Skill Staff of Colorado

National Labor Relations Board - Board Decisions

Jul 21, 2000

331 N.L.R.B. 815 (N.L.R.B. 2000)

SKILL STAFF OF COLORADO 815
SOS Staffing Services, Inc. d/b/a Skill Staff of Colo-
rado and Cobb Mechanical Contractors and
Colorado Pipe Trades Association. Case 27–CA–
14545
July 21, 2000
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On June 5, 1997, Administrative Law Judge Jay R.
Pollack issued the attached decision. Respondents SOS
Staffing Services, Inc., d/b/a Skill Staff of Colorado, and
Cobb Mechanical Contractors each filed exceptions and a
supporting brief, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified below.
The judge found, and we agree, that Respondents Skill
Staff and Cobb were joint employers of Kurt Steenhoek
on Cobb’s Douglas County High School job, and that
they violated Section 8(a)(1) by threatening not to hire,
and to screen out and not refer, union members to Cobb
for employment.2 We also agree that Respondent Cobb
violated Section 8(a)(3) and (1) of the Act by terminating
Steenhoek’s employment on February 2, 1996, because
he was a union member and union organizer.3
Contrary to our dissenting colleague, we agree with the
judge that under established Board precedent, Respon-
dent Skill Staff violated Section 8(a)(3) and (1) by acqui-
escing in and adopting Respondent Cobb’s termination
of Kurt Steenhoek’s employment. We therefore find
Skill Staff jointly liable with Cobb for losses stemming
from the termination, commencing as of the date on
which it learned that Cobb terminated Steenhoek for dis-
criminatory reasons.4

1 Respondents Skill Staff and Cobb have excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),
enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing the findings.
2 As this statement was made in the presence of an employee, it vio-
lated Sec. 8(a)(1).
3 There were no exceptions to the judge’s finding that Cobb Fore-
man Lippard did not violate the Act by asking employee Steenhoek
why a journeyman plumber was working through an employment
agency and how a union member could work for a nonunion employer,
and his further finding that Respondent Cobb did not violate Sec.
8(a)(3) of the Act in April 1996 when it failed to hire Steenhoek.
In its exceptions, Respondent Cobb has raised factual questions re-
garding the scope of its backpay liability. It may raise these issues at
the compliance stage of these proceedings.
4 The judge erred by holding Skill Staff jointly liable for all backpay
due to Steenhoek from the date that Cobb unlawfully terminated Steen-
hoek’s employment. In light of the finding that Skill Staff first learned
of the unlawful motivation for the termination on February 23, 1996, its
liability for backpay is limited to the period beginning on that date.
The facts are fully set forth in the judge’s decision. To
summarize, on January 31, Skill Staff dispatched Steen-
hoek to perform plumbing work at Cobb’s Douglas
County High School jobsite. Upon questioning by Cobb
Supervisor Lippard, Steenhoek revealed his union mem-
bership and his status as an organizer. Steenhoek worked
at the high school jobsite on January 31 and February 1.
When Steenhoek reported for work on February 2, Cobb
Plumbing Superintendent Tom Cacy told Steenhoek that
employees would not be working that day because of the
cold weather but that he would be needed on the job
when work resumed on Monday and that he should
therefore get another dispatch from Skill Staff for the
following week. Steenhoek went to Skill Staff’s office
later that day to obtain the dispatch but was told that
Cobb had canceled its order for plumbers and no longer
needed his services. In fact, Cobb was “swamped” with
work and continued to need plumbers in March and April
1996. The judge found, and our dissenting colleague
does not dispute, that Cobb terminated Steenhoek be-
cause he was a union organizer.
Although there is no evidence that Skill Staff knew of
Cobb’s reason for terminating Steenhoek at the time
Steenhoek was let go, Skill Staff learned of Cobb’s
unlawful motive no later than February 23, when Skill
Staff Sales Representative Darren D’Amato visited Cacy
to discuss Skill Staff’s interest in continuing to supply
Cobb with labor. As set forth in the judge’s decision,
Cacy at that time complained to D’Amato that Skill Staff
had sent someone to the job who was a problem because
he was a union organizer and told D’Amato that Cobb
could not have and did not want union members on the
job. According to credited testimony, not only did
D’Amato fail to protest what he at that point knew was
the discriminatory termination of Steenhoek, he assured
Cacy that Skill Staff was aware of and attempting to ac-
commodate Cobb’s unlawful requirements, telling him
Skill Staff was “doing its best” to screen out union mem-
bers before it sent employees to Cobb jobs. Thereafter,
Skill Staff continued its joint employer relationship with
Cobb, both as to employees supplied by Skill Staff who
were already working at Cobb jobsites and as to new
employees whom Skill Staff sent to work for Cobb over
the next several months.
Our dissenting colleague does not dispute these find-
ings. He agrees with the judge that Skill Staff and Cobb
were joint employers of Steenhoek on the Douglas
County High School job. Nonetheless, he concludes that
because, in the absence of knowledge of Cobb’s unlaw-
ful motive when Cobb sent Steenhoek away on February
2, Skill Staff was not on notice to protest the action at
that time, it should bear no liability at all. This conclu-
sion is contrary to Board precedent as set forth in the

331 NLRB No. 97
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 816
lead case of Capitol EMI Music, 311 NLRB 997 (1993),
enfd. per curiam 23 F.3d 399 (4th Cir. 1994), concerning
joint employer liability for discriminatory employment
actions in circumstances such as these.
In Capitol EMI, the Board addressed the circumstances
under which, in a joint employer relationship where one
employer supplies employees to the employer, a nonact-
ing employer can be held liable under Section 8(a)(3) for
an unlawful action taken by the other employer. The
Board noted that because the finding of an 8(a)(3) viola-
tion requires proof of an antiunion motive, the central
question is whether knowledge of a motive harbored by
one employer should be imputed to the other simply be-
cause they are the joint employers of the same work
force. It then concluded that it was not appropriate to
impute knowledge of one joint employer to the other
where one joint employer merely supplies employees to
its coemployer and otherwise takes no part in the over-
sight or daily direction of the employees at the worksite.
Thus, the Board said:
in joint employer relationships in which one employer
supplies employees to the other, we will find both joint
employers liable for an unlawful employee termination
[or other discriminatory employment action] only when
the record permits an inference (1) that the nonacting
joint employer knew of or should have known that the
other employer acted against the employee for unlawful
reasons and (2) that the former has acquiesced in the
unlawful action by failing to protest it or to exercise
any contractual right it might possess to resist it. [311
NLRB at 1000] [emphasis added].
Applying the Capitol EMI test to the facts as set forth
above, it is plain that the judge was correct in finding
Skill Staff jointly liable with Cobb for backpay due to
Steenhoek. As of February 23, Skill Staff knew that
Cobb had acted against Steenhoek for unlawful reasons.
It then acquiesced in Cobb’s unlawful action by, inter
alia, “failing to protest it.” Thus, both prongs of the
Capitol EMI test have been satisfied.
It is simply not true, as our dissenting colleague as-
serts, that “Skill Staff could do nothing to rectify the
wrong previously done by Cobb to Steenhoek.” Obvi-
ously Skill Staff could have protested Cobb’s action by,
at the least, expressing its disapproval. If the second
prong of the Capitol EMI test has any meaning at all,
this, at a minimum, was surely required.5
It is not unprecedented to hold a party liable for failure
to take action to remedy, or attempt to remedy, unlawful
discrimination under the Act even when the party first
learns after the fact that an employee had suffered such
discrimination. Thus, in Monson Trucking, Inc., 324
NLRB 933, 936 (1997), enfd. on other grounds 204 F. 3d

5 We need not speculate as to any additional steps Skill Staff could
have taken to satisfy its obligation under Capitol EMI since it did not
protest at all.
822 (8th Cir. 2000), the Board found that an employer
violated Section 8(a)(3) and (1) of the Act by failing to
rescind the termination of an employee once it learned
that he had satisfied his obligation to pay union dues and
that the union’s demand for his discharge for nonpay-
ment of dues had thus been unlawful.
Here, although Skill Staff did not have the authority to
rescind the termination of Steenhoek, it failed to protest
in any manner Cobb’s unlawful action. To the contrary,
instead of protesting Cobb’s unlawful termination of
Steenhoek, Skill Staff, through its agent, assured Cobb
that it was doing its best to assist Cobb in keeping union
members off its jobs. Under the standard set forth in
Capitol EMI, we therefore adopt the judge’s finding of
joint liability.6
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents, Cobb
Mechanical Contractors, Denver, Colorado, and SOS
Staffing Services, Inc. d/b/a Skill Staff of Colorado,
Colorado Springs, Colorado, their officers, agents, suc-
cessors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(b).
“(b) Make whole Kurt Steenhoek for any loss of earn-
ings and other benefits resulting from his discharge, less
any net interim earnings, plus interest. Respondent Skill
Staff’s liability is limited to the period beginning on Feb-
ruary 23, 1996.”
2. Substitute the attached notices for those of the ad-
ministrative law judge.

MEMBER HURTGEN, dissenting in part.
My colleagues and I agree that Respondent Cobb vio-
lated Section 8(a)(3) and (1) of the Act by terminating
Steenhoek’s employment on February 2, 1996, because
he was a union member and union organizer. I do not
agree, however, that Respondent Skill Staff violated Sec-
tion 8(a)(3) and (1) of the Act by allegedly acquiescing
in and adopting Respondent Cobb’s unlawful termination
of Steenhoek.
On January 31, 1996, Cobb placed an order with Skill
Staff for a temporary plumber for “1 day, possibly
more.” Skill Staff dispatched Steenhoek, who worked
January 31 and February 1. On February 2, Cobb termi-
nated its order for Steenhoek’s services. I agree that
Cobb acted for unlawful reasons. However, there is no
6 Contrary to the contention of our dissenting colleague, Skill Staff’s
responsibility for the unlawful actions of Cobb rests not merely on its
failure to protest Cobb’s discriminatory conduct, but on the fact that it
had voluntarily entered into what we have found to be a joint employer
relationship with Cobb vis a vis the discriminatee. As explained in
Capitol EMI, the significance of Skill Staff’s knowledge and acquies-
cence is that it provides a basis for imputing to Skill Staff the discrimi-
natory motive which is a necessary element of any violation of Sec.
8(a)(3).
SKILL STAFF OF COLORADO 817
evidence that Skill Staff was aware of these unlawful
reasons. Thus, Skill Staff is not liable for Cobb’s mis-
conduct. Capitol EMI Music, 311 NLRB 997, 1000
(1993).
I recognize that, on February 23, Skill Staff became
aware of Cobb’s unlawful motive. The majority con-
tends that, at that point, Skill Staff had an obligation to
protest Cobb’s unlawful act of February 2. In my view,
the majority has misread Capital EMI. Under that case,
if Employer A seeks to act for an unlawful motive, and
employer B knows of that motive, employer B must take
“all measures within its power to resist the unlawful ac-
tion.” That is, B must seek to prevent the unlawful con-
duct from occurring. The majority misreads Capital EMI
to say that an employer (B) who learns of A’s unlawful
act after it has been completed, must take steps to undo
that which A has done. However, neither the facts nor
the language of Capital EMI impose such an obligation.
In short, Capital EMI holds that one joint employer (B)
is guilty of an unfair labor practice if (1) it knows of A’s
unlawful motive, and (2) does not seek to prevent the
action. Capital EMI does not hold that the one joint em-
ployer, upon learning of an earlier unlawful act, must
seek to rectify that unlawful act.
Further, even if Capital EMI were read to encompass a
failure to seek to rectify an earlier unlawful act, that
would not alter the result here. In this regard, I note that
Capital EMI is somewhat ambiguous on the issue of
what evidence will establish that B has acquiesced in the
unlawful act of A. On the one hand, the opinion says at
one point that such acquiescence will be shown by (1) a
failure to protest the unlawful action or (2) a failure to
exercise any contractual right that B might have to resist
it. Capital EMI, supra at 1000. However, in the subse-
quent (and final) recitation of the rule, the Board speaks
only of (2) above, the necessity for B to exercise any
power it has to resist the unlawful action. Id. My col-
leagues do not contend that B (here Skill Staff) had any
power to resist the antecedent unlawful act of A (Cobb).
Instead, they focus only on (1) above, the asserted neces-
sity to protest. In my view, a protest is likely to be hol-
low indeed where, as here, there is no power to enforce
it. It is even more hollow where, as here, it is after the
fact. In sum, the absence of a hollow protest is a slim
reed upon which to rest responsibility for the prior
unlawful act of another person.1
In short, Skill Staff could do nothing to rectify the
wrong previously done by Cobb to Steenhoek, and there-

1 My colleagues assert that Skill Staff’s liability for the actions of
Cobb “rests not merely on its failure to protest Cobb’s discriminatory
conduct, but on the fact that it had voluntarily entered into what we
have found to be a joint employer relationship with Cobb vis a vis the
discriminatee.” In response, I note that, under Capital EMI, the joint
employer relationship does not establish liability.
fore Skill Staff does not bear remedial responsibility for
that wrong.2
APPENDIX
NOTICE TO EMPLOYEES (COBB)
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 vio-
lated 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
concerted activities.

WE WILL NOT threaten to refuse to hire or consider
for employment prospective employees or threaten to
screen out employee-applicants because they are mem-
bers of or affiliated with Colorado State Pipe Trades As-
sociation or any other union.
WE WILL NOT discharge any employee because of
membership in or activities on behalf of Colorado State
Pipe Trades Association or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
order, offer Kurt Steenhoek immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without preju-
dice to his seniority or any other rights and privileges,
and WE WILL make him whole, with interest, for any
loss of pay and benefits he may have suffered as a result
of his unlawful discharge.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Kurt Steenhoek and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.
COBB MECHANICAL CONTRACTORS
2 Contrary to my colleagues, I see no support for their position in
Monson Trucking, Inc., 324 NLRB 933, 936 (1997). That case in-
volved the liability of an employer that had the authority to rescind its
own discharge of an employee. Here, Skill Staff has no authority to
return Steenhoek to work at the Cobb jobsite.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 818
APPENDIX
NOTICE TO EMPLOYEES (SKILL STAFF)
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 vio-
lated 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
concerted activities.

WE WILL NOT threaten to refuse to hire or consider
for employment prospective employees or threaten to
screen out employee-applicants because they are mem-
bers of or affiliated with Colorado State Pipe Trades As-
sociation or any other union.
WE WILL NOT acquiesce in or adopt the unlawful
conduct of any employer to which we supply employees
in discharging any employee because of membership in
or activities on behalf of Colorado State Pipe Trades As-
sociation or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
order, make Kurt Steenhoek whole, with interest, for any
loss of pay and benefits he may have suffered beginning
on February 23, 1996, as a result of his unlawful dis-
charge from Cobb Mechanical Contractors.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Kurt Steenhoek and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.

SOS STAFFING SERVICES, INC. D/B/A
SKILL STAFF OF COLORADO

William J. Daly, Esq., for the General Counsel.
John Morrison, Esq.,of Salt Lake City, Utah, for the Respon-
dent, Skill Staff.
John K. Henderson, Esq. (Mountain States Employers Council),
of Denver, Colorado, for the Respondent, Cobb.
Wally Brauer, Esq., of Denver, Colorado, for the Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Denver, Colorado, on March 17 and 18, 1997.
On May 6, 1996, Colorado State Pipe Trades Association (the
Union) filed the charge alleging that SOS Staffing Services,
Inc., d/b/a Skill Staff of Colorado (Respondent Skill Staff) and
Cobb Mechanical Contractors (Respondent Cobb) committed
certain violations of Section 8(a)(3) and (1) of the National
Labor Relations Act (the Act). On June 18, the Regional Direc-
tor for Region 28 of the National Labor Relations Board issued
a complaint and notice of hearing against Respondent, alleging
that Respondent violated Section 8(a)(3) and (1) of the Act. On
February 28, 1997, the complaint was amended. Respondents
filed timely answers to the complaints, denying all wrongdoing.
The complaint alleges that Respondents discharged em-
ployee Kurt Steenhoek in February 1996, in order to discourage
Respondent Cobb’s employees from joining the Union or en-
gaging in other union activities. The General Counsel further
alleges that in April 1996, Respondent Cobb failed to hire
Steenhoek because Steenhoek was a union organizer. Finally
the complaint alleges that Respondent Cobb unlawfully interro-
gated Steenhoek, and that both Respondents made unlawful
threats in violation of Section 8(a)(1) of the Act.
The parties have been afforded full opportunity to appear, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, and to file briefs. On the entire record, from my observa-
tion of the demeanor of the witnesses,1 and having considered the
posthearing briefs of the parties, I make the following
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent Skill Staff is a Utah corporation, with an office and
principal place of business in Denver, Colorado, and has been
engaged in providing temporary help services to employers. Dur-
ing the 12 months ending December 31, 1995, Respondent pur-
chased and received goods and materials valued in excess of
$50,000 from suppliers located outside the State of Colorado.
Accordingly, Respondent Skill Staff admits and I find that Skill
Staff is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
Respondent Cobb, a corporation, with an office and principal
place of business in Colorado Springs, Colorado, and a jobsite at
the Douglas County High School, has been engaged in the con-
struction industry as a mechanical engineering contractor. Re-
spondent Cobb, annually, purchases and receives goods, materials,
and services valued in excess of $50,000 directly from points and
places outside the State of Colorado. Accordingly, Respondent
Cobb admits and I find that Cobb is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
Respondents admit and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.

II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
During all times material, Kurt Steenhoek was employed by the
Union as an organizer. On December 12, 1995, he visited the
offices of Respondent Skill Staff to apply for work as a plumber.
1 The credibility resolutions herein have been derived from a review
of the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit-
nesses testifying in contradiction to the findings herein, their testimony
has been discredited, either as having been in conflict with credited
documentary or testimonial evidence or because it was in and of itself
incredible and unworthy of belief.
SKILL STAFF OF COLORADO 819
Steenhoek testified that he intended to make some extra money
and to organize the employees of those employers to which he
was referred. In his job application filed with Respondent Skill
Staff, Steenhoek wrote that he was presently employed by the
Union as a union representative. The placing of union members in
nonunion jobs for the purpose of organizing has become a com-
mon practice in the construction industry and is commonly re-
ferred to as “salting.” See, e.g., Iplli, Inc., 321 NLRB 463 (1996).
On January 31, 1996, Respondent Skill Staff dispatched Steen-
hoek to a job with Respondent Cobb at Cobb’s Douglas County
High School project. Respondent Cobb was performing plumbing
and heating, ventilation and air conditioning work at this project.
Steenhoek met with Tom Cacy, plumbing superintendent, and
Andy Cacy, plumbing foreman, and was assigned to work by his
immediate supervisor, Gary Lippard.
Shortly after lunch on January 31, 1996, Steenhoek spoke with
Lippard. Lippard asked Steenhoek why Steenhoek was working
through a temporary agency as a journeyman plumber. Steenhoek
responded that he worked anywhere he could. According to
Steenhoek, Lippard asked Steenhoek whether he was in the Un-
ion. Steenhoek answered that he was. Lippard told Steenhoek
that he used to be in the Union and that when he was in the Union,
the Union would not allow its members to work for nonunion
contractors. Steenhoek explained that the Union allowed him to
work nonunion and to try and organize the employees of the non-
union employer. Steenhoek said that he was there to organize
Respondent Cobb back into the Union. Lippard stated that he did
not know why Cobb had left the Union. Lippard did not deny
discussing the Union with Steenhoek. However, Lippard testified
that Steenhoek first raised the subject of the Union and volun-
teered that he was a member of the Union. Lippard further testi-
fied that he never discussed Steenhoek with Jerry Bitner, Respon-
dent’s vice president of operations, and that he could not recall
whether he discussed Steenhoek with Tom Cacy.
Steenhoek completed the workday on January 31. At the end
of the day, Tom Cacy told Steenhoek to call the next morning to
see if there was work because the weather had been cold. On the
following morning, Steenhoek called Tom Cacy and was told to
report to work. Steenhoek worked that day, February 1, from 7:30
a.m. until 3:30 p.m. At the end of the day, Steenhoek was again
instructed to call before reporting to work. Steenhoek said he
would just report to the job at 7 a.m. to see if Cobb was working
that day.
On February 2, Steenhoek reported to work at 7 a.m. At that
time Andy Cacy told him that the employees would not be work-
ing that day because of the weather. Steenhoek then asked if he
should get another dispatch from Respondent Skill Staff for the
next week. Andy Cacy told Steenhoek to obtain another dispatch
from Skill Staff so that Steenhoek could continue to work.
During the afternoon of February 2, Steenhoek went to Skill
Staff’s office to receive his paycheck and obtain a dispatch for the
following week. Steenhoek was told that Tom Cacy had called
that morning and canceled the job request. Steenhoek was told
that Skill Staff did not know why Cacy had canceled the job re-
quest. Steenhoek was not again dispatched to Cobb or any other
employer because Skill Staff did not receive any further requests
for plumbers.
To support his contention that Respondent Cobb’s cancellation
of Steenhoek’s dispatch was unlawfully motivated, the General
Counsel presented the testimony of Anthony Fimia. Fimia, a
plumber and member of a Plumbers local union in New Jersey,
testified that he applied for work at Cobb’s Douglas County High
School jobsite on February 23. Fimia met with a general foreman,
later identified as Tom Cacy. Tom Cacy told Fimia that he would
be doing plumbing and pipefitting work and that he would start at
$16 per hour. During this conversation a representative from Skill
Staff, later identified as Darren D’Amato, came to visit with Cacy.
Fimia was given more paperwork to fill out and asked to leave the
office. Fimia sat by a desk just 4 feet from Cacy’s office.
Fimia overheard D’Amato tell Tom Cacy that Skill Staff
wanted to supply labor for Cobb’s job. Cacy complained that
Skill Staff had sent a "Union man" to the job. D’Amato said that
he had spoken with a union representative and that Skill Staff did
not want to pay the fees the Union wanted for supplying labor.
Cacy and D’Amato discussed having a problem with a union
member named Kurt. Fimia testified that he heard Tom Cacy
state that he could not have union employees on the job and that
he did not want guys on the job that were union. According to
Fimia, D’Amato said Skill Staff was trying to screen out union
members before it sent employees to the job but that it was diffi-
cult. D’Amato told Cacy that he would try to get Cobb as much
labor as he could. Cacy told D’Amato that Cobb needed plumbers
and pipefitters on the job and that it was shorthanded. Fimia ac-
cepted a job elsewhere and never went to work for Cobb. Tom
Cacy, no longer employed by Respondent Cobb, was not available
to testify at the hearing.
Darren D’Amato, currently a branch manager for Respondent
Skill Staff, was an account manager when he visited Cobb’s job-
site in February 1996. D’Amato corroborated Fimia’s testimony
to a great extent. According to D’Amato he first asked Tom Cacy
whether Cobb was happy with Skill Staff’s services. Cacy re-
sponded that Skill Staff had sent a guy out to the job and it hadn’t
worked out. D’Amato asked what the problem was. Cacy an-
swered, “Off the record, the guy you sent me is a ‘salt.’”
D’Amato was not familiar with the term and Cacy explained to
him that a “salt” was someone sent by the Union to organize non-
union employees. D’Amato told Cacy that Skill Staff would do
anything that it had to do to keep Cobb happy. D’Amato denied
that he told Cacy that Skill Staff would try to screen out union
members and that it would try not to send any union members.
He also denied that Cacy told him that Cobb could not have union
men on the job and that it did not want union members on the job.
However, I found Fimia to be a more credible witness. Fimia was
a candid witness. Further, he stood to gain nothing by his testi-
mony. While, D’Amato admitted a significant portion of Fimia’s
testimony, I was left with the impression that he shaded his testi-
mony to soften the case against his employer, Skill Staff, and its
customer, Cobb.
The General Counsel’s witness Walter Palmer worked for Re-
spondent Cobb at the Douglas County High School jobsite from
March 19 to April 15, 1996. Palmer testified that during his first
week of employment, Steve Boyd, sheet metal foreman, asked
Palmer if he knew of any plumbers who were looking for work.
Palmer said that he would ask around. On April 15, Boyd asked
Palmer if he had found any plumbers interested in working at the
jobsite. Palmer said that he had asked around but the other
plumbers were all working. Palmer asked if Cobb was busy and
Boyd answered that the company was “swamped.”
Steenhoek testified that he returned to the jobsite on April 8,
seeking to work directly for Cobb. On that date, Steenhoek spoke
with Andy Cacy. Andy Cacy said that Respondent Cobb was not
hiring any plumbers. On April 17, Steenhoek again visited the
jobsite seeking work. At the same time a business agent from a
plumbers union local in Amarillo, Texas, and two plumbers from
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 820
that local were also seeking work. Steenhoek asked Andy Cacy if
Cobb was hiring any plumbers. Andy answered that Cobb was
not hiring but that it would keep the applications on file.2 Steen-
hoek has not been hired by Cobb. However, on April 24, Jerry
Bitner, vice president of operations for Respondent Cobb, called
the telephone number listed on Steenhoek’s job application and
left a message in an attempt to interview Steenhoek. Steenhoek
never returned that phone call. After the date of Steenhoek’s ap-
plication, Respondent Cobb hired a plumbing foreman on April
30, and a plumber on July 1, 1996. Steenhoek’s April application
was no longer active when Respondent Cobb hired a plumber on
July 1.
Jerry Bitner, vice president of operations for Respondent Cobb,
testified that he visited the high school jobsite in late January
1996. According to Bitner when he returned to his office, he is-
sued a memorandum, dated February 1, to Tom Cacy and Greg
Even, Cobb’s project manager, directing them to adjust the size of
their crews to more accurately match the jobsite needs and to
review their use of temporaries on the job. Bitner testified that at
the time he wrote the memorandum he did not know that Steen-
hoek was working at the jobsite. Respondent Cobb contends that
this memorandum provides a legitimate defense for the cancella-
tion of Steenhoek’s referral from Respondent Skill Staff.
I am not required to credit Bitner’s memorandum simply be-
cause it was written rather than oral evidence. The memorandum
was dated February 1, 1996. At that time, Cobb had knowledge
through working Foreman Gary Lippard that Steenhoek was a
union organizer. While Cobb paid Skill Staff a flat fee for Steen-
hoek’s wages which was an amount greater than the wages paid to
plumbers, because Skill Staff, and not Cobb, paid taxes and other
statutory contributions, the total cost to Respondent Cobb was not
significantly higher than wages paid to plumbers on its payroll,
and may have been lower. Cobb’s total cost for employee An-
thony Fimia would have been greater than that for Steenhoek, had
Fimia accepted Tom Cacy’s job offer. I find the testimony of
D’Amato and Fimia more revealing regarding the purpose of the
memorandum. As stated by Tom Cacy to D’Amato, Respondent
did not want Steenhoek on the job because he was a union salt.
Bitner was too sophisticated to write or say his true motive, there-
fore, he gave costs as the reason. I find that Bitner was sophisti-
cated in union matters because in 1994, Respondent Cobb had
sued the Union for slander and defamation. Further in 1994 and
1995, Respondent Cobb was involved in a salting case before the
Board involving jobsites in Amarillo and Dalhart, Texas. Re-
spondent lost that case before an administrative law judge and did
not file exceptions to the judge’s decision. Bitner knew that there
were employees from Skill Staff on the job more than 3 weeks
prior to sending the memorandum. However, he did not ade-
quately explain why the memorandum was not written until Feb-
ruary 1.
2. Analysis
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board an-
nounced the following causation test in all cases alleging viola-
tions of Section 8(a)(3) or violations of Section 8(a)(1) turning on
employer motivation. First, the General Counsel must make a
prima facie showing sufficient to support the inference that pro-
tected conduct was a “motivating factor” in the employer’s deci-
sion. Upon such a showing, the burden shifts to the employer to

2 Respondent Cobb’s practice was to keep job applications in its the
active files for only 30 days.
demonstrate that the same action would have taken place even in
the absence of the protected conduct. The United States Supreme
Court approved and adopted the Board’s Wright Line test in NLRB
v. Transportation Corp., 462 U.S. 393, 399–403 (1983). In
Manno Electric, 321 NLRB 278 fn. 12 (1996), the Board restated
the test as follows:
The General Counsel has the burden to persuade that anti-
union sentiment was a substantial or motivating factor in the
challenged employer decision. The burden of persuasion then
shifts to the employer to prove its affirmative defense that it
would have taken the same action even if the employees had
not engaged in protected activity.
For the following reasons, I find that the General Counsel
has made a strong showing that Respondent Cobb was moti-
vated by antiunion considerations in terminating the employ-
ment of Kurt Steenhoek. First, the evidence establishes that
shortly after Respondent Cobb learned of Steenhoek’s union
affiliation, it abruptly canceled its order with Respondent Skill
Staff. Most important, Tom Cacy told D’Amato that Respon-
dent had sent a plumber to the job that hadn’t worked out.
Cacy told D’Amato that the plumber, Steenhoek, was a union
salt. Cacy explained to D’Amato what a salt was. Cacy made
no mention of any other problem with Steenhoek and Cobb
made no contention in this case that there was any problem
with Steenhoek’s work. Cacy made no mention of the alleged
cost factor when complaining about the referral of Steenhoek.
Cacy gave no explanation to Skill Staff when he canceled the
order for Steenhoek on February 2. Cacy said he could not
have union employees on the job and that he did not want union
employees on the job.
The burden of persuasion shifts to Respondent to establish
that the same action would have taken place in the absence of
the employees’ protected conduct. I find that Respondent has
not shown any credible evidence that Steenhoek’s separation
was lawfully motivated. As shown above, I find the timing of
Bitner’s memorandum to be suspicious. Further, the alleged
economic reasons do not withstand scrutiny. The cost of
Steenhoek’s services were not more than the cost of Fimia’s
services. I find that Respondent’s defense was a pretext in an
attempt to disguise Steenhoek’s termination. I find that the real
reason for the termination of Steenhoek’s services was the fact
that Steenhoek was a union salt.
B. Respondent Skill Staff’s Liability
Respondents Cobb and Skill Staff do not have common owner-
ship or financial control. Cobb’s personnel assigned all work and
supervised the temporary employees referred to them by Skill
Staff. Skill Staff paid the temporary employees their wages and
benefits.
In Capitol EMI Music, Inc., 311 NLRB 997, 1000 (1993), the
Board stated:
[I]n joint employer relationships in which one employer sup-
plies employees to the other, we will find both joint employ-
ers liable for an unlawful employee termination (or other dis-
criminatory discipline short of termination) only when the re-
cord shows an inference (1) that the non-acting joint employer
knew or should have known that the other employer acted
against the employee for unlawful reasons and (2) that the
former has acquiesced in the unlawful action by failing to pro-
test it or to exercise any contractual right it might possess to
resist it.
SKILL STAFF OF COLORADO 821
In Capitol EMI Music, the Board adopted the following alloca-
tion of burdens:
The General Counsel must first show (1) that two employers
are joint employers of a group of employees and (2) that one
of them has, with unlawful motivation, discharged or taken
other discriminatory actions against an employee or employ-
ees in the jointly managed work force. The burden then shifts
to the employer who seeks to escape liability for its joint em-
ployer’s unlawfully motivated action to show that it neither
knew nor should have known, of the reason for the other em-
ployer’s action or that, if it knew, it took all measures within
its power to resist the unlawful action. [311 NLRB at 1001.]
Here, the General Counsel has shown that Respondents Cobb
and Skill Staff were joint employers of Steenhoek on Cobb’s
Douglas County High School job. Further, the General Counsel
has established that Cobb discharged Steenhoek because of his
union activities. Respondent Skill Staff did not know at the time
that Cobb canceled its request for Steenhoek, that Cobb’s motives
were unlawful. However, on February 23, D’Amato of Skill Staff
learned Cobb’s true motive from Tom Cacy. At that point,
D’Amato agreed to do whatever he could to make Cobb happy
and to screen out union applicants prior to their referral to Cobb’s
construction site. Accordingly, I find that Respondent Skill Staff
acquiesced in and adopted Cobb’s unlawful action.
C. The Failure to Hire Steenhoek in April
Steenhoek returned to Respondent Cobb’s Douglas County
High School project in April seeking employment directly with
Cobb. On April 8, 1996, Andy Cacy told Steenhoek that Cobb
was not hiring plumbers. On April 17, Steenhoek returned with
plumbers from an Amarillo, Texas, local of the plumbers’ union.
On that date, Steenhoek submitted a job application. On April 24,
Bitner telephoned Steenhoek to arrange for a job interview. Bitner
left a message at the number listed on Steenhoek’s application.
Steenhoek never returned the call. Respondent Cobb did not hire
any plumbers during the 30-day time period in which Steenhoek’s
application was active.
As the Board stated in Big E’s Foodland, 242 NLRB 963, 968
(1979):
Essentially, the elements of a discriminatory refusal to hire
case are the employment application, the refusal to hire each,
a showing that each was expected to be a union supporter or
sympathizer, and further showings that the employer knew or
suspected such sympathy or support, maintained an animus
against it, and refused to hire the applicant because of such
animus.
In this case, Respondent had already discriminated against
Steenhoek because he was a union organizer. Under Wright Line,
supra, the burden shifts to Respondent to establish that the same
action would have taken place in the absence of the employee’s
protected conduct. Here Respondent Cobb called Steenhoek for
an interview and Steenhoek never returned that call. Based on
these facts, I find that absent Steenhoek’s protected activity, Bitner
still would have taken the same action. Bitner would have taken
no action in the absence of a return call from Steenhoek. I find
that having failed to return Bitner’s call, Steenhoek failed to per-
fect his employment application. Accordingly, it cannot be found
that Respondent Cobb failed to hire Steenhoek in April, in viola-
tion of Section 8(a)(3) of the Act. However, nothing in this find-
ing prejudices Steenhoek’s right to a remedy for the unlawful
termination of his employment on February 2, 1996.
D. The Independent 8(a)(1) Allegations
On January 31, Gary Lippard, working foreman, asked Steen-
hoek why the employee was working as a journeyman plumber
through a temporary agency. After Steenhoek answered that he
worked anywhere he could, Lippard asked if Steenhoek was in the
Union. Steenhoek answered that he was in the Union and Lippard
responded that when he was in the Union, it would not allow its
members to work for nonunion employers. Steenhoek told Lip-
pard that when he worked for nonunion employers he was also
there to organize the employees.
An employer violates Section 8(a)(1) of the Act by interrogat-
ing employees about their union activities or that of other employ-
ees under coercive circumstances. NLRB v. Prineville Stud Co.,
578 F.2d 1292 (9th Cir. 1978); Bremol Electric, 271 NLRB 1557
(1984); and Pacemaker Driver Services, 269 NLRB 971, 977–978
(1984). In analyzing the alleged interrogation I have looked at the
following factors: (1) the background, (2) the nature of the infor-
mation sought, (3) the identity of the questioner, and (4) the place
and method of the interrogation. See Sunnyvale Medical Center,
277 NLRB 1217 (1985).
First, the employee involved, Steenhoek, had just begun
working for Cobb through a temporary agency and had just met
Lippard. Second, I find the nature of the information sought to
be conversational. Lippard asked why a journeymen plumber
was working through an employment agency. He also won-
dered how a union member could work for a nonunion em-
ployer since that practice was not permitted when he was a
union member. Steenhoek reacted by truthfully answering
Lippard’s questions and volunteering that he intended to organ-
ize Cobb’s employees. Third, Lippard was a low level supervi-
sor and the conversation appeared to be friendly and casual.
Under all of the circumstances, I find that Lippard’s question-
ing of Steenhoek did not reasonably tend to restrain or coerce
employees in the exercise of their Section 7 rights. I do not find
Steenhoek’s subsequent unlawful termination, in which Lippard
played no part, sufficiently connected to this conversation as to
change my legal conclusion.
Anthony Fimia applied for work with Respondent Cobb on
February 23, 1996. On that date D’Amato visited the Douglas
County High School jobsite and spoke with Tom Cacy. Cacy
complained that Skill Staff had dispatched Steenhoek, a union salt
to the project. Fimia also testified that Cacy said he could not
have union men on the job and that he did not want union em-
ployees on the job. D’Amato stated that Skill Staff was trying to
screen out union members before sending employees to Cobb’s
jobsites.
The statements made by Tom Cacy and D’Amato clearly
threaten that Respondents will discriminate against employees in
violation of the Act. It is no defense that these remarks were not
intended to be heard by Fimia, so long as the coercive remark was
heard by an employee. Nemacolin Country Club, 291 NLRB 456,
460 (1988). It is well settled that the assessment of a statement,
for purposes of Section 8(a)(1), does not turn upon the employer
motive, but the test of legality is whether the remark tended to
impede employees in the exercise of their Section 7 rights.
THE REMEDY
Having found that Respondents engaged in unfair labor prac-
tices, I shall recommend that they be ordered to cease and desist
therefrom and that they take certain affirmative action to effectu-
ate the policies of the Act. Accordingly, Respondents will be
ordered to offer Kurt Steenhoek immediate reinstatement to the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 822
position from which he was unlawfully excluded from employ-
ment, dismissing, if necessary, anyone who may have been hired
or assigned to perform the work he would have been performing if
he had not been unlawfully denied employment or, if that posi-
tions no longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or other rights and privileges. Addi-
tionally Respondents shall be required to make Steenhoek whole
for any loss of earnings he may have suffered by reason of the
discrimination against him, with backpay to be computed on a
quarterly basis, making deductions for interim earnings, F. W.
Woolworth Co., 90 NLRB 289 (1950), and with interest to be
provided in the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
CONCLUSIONS OF LAW
1. Respondents, Cobb Mechanical Contractors, and SOS Staff-
ing Services, Inc., d/b/a Skill Staff of Colorado, are employers
engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. By terminating the employment of Kurt Steenhoek because
he was a union member and union organizer, Respondent Cobb
has engaged in unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act.
3. By acquiescing in and adopting, the unlawful conduct of Re-
spondent Cobb set forth in Conclusion of Law 2, Respondent Skill
Staff has violated Section 8(a)(3) and (1) of the Act.
4. By threatening not to hire, and to screen out, union mem-
bers, Respondents have violated Section 8(a)(1) of the Act.
5. The above-unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
6. Except as found above, Respondents have not violated the
Act as alleged in the complaint.
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended3
ORDER
The Respondents, Cobb Mechanical Contractors, and SOS
Staffing Services, Inc., d/b/a Skill Staff, Denver, Colorado, their
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because of their employees’ mem-
bership in or activities on behalf of any union.
(b) Threatening to refuse to consider for employment and/or
threatening to screen out employee-applicants because those em-
ployees are union members or affiliated with a union.

3 All motions inconsistent with this recommended Order are denied.
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.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed them
in Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate
the policies of the Act.
(a) Within 14 days from the date of this Order, offer Kurt
Steenhoek full reinstatement to the job he held on February 1,
1996, and if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or
privileges he would have enjoyed had he not been unlawfully
discharged.
(b) Make whole Kurt Steenhoek for any and all losses incurred
as a result of Respondents’ unlawful discrimination against him,
with interest, as provided in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove from its
files any reference to the unlawful discharge and, within 3 days
thereafter notify Steenhoek in writing that this has been done and
that the discipline found unlawful herein will not be used against
him in any way.
(d) Preserve and, within 14 days of a request, make available to
the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Regional Director, post
at its Denver, Colorado (Skill Staff) and Douglas County and
Colorado Springs, Colorado (Cobb Mechanical) facilities copies,
in English and Spanish, of the attached notice marked “Appen-
dix.”4 Copies of the notice, on forms provided by the Regional
Director for Region 27, after being signed by an authorized repre-
sentative of each Respondent, shall be posted by Respondents and
maintained by them for 60 consecutive days thereafter in con-
spicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by Re-
spondents to ensure the notices are not altered, defaced, or covered
by other material. In the event that, during the pendency of these
proceedings, Respondents have gone out of business or closed the
facility involved in these proceedings, Respondents shall duplicate
and mail, at their own expense, a copy of the notice to all current
and former employees employed by Respondents at any time
since January 31, 1996.
(f) Within 21 days after service by the Regional Director, file
with the Regional Director a sworn certification of a responsible
official of each Respondent on a form provided by the Region
attesting to the steps that Respondents have taken to comply.
4 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.”