Serrano Painting

National Labor Relations Board - Board Decisions

Dec 15, 2000

332 N.L.R.B. 1363 (N.L.R.B. 2000)

SERRANO PAINTING 1363
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
December 15, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On February 16, 2000, Administrative Law Judge Wil-
liam L. Schmidt issued the attached decision. The General
Counsel filed exceptions and a supporting brief. On Sep-
tember 29, 2000, following a remand by the Board,1 the
judge issued the attached supplemental decision. The Gen-
eral Counsel filed exceptions and a supporting brief, and
the Respondent filed an answering brief to the General
Counsel’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decisions and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions and to
adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Richard A. Smith, Esq., for the General Counsel.
Donald Peder Johnsen and Kevin R. Robling, Esqs. (Gallagher
& Kennedy, P.A.), of Phoenix, Arizona, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. Local
No. 86, International Brotherhood of Painters and Allied Trades,
AFL–CIO (Local 86, Union, or 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 Counsel issued
a complaint on September 1, alleging that Oscar Serrano, a Sole
Proprietor d/b/a Serrano Painting (Serrano, Company, or Re-
spondent) 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 practices alleged.
I heard this matter on March 16, 1999, in Phoenix, Arizona.
After carefully considering the entire record, including my obser-
vation of the demeanor of the witnesses, and the posthearing
briefs filed by the General Counsel and Respondent, I have con-
cluded that Respondent violated the Act as to Paz but not as to
Elliott on the basis of the following2

1 331 NLRB 928 (2000). The Board severed from the remanded is-
sues an uncontested finding that the Respondent violated Sec. 8(a)(3)
and (1) by refusing to employ applicant Michael Paz.
Chairman Truesdale did not participate in the remand order.
1 All relevant events occurred in the 1998 calendar year and, unless
shown otherwise, all further date references are to the 1998 calendar
year. The original charge alleged only Michael Paz as a discriminatee;
the amended charge alleged Paz and Richard Elliott as discriminatees.
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 re-
ceiving applications for employment. On larger projects, Re-
spondent’s employees are directly supervised by a project fore-
man who ordinarily report to Baker.
Serrano himself has little to do with employment applications
or the hiring of field employees who work on the Company’s
projects, and never saw the applications of the two employees
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 distance
from Phoenix. As a result, Chapman became involved to a de-
gree in reviewing applications and interviewing applicants. Ac-
cording to Chapman, Respondent’s support staff prepared an
applicant log form containing information taken from the written
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 columns
showing the applicant’s name and telephone, years of experience,
wage information, drivers license and transportation information,
and recent employment history.
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.
332 NLRB No. 147
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1364
This case relates to the Local 86’s most recent organizing ef-
fort by salting Serrano’s work force with union members willing
to proselytize workers for that union’s cause. In one past effort
during July of 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 intend
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 conversa-
tion 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 be-
cause I intend to organize your shop” and that Serrano re-
sponded: “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 as-
serted 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 em-
ployers utilizing “top down” (persuading the contractor to sign a
union agreement) or “bottom up” (persuading the contractor’s
employees to select Local 86 as their representative) methods.5
As in the past, Paz encouraged unemployed Local 86 members to
seek work with nonunion contractors in order to promote unioni-
zation among targeted employees at the worksite and, from time
to time, he sought such employment himself for the same pur-
pose.
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 em-
ployees (typically from 8 to 15 employees) were assigned to
other jobs, the Company set out to quickly hire 50 to 60 employ-
ees for these two projects primarily by advertising for painters in
the area newspapers. The advertisements produced a number of

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 § 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.
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 adver-
tisements for painters on May 31 and immediately arranged for
two other Local 86 members, Richard Elliott and Armando Gar-
cia, 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 visible 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 him-
self, Paz dropped Garcia at a nearby retail store while Elliott and
Paz proceeded to Respondent’s office to complete the applica-
tions. When they finished Paz then returned and transported
Garcia to Respondent’s office to apply. Garcia wore clothing
without any union insignia.
At the Company’s office, the receptionist, presumably Harris,
provided Paz and Elliott with applications that they completed
and returned to her. She advised them that someone from the
Company would contact them later and, in response to Paz’ in-
quiry, 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 ex-
plicitly told the receptionist that he sought employment 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, conced-
edly, he was never hired.
Slightly more than a week later, around June 9 or 10, Elliott
telephoned the Company to followup 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 con-
tacted. The secretary again advised him that “somebody would
look over it and get back [to him].” However, Elliott never heard
further about his application or work with the Company. Elliott
asserted that he would have accepted 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 follow up occurred
after Paz observed that the Company continued to advertise for
painters and that two other Local 86 members, Covell and La-
6 GC Exh. 2 reflects that Respondent hired 66 employees in the pe-
riod from May through August 1998.
SERRANO PAINTING 1365
bella, lacked work. The convergence of these two factors appar-
ently 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 receptionist told Paz that
she did not know but, that she would “get back with the superin-
tendent.” She also told Paz that the Company 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 Company ever
knew of Labella’s allegiance to Local 86 and the record of em-
ployees hired through the relevant period of 1998 does not indi-
cate 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
general experience 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 Respon-
dent’s employees if he came to work. In response, Chapman told
Paz: “Well, you know, we’re not a union contractor.” Chapman
also claims that, after Paz assured him that he could spray paint,
the two men had an inconclusive exchange 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 conver-
sation ended. Chapman explained that he avoided telling Paz the
rate the Company would be willing to hire him for because Paz
“was kind of obnoxious 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.

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
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 Company instructing
him to report, and asked if work was available. Williams con-
firmed that he needed a spray man, work which Paz had consid-
erable 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 morn-
ing and that Paz did not appear to have any information 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 over-
hear both ends of the conversation. Williams reached Project
Manager Dan Chapman. Paz gave this account of the conversa-
tion 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 ap-
plication 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, Chap-
man, or Field Superintendent Baker. Williams admitted that Paz
identified himself as an organizer and that he told Chapman dur-
ing 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 organize
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 Williams told
him that the person at the jobsite was Paz or he figured it out for
himself based on the recent conversation. Regardless, Chapman
further claims that during the conversation “it kind of hit me . . .
that we ought to hire this guy.” Accordingly, 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 ar-

consistent with his actions the following day which is generally cor-
roborated by the testimony of job Foreman Williams.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1366
rangement concerning a wage rate or without notifying the fore-
man 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
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 recep-
tionist. He explained that he had been told to call about work.8
She responded only that Chapman reviewed applications but she
never connected Paz with Chapman or Baker as purportedly
instructed. Paz made no further calls to the Company and re-
ceived 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 discussed above,
Covell, one of the union’s covert salts who applied for work on
June 22.
B. Further Findings and Conclusions
Section 8(a)(3) prohibits employers from discriminating in re-
gard to an employee’s “tenure of employment . . . to encourage 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 employment because of their
union membership or activities. NLRB v. Town & Country Elec-
tric, 516 U.S. 85 (1995); 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’ Comp. 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 em-
ployee’s protected conduct, here seeking employment in order to
engage in union organizing, motivated the employer’s adverse
action. In discriminatory refusal to hire cases, the General Coun-
sel 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 appli-
cant 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 em-
ployer 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 employer cannot

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.
simply present a legitimate reason for its action but must per-
suade by a preponderance of the evidence that the same action
would have taken place even in the absence of the protected con-
duct.” Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984).
Respondent does not quibble with the evidence showing con-
clusively that Elliott and Paz applied for employment or the evi-
dence 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 evi-
dence that the Company’s failed or refused to hire Elliott and Paz
due to union animus. Respondent asserts that the Lavoie inci-
dent, 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 employment to at
least one other union salt, Julio Garcia, who accompanied Lavoie
that day. In addition, Respondent argues that the General Coun-
sel’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 member-
ship and some without, were not hired. Respondent further ar-
gues that Chapman’s statements to Paz that the Company was
nonunion do not indicate union animus. Instead, such statements,
Respondent asserts, are merely assertions of fact. In sum, Re-
spondent argues that the record in its entirety is consistent with
Serrano’s assertion that an applicant’s union affiliation has no
bearing on the Company’s hiring decisions.
To the extent that Respondent argues that the General Counsel
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 em-
ployer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. To sus-
tain 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 employer’s action. Motive may be demonstrated by
circumstantial evidence as well as direct evidence and is a
factual issue which the expertise of the Board is pecu-
liarly suited to determine.
FPC Moldings, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir.
1995), enforcing 314 NLRB 1169 (1994) (citations omit-
ted).

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

It is also well settled, however, that when a respondent’s
stated motives for its actions are found to be false, the
circumstances may warrant an inference that the true motive
is an unlawful one that the respondent desires to conceal.
SERRANO PAINTING 1367
an unlawful one that the respondent desires to conceal. The
motive 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
omitted).

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 concur
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 he received an
inconclusive response from the receptionist (presumably Harris
also) when he later inquired about his application and that he was
never hired. However, the showing that a mix of union and non-
union applicants were not hired compels me to conclude that the
evidence, viewed in its entirety, is insufficient to support a find-
ing that Respondent refused to consider or hire Elliott because of
his disclosed union affiliation or his stated intent to actively en-
gage 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. Accordingly, I recommend that the complaint be dis-
missed as to Elliott.
The flawed and incomplete recollection of Respondent’s wit-
nesses 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 as-
serted that he was qualified to spray.9 In addition, Chapman
admitted that Paz disclosed in this conversation that he was a
union organizer and that he intended to actively engage in orga-
nizing if hired. However, Chapman further acknowledged that
he and Paz engaged in an inconclusive banter about pay during
which Chapman never stated what the Company 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 morn-
ing if he wanted to work. Baker’s initial assertion that he would

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.
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 concerning any call
to Paz or the circumstances leading to it. In addition, the likeli-
hood that Chapman spoke to Baker as he planned to do concern-
ing 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 comment
to Williams that he intended “to review some of these applica-
tions” is fundamentally at odds with the assertion in his testi-
mony that he had decided to hire Paz in order to avoid trouble.
As this remark followed soon after Chapman’s “we’re not a un-
ion shop” assertion and both occurred in the context of Chap-
man’s continued refusal to simply end the pay rate problem de-
spite the immediate need for a sprayer on the Goldwater job, I am
completely satisfied that Respondent harbored another, undis-
closed motive for bypassing Paz in favor of several other appli-
cants over the next few days. This conclusion is further sup-
ported by the showing that Paz was again stonewalled when he
called the Company office later that day despite Chapman’s pur-
ported “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 before) 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 Respon-
dent’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, unconvincing.
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 em-
ployed, 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 Re-
spondent before they were hired. For the foregoing reasons, I
further conclude on the record as a whole that the General Coun-
sel has established by a preponderance of the evidence that Re-
spondent 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1368
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 neces-
sary 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 Order
requires that the Respondent offer Paz immediate and full em-
ployment 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 rec-
ommended Order further requires the Respondent to 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 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).
On these findings of fact and conclusions of law and on the en-
tire 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 Brother-
hood 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 guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate 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 decision.
(c) Preserve and, within 14 days of a request, make available to
the Board or its agents for examination and copying, all payroll

10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended Order
shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and
all objections to them shall be deemed waived for all purposes.
records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic
copy of the records if stored in electronic form, necessary to ana-
lyze 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 the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicu-
ous 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, de-
faced, 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
insofar 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,
restrain, 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
11 If this Order is enforced by a judgment of a United States Court of Ap-
peals, 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.”
SERRANO PAINTING 1369
substantially equivalent position, without prejudice to his senior-
ity 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

Richard A. Smith, Esq., for the General Counsel.
Donald Peder Johnsen and Kevin R. Robling, Esqs. (Gallagher
& Kennedy, P.A.), of Phoenix, Arizona, for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. On
February 16, 2000, I issued my decision and recommended Order
in the above matter wherein I concluded that the Respondent
violated Section 8(a)(1) and (3) of the Act by refusing to employ
Michael Paz in June 1998,1 but that the General Counsel failed to
prove that Respondent violated the Act by failing to hire, or con-
sider hiring, Richard Elliott. On July 31, 2000, the National La-
bor Relations Board (NLRB or Board) issued its Decision and
Order remanding wherein it adopted my findings as to Paz in the
absence of exceptions and severed that matter from the remainder
of this proceeding.
As to Elliott, the Board’s panel majority concluded that “sub-
stantial and material issues of fact remain unresolved concerning
the General Counsel’s allegation that antiunion animus contrib-
uted to the decision not to employ or to consider Elliott for em-
ployment.” Therefore, they remanded this proceeding to me to
deal with evidence it felt that I had previously “ignored” and to
make findings thereon. In this connection, the majority noted the
following:
The judge failed to discuss evidence adduced by the General
Counsel that Elliott had 15 years experience as a painter;
that the Respondent state 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 who had no painting experience listed
in their recent work history. The judge also failed to address
conflicting evidence about the Respondent’s reason for fail-
ing to hire Elliott. Thus, the Respondent’s owner, Serrano,
stated that when he asked Project Manager Chapman 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 ex-
tent that this testimony indicates that Elliott was either in-
structed to report to a jobsite or that there was confusion
over his wages, it conflicts with the testimony of Chapman
and Field Superintendent Baker that they had no dealings
with Elliott.
In addition, the decision instructs me to “fully analyze this case
under the Board’s recent decision in FES, [331 NLRB No. 20

1 Where not shown otherwise, date references are for the 1998 calendar
year.
(2000)] which sets forth the framework for analysis is refusal-to-
hire and refusal-to-consider violations.”
As the Board’s FES decision issued after this case was briefed
and decided, I notified the parties on August 14, 2000, that I
would consider on remand any further argument they desired to
present in light of the FES decision provided they supplemented
their original briefs no later than September 6, 2000. The Gen-
eral Counsel and Respondent submitted supplemental argument.
Having now considered that added argument, I have concluded
that the General Counsel has not proven that Respondent failed to
consider Elliott for employment or hire him for any reason re-
lated to union considerations based on the following
FINDINGS OF FACT
I. FES AND THE SUPPLEMENTAL ARGUMENT
In FES the Board held that to establish a discriminatory refusal
to hire, the General Counsel must show the following: (1) that the
Respondent was hiring, or had concrete plans to hire, at the time
of the alleged unlawful conduct; (2) that the applicants had ex-
perience or training relevant to the announced or generally
known requirements of the positions for hire, or in the alternative,
that the employer has not adhered uniformly to such require-
ments, or that the requirements were themselves pretextual or
were applied as a pretext for discrimination; and (3) that anti-
union animus contributed to the decision not to hire the appli-
cants. That same decision instructs that the elements of a dis-
criminatory refusal-to-consider violation the General Counsel
must prove include: (1) Respondent excluded applicants from the
hiring process; and (2) that antiunion animus contributed to the
decision not to consider the applicants for employment.
The General Counsel contends that he met his burden under
FES of establishing both the discriminatory refusal to hire and a
discriminatory refusal to consider as to Elliott. As to the former,
the General Counsel asserts: (1) Respondent was hiring during
the time period when Elliott applied for work as a painter; (2)
Elliott’s employment application shows that he was well quali-
fied for the position for which he applied; and (3) Respondent
harbored animus toward the Union as established by Chris
Lavoie’s testimony of his conversation with Oscar Serrano, Re-
spondent’s owner. Fundamentally, there is no real dispute about
the General Counsel’s claims concerning the first two elements.
The General Counsel also argues that he established a prima
facie case for a refusal-to-consider violation. In support of this
claim, the General Counsel notes that neither Baker nor Chapman
contacted Elliott. According to the General Counsel, “Serrano’s
[1995 or 1996] antiunion statements to Lavoie that he would
never be a Union contractor reveal the real reason why the Re-
spondent never contacted Elliott with respect to offering him
employment.”
Respondent argued that, under FES, the General Counsel must
prove that Respondent had openings, “and that antiunion animus
contributed to the respondent’s decision not to hire the applicants
for the openings.” FES, 331 NLRB No. 20 at slip op. 6. Re-
spondent further argues that the General Counsel may prove the
requisite animus element by either direct evidence or by circum-
stantial evidence “provided that the circumstantial evidence is
substantial and the inferences drawn therefrom are reasonable.
NLRB v. Instrument Corp. of America, 714 F.2d 324, 328 (4th
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1370
Cir. 1983). Respondent claims that the General Counsel failed to
present any evidence that Respondent “made any conscious deci-
sion in Mr. Elliott’s case, much less that such a decision was
infected in any way by any claimed antiunion animus.” I agree.
II. FURTHER FINDINGS AND CONCLUSIONS
First, I address the impression that I apparently gave the Board
by certain language used in my original decision that I “ignored”
some evidence in this case. As to Elliott’s 15 years’ experience
as a painter, his application, of course, shows as much or at least
close to that. But to avoid further doubt or confusion, I find that
Elliott’s credentials reflect his qualification for the positions the
Respondent sought to fill through its newspaper advertisements
in May and June 1998. Yet even though Elliott’s qualification is
obviously a critical element for the General Counsel under the
FES decision, the extent of Elliott’s qualifications adds virtually
nothing to establish that Respondent failed to consider or employ
Elliott for discriminatory reasons. This is especially true where,
as here, others of comparable or greater experience who had no
connection with the Union or its salting program known to the
Respondent were also not employed.
Thus, the applicant call list in evidence as Respondent’s Ex-
hibit 3 lists Wayne Kee as an applicant with 25 years’ experi-
ence. The General Counsel’s Exhibit 2, the list of Respondent’s
employees and their hire dates through the relevant period, does
not show that Respondent ever employed Kee. In the absence of
any other evidence, I presume and find that Respondent did not
employ Kee, a painter, who on paper at least, had more experi-
ence than Elliott. In addition, no evidence shows that covert salts
Armando Garcia and LaBella, both of whom submitted applica-
tions in June 1998 at the request of organizer Paz, were called for
an interview, were called for work, or were hired. These limited
instances alone demonstrate that Respondent did not employ all
of the qualified painters who applied for work in June, notwith-
standing any contrary general assertions made at the hearing.2
Next, the majority’s decision alludes to evidence showing that
in the period after Elliott’s application, Respondent “hired 16
people, 10 of whom had no painting experience.” The General
Counsel made precisely that claim in his original brief to me. I
find the assertion lacks weight for two reasons. First, it ignores
the fact that Respondent hired workers other than painters during
that summer. Thus, Oscar Serrano testified: “We were hiring lots
of people, painters, helpers, and all types of people.” As Re-
spondent also hired “helpers and all types of people” in addition
to painters, it undoubtedly hired some employees during this
period whose resumes reflected little or no experience in the
painting trade. Ordinarily, helpers can be quickly trained in ru-
dimentary tasks on the job and are not expected to have the skills
of journeyman tradesmen.
Second, this claim by the General Counsel is extremely selec-
tive. In his original brief, the General Counsel prepared a chart
reflecting that in the period after Elliott and Paz applied, Respon-
dent “hired 16 people, 10 of whom had no painting experience.”
That chart contains the heading: “Job Applicants Serrano Paint-

2 Specifically, the Board’s reference to a statement by “Respondent”
that it hired “everybody that [they] could,” is essentially hyperbole that
likely resulted from the intensity of the activity through the summer of
1998 for this small employer.
ing 5/29/98 to 10/06/98 GCX 3(A)–3(P), 4 & 9.” Although the
chart summarizes the information shown in those selectively
chosen exhibits, another exhibit establishes that Respondent hired
62 employees in that period—May 29 to October 6—not 16.
(See R. Exh. 2.) Hence, the General Counsel’s chart showing
that 10 out of 16 people hired over that given period of time have
fewer qualifications than Elliott in fact provides a comparative
examination of 25 percent of those hired in that period and ig-
nores the other 75 percent. For these reasons, I attached virtually
no weight to the 16/10 argument.
In addition, I am unable to accord the apparent inconsistency
between what Serrano may have been told about Paz and Elliott
by Project Manager Chapman after the NLRB charge was filed
and the accounts provided by Chapman and superintendent,
Jimmy Baker, at the hearing. Serrano testified as follows on this
subject:
Q. Did you ever see employment applications for Mr.
Richard Elliott or Michael Paz?
A. Yes, I saw those.
Q. Did you review those applications when those indi-
viduals applied for employment?
A. No, because I didn’t see those applications until after
the suit was filed.
Q. When did you see these—first see these applications,
Mr. Serrano?
A. Probably a couple of days after I received notice that
we were—that you were filing the suit.
Q. You mean when the charge was filed?
A. Right.
Q. And let’s see. And the initial charge was filed on
June 29th of 1998, so your testimony is that you would have
first seen these applications a few days later?
A. A few days later, yes.
Q. The first couple of days of July.
A. Right.
Q. How is it that you came to see these applications at
that time?
A. Because of the names. They were on the charges
made against us.
Q. Okay, and who showed you these applications?
A. I believe I asked my secretary to pull them and she
brought them to me.
Q. Okay. Can you tell me why Mr. Elliott—the reason
why Mr. Elliott was not hired for a position when the com-
pany was hiring?
A. No, I cannot.
Q. And what about Mr. Paz, you said that you saw his
application around the first week in July. Can you tell me
why Mr. Paz was not hired?
A. No, I cannot.
Q. Do you recall that Mr. Paz was a journeyman
painter? Do you recall that that was stated on his applica-
tion?
A. At the time that I saw it, yes.
Q. Okay, and do you recall that Mr. Elliott was also a
journeyman painter?
A. Yes.
SERRANO PAINTING 1371
Q. But you can’t recall why either individual was not
hired?
A. I was not involved in that process.
Q. Okay. Do you know who was?
A. Either Morris Baker or Dan Chapman, one of the
two individuals and I am not sure which one handled it
originally.
Q. Okay, you never spoke with them about as to why
they were—why neither one was hired?
A. Not until after we found out from—that we were
charged.
Q. Okay. And you had a conversation with either Mr.
Chapman or Mr.—what was the other gentleman’s name?
A. Baker.
Q. Mr. Baker, and did they tell you why they didn’t hire
these individuals?
A. I was told that one of them was sent to a jobsite and
he never showed up and the other one that there was some
confusion on the wages.
Q. So who was it that told you that; do you remember?
Was it Mr. Chapman or Mr. Baker? You don’t know?
A. I believe it was Chapman that told me that.
Q. Okay. So Mr. Chapman told you that one was sent
to a jobsite and never showed up and the other individual
was—couldn’t agree on the wages or something like that.
A. There was some confusion on agreement on the
wages, yes.
Q. And that’s all they told you about why these two in-
dividuals were never hired?
A. As far as they knew, yeah. [Emphasis mine.]
Q. They never said anything else, any other reasons?
A. No.
I have placed particular emphasis on Serrano’s response: “As
far as they knew, yeah.” because it reflects at least a certain de-
gree of uncertainty. To be sure, Chapman would have likely
explained the Paz situation by indicating that there was some
confusion over wages. As to Elliott, however, it is reasonable to
presume that Chapman would have been at a loss to explain to
Serrano what had occurred. Thus, Chapman testified as follows
about Elliott:
Q. Now, do you have any recollection of dealing with a
fellow named Elliott?
A. No.
. . . .
Q. BY MR. JOHNSEN: Mr. Chapman, did you ever
make any conscious decision that you can remember not to
hire Daniel Elliott?
A. No.
And Brown’s testimony about Elliott amounts to no more than
this:
Q. What about Daniel Elliott, did you ever have any
dealings with him that you can recall?
A. Not that I can recall.
However, at another point in his testimony, Brown, the manager
primarily responsible for the hiring through this period, recalled
that several applicants failed to show up for work when they were
hired. Serrano provided similar testimony. As Serrano had noth-
ing to do with the hiring process at the relevant time, and as the
testimony of Chapman and Brown is consistent with Elliott’s
assertion that he was never contacted by anyone from the com-
pany, I find it probable that either Chapman or, most likely,
Brown applied the “called but failed to show up” catch-all expla-
nation to Serrano’s inquiry about Elliott simply to satisfy
Serrano’s expectation of an explanation. But in the total context
of Elliott’s situation, the fact that Serrano may have been errone-
ously informed by one of his subordinate managers that Elliott
failed to show up for work when in fact he had not been called at
all lends little, if any, support the conclusion that Respondent
discriminatorily refused to consider Elliott for employment, or
hire him.
The only animus cited by the General Counsel in his supple-
mental brief is the 1995 or 1996 exchange between Serrano and
Lavoie. Although, I find Serrano’s account of that incident more
credible, even if I assumed that Lavoie’s entire account was true,
I would still conclude that the causal connection that incident has
to Respondent’s conduct (or lack thereof) toward Elliott in 1998
is virtually nonexistent. For this reason, I have concluded in
agreement with Respondent’s argument noted above that the
General Counsel failed to prove that antiunion animus had any-
thing to do with Respondent’s failure to hire Elliott or consider
him for hire. The evidence showing that Respondent failed to
hire (and presumably consider) others who had no known con-
nection with the Union such as Kee and covert salts Garcia and
LaBella also supports Respondent’s claim that lacked a discrimi-
natory motive as to Elliott. The same is true of the evidence
showing that although the applications of Paz and Kevin Fraze
both reflected that they worked for the same union contractor,
Respondent at least called Paz for work and actually hired Fraze.
For these reasons, I conclude that the General Counsel has failed
to present a persuasive case that Respondent’s failure to consider
Elliott for employment or to hire him was based on any union
consideration of any kind. Accordingly I hereby issue the
following recommended3

SUPPLEMENTAL ORDER
The complaint allegations pertaining to Richard Elliott are
hereby dismissed.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.