Sommer Awning Co.

National Labor Relations Board - Board Decisions

Nov 30, 2000

332 N.L.R.B. 1318 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1318
Sommer Awning Company, Inc. and Sheet Metal
Workers’ International Association, Local Un-
ion No. 20, a/w Sheet Metal Workers’ Interna-
tional Association, AFL–CIO. Cases 25–CA–
25562–1, 25–CA–25665, and 25–CA–25879
November 30, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On November 30, 1998, Administrative Law Judge C.
Richard Miserendino issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed limited exceptions, a support-
ing brief, and an answering brief.
On May 11, 2000, the Board issued its decision in
FES, 331 NLRB No. 20, setting forth the framework for
analysis of refusal-to-hire violations. On June 14, 2000,
the Board invited the parties to this proceeding to file
supplemental briefs addressing the FES framework as it
applies to the record in this case. The General Counsel
filed a supplemental 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 and set
forth in full below.2

1 The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard 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 We shall modify par. 1(a) of the judge’s recommended Order to
track the judge’s finding that the Respondent told an employee he
would be considered for rehire “if he cut his ties with the Union.”
In par. 2(f) of the recommended Order, the judge inadvertently re-
ferred to Eric Harris as the person whose job offer was rescinded. The
Respondent rescinded an offer it made to Kurt Tucker. We correct this
inadvertent error.
We shall modify the judge’s recommended Order in accordance with
our decision in Indian Hills Care Center, 321 NLRB 144 (1996).
Member Hurtgen agrees with the judge that the 20 overt union ap-
plicants whom the Respondent refused to hire or consider for hire are
not temporary employees. He would find, however, that the judge
erred in concluding that these applicants, who were participants in the
Union’s Youth-to-Youth organizing campaign, would continue to work
for the Respondent beyond 6 months. The record shows that the
Youth-to-Youth program involves 6-month leaves of absence for the
purpose of organizing nonunion employers. Member Hurtgen would
find that the terms of the Youth-to-Youth program should be consid-
ered in determining backpay for these discriminatees.
The judge found that the Respondent refused to hire
approximately 20 applicants for employment.3 The
judge’s finding is consistent with our decision in FES. In
FES, 331 NLRB No. 20, slip op. at 4, we held that the
General Counsel must establish the following elements
to meet his burden of proof in a discriminatory refusal-
to-hire case:

The respondent was hiring, or had concrete plans
to hire, at the time of the alleged unlawful con-
duct.

The applicants had experience or training relevant
to the announced or generally known requirements
of the positions for hire.

Antiunion animus contributed to the decision not
to hire the applicant.

In the instant case, the parties stipulated as follows:

Named discriminatees applied for employment
with the Respondent and were qualified for a job
for which the Respondent was seeking applicants.

After the Respondent refused to hire the discrimi-
natees, the positions for which they applied re-
mained open, and the Respondent continued to
seek applicants for the positions.

After the Respondent refused to hire the discrimi-
natees, the Respondent hired individuals who
were no better qualified than the discriminatees to
fill the positions which remained open after the
Respondent refused to hire the discriminatees.

The Respondent refused to hire the discriminatees
because of their participation in the Union’s orga-
nizing program.
We find that the FES elements have been established
in this case. The stipulations set forth above show that
the Respondent was seeking applicants when it refused to
hire the discriminatees and, in fact, thereafter hired ap-
plicants for the positions for which the discriminatees
applied. Thus, the Respondent was hiring at the time of
the alleged unlawful conduct.
These stipulations also show that the discriminatees
were as well qualified for the positions for which they
applied as the individuals who were hired. Thus, the
discriminatees had the experience or training relevant to
the requirements of the positions for hire.
Further, the Respondent’s antiunion animus contrib-
uted to its decision not to hire the discriminatees. The
Respondent’s animus is established by the stipulation
3 Including Kurt Tucker, to whom the Respondent initially offered a
job, which it later rescinded.
332 NLRB No. 136
SOMMER AWNING CO. 1319
that it refused to hire the discriminatees because of their
participation in the Union’s organizing program.
Based on the foregoing, we find that the General
Counsel has met his burden of establishing the necessary
elements of an unlawful refusal to hire under the FES
framework. Once the General Counsel has established
his case, the burden shifts to the Respondent to demon-
strate that it would not have hired the discriminatees
even in the absence of their union activities or affiliation.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U. S. 989 (1982). We
agree with the judge, for the reasons stated by him, that
the Respondent failed to meet its Wright Line burden of
showing that it would not have hired the discriminatees
even in the absence of their union activity.
Accordingly, we conclude, in agreement with the
judge, that the Respondent violated Section 8(a)(3) of the
Act by refusing to hire the job applicants listed in the
stipulation.4
ORDER
The National Labor Relations Board orders that the
Respondent, Sommer Awning Company, Inc., Indian-
apolis, Indiana, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Notifying employees that it would stringently apply
a rule against the falsification of employment applica-
tions.
(b) Informing employees that they would not receive
pay increases because of their participation in the Un-
ion’s organizing program.
(c) Telling an employee that he would be considered
for rehire if he cut his ties with the Union.
(d) Applying a rule against falsifying employment ap-
plications so as to discriminate against job applicants and
employees because they participated in the Union’s or-
ganizing program or because of their union affiliation.
(e) Changing its hiring process to add a cover sheet to
all employment applications advising employment appli-
cants that it will verify all reported employment refer-
ences, so as to discriminate against them because they
participated in the Union’s organizing program or be-
cause of their union affiliation.

4 In his Conclusion of Law 5(a), the judge stated that the Respondent
violated Sec. 8(a)(3) and (1) by “refusing to hire or consider for hire”
the job applicants in question. As discussed above, we conclude that,
under the FES framework, the evidence establishes a refusal-to-hire
violation. It is unnecessary to decide whether the Respondent also
violated the Act by unlawfully refusing to consider the applicants be-
cause the remedy for such a violation would be subsumed within the
broader remedy for the refusal-to-hire violation. See FES, 331 NLRB
No. 20, slip op. at 7. The judge’s conclusion of law is modified accord-
ingly.
(f) Refusing to hire job applicants because they par-
ticipated in the Union’s organizing program or because
of their union affiliation.
(g) Discharging or otherwise discriminating against
employees because they participated in the Union’s or-
ganizing program or because of their union affiliation.
(h) Rescinding employment offers because the pro-
spective employee has participated in the Union’s orga-
nizing program or because of his union affiliation.
(i) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by 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
Robert Bond Jr., Kerry Bowling, Brian Campbell, M.
John Maynard, David Walker, Charles M. Miller, Robert
Reed, Monty Shoulders, Charles Baldwin, Christopher
H. Meyers, Jason Wildrick, Spencer Irving III, Anthony
Turner, William Rogers, Dennis Wheeler, Michael Crull,
Travis Dick, Mark Moran, and Daniel W. Steward em-
ployment in positions for which they applied or, if such
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights and privileges; if necessary terminating the service
of employees hired in their stead.
(b) Make whole all those individuals identified in sub-
paragraph (a) above in the manner described in the rem-
edy section of the decision.
(c) Within 14 days from the date of this Order, offer
Eric Harris and Frank Danforth full reinstatement to their
former positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights and privileges previ-
ously enjoyed.
(d) Make whole Eric Harris and Frank Danforth in the
manner described in the remedy section of the decision.
(e) Within 14 days from the date of this Order, offer
Kurt Tucker employment in the position that was offered
to him, then rescinded, and if that position no longer ex-
ists, to a substantially equivalent position, without preju-
dice to his seniority or any other rights and privileges; if
necessary terminating the service of any employee hired
in his stead.
(f) Make whole Kurt Tucker for the position that was
offered to him, but rescinded, in the manner described in
the remedy section of the decision.
(g) Rescind, during the notice posting period, the rule
against falsifying employment applications and thereafter
ensure that if it is repromulgated and reimplemented, it is
done in a nondiscriminatory manner, regardless of the
employee’s union affiliation or membership in a union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1320
(h) Rescind, during the notice posting period, the hir-
ing practice of attaching a cover letter to all employment
applications informing employment applicants that all
reported employment references will be verified and
thereafter ensure that if it is repromulgated and reimple-
mented it is done in a nondiscriminatory manner, regard-
less of the applicant’s union affiliation or membership in
a union.
(i) Within 14 days from the date of this Order, remove
from its files the following: any reference to the unlaw-
ful refusal to hire Robert Bond Jr., Kerry Bowling, Brian
Campbell, M. John Maynard, David Walker, Charles M.
Miller, Robert Reed, Monty Shoulders, Charles Baldwin,
Christopher H. Meyers, Jason Wildrick, Spencer Irving
III, Anthony Turner, William Rogers, Dennis Wheeler,
Michael Crull, Travis Dick, Mark Moran, and Daniel W.
Steward; any reference to the unlawful discharges of Eric
Harris and Frank Danforth; and any reference to the
unlawful rescission of the employment offer made to
Kurt Tucker; and, within 3 days thereafter, notify the
employees in writing that this has been done and that the
unlawful conduct of the Respondent will not be used
against them in any way.
(j) 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 re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amounts of back-
pay due under the terms of this Order.
(k) Within 14 days after service by the Region, post at
its Indianapolis, Indiana facility copies of the attached
noticed marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 25,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since April 14, 1997.
(l) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-

5 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.”
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we 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 notify employees that we will strin-
gently apply a rule against the falsification of employ-
ment applications.
WE WILL NOT inform employees that they will not
receive pay increases because of their participation in the
Union’s organizing program.
WE WILL NOT tell employees that they would be
considered for rehire if they cut their ties with the Union.
WE WILL NOT apply a rule against falsifying em-
ployment applications so as to discriminate against job
applicants and employees because they participated in
the Union’s organizing program or because of their union
affiliation.
WE WILL NOT change our hiring process by adding a
cover sheet to our employment applications advising
applicants that we will verify their reported employment
references, so as to discriminate against any applicant
because he participated in the Union’s organizing pro-
gram or because of his union affiliation.
WE WILL NOT refuse to hire job applicants because
they participated in the Union’s organizing program or
because of their union affiliation.
WE WILL NOT discharge or otherwise discriminate
against employees because they participated in the Un-
ion’s organizing program or because of their union af-
filiation.
WE WILL NOT rescind any offer of employment be-
cause the prospective employee participated in the Un-
ion’s organizing program or because of his union affilia-
tion.
SOMMER AWNING CO. 1321
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 employment to Robert Bond Jr.,
Kerry Bowling, Brian Campbell, M. John Maynard,
David Walker, Charles M. Miller, Robert Reed, Monty
Shoulders, Charles Baldwin, Christopher H. Meyers,
Jason Wildrick, Spencer Irving III, Anthony Turner, Wil-
liam Rogers, Dennis Wheeler, Michael Crull, Travis
Dick, Mark Moran, and Daniel W. Steward in the posi-
tions for which they applied or, if such positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges that they would have enjoyed had they been
hired.
WE WILL make whole Robert Bond Jr., Kerry Bowl-
ing, Brian Campbell, M. John Maynard, David Walker,
Charles M. Miller, Robert Reed, Monty Shoulders,
Charles Baldwin, Christopher H. Meyers, Jason Wil-
drick, Spencer Irving III, Anthony Turner, William
Rogers, Dennis Wheeler, Michael Crull, Travis Dick,
Mark Moran, and Daniel W. Steward for any loss of
earnings and other benefits that they may have suffered
as a result of our unlawful refusal to hire them, less any
net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, offer full reinstatement to Eric Harris and
Frank Danforth to their former positions or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed.
WE WILL make whole Eric Harris and Frank Dan-
forth for any loss of earnings and other benefits that they
may have suffered as a result of their unlawful dis-
charges, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, offer employment to Kurt Tucker in the
position that was offered to him and that he would have
performed had we not unlawfully rescinded his offer of
employment, or if that position no longer exists, to a sub-
stantially equivalent position, without prejudice to his
seniority or any other rights and privileges that he would
have enjoyed had we not rescinded his offer of employ-
ment.
WE WILL make whole Kurt Tucker for any loss of
earnings and other benefits that he has suffered as a re-
sult of the unlawful rescission of his offer of employ-
ment, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful refusal to hire Robert Bond Jr., Kerry Bowl-
ing, Brian Campbell, M. John Maynard, David Walker,
Charles M. Miller, Robert Reed, Monty Shoulders,
Charles Baldwin, Christopher H. Meyers, Jason Wil-
drick, Spencer Irving III, Anthony Turner, William
Rogers, Dennis Wheeler, Michael Crull, Travis Dick,
Mark Moran, and Daniel W. Steward; any reference to
the unlawful discharges of Eric Harris and Frank Dan-
forth; and any reference to the unlawful rescission of an
offer of employment made to Kurt Tucker, and WE
WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that our unlawful
conduct will not be used against them in any way.
WE WILL rescind our rule against falsifying employ-
ment applications and thereafter WE WILL ensure that if
it is repromulgated and reimplemented, it is announced
and applied in a nondiscriminatory manner, regardless of
the employee’s union affiliation or membership in a un-
ion.
WE WILL rescind the hiring practice of attaching a
cover sheet to all employment applications informing
employment applicants that all reported employment
references will be verified and thereafter WE WILL en-
sure that if it is repromulgated and reimplemented, it is
announced and applied in a nondiscriminatory manner,
regardless of the employment applicant’s union affilia-
tion or membership in a union.
SOMMER AWNING COMPANY, INC.
Michael T. Beck, Esq. and Alan L. Zmija, Esq., for the General
Counsel.
Todd M. Nierman, Esq. and Philip J. Gibbons Jr., Esq., of Indi-
anapolis, Indiana, for the Respondent.
Neil Gath, Esq., of Indianapolis, Indiana, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
C. RICHARD MISERENDINO, Administrative Law Judge.
This case was tried in Indianapolis, Indiana, on August 24 and
25, 1998. The charge in Case 25–CA–25562–1 was filed on
August 28, 1997, and was amended on October 7, 1997. The
charge in Case 25–CA–25665 was filed on September 30,
1997, and was amended on November 26, 1997. The charge in
Case 25–CA–25879 was filed on February 27, 1998, and was
amended on April 22, 1998. An order consolidating cases, con-
solidated complaint and notice of hearing, was issued on April
28, 1998, and the consolidated complaint was amended on Au-
gust 10, 1998.
The amended complaint alleges that Sommer Awning Com-
pany, Inc. (Respondent) violated Section 8(a)(1) of the Act, on
the following dates and in the following manner: on July 21,1
when the Respondent’s president, Steven Sommer, threatened
to close the business if the employees selected Sheet Metal

1 All dates are in 1997 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1322
Workers’ International Association, Local Union No. 20, a/w
Sheet Metal Workers’ International Association, AFL–CIO
(Union) as their collective-bargaining representative; on July
22, when Sommer posted a document on the Respondent’s
bulletin board notifying employees that the Respondent in-
tended to stringently enforce a rule prohibiting the falsification
of employment applications; on August 25, when the Respon-
dent’s production manager, Christen Gober, told employees
Eric Harris and Terry Banks that they would not receive a pay
increase because they had omitted information concerning their
union membership from their employment applications; and on
August 27, when Installer Foreman Andy Colvin told employee
Eric Harris that he would be considered for rehire if he aban-
doned his support for and activities on behalf of the Union.
The amended consolidated complaint further alleges that be-
tween April and November 1997, the Respondent violated Sec-
tion 8(a)(3) of the Act: (1) by refusing to hire or consider for
hire several union organizers who overtly applied for employ-
ment; (2) by stringently enforcing a rule concerning the falsifi-
cation of employment applications; (3) by discharging two
covert “salts,” Eric Harris and Frank Danforth, after they an-
nounced their union affiliation; (4) by changing its hiring pro-
cedure on October 21, by adding a cover sheet to its employ-
ment application which stated that all employment references
would be verified; and (5) by rescinding an offer of employ-
ment on November 3, to overt union applicant Kurt Tucker.
The Respondent’s answer and amended answer essentially
deny the material allegations of the amended consolidated
complaint. The parties were afforded a full opportunity to ap-
pear at the hearing, present evidence, examine and cross-
examine witnesses, and file posthearing briefs.2
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the counsel for the General Counsel, Charging Party, and
Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Indiana corporation, is engaged in the
manufacture, sale, and distribution of fabric awnings with an
office and place of business in Indianapolis, Indiana, where it
annually sells and ships, and purchases and receives, goods

2 Respondent’s counsel filed a motion in limine seeking to preclude
the introduction of evidence concerning the qualifications, training,
experience, or background of individuals, who applied or were hired by
the Respondent from April 1, 1997, to the present, unless the General
Counsel could match the applicants with available jobs for which they
were qualified. Respondent’s counsel further asserted that in some
instances there were no positions at the time the individuals applied for
employment and in other instances the applicants were not qualified for
the available positions. Respondent relies on the evidentiary scheme
established in NLRB v. Fluor Daniel, Inc., 102 F.3d 818 (6th Cir.
1996), as the underlying legal basis for its motion. After oral argument
at the hearing, I denied the motion in limine as a matter of law for the
reason that the evidentiary scheme adopted by the Sixth Circuit in
Fluor Daniel, supra, conflicts with settled Board law on the issue,
which the Supreme Court has not reversed. Therefore, I am bound to
apply established Board precedent. Norman King Electric, 324 NLRB
1077, 1084 (1997).
valued in excess of $50,000, respectively, directly to and from
points outside the State of Indiana. The Respondent admits and
I find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. The Youth-to-Youth program
In conjunction with a union organizing resolution passed in
July 1990, the Union established the Youth-to-Youth program
to enhance its organizing efforts by salting. The Youth-to-
Youth program requires every individual enrolled in the Un-
ion’s 5-year apprenticeship program to take a leave of absence
from the apprenticeship program in order to work for 6 months
as a paid organizer for the Union.3 As an employee of the Un-
ion, an organizer is paid the same hourly wage that he received
as an apprentice under the multiemployer collective-bargaining
agreement, plus the hourly wage paid by the nonsignatory em-
ployer, if he is successful in obtaining employment with a non-
union company. Under the Youth-to-Youth program, organiz-
ers are required to continuously seek employment with nonun-
ion contractors, whenever they are not working for one. Once
hired by a nonunion employer, they are instructed to work hard,
do a good job, and tell their coworkers during nonworking
hours about the benefits of belonging to the Union.
Organizers can apply for employment either overtly or cov-
ertly. When applying overtly, the organizer typically wears a
union hat, T-shirt, or button, applies in a group, and submits an
employment application which reflects his union affiliation and
apprenticeship. When applying covertly, the organizer wears
nothing disclosing his union membership, applies alone, and
conceals his union apprenticeship from the prospective nonun-
ion employer.
2. The Company’s response to salting
a. The overt union applicants
The Respondent’s operations are divided into four depart-
ments: production, graphic design, sales/marketing, and admin-
istrative. At issue here is the production department, which
consists of three sections: soft production, welding, and instal-
lation. In early 1997, there were approximately 16 employees in
the production department. By spring 1997, the number of em-
ployees had increased to 25. Between April-November 1997,
high turnover among the new hires required the Respondent to
continue hiring new employees for the production department.
During this time, 20 Youth-to-Youth organizers overtly ap-
plied for employment. At various times between April-October
1997, two or three organizers wearing union hats, T-shirts,
and/or buttons visited the Respondent’s offices and submitted
individual employment applications for welder, installer, fin-
3 By agreement between the Union and the signatory contractors to a
collective-bargaining agreement, an apprentice leaves his job with a
signatory contractor to work for the Union and in most cases, the ap-
prentice returns to his job with the same signatory contractor after 6
months.
SOMMER AWNING CO. 1323
isher or “any” position that was available. Many of the organiz-
ers attached typed resumes to their completed employment
applications which listed the signatory contractors for whom
they previously worked and identified that they were presently
employed as organizers for the Union. Several union organizers
were told they would be contacted for an interview, but never
were. Many checked on the status of their applications in per-
son, sometimes more than once, while others checked by
phone. In either case, none was contacted by the Respondent.
With respect to the 20 overt union applicants, the Respon-
dent, Union, and counsel for the General Counsel introduced
into evidence written stipulations (Jt. Exh. 2) admitting that the
following facts were true and accurate:

1. The following individuals applied for employment
with Respondent on the dates set forth opposite their re-
spective names, and the individuals were qualified for a
job for which Respondent was seeking applicants:

Robert Bond Jr. April 14, 1997,
August 8, 1997
Kerry Bowling April 14, 1997
Brian Campbell April 14, 1997
M. John Maynard April 14, 1997
David Walker April 14, 1997
Charles M. Miller May 14, 1997
Robert Reed July 24, 1997
Monty Shoulders July 24, 1997
Charles Baldwin August 8, 1997
Christopher H. Meyers August 8, 1997
Jason Wildrick August 8, 1997
Spencer Irving III August 11, 1997
Anthony Turner August 11, 1997
William Rogers September 23, 1997
Dennis Wheeler September 23, 1997
Michael Crull September 24, 1997
Travis Dick September 24, 1997
Kurt Tucker October 2, 1997
Mark Moran October 21, 1997
Daniel W. Steward October 21, 1997

2. None of the individuals listed above in Stipulation 1
were ever employed or offered employment by Respon-
dent.
3. Respondent refused to hire or consider for hire the
individuals named above in Stipulation 1 because of those
individuals’ participation in Sheet Metal Workers’ Interna-
tional Union Local No. 20’s organizing program.4
4. After Respondent refused to hire or consider for hire
the individuals listed above in Stipulation 1, the positions
for which they respectively applied remained open, and
Respondent continued to seek applicants for said positions
who had no better qualifications than the qualifications of
any of the individuals named in Stipulation 1.
5. Respondent did hire individuals, who are listed in
Joint Exhibit 1, on the dates indicated in Joint Exhibit 1, to
fill the positions described above, and said individuals

4 On August 18, 1997, the Union filed a petition to represent the Re-
spondent’s production employees.
who where hired were no more qualified to perform their
job duties for Respondent than any of the individuals
named above in Stipulation 1.5
6. For the purpose of these stipulations the term “quali-
fied” means that an individual possessed the necessary
skills, training and experience to perform the work for
which Respondent was seeking applicants.
b. Rescinding the employment offer to Kurt Tucker
Youth-to-Youth organizer Kurt Tucker overtly applied for
employment on October 2, 1997. He was accompanied by un-
ion organizer Michael Crull. They wore union hats and spoke
with a receptionist named Patty. Tucker completed an employ-
ment application, while Crull checked the status of an applica-
tion that he had submitted earlier.
Human Resources Specialist Vicki Kimsey was not available
to interview Tucker on the day that he applied, but phoned him
later to set up an interview. On October 16, Tucker told Kimsey
in an interview that he was currently employed as a union or-
ganizer as reflected in his employment application. He further
advised that he was working for a temporary employment
agency. After interviewing with Kimsey, Tucker spoke with
Production Manager Christen Gober, who explained that vari-
ous positions were available.
Although Tucker was not offered a position immediately,
Gober left him a phone message on October 23 offering him a
job in soft production at $8 an hour. Tucker called Gober to
accept the position, and explained that he needed to speak with
his current employer about the possibility of leaving his job
with less than a week’s notice. Gober asked Tucker to call him
the next day to arrange a start date. The following day, Tucker
called Gober and left a message with a secretary that he would
begin work on October 27.
Tucker reported for work as scheduled on October 27 wear-
ing a union hat with a union pencil sticking out of his pocket.
Minutes later, he encountered Gober, who asked him to step
into a small room. Gober asked Tucker what he was doing
there. He denied offering a job to Tucker and told him that he
never received his message about starting work on October 27.
Gober told Tucker that he would let him know whether he still
had a job for him.
On October 30, 3 days’ later, Tucker called Gober to find out
if he had a job. He left a message on Gober’s voice mail, but
Gober did not return the call. Tucker persevered by leaving
several other messages and eventually he reached Gober, who
stated that he was withdrawing the original offer because
Tucker had a problem with communication. According to the
stipulated facts, however, the Respondent rescinded its previous
offer of employment to Kurt Tucker because of his participa-
tion in the Union’s organizing program. (Jt. Exh. 2; Stip. Fc. 9.)
c. The covert union applicants
1. Jason Ellis
On April 14, 1997, union organizer Jason Ellis covertly ap-
plied for employment with the Respondent. A short time later,
5 The names, hire dates, and departments listed in Jt. Exh. 1 are in-
corporated by reference as if more fully set forth here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1324
he was interviewed and hired. During his first month of em-
ployment, Ellis’ work was never criticized by the Respondent,
he was never disciplined, and he was given a pay raise. In mid-
May, however, he told Gober that he was a union organizer.
Gober promptly reported the news to his boss, Steve Sommer.
Soon afterwards, Sommer called Ellis to a meeting. He asked
him why he was trying to put the Company out of business. He
also told Ellis that if he had known that he was a union organ-
izer, he would not have hired him. Sommer went on to say that
the Respondent could not afford to unionize.
Following this meeting, Ellis was reassigned to nights, work-
ing alone, in the welding department. Gradually his work hours
were reduced from 40 hours to 30 hours per week. After dis-
cussing the situation with Union Representative Michael E.
Van Gordon, Ellis quit working for the Respondent.6
2. Eric Harris
Eric Harris was another Youth-to-Youth organizer who cov-
ertly applied for employment with the Respondent on May 28,
1997. He interviewed with Vicki Kimsey, human resource spe-
cialist, who explained the pay and benefits. He was also inter-
viewed by Production Manager Gober. Even though Harris did
not have any prior experience installing awnings, he was hired
as an installer at $9.50 per hour.
Two weeks after he began work, Harris attended a routine
Monday morning meeting in the installation department. As the
meeting ended, he and Terry Banks, another covert organizer,7
told Gober that they were union organizers. According to Har-
ris, Gober shook his head and told them to go back to work.
The following Monday, July 21, another meeting took place,
which was attended by Respondent’s president, Steve Sommer.
He told everyone at the meeting that there was a couple of un-
ion members among them. He also complimented Harris and
Banks for doing good work and told them if they could steer
clear of the Union, he would like them to continue working for
the Respondent.
According to Harris, Sommer also told the employees that
union wages were high, and if the Respondent had to pay union
wages and dues, it was possible that the Company would go out
of business. Sommer, however, denied making those remarks.
For demeanor and other reasons, I credit his denial and find that
Harris’ testimony was unpersuasive.
First, Harris’ testimony is not corroborated by his daily salt
log which was completed and signed on the day that Sommer
allegedly made the threat.8 The daily log reveals no mention of

6 The amended complaint does not allege, nor does the General
Counsel argue, that the reassignment to nights violated the Act or that
Ellis was constructively discharged.
7 The record reflects that Banks was hired by Respondent in April
1997.
8 The Youth-to-Youth organizers record their activities on various
forms and logs provided by the Union. A “Job Application Report” is
completed each time the organizer applies for a job with a nonunion
contractor and a “Call Back Log Sheet” is completed each time an
organizer checks on the status of his application with the nonunion
employer. An “Interview Log Sheet” records details of any job inter-
view and a “Daily Salt Log” enables the organizer, who is hired, to
describe what he did on a daily basis and the comments made by super-
visors.
the alleged threat. Asked to explain the omission, Harris un-
convincingly asserted that he did not fully understand what
should be included in the log. His response is unpersuasive
because the evidence shows that the union organizers are told
that it is important to be accurate in completing the form, since
the information contained therein may be used in an affidavit.
Next, Harris also failed to mention the alleged threat in hand-
written notes that he made in August 1997. According to his
testimony, the notes outlined “everything” that had occurred
while he was employed by the Respondent. The dual omission
in the writings made contemporaneous with the events involved
renders Harris’ testimony questionable. Finally, Harris’ credi-
bility is tainted by his admitted lack of candor in completing his
employment application, which shows a proclivity toward col-
oring the truth to serve the Union’s purposes. For these, and
demeanor reasons, I do not credit Harris’ testimony that Som-
mer told the employees the Company might close or go bank-
rupt if there was a Union.
On August 25, 1997, Gober told Harris that he would not re-
ceive a pay raise because of his participation in the Union’s
organizing program. (Jt. Exh. 2; Stip. Fc. 13.)9 On August 27,
1997, 2 days’ later, Gober and Installer Supervisor Andy
Colvin, told Harris that he was being discharged because he had
not taken any steps to obtain a commercial driver’s license. (Jt.
Exh. 2; Stip. Fc. 19.) The stipulated facts disclose, however,
that the Respondent discharged Eric Harris because of his par-
ticipation in [the Union’s] organizing program. (Jt. Exh. 2; Stip.
Fc. 7.) The stipulated facts also disclose that at the time of dis-
charge, Colvin told Harris that he would be considered for re-
hire if he cut his union ties. (Jt. Exh. 2; Stip. Fc. 14.)
3. Frank Danforth
Frank Danforth covertly applied for employment on Septem-
ber 24, was hired as an installer, and began working for the
Respondent on September 29, 1997. On Friday, October 3, he
and Colvin worked together on the road. Colvin complimented
Danforth for doing a good job. The following Monday, October
6, Danforth told Colvin that he was a union organizer. He was
discharged 10 minutes later. Although the Respondent in-
formed Danforth by letter, dated October 9, that he was dis-
charged because he falsified his job application (Jt. Exh. 2;
Stip. Fc. 20), the stipulated facts establish that he was dis-
charged on October 6 because of his participation in the Un-
ion’s organizing program. (Jt. Exh. 2; Stip. Fc. 8.)
d. The policy changes brought about by salting
On July 22, 2 days after Harris revealed he was a union or-
ganizer, a flyer anonymously was posted in the Respondent’s
facility warning employees that a union could cost friendships.
At the same time, another document was posted by Sommer on
a bulletin board notifying employees that the Respondent had a
rule against falsifying employment applications and that any
employee who falsified an employment application would be
discharged. (Jt. Exh. 2; Stip. Fc. 10.) On the same day, the Re-
spondent began to enforce the rule, something which had never
9 On August 23, Gober likewise told Terry Banks that he would not
receive a pay raise because of his participation in the Union’s organiz-
ing program. (Jt. Exh. 2; Stip. Fc. 12.)
SOMMER AWNING CO. 1325
before been done in the 9-year history of the Company. The
stipulated facts disclose that the Respondent’s conduct was in
response to the applications it had received from the Youth-to-
Youth organizers. (Jt. Exh.2; Stip. Fcs. 11 & 16.)
A few months later, on October 21, 1997, the Respondent
implemented a change in its hiring procedures by adding a
cover sheet to all employment applications which advised em-
ployment applicants that the Respondent would verify all em-
ployment references reported on their applications. (Jt. Exh. 2;
Stip. Fc. 17.)
B. Analysis and Findings
1. The alleged threat to close the business or go bankrupt
Section 8(a)(1) of the Act makes it an unfair labor practice
“to interfere with, restrain, or coerce employees” in the exercise
of their Section 7 rights. An employer violates this section
when it makes statements that reasonably tend to coerce em-
ployees in the exercise of their protected rights, regardless of
whether the statements do, in fact, coerce. NLRB v. Shelby Me-
morial Hospital Assn., 1 F.3d 550, 560 (7th Cir. 1993). The
amended consolidated complaint alleges that on July 21, Som-
mer told the employees at a regular Monday morning meeting
that high wages and costly dues associated with having a union
might force the Company to close or go bankrupt. This allega-
tion is founded exclusively on the testimony of Eric Harris,
which point for the reasons stated above, I do not credit his
testimony on this issue. Accordingly, I shall recommend that
the allegations contained in paragraph 5 of the complaint be
dismissed.
2. The rule prohibiting the falsification of employ-
ment applications
The amended consolidated complaint alleges, and the evi-
dence shows, that on July 22, 2 days after Harris and Banks
revealed that they were union organizers, Sommer posted a
notice on the employee bulletin board announcing that anyone
found violating a rule prohibiting the falsification of informa-
tion on employment applications would be discharged. The
evidence shows that the rule was not widely publicized nor was
it contained in the Company’s employee manual. Rather, the
policy appeared as follows at the end of the employment appli-
cation:

In signing this application, I certify that all of the foregoing
information is a complete and accurate statement of the facts
and understand that if any representation, omission or falsifi-
cation be discovered, it will constitute grounds for dismissal. I
hereby authorize you to conduct any investigation necessary
concerning any part of my background related to the position
I am seeking. I release all parties from any liability in connec-
tion with the provision and use of such information.

The evidence also shows that the Respondent had never
sought to enforce this rule before it realized that it had hired
two Youth-to-Youth organizers. Sommers testified, “[i]t is the
first time after nine (9) years that I have ever had to implement
a rule like that because we never had a situation where we have
had this many people apply in this instance.” (Tr. 337.) Indeed,
the credible evidence establishes that the rule was announced
and applied in response to the Union’s organizing attempt.
Given the timing of the announcement and the stringent ap-
plication of the rule, and in light of the evidence disclosing that
prior to July 1997, the rule was laxly enforced, I find that the
Respondent would not have reacted in the same manner in the
absence of the Union’s organizing activity and therefore it vio-
lated Section 8(a)(1) and (3) of the Act. See McCullough Envi-
ronmental Services, 306 NLRB 345, 353 (1992).
3. The unlawful withholding of a pay raise
The Respondent argues that Harris and Banks were told that
they would not receive a pay increase because their participa-
tion in the Youth-to-Youth program interfered with their ability
to work for the Respondent. Contrary to the Respondent’s as-
sertions, however, the evidence shows that Harris and Banks
were satisfactory workers, who had been complimented by
Sommer for doing good work, and who had restricted their
union activities to nonworking hours. In particular with respect
to Harris, there is no evidence that the delay in obtaining a
commercial driver’s license (CDL) had affected his ability to
perform the job.
The Respondent also argues that it withheld benefits from
both union organizers because they falsified their employment
applications. I have already found that the timing of the an-
nouncement and the stringent application of the rule violated
the Act. The Respondent’s rule, therefore, cannot stand as a
lawful basis for withholding a benefit.
Accordingly, I find that the Respondent unlawfully told
Banks and Harris on August 23 and 25, 1997, respectively, that
they would not receive a pay increase because of their union
activities in violation of Section 8(a)(1) of the Act.
4. The unlawful refusal to hire or consider for hire 20 overt
union organizers
a. The legal standard
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board
established an analytical framework for deciding discrimination
cases turning on employer motivation. The General Counsel
must persuasively establish that the evidence supports an infer-
ence that protected conduct was a motivating factor in the em-
ployer’s decision.10 In a refusal to hire case, the General Coun-
sel specifically must establish that each alleged discriminatee
submitted an employment application, was refused employ-
ment, was a union member or supporter, was known or sus-
pected to be a union supporter by the employer, that the em-
ployer harbored antiunion animus, and that it refused to hire the
alleged discriminatee because of that animus. Big E’s Food-
land, 242 NLRB 963, 968 (1979). Inferences of animus and
unlawful motive may be inferred from the total circumstances
proved and in some circumstances may be inferred in the ab-
sence of direct evidence. Fluor Daniel, Inc., 304 NLRB 970
(1991). Once accomplished, the burden shifts to the employer
to persuasively establish by a preponderance of the evidence
that it would have made the same decision even in the absence

10 Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1326
of protected activity or that the reasons for the decision are not
pretextual. T&J Trucking Co., 316 NLRB 771 (1995).
The Respondent, however, argues that under an evidentiary
scheme delineated in NLRB v. Fluor Daniel, Inc., 102 F.3d 818
(6th Cir. 1996), the General Counsel must also show that the
applicant was qualified for a job for which the Respondent
sought applicants and that the General Counsel “match up” the
applicants with the jobs that were available. As noted earlier,
the Sixth Circuit’s evidentiary scheme conflicts with estab-
lished Board precedent on point, which the Supreme Court has
not reversed. Because this case does not arise in the Sixth Cir-
cuit, I am duty bound to apply Board precedent. Waco, Inc.,
273 NLRB 746, 749 fn. 14 (1984); Ford Motor Co., 230 NLRB
716, 718 fn. 12 (1977), enfd. 571 F.2d 993, 996–1002 (7th Cir.
1978), affd. 441 U.S. 488, 493 fn. 6 (1979).
b. The General Counsel’s evidence
There is no dispute that all 20 overt union organizers submit-
ted applications to the Respondent, that all were employed as
union organizers at the time of application, and that none was
hired by or offered a job with the Respondent. The evidence
also shows that the positions for which the union applicants
applied remained open, and that the Respondent continued to
seek and hire applicants for those positions, who were no more
qualified to perform the job than the union applicants.
In addition, the Respondent does not deny that it knew that
the 20 overt applicants were union organizers. The evidence
discloses that they wore union hats and union T-shirts when
they applied, and that their applications (and attached resumes)
unmistakably reflected that they were union organizers and/or
that they had previously worked for union signatory contrac-
tors.
Rather, the Respondent asserts that there is absolutely no
evidence of union animus in this case. I am unpersuaded by the
argument for several reasons. First, the Respondent has stipu-
lated that the overt union applicants were not hired because
they participated in the Union’s organizing program. (Jt. Exh.
2; Stip. Fc. 3.) That admission standing alone establishes that
the decision was unlawfully motivated by antiunion bias.
Second, the unrebutted evidence discloses that on finding out
that Harris and Banks were union organizers, Sommer told
them that if there was any way that they could steer clear of the
Union, he would like to see them continue employment with
the Respondent. A reasonable implication of his comment is
that if they did not steer clear of the Union, they no longer
would be employed with the Respondent.11 The following day,
Sommer announced that for the first time in the Company’s 9-
year history that the Respondent was going to apply a rule pro-
hibiting the falsification of employment applications and that
anyone violating the rule would be discharged. The timing of
the announcement, the stringent application of the rule, and its
lax administration prior thereto, also supports a reasonable
inference that it was motivated by antiunion animus.
Third, the unrebutted evidence shows that an hour after Ellis
disclosed that he was a union organizer, he was called to a

11 Indeed, Harris was discharged by the Respondent no more than 4
weeks later.
meeting with Sommer where he was asked why he was trying
to put the Respondent out of business. Sommer also told Ellis
that if he had known Ellis was a union organizer, he would
never have hired him. Gober and Colvin likewise told Banks
and Harris that they would not receive a pay raise (not because
their work was poor), but because they were union organizers.
A few days later, Colvin discharged Harris, but told him that he
would be considered for rehire, if he cut his ties with the Union.
Danforth likewise was summarily dismissed minutes after he
disclosed that he was a union organizer. Thus, by the comments
and conduct of its managers and supervisors, the Respondent
manifested an antiunion animus.
In addition, Sommer testified that he told his front office per-
sonnel not to hire any union organizers because he considered
them to be “temporary employees,” who probably would quit
after 6 months to go work for a union signatory contractor.
There is no evidence, however, that Sommer told his front of-
fice personnel not to hire any other category, group, or individ-
ual, seeking employment, who on the face of their employment
applications might be considered short-term employees. The
carte blanche characterization of union organizers as “tempo-
rary employees” ineligible for hire warrants an inference of
antiunion animus.
Thus, the total circumstances set forth above warrant an in-
ference that the Respondent harbored antiunion animus and that
its decision against hiring the 20 overt union organizers was
motivated, in whole or part, by its antiunion animus. Accord-
ingly, I find that the General Counsel has satisfied his initial
evidentiary burden.
c. The Respondent’s defenses
(1) The union organizers are “bona fide” applicants covered by
the Act
The Respondent argues the General Counsel’s case must fail
because the union organizers were not “bona fide” applicants
covered by the Act.12 It first asserts that the union organizers
submitted employment applications for the sole purpose of
filing unfair labor practice charges without any expectation of
actually being hired. I find that the evidence shows otherwise.
The evidence establishes that all of the union applicants fol-
lowed the Respondent’s normal application procedure. In par-
ticular, the overt union applicants diligently pursued employ-
ment by contacting the Respondent on several occasions to
arrange interviews or to ascertain the status of their employ-
ment applications. In many, if not most, instances, the overt
union applicants phoned and/or visited the Respondent’s offices
on several occasions. One applicant, Robert Bond Jr., even
reapplied after being told that his initial application was no
longer valid. The evidence therefore supports a reasonable in-
ference that the union applicants were serious about obtaining a
job with the Respondent.
The unrebutted evidence also shows that each overt union
applicant would have accepted employment if offered a posi-
tion. Each applicant testified that a Youth-to-Youth organizer is
supposed to obtain employment with a nonsignatory contractor,
12 This argument encompasses all the union organizers, not just the
20 overt applicants.
SOMMER AWNING CO. 1327
do the best job possible to demonstrate the caliber of a union
skilled worker, and explain the benefits of joining the Union to
his coworkers during nonworking hours. If a Youth-to-Youth
organizer does not obtain employment with a nonunion signa-
tory, he is obligated to continue seeking employment until he is
hired by a nonunion employer. Thus, contrary to the impression
that the Respondent seeks to foster, the ultimate goal of the
Youth-to-Youth program is for participants to become em-
ployed.
The Respondent also unpersuasively argues that the real in-
tent of the overt union applicants was to “trap” the Employer
into committing an unfair labor practice. In support of this ar-
gument, the Respondent relies on the evidence showing that
each union applicant has filed numerous unfair labor practices
when denied employment by other nonsignatory contractors.
But that evidence does not prove an intent to entrap an em-
ployer because the enforcement of one’s statutory rights does
not necessarily translate into a less than bona fide attempt to
obtain employment. Here, there is no evidence that the overt
union applicants sought to provoke the Respondent into com-
mitting an unfair labor practice or that they in anyway inhibited
the Respondent’s ability to conduct its business.
Finally, the Respondent argues that the overt union appli-
cants were not serious about seeking employment because they
applied “overtly,” that is, they revealed their union affiliation
knowing that it would reduce the likelihood of being hired.
Relying upon the candid testimony of several overt union ap-
plicants, who acknowledged that they did not believe that they
had much of a chance of being hired overtly, the Respondent
tacitly concedes that the only way for a union organizer to be
hired would be to conceal his union affiliation. Having ac-
knowledged as much, it is no surprise that only covert union
organizers were hired by the Respondent and in most cases
were quickly discharged after disclosing their union affiliation.
In Town & Country Electric, 516 U.S. 85 (1995), the Su-
preme Court endorsed the Board’s position, enunciated in
Sunland Construction Co., 309 NLRB 1224 (1992); and Ultra-
systems Western Constructors, 310 NLRB 545 (1993), that paid
union organizers applying for jobs are statutory employees
entitled to the protection of the Act. Relying on this precedent,
and the evidence related above, I find that the union applicants,
who applied overtly and covertly, were bona fide applicants for
employment entitled to the protections of the Act.
(2) Employment as a union organizer did not conflict or inter-
fere with the Respondent’s work activities
The Respondent also argues that the participants in the
Youth-to-Youth program are not entitled to the protections of
the Act because their employment with the Union conflicted
with their obligations as employees to the Respondent. It spe-
cifically asserts that the Union could direct union organizers to
cease working for a nonunion employer or otherwise cause the
nonunion employer to lose control over normal workplace
tasks. In effect it argues that the union organizers are not pro-
tected by the Act because they could act in various ways ad-
verse to the Respondent’s interests.
This argument, however, was rejected by the Supreme Court
in Town & Country, supra at 96. Relying on Section 226 of the
Restatement (Second) of Agency, the Supreme Court noted that
a union organizer’s participation in a salting program did not
necessarily result in an irreconcilable and disqualifying conflict
of interest with his duties as an employee of a nonsignatory
contractor.
In the context of this case, there is no evidence that participa-
tion in the Youth-to-Youth program interfered with the Re-
spondent’s ability to direct its day-to-day activities. To the
contrary, the evidence shows that the covert union organizers
hired by the Respondent, Harris, Banks, and Danforth, per-
formed their jobs satisfactorily. Sommer complimented Harris
and Banks for doing a good job, and Danforth was commended
by Gober for doing good work in a timely fashion. Moreover,
the unrebutted evidence discloses that the goal of the
Youth-to-Youth program was to have the union organizers put
forth their best effort to demonstrate their abilities and skills to
the nonunion contractor. Thus, there simply is no evidence that
the Union interfered or planned to interfere with the daily ac-
tivities of the Respondent.
Nor is there evidence that the Union exerted “total control”
over the decisions and actions of the Youth-to-Youth organiz-
ers. Although the Union arranged for Youth-to-Youth organiz-
ers to leave the apprenticeship program to seek employment
with a nonunion contractor and often arranged for them to re-
turn to the same signatory contractors at the end of the 6-month
program, the evidence shows that there were no hard and fast
rules with respect to how long a person would work for nonsig-
natory contractor. Rather, several Youth-to-Youth organizers
testified that a determination was made after the Youth-to-
Youth organizer and the Union’s chief organizer discussed how
the organizing drive was progressing and that ultimately the
decision of whether to stay or leave was left to the Youth-to-
Youth organizer. The evidence also reflects that in some in-
stances the union organizers worked for a nonsignatory con-
tractor beyond 6 months. Moreover, the Board has held that
paid union organizers are protected by the Act, even if they do
not intend to retain their employment beyond the duration of an
organizing campaign. Sunland Construction Co., supra at fn.
33.
In the final analysis, the evidence does not show that the ar-
rangement between the Youth-to-Youth organizers and the
Union interfered or affected the daily activities of the Respon-
dent or any other nonsignatory employer. I therefore find that
union organizers, overt and covert, were employees entitled to
the protections of the Act.
(3) The union organizers are not temporary employees
The Respondent also argues that it lawfully refused to hire
the 20 overt union applicants because it has a policy against
hiring temporary employees. Sommers believed that the Youth-
to-Youth organizers would not work beyond 6 months and
therefore he considered them temporary employees ineligible
for hire. In support of its position, the Respondent cites Sunland
Construction Co., 309 NLRB 1224 fn. 33 (1992); and Willmar
Electric Service, 303 NLRB 254 fn. 2 (1991), for the proposi-
tion that an employer may lawfully refuse to hire an individual
who seek only temporary employment. But the underlying
premise of the Respondent’s argument is faulty because there is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1328
no evidence that any of the overt union applicants involved
with this case were seeking temporary employment. They did
not tell any of the Respondent’s front office personnel that they
were seeking a temporary job. Nor did they testify that they
were seeking a temporary position at the hearing.
Rather, the Respondent’s argument is based on Sommer’s
assumption that the Youth-to-Youth organizers would not work
more than 6 months because of something he heard a few con-
tractors say several years earlier, and based on the statements of
two overt union organizers, Christopher S. Carson and Bruce
A. Manley, who are not involved in this case, but who told
Gober in their employment interviews on May 6, 1997,13 that
they were only interested in temporary employment and that
they would return to union jobs upon completing the Youth-to-
Youth program. The Respondent also relies on the evidence
adduced at trial that some Youth-to-Youth organizers worked
short periods of time for nonunion contractors.
I am unconvinced by this evidence, standing alone or in the
aggregate, that the 20 Youth-to-Youth organizers involved in
this case were seeking short-term employment or that they
would have quit working on or before 6 months, in the event
they were hired, or they had not been discharged.
Moreover, the Respondent has not convincingly established
that the refusal to hire was based on a neutral hiring policy,
uniformly applied. Sunland Construction Co., supra. To begin
with, there is scant evidence that a “temporary employee” pol-
icy existed prior to the time the Youth-to-Youth organizers
sought employment with the Respondent. There is no evidence
that the policy was openly promulgated and widely dissemi-
nated or that the Respondent’s front office personnel even knew
of its existence before Sommer told them not to hire the overt
union employees because it was against company policy.
Sommer did not state whether it was a verbal or written policy
or explain how long it has existed or when it was put into ef-
fect. He provided no details other than to say that the policy
exists and to briefly explain why. The lack of details supports a
reasonable inference that the policy was “thought up” in order
to thwart union organizing efforts.
Further, there is no evidence that the policy was applied to
anyone other than the Youth-to-Youth organizers. The evidence
shows that the Respondent hired several nonunion applicants
who had “checkered” employment histories, marked by several
brief periods of employment in a finite period of time, which
clashes with a profile of a stable long-term employee. For ex-
ample, William Goode, who was unemployed when hired by
the Respondent as an installer on December 4, 1997, worked
for four employers in the 7 months before he began working for
the Respondent. (Jt. Exh. 3.) Javier Tovar, who also was un-
employed when hired by the Respondent as an installer on De-
cember 3, 1997, had worked two jobs between 1995–1996,
before quitting to return to Mexico.14 Chad Mack, who was

13 The record discloses that based on their statements in the em-
ployment interview, the NLRB’s Regional Office dismissed the unfair
labor practice charges of Carson and Manley.
14 In addition to checkered employment histories, some of the new
hires were inexperienced. Tovar and Goode had no prior experience as
installers. Chad Mack had no welding experience, but was hired for the
welding department.
hired for the welding department, had worked 11 months be-
tween April 1996–February 1997; was out of work between
February–July 1997, and returned to work in July 1997, before
quitting in November to work for the Respondent. Thus, the
evidence shows that notwithstanding the policy against hiring
“temporary employees,” the Respondent hired several nonunion
applicants whose past employment did not project the image of
a potential long-term employee.
The evidence further shows that many of the nonunion appli-
cants hired in lieu of the union organizers quit not long after
they were hired. The unrebutted evidence shows that between
April–November 1997, the Respondent was forced by high
turnover to hire 43 individuals to fill 25 jobs, which prompted
Sommer to concede that many of the nonunion applicants hired
“didn’t stay very long.” (Tr. 334.) And neither did many of the
applicants hired before April 1997. The evidence shows that the
Company had a high turnover rate before the union organizing
began and therefore there were very few long-term employees.
Thus, even if the Respondent had a rule against hiring tempo-
rary employees, the evidence shows that it was not uniformly
applied, if applied at all, in the past.
I therefore find that the Respondent has not established that
the 20 overt union organizers sought temporary employment,
that the policy against hiring temporary employees, if it existed,
was not uniformly applied in this instance or at all in the past.
Accordingly, I find that the Respondent’s reason for refusing to
hire or consider for hire the 20 overt union applicants is pretex-
tual. I therefore find that the Respondent violated Section
8(a)(3) of the Act.
5. Withdrawal of a job offer to Kurt Tucker
This is no dispute that Kurt Tucker was a union organizer,
known to the Respondent, and that sufficient evidence exists, as
shown above, that it harbored antiunion animus. The evidence
also discloses that an offer of employment to Tucker was re-
scinded because he was a Youth-to-Youth organizer. Thus,
ample evidence exists that the General Counsel has satisfied his
Wright Line evidentiary burden.
The Respondent’s reasons for rescinding its offer have
changed over the course of time. The evidence discloses that at
first Gober denied making an offer of employment to Tucker.
Later, he stated that the offer was being rescinded because
Tucker had a “communication” problem. Now the Respondent
asserts that it rescinded the offer because Tucker was a tempo-
rary employee whose job with the Union interfered with his
ability to work for the Respondent. As shown above, none of
the assertions is supported by the evidence viewed as a whole.
In light of the shifting positions and the paucity of evidence in
support of its latest position, I find that but for Tucker’s union
activities he would have been employed by the Respondent.
Accordingly, I find that the Respondent violated Section 8(a)(3)
of the Act by rescinding its offer of employment to Kurt
Tucker.
6. The discharge of Eric Harris
Eric Harris was a covert union organizer, who revealed his
union affiliation to Gober. One week later, Sommer told Harris
that if he could steer clear of the Union, he would like to have
him remain as an employee. One month later, Gober told Harris
SOMMER AWNING CO. 1329
that he would not receive a pay raise because of his union af-
filiation. A few days after that, Colvin told Harris that he was
discharged, but if he would cut his ties to the Union, he would
be considered for rehire. I find that the evidence supports an
inference that Harris’ discharge was motivated by antiunion
animus.
The Respondent nevertheless argues that Harris was lawfully
discharged because he falsified his employment application. As
shown above, I found that the rule was announced and applied
in a discriminatory manner. It therefore does not constitute a
lawful reason for discharge. Thus, I find that the evidence taken
as a whole supports a reasonable inference that the Respondent
would not have discharged Harris in absence of his union activ-
ity.
The Respondent also asserts that Harris was discharged be-
cause he failed to obtain a CDL license. The Respondent states
that Harris did not intend to get a license because his participa-
tion with Youth-to-Youth program was coming to an end and
therefore he was planning to quit working for the Respondent.
Contrary to the Respondent’s assertions, the evidence shows
that Harris had taken an eye examination, purchased eye-
glasses, and had paid an extra fee in order to have his glasses
express delivered, so he could take the CDL test. Thus, Harris
was pursuing a course of action that would have resulted in
obtaining the license had he not been discharged.
In addition, the evidence shows that the CDL license did not
become an issue until after Harris announced that he was a
union organizer. In the past, other installers who did not obtain
a CDL license were transferred to the welding department. The
same accommodation, however, was not extended to Harris. I
therefore find that the Respondent’s assertion that Harris was
discharged because he did not obtain a CDL license is pretex-
tual. Accordingly, I find that the Respondent violated Section
8(a)(3) of the Act by discharging Eric Harris.
7. Unlawfully conditioning Harris’ rehiring on his withdrawal
from the Union
The undisputed evidence reveals that after Harris was dis-
charged, Colvin told him that he would be considered for re-
hire, if he “cut his ties with the Union.” The Respondent as-
serts that Colvin was implying that if Harris dropped out of the
Youth-to-Youth program, he would no longer be viewed as a
“temporary” employee and therefore he would be eligible for
rehire. The attenuated argument is not supported by evidence.
Colvin was not called to testify by the Respondent. Thus,
there is no evidence that he explained to Harris that if he with-
drew from the Youth-to-Youth program, but remained a union
member, he would be eligible for rehire. There is no evidence
that he explained to anyone what he meant by what he said. The
failure of the Respondent to call Colvin to explain what he
said—or more importantly, what he meant to say—warrants an
adverse inference that his testimony would not support the Re-
spondent’s post hoc interpretation of his comments. See Fran-
cis House, Inc., 322 NLRB 516, 520 (1996). In short, Colvin
said what he said, nothing more, nothing less. Given the timing
of the statement and circumstances in which it was made, the
evidence supports a reasonable inference that Harris was told
that he would not be considered for rehire because of his pro-
tected union activities. I therefore find that Supervisor Colvin’s
statement violated Section 8(a)(1) of the Act.
8. The discharge of Frank Danforth
On Friday, October 3, Danforth was commended by his su-
pervisor, Andy Colvin, for doing good work in a timely man-
ner. On Monday, October 5, he was discharged 10 minutes after
revealing that he was a union organizer. The timing of dis-
charge standing alone supports an inference that it was moti-
vated by antiunion animus.
The Respondent asserts that Danforth was lawfully dis-
charged because he falsified his employment application and
because he was a temporary employee. For the reasons previ-
ously stated, I find that Danforth was not a temporary employee
and that the Respondent’s reliance on its rule against falsifying
employment applications is pretextual. I further find that the
evidence supports a reasonable inference that had he not been a
union organizer Danforth would not have been discharged.
Accordingly, I find that the Respondent violated Section 8(a)(3)
of the Act by discharging Frank Danforth.
9. Unlawfully changing the hiring policy in response to
union activity
The undisputed evidence establishes that on October 21,
1997, the Respondent added a cover sheet to its employment
application advising prospective employees that all employ-
ment references would be verified. The evidence also estab-
lishes that this change in hiring policy was instituted solely
because of the Union’s organizing activity. While the change in
hiring policy is neutral on its face, the evidence supports a rea-
sonable inference that it was implemented with a discrimina-
tory intent to thwart union organizing activity. I therefore find
that the Respondent’s policy change violated Section 8(a)(3)
and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union organizers are bona fide employees within the
meaning of Section 2(3) of the Act.
4. The Respondent has violated Section 8(a)(1) of the Act by
engaging in the following conduct:
(a) By announcing to the employees on July 22, 1997, that it
would stringently apply a rule against falsifying employment
applications.
(b) By telling employee Terry Banks on August 23, 1997,
that he would not receive a pay raise because of his participa-
tion in the Union’s organizing program.
(c) By telling employee Eric Harris, on August 25, 1997, that
he would not receive a pay raise because of his participation in
the Union’s organizing program.
(d) By telling employee Eric Harris, on August 27, 1997, that
he would be considered for rehire if he cut his ties with the
Union.
5. The Respondent violated Section 8(a)(3) and (1) of the
Act by engaging in the following conduct:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1330
(a) By refusing to hire or consider for hire the following ap-
plicants on the following dates:

Robert Bond Jr. April 14, 1997,
August 8, 1997
Kerry Bowling April 14, 1997
Brian Campbell April 14, 1997
M. John Maynard April 14, 1997
David Walker April 14, 1997
Charles M. Miller May 14, 1997
Robert Reed July 24, 1997
Monty Shoulders July 24, 1997
Charles Baldwin August 8, 1997
Christopher H. Meyers August 8, 1997
Jason Wildrick August 8, 1997
Spencer Irving III August 11, 1997
Anthony Turner August 11, 1997
William Rogers September 23, 1997
Dennis Wheeler September 23, 1997
Michael Crull September 24, 1997
Travis Dick September 24, 1997
Kurt Tucker October 2, 1997
Mark Moran October 21, 1997
Daniel W. Steward October 21, 1997

(b) By applying in a stringent fashion a rule against falsify-
ing employment applications.
(c) By discharging Eric Harris on August 27, 1997.
(d) By discharging Frank Danforth on October 6, 1997.
(e) By changing its hiring procedures on October 21, 1997,
to add a cover sheet to all employment applications advising
employment applicants that the Respondent will verify all re-
ported employment references.
(f) By rescinding its offer of employment to Kurt Tucker.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The Respondent did not otherwise engage in any other un-
fair labor practice alleged in the amended consolidated com-
plaint in violation of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent refused to hire or consider
for hire Robert Bond Jr., Kerry Bowling, Brian Campbell, M.
John Maynard, David Walker, Charles M. Miller, Robert Reed,
Monty Shoulders, Charles Baldwin, Christopher H. Meyers,
Jason Wildrick, Spencer Irving III, Anthony Turner, William
Rogers, Dennis Wheeler, Michael Crull, Travis Dick, Mark
Moran, and Daniel W. Steward in violation of Section 8(a)(3)
and (1) of the Act, I shall recommend that the Respondent be
ordered to immediately offer these individuals full employment
at rates paid to the individuals hired by the Respondent for the
positions to which they applied or for which they would have
been qualified to perform or, if such positions, no longer exist,
to substantially equivalent positions without prejudice to their
seniority or any other rights and privileges; and if necessary,
terminating the service of employees hired in their stead, and to
make the aforesaid individuals whole for wage and benefit
losses they may have suffered by virtue of the discrimination
practiced against them computed on a quarterly basis as pre-
scribed in F. W. Woolworth, Co., 90 NLRB 289 (1950), less
any interim earnings, with the amounts due and interest thereon
computed in accordance with New Horizons for the Retarded,
283 NLRB 1173 (1987).
Other considerations regarding the remedy and the specifics
of the relief granted the job applicants which the Respondent
refused to hire or consider for hire must wait until the compli-
ance stage of the proceeding, see Eldeco, Inc., 321 NLRB 857,
858 (1996).
Having found that the Respondent discriminatorily dis-
charged Eric Harris and Frank Danforth, I shall recommend
that the Respondent be ordered to immediately offer them full
reinstatement without prejudice to their seniority or any other
rights and privileges; if necessary, terminating the service of
employees hired in their positions, and make them whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to the date a proper offer of rein-
statement is made, as prescribed F. W. Woolworth, Co., supra,
less any interim earnings, with the amounts due and interest
thereon computed in accordance with New Horizons for the
Retarded, supra.
Having found that the Respondent discriminatorily rescinded
its offer of employment to Kurt Tucker in violation of Section
8(a)(3) and (1) of the Act, I shall recommend that the Respon-
dent be ordered to immediately offer him full reinstatement to
the position that was offered to him without prejudice to his
seniority or other rights and privileges; if necessary, terminat-
ing the services of any employee hired in his stead, and make
him whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from date Harris was scheduled to
begin his new job, October 27, 1997, to the date a proper offer
of reinstatement is made, less any net interim earnings, as pre-
scribed F. W. Woolworth, Co., supra, less any interim earnings,
with the amounts due and interest thereon computed in accor-
dance with New Horizons for the Retarded, supra.
[Recommended Order omitted from publication.]