Terry's Excavating, Inc.

National Labor Relations Board - Board Decisions

Jul 18, 2001

334 N.L.R.B. 596 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 596
Terry’s Excavating, Inc. and International Union of
Operating Engineers, Local Union 139, AFL–
CIO. Cases 30–CA–14543 and 30–CA–14930
July 18, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On March 13, 2001, Administrative Law Judge Jerry
M. Hermele issued the attached decision. The General
Counsel and the Charging Party each filed exceptions
and a supporting brief. The Respondent filed an answer-
ing brief to each set of exceptions.
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.
The judge found, and we agree, that the Respondent
did not violate Section 8(a)(3) and (1) by failing to hire
union organizers William Burg, Allan Leider, and Terry
Pare. The judge found that there was no direct evidence
of union animus by the Respondent. The General Coun-
sel and Charging Party have excepted to this finding,
citing, inter alia, comments made by the Respondent’s
vice president, Sally DeCicco, while interviewing Burg
and Leider. Even if those comments may be construed
as evidence of union animus,2 however, we agree with
the judge’s alternative finding that the Respondent car-
ried its burden under FES, 331 NLRB 9 (2000). The
Respondent proved that it would not have hired Burg,
Leider, or Pare even in the absence of their union activity
because they lacked recent driving experience.

1 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule a 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.
At fn. 1 of his decision, the judge observed that upon publication,
“unauthorized changes may have been made by the Board’s Executive
Secretary to the Presiding Judge’s original version.” It is the Board’s
established practice to correct any typographical or other formal errors
before publication of a decision in the bound volumes of NLRB deci-
sions.
2 Specifically, after Burg told DeCicco that he was interested in or-
ganizing the Respondent’s employees, DeCicco said, “All right, so I
can be safe to say you don’t really want the job as a truck driver. You
want the job just to go ahead and talk to the men to be a union and then,
after they would join the union, you would quit?” When Leider stated
that he wanted to talk to employees about the union, DeCicco asked
him why he couldn’t do that on his own time or after the employees had
“punched out.”
The judge also found, and we agree, that the Respon-
dent did not violate Section 8(a)(1) by interrogating em-
ployee Dennis Hebbe in December 1999. During the
alleged interrogation, Sally DeCicco asked Hebbe what
types of trucks he had driven in his previous job. After
he answered, she stated that there had been “problems
with the union” and that she needed the information for
her attorney. DeCicco asked no questions about union
sympathies, union activities, or protected concerted ac-
tivities. Thus, we agree with the judge that, in view of
the nature of the questioning, it did not constitute inter-
rogation which would reasonably tend to restrain, coerce,
or interfere with rights guaranteed by the Act.3 Unlike
the judge, however, we do not rely on the fact that Hebbe
was not an open or active union supporter.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Aaron C. Tharpe, Joyce Ann Seizer, and Benjamin Mandelman,
Esqs., Milwaukee, Wisconsin, for the Acting General Coun-
sel.
Gregory B. Ladewski, Esq. (Davis & Kuelthau), Milwaukee,
Wisconsin, for the Respondent.
Michael D. Lucas, Gainesville, Virginia, for the Union.
DECISION1
I. STATEMENT OF THE CASE
JERRY M. HERMELE, Administrative Law Judge. As part
of a “salting”2 effort beginning in June 1998, three members of
the International Union of Operating Engineers, Local Union
139, AFL–CIO (the Union), attempted to obtain work at
Terry’s Excavating, Inc. (the Respondent). After their efforts
proved unsuccessful, the General Counsel issued a complaint
on April 12, 1999, alleging that the Respondent violated Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act, and an
amended complaint on January 28, 2000, alleging a violation of
Section 8(a)(1) based on an illegal December 1999 interroga-
tion of an employee. The Respondent’s April 29, 1999 and
February 9, 2000 answers denied these allegations.3
3 For the same reason, there is no merit in the contention of the Gen-
eral Counsel and the Charging Party that the questioning was unlawful
due to the failure to give Hebbe the safeguards required by Johnnie’s
Poultry Co., 146 NLRB 770 (1964), enf. denied 334 F.2d 617 (8th Cir.
1965). Where, as here, the interrogation is not “on [a] matter involving
. . . Section 7 rights,” 146 NLRB at 774–775, Johnnie’s Poultry does
not apply.
1 Upon any publication of this Decision by the National Labor Rela-
tions Board, unauthorized changes may have been made by the Board’s
Executive Secretary to the Presiding Judge’s original version.
2 This term means a union’s effort to organize a nonunion employer,
the analogy being to salting a mine or introducing foreign matter
therein. See Tualatin Electric, 312 NLRB 129 (1993).
3 Pursuant to FES, 331 NLRB 9 (2000), the General Counsel further
alleged on December 19, 2000 that “[s]ince June 23, 1998, Respondent
has hired at least one applicant in a position for which the above-named
334 NLRB No. 82
TERRY’S EXCAVATING, INC. 597
This case was then tried on December 19 and 20, 2000, in
Milwaukee, Wisconsin, during which the General Counsel
presented six witnesses and the Respondent presented three
witnesses. The Union then filed a brief on February 2, 2001,
followed by the General Counsel on February 5 and the Re-
spondent on February 6.4
II. FINDINGS OF FACT
The Respondent is an excavating and trucking business lo-
cated in Oconomowoc, Wisconsin. Terry DeCicco has been the
President since 1977 and his mother, Sally DeCicco, is the Vice
President. The Company currently has four employees: two
truck drivers and one foreman/operator. The Company owns
three vehicles, two of which are dump trucks. Annually, the
Respondent purchases and receives interstate goods and materi-
als exceeding $50,000, deriving gross revenues therefrom
exceeding $50,000 (G.C. Exs. 1(t), (v); R. Ex. 1; Tr. 12-13, 25,
278-80).
The Respondent usually obtains new employees through
newspaper advertisements. Applicants apply in person and are
interviewed by Mrs. DeCicco, who then checks on their past
employment and driving records. Mr. DeCicco makes the final
decision on hiring (Tr. 299-301, 375, 397-98). On June 8,
1998, Mr. DeCicco sent a note to his foreman, Glen Gunderson,
and employees offering a $300 bonus if they could find a new
employee with a commercial driver’s license, “or if you find
some one without a CDL and will try hard and gets it real soon”
(G.C. Ex. 13; Tr. 60, 348-49). In hiring new employees,
DeCicco knows that he has to consider applicants fairly without
regard to their union status (Tr. 307). In order to be hired, an
applicant must have a commercial driver’s license with re-
quired endorsements, recent experience, and a good safety atti-
tude and appearance. Also, the applicant must be willing to
accept a starting salary of approximately $12 an hour. On oc-
casion, truck drivers have been hired without any experience,
but applicants with recent driving experience are preferred (Tr.
289-92, 295, 346). New employees are hired as truck drivers
and within several months gradually progress to operating other
machinery (Tr. 340, 429).
The Respondent hired Glen Gunderson in 1989 and two
equipment operators in 1993 and 1994. Then in October 1997,
two truck drivers were hired with recent experience. They left
in 1998 and March 1999 (R. Ex. 1; G.C. Exs. 18-19). On June
23, 1998, the Respondent placed the following newspaper ad:

Truck Driver Wanted. ABCD CDL license, wages & benefits
based on experience. Apply in person. Terry’s Excavating, S
15 W33816 Wolf Road, Oconomowoc.

(G.C. Ex. 2). William Burg, an organizer for the Union, saw
the advertisement and took five other union members with him
to visit the Respondent’s office on June 25, 1998 (Tr. 83, 91-
92, 163-64, 298, 401). This was the first time multiple appli-
cants arrived at once (Tr. 298). Burg and Allan Leider secretly
tape recorded their visits, and all subsequent visits to the
Respondent (Tr. 439-42, 446). Burg asked for some
applications and whether the Company was looking for truck
drivers or operators. Mrs. DeCicco responded:

applicants applied and for which they were qualified.” (G.C. Ex.
1(dd)).
4 At trial, ruling was reserved on GC Exhs. 61, 62, 63, and 64, and
R. Exh. 1. On January 3, 2001, all parties stipulated to the accuracy of
those General Counsel Exhibits. So, they will be received. As for
Respondent Exhibit 1, because no party objected, it too will be re-
ceived.

What we do is we always start our men as truck drivers
and then we see how if they’re hot dogs and then you
know. You don’t want to put them on a big piece of ma-
chinery if they get in trouble you know. . .List all the stuff
you do, right. And then what he does is he starts moving
you up from there. . . It might be real freaky where he just
might hire you on as a truck driver. You might just get
only two hours a week as a truck driver and you might
running a dozer thirty eight hours a week, you know. It all
depends what job comes up like that. We do earth work
and excavation.

When Burg asked if he could fax in the application she said “it is
up to you whatever you want to do” but added that her son “would
like to talk to you in person” (G.C. Ex. 61). Later that day, Burg
and the others sent their applications by facsimile transmission.
Burg applied for the job of “truck driver/operator” and disclosed
that he was currently employed as the Union’s business agent. He
listed three jobs before that, as a foreman/low-boy driver from
1991-98, foreman/operator from 1988-91, and truck driver/operator
from 1982-87 (G.C. Ex. 41; Tr. 93, 157-58). The next day, Mrs.
DeCicco wrote Burg and the others that they needed to apply in
person (G.C. Exs. 14, 20, 42). At trial, she explained that this was
the Company’s customary practice and was required by the terms
of the newspaper ad (Tr. 401-02).
So, Burg returned on June 29, with Leider and Terry Pare,
and they filled out job applications in person. Pare applied for
the job of “truck driver” and listed his current job as a union
organizer and the past jobs of mechanic/crane operator/truck
driver from 1989-95 with Price Erecting, and oiler/crane opera-
tor from 1986-89 (G.C. Ex. 8). Leider applied for the job of
“trucker or operator,” listed his current job as union organizer,
and listed the past jobs of operator from 1994-97, operator in
1994, and trucker from 1989-94 (G.C. Ex. 51). Burg simply
resubmitted his previous application (G.C. Ex. 11). Mrs.
DeCicco then interviewed each man individually. First, ac-
cording to Mrs. DeCicco, Leider was polite and said that he
would take a pay cut from his current union job. When queried
on that, he explained that he would be supplementing his in-
come with the Respondent’s job and would be able to talk to
the employees about joining the Union. Mrs. DeCicco then
asked him “why don’t you do it on your own time?” Leider
explained “I can do that too . . . but I would still like to supple-
ment my income” (G.C. Ex. 63). Mrs. DeCicco concluded,
however, that Leider was primarily an operator, not a truck
driver. Also, she was unable to track down the one employer
that Leider listed for the “trucker” position he held from 1989-
94 (Tr. 404-09). Next, she interviewed Burg, whom she de-
scribed as being disrespectful and sarcastic (Tr. 409-10, 421).
Burg denied being rude (Tr. 152). Burg said he was currently
making $20 or $25 an hour with the Union, whereupon Mrs.
DeCicco asked why he was applying. Burg replied “[w]ell it

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 598
has a chance of maybe becoming union here and making more
money.” Then, she said:

All right, so I can be safe to say you don’t really want the
job as a truck driver. You want the job just to go ahead
and talk to the men to be a union and then, after they
would join the union, you would quit?

Burg denied that he would quit, but when pressed on how long
he would expect to stay, said “I don’t know” (G.C. Ex. 62).
Finally, she interviewed Pare, whom Mrs. DeCicco also de-
scribed as being rude (Tr. 411).
Mrs. DeCicco later discussed the three applicants with her
son. Mr. DeCicco decided against hiring Burg because he had
no recent truck driving experience, was asking for too much
money compared to his Company’s starting rate of $12 an hour,
and had a bad attitude with his mother (Tr. 293-95). Regarding
Pare, he called his references but concluded that he did not
have current driving experience (Tr. 305-07). Mrs. DeCicco
tried to locate the one employer Leider listed for the past job of
truck driver, but was unable to do so. Thus, he rejected Leider
too (Tr. 310-11).
Instead, Mr. DeCicco hired Nathan Anderson on June 29,
who had applied on June 26. Anderson’s current job was a
truck driver since 1998, including dump trucks. Anderson had
no experience as an equipment operator and had several driving
violations from 1993 to 1997. But according to Mr. DeCicco,
Anderson’s current license was good and he had current truck
driving experience (G.C. Ex. 31; Tr. 314-16). However,
Anderson worked for only two weeks (G.C. Ex. 37). So, the
Respondent posted an ad with the Waukesha County Technical
College on July 8, 1998 for a “dump truck driver.” The ad
directed applicants to apply in person, required a “clean CDL
drivers license,” and described the job as follows:

Drive dump truck with fill/stone and do miscellaneous
work on job site. Be willing to learn to operate equipment
for more wages.

(G.C. Exs. 3-4; Tr. 15-16, 29). Larry Wisniewski applied for
the job on July 9, listing his current job as a driver since 1996
(G.C. Ex. 17). Mr. DeCicco hired him on July 13 (R. Ex. 1; Tr.
319-20). Leider learned of the posting too and he wrote a letter
to the Respondent on July 28 stating that he, Burg, and Pare
were still interested in the job (G.C. Ex. 43). And on July 29,
Burg wrote another letter stating that although he requested a
$20-an-hour wage during his interview, he “would consider any
reasonable offer” (G.C. Ex. 44). The Respondent never con-
tacted any of them, and on December 28, 1998, the Union filed
a charge against the Respondent claiming that it excluded union
applicants from the hiring process (G.C. Ex. 1(a)).
The Respondent ran identical ads in two newspapers on
March 29, 1999:

DUMP TRUCK DRIVER
Wages based on experience.
Must have “ABCD” license. Yr round
work + benefits.
Apply in person:
Terry’s Excavating
S15 W33816 Wolf Road
Oconomowoc, WI

(G.C. Exs. 5-6). In response, Burg, Leider and Pare filed appli-
cations with the Respondent that same day, listing no additional
experience or new substantive information (G.C. Exs. 45, 52,
55). Mrs. DeCicco was not there that day and no further inter-
views were conducted (Tr. 105-07, 178-82, 217-18).
In the spring of 1999, Mrs. DeCicco attended an employment
law seminar run by the Metropolitan Building Association.
Thereafter, she redesigned the Company’s application form to
state that it was good for only 30 days, in an effort to protect
the Company if it hired new applicants over those filing older
applications (Tr. 301-02, 358, 363, 412). On April 2, 1999,
Mrs. DeCicco sent letters to Burg, Leider, and Pare that the
Respondent had “reorganized” and that, in view of the coming
spring season, they needed to “reapply” on April 9 at 9:30 a.m.,
if they were still interested (G.C. Ex. 46; Tr. 183, 219). Leider
responded on April 12 that they had unfortunately received the
invitation too late but were still interested (G.C. Ex. 47). Chris-
tian Lee applied for the job on April 21. He had worked as a
driver from May 1998 to January 1999, and from 1996 to 1997
(G.C. Ex. 21). He was hired on April 22 because of his recent
truck driving experience but quit after just two days (R. Ex. 1;
G.C. Ex. 36; Tr. 322-24).
On May 10, the Respondent posted an ad with the Depart-
ment of Workforce Development seeking a dump truck driver
“doing construction work, delivering produce to job, holding
transit, basic duties on a construction site.” The ad required
“experience” as a dump truck driver and a CDL (G.C. Ex. 49;
Tr. 110-11). Timothy Frank applied for the job on May 10,
listing driving experience from 1996 to November 1998 (G.C.
Ex. 22). Mr. DeCicco hired him and he worked for two months
(R. Ex. 1; Tr. 325-26). Burg, Leider, and Pare reapplied with
the Respondent on May 10 and 11 (G.C. Exs. 48, 53, 56). Ac-
cording to Leider, Mrs. DeCicco was “short with us” during
this visit and voices were raised (Tr. 161, 185-86). On May 26,
Dennis Hebbe, Jr. applied for the job, and he worked for the
Respondent for six months. Mr. DeCicco hired Hebbe because
of his recent dump truck driving experience (G.C. Ex. 26; Tr.
252-55, 326-27).
On June 1, 1999, the Respondent ran another newspaper ad
for a dump truck driver, with “wages based on experience”
(G.C. Ex. 7). And on June 3, it posted an ad similar to the May
10 ad, seeking an experienced dump truck driver (G.C. Ex. 50).
Burg, Leider, and Pare each submitted yet another application
on June 18 and June 21 pursuant to these ads (G.C. Exs. 9, 10,
54). This time, Mrs. DeCicco initially declined to let them fill
out another application, but she relented. Then, she got upset
and asked them if they would work ten or twelve-hour days
without a break (Tr. 114-15, 222-26).
In December 1999, Mrs. DeCicco asked Hebbe what type of
trucks he had driven in his previous job. She added that she
needed this information because there “had been problems with
the union. . . .” (Tr. 261-62). In February 2000, Dennis Stitz,
Jr. was hired. He had driving experience in former jobs from
1991 to the present (G.C. Ex. 39; Tr. 327). Stitz left in mid-
2000, at which point Rick Hoffman replaced him. Hoffmann

TERRY’S EXCAVATING, INC. 599
likewise had driving experience from 1998 to the present (G.C.
Ex. 40; Tr. 328-29).
III. ANALYSIS
Interestingly, the General Counsel does not allege that the
Respondent failed to consider the three union applicants for
hire; only that it illegally refused to hire them because of their
union status.5 To establish this, the General Counsel must
show: (a) that the Respondent was hiring, or had concrete plans
to hire, at the time of the alleged unlawful conduct; (b) that the
applicants had experience or training relevant to the announced
or generally known requirements of the positions for hire, or in
the alternative, that the employer has not adhered uniformly to
such requirements, or that the requirements were themselves
pretextual or were applied as a pretext for discrimination and
(c) that antiunion animus contributed to the decision not to hire
the applicants. If all three factors are established, the burden
then shifts to the Respondent to show that it would not have
hired the applicant(s) even if they were nonunion. In this re-
gard, the Respondent also has the burden to show that the ap-
plicants were unqualified for the sought position(s), or that
others, who were hired, had superior qualifications. FES, 331
NLRB 9 (2000).
With respect to the first factor, it is clear that the Respondent
was hiring when the union applicants applied for work in June
1998 and when they reapplied thereafter. Indeed, nonunion
applicants were selected in 1998, 1999, and 2000 in response to
the various advertisements. The second factor is also satisfied.
At the outset, however, it is concluded that the Respondent was
hiring a truck driver, not the more advanced position of opera-
tor, as the General Counsel contends. Although Mrs. DeCicco
told Burg and Leider during their first visit on June 25, 1998
that a new employee may be moved up to operate more ad-
vanced machinery, every single job advertisement placed by the
Respondent—on June 23, 1998, July 8, 1998, March 29, 1999,
May 10, 1999, June 1, 1999, and June 3, 1999—specifically
requested either a “truck driver” or “dump truck driver.”
Moreover, Mr. DeCicco and foreman Glen Gunderson credibly
testified that new employees are hired as truck drivers and
thereafter gradually progress to operate machinery, but then
only after a period of several months. But applying the literal
requirements of the second FES factor, the three union appli-
cants had “experience or training relevant” to the Respondent’s
advertised truck driver position. In this regard, Burg drove a
dump truck back in the mid-1980s, Leider did so from 1989 to
1994, and Pare did so from 1989 to 1995. Further, Burg, Lei-
der, and Pare all had the requisite driving licenses.
Upon a thorough review of the evidence, however, the Pre-
siding Judge concludes that union animus was not a factor in
the Respondent’s decision to reject the three union applicants.
First, despite their prolific tape recording of the elderly Mrs.
DeCicco’s remarks, there is no direct evidence that the Re-
spondent harbored any animus against either unions generally
or Local 139 in particular. Second, the December 1999 conver-
sation between employee Hebbe and Mrs. DeCicco did not
constitute an illegal interrogation. Mrs. DeCicco merely asked
Hebbe what type of trucks he had driven in his previous jobs,
and after Hebbe responded she stated that she needed this in-
formation for her lawyer because there “had been problems
with the union. . . .” Mrs. DeCicco made her comment after
Hebbe answered her inquiry. Further, the information sought
by Mrs. DeCicco had nothing to do directly with unions, and
her question was general and nonthreatening. Further, Hebbe
was not an open or active union supporter. Therefore, under all
the circumstances, this conversation does not establish union
animus and it does not constitute a separate violation of Section
8(a)(1), as alleged by the General Counsel. See Central Trans-
port, Inc. v. NLRB, 997 F.2d 1180, 1189–1190 (7th Cir. 1993);
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985).

5 There were other union applicants who unsuccessfully applied for
jobs with the Respondent that are not the subject of the General Coun-
sel’s complaint.
The General Counsel next alleges a series of discriminatory
changes in the Respondent’s hiring practices indicating union
animus. First, the General Counsel and the Union point to the
Respondent’s June 8, 1998 note to its employees promising a
bonus if they could find “someone with out a CDL and will try
hard and gets it real soon” as evidence of the Company’s will-
ingness to hire drivers without any experience. Presumably this
argument encompasses the notion that any driver without a
license has no experience. But neither the General Counsel nor
the Union confronted any Respondent witness with this dichot-
omy. Moreover, the Presiding Judge finds it just as likely from
the silent record that the Respondent was not altering its re-
quirement that drivers have recent experience. Further, it is
significant that this June 8 note predated the Union’s salting
effort. Second, the General Counsel is mistaken that the Re-
spondent “inexplicably altered the application process” by re-
jecting the June 25, 1998 faxed applications in which the union
applicants first revealed their union status. It is true that Mrs.
DeCicco originally had no objection to Burg’s request to fax in
his completed application but she added that a personal inter-
view would be required. Further, there is no evidence that the
Respondent had accepted faxed applications previously or
since, from any union affiliated or nonunion applicant. Indeed,
the June 23, 1998 newspaper ad responded to by Burg and the
others specifically required the applicant to “apply in person.”
In sum, Mrs. DeCicco misspoke when she told Burg that he
could fax in his application, and her subsequent request that the
union applicants apply in person does not constitute evidence of
a nefarious purpose. Third, it is alleged that the Respondent
suspiciously changed its job advertisement from “truck driver”
in June 1998 to “dump truck driver” in July 1998, presumably
to exclude the union applicants. But the Presiding Judge does
not view this change as significant. Indeed, the Respondent
owns three trucks, two of which are dump trucks. Fourth, the
General Counsel is mistaken that Mrs. DeCicco’s April 2, 1999
letter to the union applicants asking them to reapply because of
the Company’s “reorganization” is yet another change in the
company’s hiring process and is thus evidence of union animus.
Rather, this letter seems to have prompted by the Company’s
change in its application forms, which now stated that the forms
were good for only 30 days. While the Union contends that the
30-day rule was adopted for the proscribed purpose of allowing
the Respondent “to wait the union applicants out,” the timing

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 600
thereof does not support such a conclusion. Indeed, this new
application form was not adopted until nearly one year follow-
ing the alleged discriminatees’ initial June 1998 applications.
Rather, a close reading of the record suggests that the Respon-
dent adopted this new application in a rote fashion, simply fol-
lowing advice Mrs. DeCicco received in a spring 1999 siminar.
Moreover, if Mrs. DeCicco truly wanted to “wait out” the union
applicants’ applications, she certainly did not have to reinvite
them to apply yet again in mid-1999.
The General Counsel next alleges several instances of dispa-
rate treatment of the union applicants. First, it is pointed out
that Mrs. DeCicco typed notes of her interviews with only un-
ion applicants and not with any other applicants (G.C. Exs. 9,
10, 24, 27, 34). Aside from the irony of not condemning simi-
lar transcriptions by the Union when they secretly recorded
meetings with Mrs. DeCicco, the Presiding Judge finds no fault
with Mrs. DeCicco typing her notes of interviews with union
applicants. Significantly, she only did this in June 1999, fol-
lowing the General Counsel’s April 1999 issuance of his first
complaint against the Respondent. Further, she also typed one
set of interview notes of a nonunion applicant in June 1999
(G.C. Ex. 35). Therefore, it cannot be concluded that Mrs.
DeCicco’s typewritten notes indicate union animus. Second, it
is alleged that Mrs. DeCicco delayed in checking the references
of Burg and Pare, thus indicating that the Respondent did not
seriously consider them for employment. Regarding Burg’s
and Pare’s June 29, 1998 applications, it is true that, in attached
notes, Mrs. DeCicco wrote “no dump truck verification
7/15/98” for Pare (G.C. Ex. 8), and “no verification of dump
truck driver 7/19/98” for Burg (G.C. Ex. 11). But there are
other undated notes indicating that she inquired about Pare’s
and Burg’s past employers, which could just as likely be closer
in time to their application dates. Further, the General Counsel
failed to elicit at trial any testimony from Mrs. DeCicco that
she unduly delayed checking their references. Thus, these sin-
gle notations by Mrs. DeCicco do not constitute significant
evidence of delay. Third, it is alleged that Mrs. DeCicco’s July
28, 1998 statement that Leider’s driving license checked out
okay was more disparate treatment because the Respondent’s
established policy is to check an applicant’s driving record after
he is hired (G.C. Ex. 64). But Mr. DeCicco testified that his
mother takes care of checking driving records (Tr. 375), and
she testified that she “usually” does the check after the appli-
cant is hired (Tr. 397). Also, there is no evidence that any other
union applicant’s driving record was checked quickly, notwith-
standing Mrs. DeCicco’s June 29, 1998 interview query of
Burg whether she could check his driving record. Thus, on the
whole, it cannot be concluded that the Respondent systemati-
cally attempted to torpedo union applications with hurried driv-
ing license checks.
The General Counsel next points to two miscellaneous ex-
amples of animus. First, it is alleged that Mrs. DeCicco’s per-
sistent questioning of Burg and Leider during their June 29,
1998 interviews about their reasons for applying constitutes
animus. On the contrary, a careful reading of both transcripts
(G.C. Exs. 62-63) yields the conclusion that the elderly Mrs.
DeCicco was simply naïve about why a union employee mak-
ing $25 an hour would be interested in a $12 an hour job when
he could talk to the Respondent’s employees about the Union
before or after work. And second, the General Counsel faults
the Respondent’s April 29, 1999 answer, in which it offers the
following affirmative defense:

applicants William Burg, Allan Leider and Terry Pare tar-
geted Terry’s Excavating Inc. for unionization purposes only.
None of the three applicants expressed an interest in long-
term employment with Terry’s Excavating.

(G.C. Ex. 1(1)). Specifically, it is alleged that the above lan-
guage “for unionization purposes only” constitutes evidence of
animus. But the General Counsel is stretching here, and its
cited case, Sommer Awning Co., 332 NLRB 1318 (2000), is
inapposite because that Respondent stipulated that it refused to
hire union applicants because of their union status.
Finally, the General Counsel alleges animus by the two pri-
mary Respondent witnesses at trial. With respect to Mrs.
DeCicco, she accused Burg of being belligerent during his in-
terview, thus allegedly constituting a pretextual reason for not
hiring him. True enough, Burg denied being rude and the dry
transcript of the June 29, 1998 interview does not reveal any
unusual emotion by either Burg or Mrs. DeCicco (G.C. Ex. 62).
But Mrs. DeCicco also accused Pare of rudeness and he did not
deny this allegation. Further, Mrs. DeCicco testified that Lei-
der was polite and that transcript does not rebut her description.
Finally, there is abundant evidence that things got testy be-
tween Mrs. DeCicco and the union applicants during their 1999
visits. Thus, it is just as likely that Mrs. DeCicco was referring
to these later occasions. So, it cannot be concluded that Mrs.
DeCicco’s testimony is evidence of a pretextual reason to reject
the union applicants. Next, the General Counsel contends that
Mr. DeCicco’s trial testimony is proof of his union animus.
Specifically, he testified, in response to a question about his
view of union organizers applying for work, “[i]t’s something
that I would have to deal with, it wasn’t my favorite thing in
life, no” (Tr. 307). But the Presiding Judge carefully observed
Mr. DeCicco at trial and his answer was straightforward and
devoid of any anger. As for the claim that Mr. DeCicco was
belligerent when questioned by union attorney Michael Lucas,
Mr. DeCicco’s testiness had as much to do with counsel’s per-
sistent mispronunciation of his name.
In summary, there is no direct evidence of union animus by
the Respondent. There was also no separate violation of Sec-
tion 8(a)(1) proven in this case. Further, regarding circumstan-
tial evidence, the General Counsel has failed to show that the
Respondent treated union applicants in a disparate manner,
created pretextual reasons for not hiring them, or revealed un-
ion animus in its pretrial pleadings or witnesses’ trial testi-
mony. Therefore, because the General Counsel has failed to
establish any union animus, he has also failed to meet his bur-
den of proof under FES regarding an illegal rejection of union
job applicants.
Moreover, even if animus had been proven, the Respondent
has adequately established that the employees it hired begin-
ning in June 1998 and thereafter had qualifications superior to
union applicants Burg, Leider, and Pare. The plain fact is that
the Respondent sought truck drivers with recent driving experi-
ence and none of the three union applicants fit the bill. Indeed,

TERRY’S EXCAVATING, INC. 601
since October 1997, which is before the union salting effort
began, the Respondent has hired only truck drivers, and all of
these employees possessed recent driving experience. Nor does
the evidence establish that this threshold was a subterfuge for
avoiding union applicants. While the driver’s job potentially
could transform into the more advanced operator position, for
which the union applicants were apparently qualified, the Pre-
siding Judge concludes that the Respondent has met any burden
in explaining the exact position it was seeking to fill and why,
notwithstanding the second-guessing of the General Counsel
and the Union regarding the Company’s operations. Accord-
ingly, the General Counsel’s complaint will be dismissed.
IV. CONCLUSIONS OF LAW
1. The Respondent, Terry’s Excavating, Inc., is an employer
engaged in commerce within the meaning of Section 2(2), (6)
and (7) of the Act.
2. The Union, International Union of Operating Engineers,
Local Union 139, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent did not violate Section 8(a)(1) of the Act
in December 1999 by illegally interrogating an employee.
4. The Respondent did not violate Section 8(a)(1) and (3) of
the Act by failing to hire William Burg, Allan Leider and Terry
Pare since June 1998, and by excluding union-affiliated appli-
cants since then.
ORDER
Accordingly, IT IS ORDERED6 that General Counsel Exhib-
its 61, 62, 63, and 64, and Respondent Exhibit 1 ARE
RECEIVED IN EDVIDENCE.
IT IS FURTHER ORDERED that the General Counsel’s
complaint is dismissed.

6 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.