he did con-
sider. In resolving the issues on remand, the judge
should fully analyze this case under the Board’s recent
decision in FES,4 which sets forth the framework for
analysis of refusal-to-hire and refusal-to-consider viola-
tions.
AMENDED REMEDY
Having found that the Respondent has violated Section
8(a)(3) and (1) of the Act, we shall order the Respondent
to cease and desist therefrom and to take certain affirma-
tive actions designed to effectuate the policies of the Act.
Specifically, we shall order the Respondent to offer
Richard Paz immediate and full employment in the posi-
tion for which he applied or, if that position no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges.
In addition, we shall order the Respondent to make him
whole for any loss of earnings and other benefits he may
have suffered as a result of the Respondent’s discrimina-
tion against him, from June 23, 1998, the date of the
unlawful refusal to hire him, to the date the Respondent
makes him a valid offer of employment. Backpay shall
be computed in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
This Order is subject to resolution at the compliance
stage of the issues outlined in Dean General Contrac-
tors, supra. Consistent with that decision the Respondent
will have the opportunity in compliance to show that,
3 That the judge mentioned some of this evidence in his findings of
fact does not establish that he considered the evidence in making his
analysis and conclusion. Indeed, his description of the “sum of the
General Counsel’s proof” indicates that he did not.
4 331 NLRB No. 20 (2000).
331 NLRB No. 120
SERRANO PAINTING 929
under its customary procedures, Paz would not have been
transferred to another project after the one for which he
was denied employment was completed, and that thus no
backpay and employment obligation exists beyond the
time when the project as to which discrimination oc-
curred was completed.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Oscar
Serrano, a Sole Proprietor d/b/a Serrano Painting, its of-
ficers, agents, successors, and assigns, shall take the ac-
tions set forth in the order as modified.
Substitute the following for paragraphs 2(a) and (b).
“(a) Within 14 days from the date of this Order, offer
Michael Paz full employment in the position for which
he applied or, if that position no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights and privileges, in the manner
set forth in the amended remedy section of this decision.
“(b) Make Michael Paz whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him in the manner set forth in the amended
remedy section of this decision.”
IT IS FURTHER ORDERED that the portion of Case 28–
CA–15273 alleging that the Respondent violated Section
8(a)(3) and (1) by refusing to employ, or consider for
employment, Richard Elliott is severed and remanded to
Administrative Law Judge William L. Schmidt for the
purpose described above.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision setting
forth credibility resolutions, findings of fact, conclusions
of law, and a recommended Order, as appropriate, on
remand. Copies of the supplemental decision shall be
served on all parties, after which the provisions of Sec-
tion 102.46 of the Board’s Rules and Regulations shall
be applicable.
MEMBER BRAME, dissenting in part.
The majority’s remand of the allegation that the Re-
spondent discriminated against applicant Richard Elliott
by denying him employment is unwarranted.1 In agree-
ment with the judge, I would find that the General Coun-
sel failed to establish that the Respondent refused to hire
or consider Elliott because of his disclosed union affilia-

1 In the absence of exceptions, I join the majority in adopting the
judge’s finding that the Respondent violated Sec. 8(a)(3) and (1) by
refusing to employ Michael Paz. I also agree with the majority that the
judge erred in recommending an unconditional remedy of reinstatement
and backpay for this violation. For the reasons set forth in my concur-
rence in FES (A Division of Thermo Power), 331 NLRB No. 20, slip
op. at 21–22 (2000), however, I would limit the scope of the reinstate-
ment order and any backpay liability to the project for which Paz was
denied employment unless the General Counsel establishes, in compli-
ance, that but for the Respondent’s discrimination against him, Paz
would have been transferred to subsequent projects.
tion or his stated intent actively to engage in organizing
activities if hired.
It is evident that the judge considered all of the record
evidence before concluding that the General Counsel did
not sustain his burden of showing that union animus was
a motivating factor in the Respondent’s failure to hire
Elliott. The judge found that the General Counsel estab-
lished only that Elliott applied for work at the same time
as Paz and disclosed to the Respondent’s receptionist,
Harris, that he intended to engage in union organizing
activities if hired, and that he received a noncommittal
response from Harris when he called a week later to in-
quire about his application and was never hired.2 When
viewed in light of uncontradicted evidence that the Re-
spondent hired a number of union members, and denied
employment to a number of nonunion applicants, during
the same period of time in which Elliott applied, the
judge concluded that the evidence presented by the Gen-
eral Counsel was insufficient to meet the General Coun-
sel’s burden of showing that the Respondent refused to
hire or consider Elliott because of his union activities or
support.
Contrary to the majority, the judge fully considered—
and rejected—the evidence adduced by the General
Counsel in an attempt to establish antiunion animus on
the Respondent’s part. In so doing, the judge set forth at
length in his decision the testimony concerning certain
antiunion statements made by Serrano in July 1995 or
1996.3 The judge described this evidence as “stale” and
did not further consider it, either with respect to his as-
sessment of the Respondent’s motivation in not hiring
Elliott (where he dismissed the allegation), or with re-
spect to his assessment of the Respondent’s motivation in
not hiring Paz (where the judge found the violation).
Thus, the judge carefully and properly distinguished
Elliott’s case from the evidence presented with respect to
hire Elliott.”
2 The judge did not find that the individuals involved in the Respon-
dent’s hiring decisions, Estimator/Project Manager Daniel Chapman and
field superintendent Morris (Jimmy) Baker, knew of Elliott’s union
activities or announced intent to organize the Respondent’s employees,
and there is no record evidence to support such a finding. Chapman and
Baker testified that they had no dealings with Elliott. Owner Oscar
Serrano testified that he had no involvement in the hiring process for the
project for which Elliott applied. In this regard, Serrano testified that, after
receiving the unfair labor practice charge in this case, he asked Chapman
about the hiring decisions and that Chapman told him that “one of them
[alleged discriminatees Elliott and Paz] was sent to a jobsite and he never
showed up and the other one that there was some confusion on the
wages.” Serrano was not asked, and never stated, which was Elliott and
which was Paz. In these circumstances, and in light of Serrano’s uncon-
tradicted testimony that he had no involvement in the decision not to hire
Elliott and did not know why he was not hired, there is no basis for the
majority’s position that there is “conflicting evidence about the
Respondent’s reasons for failing to
3 Serrano told applicant Chris Lavoie, a union member, that his shop
was not union and that if Lavoie talked to any of Serrano’s employees
about the Union that would be grounds for termination, and ultimately
told Lavoie that he would not hire him because of his expressed inten-
tion to organize Serrano’s employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 930
Paz, by finding, with respect to Paz only, that the General
Counsel had shown that the Respondent presented shift-
ing, inconsistent, and “unconvincing” reasons for its fail-
ure to hire him. Accordingly, a remand is unnecessary
for further consideration of the record evidence concern-
ing animus.
In addition, the judge set forth, at some length, the re-
cord evidence concerning Elliott’s experience as a
painter, Serrano’s testimony that the Respondent was
hiring “everybody that [they] could who had some paint-
ing experience, and the Respondent’s continued hiring
after Elliott submitted his application (and was not
hired). Thus, the judge did “discuss” this evidence.
While the judge did not reiterate all of the evidence fa-
vorable to the General Counsel in the analysis section of
his decision, the majority has no justification for arguing
from the judge’s failure to reiterate that the judge there-
fore ignored the evidence discussed earlier in his opinion
in deciding to dismiss the complaint as to Elliott.
The majority’s asserted belief that a remand is neces-
sary because of the Board’s decision in FES is equally
without merit. FES addresses whether and how the Gen-
eral Counsel must establish the qualifications of the al-
leged discriminatee for the job for which he or she was
not hired, and the existence of openings. Neither of these
factors is at issue in this case. To the contrary, it is un-
disputed that Elliott was qualified for the position for
which he applied and that the Respondent had openings
for persons with his qualifications. The majority pro-
vides no justification for its assertion that there is any-
thing in FES which will in any way affect the judge’s (or
the Board’s) consideration of this case.
The majority is not remanding this case for any credi-
bility determinations, or for other findings that are
uniquely within the province of the judge. Rather, the
majority appears to believe that the judge drew the
wrong inferences from the evidence presented by the
General Counsel. In these circumstances, the Board is as
capable as the judge of determining whether the evidence
supports the General Counsel’s allegations, and a remand
is thus both unwarranted and, in my view, a poor use of
the Board’s administrative resources.

Richard A. Smith, Atty., for the General Counsel.
Donald Peder Johnsen and Kevin R. Robling, Attys. (Gallagher
& Kennedy, P.A.), of Phoenix, Arizona, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. Interna-
tional Brotherhood of Painters and Allied Trades, Local No. 86,
AFL–CIO (Local 86, the Union, or the Charging Party), filed
an unfair labor practice charge on June 29, 1998, and later
amended the charge on August 3.1 Based thereon, the General

1 All relevant events occurred in the 1998 calendar year and, unless
shown otherwise, all further date references are to the 1998 calendar
Counsel issued a complaint on September 1 alleging that Oscar
Serrano, a Sole Proprietor d/b/a Serrano Painting (Serrano,
Company, or Respondent) violated Section 8(a)(1) and (3) of
the National Labor Relations Act (Act) by refusing to employ
Michael Paz, a union official and a paid organizer, and Richard
Elliott, or to consider them for employment. Respondent’s
timely answer denied that it engaged in the unfair labor prac-
tices alleged.
I heard this matter on March 16, 1999, at Phoenix, Arizona.
After carefully considering the entire record, including my
observation of the demeanor of the witnesses, and the
posthearing briefs filed by the General Counsel and Respon-
dent, I have concluded that Respondent violated the Act as to
Paz but not as to Elliott on the basis of the following:2
FINDINGS OF FACT
I. ALLEGED UNFAIR LABOR PRACTICES
A. Relevant Facts
The Company maintains its office in Mesa, Arizona, where it
is engaged in business as a commercial painting contractor.3 At
relevant times, its managerial hierarchy consisted of Oscar
Serrano, the owner, estimator and Project Manager Dan Chap-
man, and Field Superintendent Morris (Jimmy) Baker. In addi-
tion, the parties stipulated that Michelle Harris, Respondent’s
receptionist, was an agent of Respondent for the purpose of
receiving applications for employment. On larger projects,
Respondent’s employees are directly supervised by a project
foreman who ordinarily report to Baker.
Serrano himself has little to do with employment applica-
tions or the hiring of field employees who work on the Com-
pany’s projects and never saw the applications of the two em-
ployees involved in this case until after the unfair labor practice
charge was filed. However, Serrano said that the Company,
when in need of painters, ordinarily preferred to hire the most
experienced painters available.
Baker hired the vast majority of Respondent’s field employ-
ees. However, during the specific times relevant to this case,
Baker’s time was divided between projects in the Phoenix area
and other projects in Yuma, Arizona, some considerable dis-
tance from Phoenix. As a result, Chapman became involved to
a degree in reviewing applications and interviewing applicants.
According to Chapman, Respondent’s support staff prepared an
applicant log form containing information taken from the writ-

year. The original charge alleged only Michael Paz as a discriminatee;
the amended charge alleged Paz and Richard Elliott as discriminatees.
2 The General Counsel’s unopposed motion to correct the transcript
is granted. Certain credibility resolutions are specifically addressed
below. All findings here have been based on a review of the entire
record and all exhibits in this proceeding. Witness demeanor and the
inherent probability of the testimony have utilized to assess credibility
and formulate my findings. Testimony contrary to my findings has
been discredited on some occasions because it was in conflict with
credited testimony, or documents, or because it was inherently incredi-
ble and unworthy of belief.
3 The parties stipulated that Respondent annually purchases goods
valued at more than a de minimus amount from points directly outside
the State of Arizona and that it also purchases goods valued in excess
of $50,000 from enterprises directly engaged in commerce. Accord-
ingly, I find Respondent meets the Board’s discretionary indirect inflow
standard and that it would effectuate the purposes of the Act for the
Board to exercise its statutory jurisdiction to resolve this labor dispute.
I further find that the Union is a labor organization within the meaning
of Sec. 2(5) of the Act.
SERRANO PAINTING 931
ten applications and, when the need for a new employee arose,
he called applicants from that log. A sample of the applicant
log reflects a single line application summary containing col-
umns showing the applicant’s name and telephone, years of
experience, wage information, drivers license and transporta-
tion information, and recent employment history.
This case relates to the Local 86’s most recent organizing ef-
fort by salting Serrano’s workforce with union members willing
to proselytize workers for that union’s cause. In one past effort
during July 1995 or 1996, Local 86 organizer Lonny Tender,
and three Local 86 members, Chris Lavoie, Doug Robinson,
and Julio Garcia, applied for employment with Serrano at the
behest of the Local’s business agent. At that time, Serrano
hired Garcia but withdrew an apparent employment offer to
Lavoie after Lavoie and Serrano argued during a job interview
over Lavoie’s stated intentions about organizing Serrano’s em-
ployees. Lavoie claims that he told Serrano that he intended to
organize Serrano’s employees but that he would not do it “on
your jobsite or on your time.” In response, Serrano told Lavoie
repeatedly that his shop was not union and that he did not in-
tend for it to be union. Lavoie claims without contradiction
that Serrano stated at one point during their discussion that if
Lavoie “talked to any of [Serrano’s] guys, that would be
grounds for termination.” Finally, Serrano told Lavoie that
“[t]his conversation is not going anywhere” and that he was not
going to hire him “at this time.” Lavoie claims, again without
contradiction, that he then asked Serrano if he was refusing to
hire him “just because I intend to organize your shop” and that
Serrano responded: “Yes.”4
Serrano recalled Lavoie’s job interview. However, he claims
that the interview terminated after Lavoie became abusive in
his insistence about engaging in organizing activities whenever
he pleased whether on worktime or not. Although Serrano did
not deny the specific statements attributed to him by Lavoie, he
asserted that he told Lavoie that he would be free to discuss
union matters with the employees on nonworktime.
Paz, a journeyman painter since 1975, has been a member of
Local 86 for 23 years. At the time of the hearing, Paz also
served as a trustee for Local 86 and for a period from 1996
through most of July 1998, Paz also worked as a paid organizer
for Local 86. His organizing duties involved efforts to organize
nonunion employers utilizing “top down” (persuading the con-
tractor to sign a union agreement) or “bottom up” (persuading
the contractor’s employees to select Local 86 as their represen-
tative) methods.5 As in the past, Paz encouraged unemployed
Local 86 members to seek work with nonunion contractors in
order to promote unionization among targeted employees at the
worksite and, from time to time, he sought such employment
himself for the same purpose.
Late in the spring of 1998, Respondent was awarded large
painting contracts by a Phoenix school district that required a
substantial number of painters. Because most of its regular
employees (typically from 8 to 15 employees) were assigned to
other jobs, the Company set out to quickly hire 50 to 60 em-

4 No evidence shows that Tender or Robinson were offered em-
ployment at this time. According to Serrano, Garcia never reported for
work at his assigned jobsite.
5 Under Sec. 8(f) of the Act, so-called top down organizing can be
lawful as that section permits employers and labor organizations in the
building and construction industry to enter into prehire agreements,
subject to certain limitations, without regard to a labor organization’s
majority standing among the employees involved.
ployees for these two projects primarily by advertising for
painters in the area newspapers. The advertisements produced
a number of applicants. According to Serrano, Respondent
hired “everybody that [they] could” who had some painting
experience and who would work at the hourly rate of $10 to
$12 it could afford to pay. By Serrano’s estimate the Company
had 30 to 50 painters on the two Phoenix school projects at all
times in the period from May through August. However, it had
to hire considerably more employees to maintain that staffing
level due to a significant turnover resulting from the discharge
of unqualified or unreliable employees and those who quit due
to the summer heat.6
Union organizer Paz noticed one of Respondent’s early ad-
vertisements for painters on May 31 and immediately arranged
for two other Local 86 members, Richard Elliott and Armando
Garcia, to apply for employment with him. Elliott had more
than a decade of work experience as a painter and had been a
Local 86 member throughout that time; Garcia’s experience is
unknown. Paz devised a plan for Elliott and himself to overtly
disclose their union affiliation during the application process at
Respondent’s office by wearing clothing that bore highly visi-
ble union insignia on their shirts and caps. Paz arranged for
Garcia to apply as a covert salt. To disguise Garcia’s alignment
with Elliott and himself, Paz dropped Garcia at a nearby retail
store while Elliott and Paz proceeded to Respondent’s office to
complete the applications. When they finished Paz then re-
turned and transported Garcia to Respondent’s office to apply.
Garcia wore clothing without any union insignia.
At the Company’s office, the receptionist, presumably Har-
ris, provided Paz and Elliott with applications that they com-
pleted and returned to her. She advised them that someone
from the Company would contact them later and, in response to
Paz’ inquiry, she also told the two men that the Company had
“a lot of work” and that they would likely be hired. In addition
to their clothing that bore prominent union logos, both men
listed union contractors as prior employers on their applications
and Paz explicitly told the receptionist that he sought employ-
ment with the Company primarily to organize Respondent’s
employees. On his application, Paz reported that the pay rate
on his most recent job had been $12 per hour but did not list his
years of experience. Elliott signified that he had earned $12.50
and $13 per hour on his last two jobs. As Garcia did not testify,
nothing is known about what occurred during his application
process but, concededly, he was never hired.
Slightly more than a week later, around June 9 or 10, Elliott
telephoned the Company to follow up on his application for
work. At that time he spoke only with an unidentified female
secretary. He told the secretary that he had been previously
informed that his application would be reviewed and that he
would be contacted. The secretary again advised him that
“somebody would look over it and get back [to him].” How-
ever, Elliott never heard further about his application or work
with the Company. Elliott asserted that he would have ac-
cepted work with the Company if it had been offered.
Paz did not pursue the status of his application until about
the third week of June, around June 22. This followup occurred
after Paz observed that the Company continued to advertise for
painters and that two other Local 86 members, Covell and La-
bella, lacked work. The convergence of these two factors ap-
6 GC Exh. 2 reflects that Respondent hired 66 employees in the pe-
riod from May through August 1998.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 932
parently caused Paz to plan a further salting effort. To this end,
Covell and Labella agreed to Paz’ suggestion to cooperate by
applying for work with the Company as covert salts. On June
22 Paz led both men to the vicinity of the Company’s Mesa
office and instructed them to wait while he proceeded on to the
office alone to inquire about work. At the office, Paz spoke
only to the receptionist; he reminded her that he had earlier
applied for work and asked when he might be hired. The recep-
tionist told Paz that she did not know but, that she would “get
back with the superintendent.” She also told Paz that the Com-
pany still had a lot of work. Paz then returned to Covell and
Labella and instructed them to go apply for work.
Neither Covell nor Labella testified. However, the documen-
tary evidence establishes that the Company hired Covell on June
25 and, shortly thereafter, encountered problems with Covell.
Thus; around July 3 Covell went on a “wage strike.” By a letter
dated July 13, Covell made an unconditional offer to return to
work. In a letter dated July 14, the Company offered to reinstate
Covell to his job at the “previous terms and wage rate.” (See
GC Exh. 2, p. 2, and R. Exhs. 1 and 2.) According to Serrano,
the Company essentially terminated Covell after he failed to
return to work by July 21. There is no indication that the Com-
pany ever knew of Labella’s allegiance to Local 86 and the re-
cord of employees hired through the relevant period of 1998
does not indicate that Labella was ever hired.
Project Manager Chapman claims to have spoken directly
with Paz by telephone on either June 22 or 23 to inquire about
his experience generally and whether he was a capable spray
painter. Chapman recalled that Paz informed him that he was a
union organizer and that he intended to attempt to organize
Respondent’s employees if he came to work. In response,
Chapman told Paz: “Well, you know, we’re not a union con-
tractor.” Chapman also claims that, after Paz assured him that
he could spray paint, the two men had an inconclusive ex-
change about an acceptable rate of pay. In sum, Chapman
avoided stating outright what the Company would pay, and Paz
would not state what rate he would take. Finally, Chapman told
Paz that he would have to speak with Field Superintendent
Baker about the matter and the conversation ended. Chapman
explained that he avoided telling Paz the rate the Company
would be willing to hire him for because Paz “was kind of ob-
noxious and uncooperative” and because he felt that he should
speak with Baker first (the person who normally hired field
employees) as he did not want “to step on [Baker’s] toes.”
According to Paz, sometime during the evening of June 22
Baker left an answering machine message instructing him to
report for work the following morning at the Barry Goldwater
high school in Phoenix if he “wanted to work.”7 At about 9
a.m. the following morning Paz reported to that jobsite and
spoke with Company Foreman Lawrence Williams. Paz told
Williams that he had received a telephone call from the Com-
pany instructing him to report, and asked if work was available.

7 This finding is based on Paz’ testimony. I do not credit Baker’s
hedging, inconsistent testimony to the contrary. Thus, during his direct
examination, Baker flatly denied that he would have left a message on
an applicant’s answering machine to report to work at a jobsite. On
cross-examination, Baker conceded that he may have left a message on
Paz’ answering machine as Paz claims but asserted that such a message
would have been limited to an instruction to call the office in order to
arrive at an agreement about an acceptable pay rate. Paz’ account is
consistent with his actions the following day which is generally cor-
roborated by the testimony of Job Foreman Williams.
Williams confirmed that he needed a spray man, work which
Paz had considerable experience performing. Paz then told
Williams that his “main objective was to organize the shop on
my own time after work hours and during lunch time.”
Williams claims that he had received no advanced notice
from the Company that a new employee would be reporting
that morning and that Paz did not appear to have any informa-
tion about his pay rate. Presumably for these reasons, Williams
told Paz that he needed to make a phone call and proceeded to
place a call on a “walkie-talkie” device in Paz’ presence so that
Paz could overhear both ends of the conversation. Williams
reached Project Manager Dan Chapman. Paz gave this account
of the conversation that followed:

Mr. Williams said that—he had told him that he had a
painter here ready to go to work and that I had put in an
application for Serrano and that I was a union painter and
ready to go to work. And then Dan, he said, he responded
saying, “Well, we’re not a union shop.” And then he said
that he would—and then there was a brief pause there and
Mr. Williams—I mean Dan said to Mr. Williams, “Well,
I’ll get back with you but I’m going to review some of
these applications.”

After Williams’ conversation with Chapman ended, Williams
told Paz “you’d better call back the shop” and that he could
“start first thing in the morning [because] we did need help out
there.”
Williams explained that as the job foreman he plays no role
in establishing employee pay rates. Instead, that determination,
according to Williams, would be made by either Serrano,
Chapman, or Field Superintendent Baker. Williams admitted
that Paz identified himself as an organizer and that he told
Chapman during the call that Paz was a “union member” to
help him “recollect who the gentleman was.” By Williams’
account, Chapman merely responded: “Okay, he’s a union man
and he still has to contact me at the office to find out exactly
what, you know, we decide we’re going to pay.”
Chapman also recalled the conversation with Williams. By
his account, Williams reached him at another jobsite rather than
the Company’s office and advised him that a man was “out here
that says he’s a union organizer and he says he’s going to or-
ganize our crew.” Chapman told Williams to tell him “we are
not a union shop. We don’t have a union contract.” At some
point during this exchange, Chapman claims that either Wil-
liams told him that the person at the jobsite was Paz or he fig-
ured it out for himself based on the recent conversation. Re-
gardless, Chapman further claims that during the conversation
“it kind of hit me . . . that we ought to hire this guy.” Accord-
ingly, Chapman said that he told Williams to have Paz “call the
office, we’ll figure out where he’s going and how much he’s
making and we’ll put him on.” Chapman claims that it would
be very “unusual” for an employee to be hired and sent to a
jobsite without a prior arrangement concerning a wage rate or
without notifying the foreman in advance that a new employee
had been hired.
After the call with Williams ended, Chapman claims that he
“immediately” called Harris at the office and gave this instruc-
tion: “When this guy [Paz] calls in, tell him to get ahold of me
or Jimmy. We need to find out how much he wants. We need
to figure out where we’re going to put him when we put him to
work. We have to hire this guy.” Chapman explained the “he
SERRANO PAINTING 933
kind of figured that we were going to have problems if we
didn’t hire him.”
For his part, Paz claims that later that day, around 2 p.m., he
telephoned the Company’s office and spoke only with the re-
ceptionist. He explained that he had been told to call about
work.8 She responded only that Chapman reviewed applica-
tions but she never connected Paz with Chapman or Baker as
purportedly instructed. Paz made no further calls to the Com-
pany and received no further calls from the Company. All told,
Respondent hired five employees between June 24 and 29 when
Paz filed the unfair labor practice charge including, as dis-
cussed above, Covell, one of the Union’s covert salts who ap-
plied for work on June 22.
B. Further Findings and Conclusions
Section 8(a)(3) prohibits employers from discriminating in
regard to an employee’s “tenure of employment . . . to encour-
age or discourage membership in any labor organization.”
Applicants for employment, including applicants who are also
paid union organizers, are employees within the meaning of
Section 2(3) of the Act and an employer violates Section
8(a)(3) by failing or refusing to hire an applicant for employ-
ment because of their union membership or activities. NLRB v.
Town & Country Electric, 516 U.S. 85 (1995); and Phelps
Dodge Corp. v. NLRB, 313 U.S. 177 (1941).
Under the causation test established in Wright Line, 251
NLRB 1083 (1980), and approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983), as modified in Direc-
tor, Office of Workers’ Compensation Programs v. Greenwich
Collieries, 512 U.S. 267 (1994), the General Counsel must
make a prima facie showing sufficient to support an inference
that the employee’s protected conduct, here seeking employ-
ment in order to engage in union organizing, motivated the
employer’s adverse action. In discriminatory refusal to hire
cases, the General Counsel must establish that: (1) the alleged
discriminatee applied for employment; (2) the employer knew
or suspected the applicant was a union sympathizer; (3) the
employer harbored an animus toward union sympathizers; (4)
the employer failed or refused to hire the applicant; and (5) the
employer refused to hire the applicant because of its animus
toward union sympathizers. M. J. Mechanical Services, 324
NLRB 812, 816 (1997).
If the General Counsel establishes a prima facie case, the
employer then has the burden of persuading the trier of fact that
the same adverse action would have been taken even in the
absence of the employee’s protected activity. Best Plumbing
Supply, 310 NLRB 143 (1993). To meet this burden “an em-
ployer cannot simply present a legitimate reason for its action
but must persuade by a preponderance of the evidence that the
same action would have taken place even in the absence of the
protected conduct.” Roure Bertrand Dupont, Inc., 271 NLRB
443 (1984).
Respondent does not quibble with the evidence showing
conclusively that Elliott and Paz applied for employment or the
evidence showing that both men disclosed their affiliation with
the Union. However, Respondent contends that the General
Counsel failed to meet his Wright Line burden because there is
no evidence that the Company’s failed or refused to hire Elliott
and Paz due to union animus. Respondent asserts that the

8 Paz gave no indication that he knew the identity of the receptionist
from whom he had originally received an application or the identity of
the person to whom he spoke on June 23.
Lavoie incident, 2 or 3 years earlier, is insufficient to support a
conclusion that its failure to hire Elliott and Paz was unlawfully
motivated particularly where, as here, Serrano offered employ-
ment to at least one other union salt, Julio Garcia, who accom-
panied Lavoie that day. In addition, Respondent argues that the
General Counsel’s claim of an unlawful motivation is severely
undercut by its evidence showing that the Company hired a
number of union members during this period and by further
evidence showing that other applicants, including some with a
history of union membership and some without, were not hired.
Respondent further argues that Chapman’s statements to Paz
that the Company was nonunion do not indicate union animus.
Instead, such statements, Respondent asserts, are merely asser-
tions of fact. In sum, Respondent argues that the record in its
entirety is consistent with Serrano’s assertion that an appli-
cant’s union affiliation has no bearing on the Company’s hiring
decisions.
To the extent that Respondent argues that the General Coun-
sel must supply some direct evidence of union animus and has
failed to do so other than the stale evidence related to Lavoie, I
cannot agree. In describing the Wright Line burdens the Board
stated in Naomi Knitting Mills, 328 NLRB 1279, 1281 (1999):

[T]he General Counsel is required to show by a preponder-
ance of the evidence that animus against protected conduct
was a motivating factor in the employer’s conduct. Once this
showing has been made, the burden shifts to the employer to
demonstrate that the same action would have taken place even
in the absence of the protected conduct. To sustain his initial
burden the General Counsel must show

(1) that the employee was engaged in protected activity, (2)
that the employer was aware of the activity, and (3) that the
activity was a substantial or motivating reason for the em-
ployer’s action. Motive may be demonstrated by circum-
stantial evidence as well as direct evidence and is a factual
issue which the expertise of the Board is peculiarly suited
to determine.
FPC Moldings, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir.
1995), enforcing 314 NLRB 1169 (1994) (citations omitted).

As the Board explained In Fluor Daniel, 311 NLRB 498
(1993), an unlawful motive may be inferred from the totality of
the circumstances even in the absence of direct evidence of
animus. Specifically, in the Fluor Daniel case the Board ob-
served:

It is also well settled, however, that when a respondent’s
stated motives for its actions are found to be false, the circum-
stances may warrant an inference that the true motive is an
unlawful one that the respondent desires to conceal. The mo-
tive may be inferred from the total circumstances proved.
Under certain circumstances, the Board will infer animus in
the absence of direct evidence. That finding may be based on
the Board’s review of the record as a whole. [Citations omit-
ted.]

Applying the foregoing principles to the facts of this case, I
concur with Respondent’s contention that the General Counsel
failed in his burden of persuasion as to Elliott but, I do not con-
cur with Respondent’s contention as to Paz. The sum of the
General Counsel’s proof in Elliott’s case is that he applied for
work with Paz and disclosed (either himself or through Paz) his
intention to engage in organizing activities to Respondent’s
agent Harris. The only added evidence in Elliott’s case is that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 934
he received an inconclusive response from the receptionist
(presumably Harris also) when he later inquired about his ap-
plication and that he was never hired. However, the showing
that a mix of union and nonunion applicants were not hired
compels me to conclude that the evidence, viewed in its en-
tirety, is insufficient to support a finding that Respondent re-
fused to consider or hire Elliott because of his disclosed union
affiliation or his stated intent to actively engage in organizing
activities if hired. This conclusion is further buttressed by the
evidence discussed below showing that the Company called
Paz, the more militant of the two, to report for work. Accord-
ingly, I recommend that the complaint be dismissed as to Elli-
ott.
The flawed and incomplete recollection of Respondent’s
witnesses in particular, and Paz to a lesser degree, complicate
the circumstances surrounding Paz’ case. Ultimately, however,
I have concluded that the witnesses painted enough of a picture
to warrant the conclusion that the postapplication events in Paz’
case more likely than not occurred as follows. First, the testi-
mony of both Chapman and Williams converge sufficiently to
support the conclusion that by June 22 the Company was in
need of a qualified sprayer on the Barry Goldwater project.
This need I find resulted in Chapman’s call to Paz on June 22
during which Chapman learned that Paz was an experienced
painter who asserted that he was qualified to spray.9 In addi-
tion, Chapman admitted that Paz disclosed in this conversation
that he was a union organizer and that he intended to actively
engage in organizing if hired. However, Chapman further ac-
knowledged that he and Paz engaged in an inconclusive banter
about pay during which Chapman never stated what the Com-
pany was willing to pay and Paz never stated what he would be
willing to accept. By his own admission Chapman decided to
refer Paz’ employment to Baker because hiring employees was
normally his job and he did not want to “step on his toes.”
I credit Paz’ claim that Baker left a message on June 22 for
him to report to the Barry Goldwater project the following
morning if he wanted to work. Baker’s initial assertion that he
would never leave such a message on an applicant’s answering
machine when coupled with his subsequent admission that he
might have left a message for Paz to call the Company’s office
demonstrates at the very least Baker’s lack of recollection con-
cerning any call to Paz or the circumstances leading to it. In
addition, the likelihood that Chapman spoke to Baker as he
planned to do concerning Paz’ employment to fill the needed
sprayer’s position at the Goldwater school project is highly
likely in view of Paz’ credible claim that he was instructed to
report to that specific project and that he did so the following
morning.
I find Paz’ account of the “walkie–talkie” conversation be-
tween Chapman and Williams equally credible. Based on his
account, I conclude that Chapman again stubbornly avoided
specifying a pay rate for Paz, purportedly the sole impediment
to Paz beginning work then and there. Chapman’s added com-
ment to Williams that he intended “to review some of these
applications” is fundamentally at odds with the assertion in his

9 Paz, who testified before Chapman, asserted generally that he re-
ceived no calls from any Company official until Baker left a message
on his answering machine. The General Counsel called Paz as a rebut-
tal witness after Chapman had testified but made no inquiry of Paz
concerning Chapman’s claim that he talked to Paz about his qualifica-
tion as a sprayer. For this reason, I find that Chapman’s account of his
conversation with Paz is uncontradicted.
testimony that he had decided to hire Paz in order to avoid
trouble. As this remark followed soon after Chapman’s “we’re
not a union shop” assertion and both occurred in the context of
Chapman’s continued refusal to simply end the pay rate prob-
lem despite the immediate need for a sprayer on the Goldwater
job, I am completely satisfied that Respondent harbored an-
other, undisclosed motive for bypassing Paz in favor of several
other applicants over the next few days. This conclusion is
further supported by the showing that Paz was again stone-
walled when he called the Company office later that day de-
spite Chapman’s purported “immediate” instruction otherwise
to the office staff. Finally, the failure of any Company official
to again contact Paz (as Chapman and Baker did the day be-
fore) to fill the existing sprayer’s job at the Goldwater school
project is also at odds with Chapman’s purported determination
to hire Paz out of fear that there would be trouble otherwise.
Accordingly, I find Respondent’s asserted defense, i.e., that its
failure to hire Paz was grounded on an incomplete application
and interview process free of any union considerations, uncon-
vincing.
On the basis of the entire record here, and in particular the
events of June 23, I conclude that Respondent’s true motive for
refusing to employ Paz lies in his repeated assertions that, if
hired, he intended to aggressively pursue organizing activities
on behalf of Local 86. This inference is not at all inconsistent
with the evidence showing that Respondent hired a few other
union employees. In virtually every case the Respondent did
not learn of their past or present union affiliation until after they
were employed, all appear to have belonged to local unions
located far from the Phoenix area, and, unlike Paz, none were
shown to have participated actively in Local 86’s organizing
project apart from the covert salts whose intentions were never
disclosed to Respondent before they were hired. For the fore-
going reasons, I further conclude on the record as a whole that
the General Counsel has established by a preponderance of the
evidence that Respondent violated Section 8(a)(1) and (3) by
refusing to employ Paz because of his stated intent to actively
organize on Local 86’s behalf if hired.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By refusing to employ Michael Paz on or about June 23,
1998, Respondent engaged in an unfair labor practice within
the meaning of Section 8(a)(1) and (3) of the Act.
4. The unfair labor practice of Respondent affects commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent violated Section 8(a)(1)
and (3) of the Act, my recommended Order will require it to
cease and desist therefrom and to take certain affirmative action
necessary to effectuate the policies of the Act.
Having found that the Respondent unlawfully refused to hire
Michael Paz because of his stated intention to actively engage
in organizing Respondent’s employees, my recommended Or-
der requires that the Respondent offer Paz immediate and full
employment in the position for which he applied or, if such
position no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and privileges.
My recommended Order further requires the Respondent to
SERRANO PAINTING 935
make Paz whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, with
backpay extending from June 23, 1998, the date of the unlawful
refusal to hire him, until the Respondent offers him employ-
ment. Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
ORDER
The Respondent, Oscar Serrano, a Sole Proprietor d/b/a
Serrano Painting, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to hire applicants for employment because of
their activities on behalf of Local No. 86, International Broth-
erhood of Painters and Allied Trades, AFL–CIO.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Michael
Paz full employment in the position for which he applied or, if
such a position no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights
and privileges.
(b) Make Michael Paz whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner described in the remedy section of this deci-
sion.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order.
(d) Within 14 days after service by the Region, post at its
Mesa, Arizona, place of business, copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms provided
by the Regional Director for Region 28, after being signed by

10 If no exceptions are filed as provided by §102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in §102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted and in locations where they may be
observed by applicants for employment. 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 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 Respondent at any time
since June 29, 1998.
(e) 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 the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

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 ordered 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 protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT refuse to hire applicants for employment be-
cause of their activities on behalf of Local No. 86, International
Brotherhood of Painters and Allied Trades, AFL–CIO.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL offer Michael Paz full employment in the position
for which he applied or, if such a position no longer exists, to
substantially equivalent position, without prejudice to his sen-
iority or any other rights and privileges.
WE WILL make Michael Paz whole for any loss of earnings
and other benefits suffered as a result of our unlawful refusal to
employ him together with interest required by law.

OSCAR SERRANO, a SOLE PROPRIETOR D/B/A SERRANO PAINTING