Transportes Hispanos

National Labor Relations Board - Board Decisions

Nov 16, 2000

332 N.L.R.B. 1266 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1266
Transportes Hispanos, Inc. and Local No. 142, Inter-
national Brotherhood of Teamsters, AFL–CIO,
CLC. Case 13–CA–38073
November 16, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On September 6, 2000, Administrative Law Judge
Keltner W. Locke issued the attached bench decision.
The Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering 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 modified2 and set
forth in full below.
The judge found that Robin Gilliland was the Respon-
dent’s agent at the time she made recommendations re-
garding the hiring of employees who worked for the Re-
spondent’s predecessor employer. The Respondent ex-
cepts to the finding of agency. For the reasons set forth
below, we agree with the judge that Gilliland was the
Respondent’s agent.3

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 preponder-
ance 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. In affirming the judge’s credibility
findings with respect to the testimony of discriminatee, Blanca
Jimenez, we do not rely on the judge’s statement that Jimenez errone-
ously testified that she was active in the Union’s organizing drive while
employed by Great Way. Jimenez, in fact, testified that she did not
participate in the organizing campaign at Great Way and that the Union
had already successfully organized the company’s employees by the
time she began her employment there in 1997.
The judge inferred that Oscar Quigley’s immediate supervisor,
Robin Gilliland, knew of Quigley’s union sympathies because he
openly served as a union negotiator. The record additionally shows that
Gilliland spoke to Quigley on three occasions regarding Quigley’s
union activities.
2 We shall modify pars. 1(b), 2(a), 2(c), and 2(d) of the judge’s rec-
ommended Order to provide the customary remedial language. In his
decision, the judge observed that it appeared from the record that some
of the discriminatees had been offered instatement, and the judge rec-
ommended that the Board order the Respondent to offer instatement to
the discriminatees only to the extent that it has not already done so. We
adopt the judge’s recommendation and shall incorporate it in our Order.
3 The judge based his agency finding on the Respondent’s answer to
the complaint, which admitted the allegation that Gilliland was the
Respondent’s supervisor and agent “at all material times.” The Re-
spondent argues that it was not clear that the complaint allegation re-
ferred to the period of time before the Respondent hired Gilliland.
Given our findings below, it is unnecessary to pass on the judge’s basis
for finding agency.
We find substantial evidence of an agency relationship
before the Respondent formally hired Gilliland. The
Respondent wanted to hire employees of its predecessor
(Ryder Student Transportation Services, Inc.) to provide
a smooth transition for its new operations. Gilliland was
a supervisor for Ryder and was familiar with the em-
ployees. The Respondent’s Owner, Henry Gardunio, and
General Manager, Carmelo Oliveras, decided to give
Gilliland sole discretion in determining which employees
should be hired. Oliveras informed Gilliland that the
Respondent wanted to hire all but four Ryder employees
and for her to choose based on a set of general criteria.
At a meeting with the Ryder employees, Oliveras dis-
tributed job applications and told them to return their
completed applications to Gilliland.
Gilliland recommended that the four alleged discrimi-
natees (Frank Heiser, Blanca Jimenez, Oscar Quigley,
and Lynne Tolliver) not be hired by the Respondent.
Neither Gardunio nor Oliveras conducted any interviews
or independent investigation regarding the applicants.
Rather, the Respondent’s sole basis for determining who
it would hire was Gilliland’s recommendations. Within a
few days after these recommendations were made, on
August 20, 1999, the Respondent hired Gilliland to con-
tinue working in a position similar to the one that she
held at Ryder.
We find, based on the above facts, that the Respondent
vested Gilliland with actual authority to recommend the
applicants whom the Respondent would hire. By dele-
gating this authority to her, the Respondent made
Gilliland its agent with respect to her hiring recommen-
dations. See, e.g., Weco Cleaning Specialists, Inc., 308
NLRB 310, 315 (1992) (finding that an agency relation-
ship existed where the individual was authorized by the
respondent to make hiring decisions despite his still be-
ing employed by the predecessor company).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Transportes Hispanos, Inc., Chicago, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a). Discriminating against job applicants by refusing
to hire them because they joined and assisted a union,
engaged in protected concerted activities, or to discour-
age employees from engaging in such activities.

332 NLRB No. 115
TRANSPORTES HISPANOS, INC. 1267
(b). In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed 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, to the
extent it has not already done so, offer Frank Heiser,
Blanca Jimenez, Oscar Quigley, and Lynne Tolliver in-
statement to the positions for which they applied and
which were denied to them on August 20, 1999, or, if
those positions no longer exist, to substantially equiva-
lent positions.
(b). Make Frank Heiser, Blanca Jimenez, Oscar Quig-
ley, and Lynne Tolliver whole, with interest, for any loss
of earnings and other benefits suffered as a result of the
unlawful discrimination them.4
(c). Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful refusal
to hire Frank Heiser, Blanca Jimenez, Oscar Quigley,
and Lynne Tolliver, and within 3 days thereafter notify
them in writing that this has been done and that the re-
fusal to hire will not be used against them in any way.
(d). Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records, including an electronic copy of such re-
cords if stored in electronic form, necessary or useful in
analyzing the amount of backpay due under the terms of
this Order.
(e). Within 14 days after service by the Region, post at
its facility in Chicago, Illinois, and at its jobsite at the
LTV facility, copies of the attached notice marked “Ap-
pendix B.”5 Copies of the notice, on forms provided by
the Regional Director for Region 13, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered 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

4 Backpay shall be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest set forth in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
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.”

proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since August 20, 1999.
f. Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting 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 discriminate against job applicants by
refusing to hire them because they joined and assisted a
union, engaged in protected concerted activities, or to
discourage employees from engaging in such activities.
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, to the extent we have not already done so, offer
Frank Heiser, Blanca Jimenez, Oscar Quigley, and Lynne
Tolliver instatement to the positions for which they ap-
plied and which were denied to them on August 20,
1999, or, if those positions no longer exist, to substan-
tially equivalent positions.
WE WILL make Frank Heiser, Blanca Jimenez, Oscar
Quigley, and Lynne Tolliver whole for any loss of earn-
ings and other benefits suffered as a result of our unlaw-
ful discrimination against them, 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 unlaw-
ful refusal to hire Frank Heiser, Blanca Jimenez, Oscar
Quigley, and Lynne Tolliver, and WE WILL, within 3
days thereafter, notify them in writing that this has been
done and that the refusal to hire will not be used against
them in any way.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1268

Jeanette Schrand, Esq. and Richard Kelliher–Paz, Esq., for the
General Counsel.
Rex C. Denkmann, Esq. (Denkmann & Grabavoy), of Boling-
brook, Illinois, for the Respondent.
Larry Regan, for the Charging Party.
BENCH DECISION AND CERTIFICATION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. I heard
this case on July 26 and 27, 2000, in Chicago, Illinois. After
the parties rested, I heard oral argument on July 27, 2000, and
on July 28, 2000, issued a bench decision pursuant to Section
102.35(a)(1) of the Board’s Rules and Regulations, setting forth
findings of fact and conclusions of law. In accordance with
Section 102.45 of the Rules and Regulations, I certify the accu-
racy of, and attach hereto as “Appendix A,” the portion of the
transcript containing this decision.1 The conclusions of law,
remedy, order, and notice provisions are set forth below.
CONCLUSIONS OF LAW
1. Respondent, Transportes Hispanos, Inc., is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Charging Party, Local No. 142, International Brother-
hood of Teamsters, AFL–CIO, CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By refusing to hire applicants Frank Heiser, Blanca
Jimenez, Oscar Quigley, and Lynne Toliver, on or about Au-
gust 20, 1999, Respondent discriminated in regard to the hire or
tenure or terms or conditions of employment of its employees,
thereby discouraging membership in a labor organization in
violation of Section 8(a)(1) and (3) and affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
4. Respondent did not violate the Act in any other manner al-
leged in the complaint.
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, including posting the notice to em-
ployees attached hereto as Appendix B.
Further, to the extent that Respondent has not made bona
fide offers of instatement to Frank Heiser, Blanca Jimenez,
Oscar Quigley, and Lynne Toliver, I recommend that Respon-
dent be ordered to offer them immediate instatement to the
positions they would have been offered but for the unlawful
discrimination against them. Additionally, I recommend that
Respondent be ordered to make Frank Heiser, Blanca Jimenez,
Oscar Quigley, and Lynne Toliver whole, with interest, for all
losses they suffered because of its unlawful discrimination
against them.

1 The bench decision appears in uncorrected form at pages 377
through 406 of the transcript. The final version, after correction of oral
and transcriptional errors, is attached as Appendix A to this Certifica-
tion.
On the findings of fact and conclusions of law herein, and on
the entire record in this case, I issue the following recom-
mended2
[Recommended Order omitted from publication.]
APPENDIX A
JUDGE LOCKE. This is a bench decision in the case of
Transportes Hispanos, Inc., which I will call the Respondent,
and Local No. 142, International Brotherhood of Teamsters,
AFL–CIO, CLC, which I will call the “Charging Party” or the
“Union.” The case number is 13–CA–38073. This decision is
issued pursuant to Section 102.35(a)(10) and Section 102.45 of
the Board’s Rules and Regulations.
In this case, the government alleges that Respondent unlaw-
fully refused to consider four applicants for employment, and
refused to hire them, because of their union and concerted ac-
tivities, and to discourage other employees from engaging in
such activities. I find that the Respondent unlawfully refused to
hire these individuals, but that Respondent did not unlawfully
refuse to consider them for employment.
I will begin by summarizing the procedural history of this
case, which began on September 14, 1999, when the Union
filed its initial charge against Respondent. The Union amended
this charge on September 20, 1999, October 15, 1999, Decem-
ber 1, 1999 and March 2, 2000.
After an investigation, the Regional Director of Region 13 of
the National Labor Relations Board issued a
378
Complaint and Notice of Hearing on March 27, 2000. In doing so,
the Regional Director acted for the General Counsel of the Board,
whom I will refer to as the “General Counsel” or the “govern-
ment.”
On April 11, 2000, the Respondent filed a timely Answer to
the Complaint. Based on the admissions in this Answer, I find
that the General Counsel has proven the allegations raised in
Complaint paragraphs I(a) through I(e), II(a), II(b), II(d), III,
and IV.
On July 26 and 27, 2000, I heard this case in Chicago, Illi-
nois. Also on July 27, 2000, counsel presented oral argument.
I am issuing this bench decision on July 28, 2000.
Most of the events in this case took place at a steel mill com-
plex called the LTV facility. At various times, different con-
tractors have provided the service of picking up employees at
the front gate and delivering them to their work areas. From
December 1995 to August 1998, a contractor called Great Way
provided this service. Then, from August 1998 to August 1999,
Ryder Student Transportation Services, Inc. performed this
function.
To be precise, Ryder was actually a subcontractor, perform-
ing work for an intermediary between itself and LTV. The
intermediary was a company called Steve Wilson and Associ-
ates.
2 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.
TRANSPORTES HISPANOS, INC. 1269
378
From the record, it is not clear whether the intermediary be-
came dissatisfied with Ryder, but for whatever reason, Ryder’s
contract with the intermediary ended on August 19, 1999. The
next day, Respondent began performing these transportation
services under its agreement with the intermediary.
To run the buses, Respondent hired all but four of the drivers
previously employed by Ryder and brought in drivers from
other locations to complete its employee complement. Specifi-
cally, when it began operations in August 1999, Respondent did
not hire Frank Heiser, Blanca Jimenez, Oscar Quigley, and
Lynne Toliver.
The Complaint alleges that Respondent did not consider
these four drivers for hire and refused to hire them because of
their activities on behalf of the Union. The four job applicants
engaged in such protected activities while they were employed
by the two previous contractors.
When Great Way was providing the bus service at LTV, the
Union successfully organized the drivers in 1996. After Ryder
took over as the transportation contractor, the Union again suc-
cessfully organized the drivers in 1999.
During the 1996 organizing drive, Frank Heiser distributed
union literature, talked with employees about the Union and
asked them to sign a petition showing their
380
support for the Union. During the 1999 Union campaign, Heiser
signed and circulated a petition supporting the Union and wore a
union hat and button.
Blanca Jimenez was a member of the Union’s bargaining
committee when it negotiated with Ryder in 1999. These nego-
tiations occurred shortly before Respondent replaced Ryder as
subcontractor.
Oscar Quigley distributed union literature during the 1999
organizing campaign. He also served on the Union’s bargain-
ing team during negotiations with Ryder.
Lynne Toliver signed a petition supporting the Union during
the 1996 organizing drive. During the 1999 campaign, she
asked employees to sign a petition supporting the Union and
served as a union observer at the election. She was also a
member of the Union’s bargaining team in negotiations with
Ryder.
After Respondent learned that it had obtained the subcontract
to provide bus service at LTV, its General Manager, Carmelo
Oliveras, took charge of the hiring process. Although, the
complaint does not specifically allege that Oliveras was Re-
spondent’s supervisor and agent, based upon the record, I find
this to be the case.
Respondent’s President, Henry Gardunio, told Oliveras to
hire all but four of the drivers working for
381
Ryder at the LTV site. He explained that he wanted to fill those
four slots with drivers his company employed at other locations.
Gardunio instructed Oliveras to determine which four Ryder
drivers were performing poorly and not to offer those individu-
als employment. Oliveras did not know any of the Ryder driv-
ers personally, so he relied on the recommendations of the co-
ordinator Ryder had placed in charge of its LTV operations,
Robin Gilliland. Gilliland knew the drivers well. Before Ryder
obtained the contract, Gilliland had been the head coordinator for
Great Way at the same site.
Gilliland also knew about the union activities of the four al-
leged discriminatees. At the hearing, various employees testi-
fied regarding statements Gilliland made which evinced her
knowledge and disapproval of the employees’ union activities.
Gilliland did not testify and therefore, the statements attributed
to her remain uncontradicted. I credit this uncontroverted tes-
timony.
One of these witnesses, William Johnson, currently works
for Respondent and is not an alleged discriminatee in the pre-
sent case. Johnson testified that, during the 1999 organizing
drive, Gilliland telephoned him at home and asked, “What’s
going on with this union bit?” During this phone call, Gilliland
also asked Johnson if he
382
was going to a meeting at the union hall.
Johnson also described an incident in the parking lot at LTV,
when Gilliland asked, “Is this a conspiracy about unions?” She
also asked if the Union was going to cause them to lose their
jobs.
Frank Heiser gave similar testimony. He recounted an inci-
dent in which he had gone to Johnson’s bus to find out if John-
son had obtained some more baseball caps bearing the Union’s
insignia. Gilliland came to the bus and told them they were not
going to have secret union meetings on the premises.
Further, Heiser testified that on one occasion, Gilliland had
told him that Johnson had been “trying to start trouble and
keeping the union thing stirred up” on the night shift. She told
Heiser that if Johnson showed up, Heiser should call security
and have Johnson removed.
Lynne Toliver credibly testified that Gilliland came up to her
bus and asked about a piece of paper announcing a union meet-
ing. Gilliland then said that she and Karen, a supervisor from
the corporate office, would attend this meeting. However, they
did not. Blanca Jimenez gave similar testimony.
Additionally, Jimenez testified that when she returned to
work after being sick one day, Gilliland said that she knew
Jimenez had been to a union meeting. For
383
reasons I will discuss, I am not confident about the testimony given
by Jimenez. However, I credit this particular testimony for two
reasons. First, Gilliland did not testify and therefore did not con-
tradict it. Second, Gilliland’s statement to Jimenez appears similar
to other statements she made to other witnesses.
These statements by Gilliland show that she was aware that
Heiser, Toliver, and Jimenez actively supported the Union.
Additionally, I conclude that Gilliland knew about Quigley’s
involvement with the Union. There were only ten Ryder driv-
ers at the LTV site, and Gilliland supervised all of them, includ-
ing Quigley.
The facts in this case are rather different from those in Bry-
ant & Cooper Steakhouse, 304 NLRB 750 (1991), in which the
Board found the evidence insufficient to support an inference
that the Employer knew about the employees’ union activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1270
The Board found that the employees had “made an effort to con-
ceal virtually all their organizing efforts from management.”
Therefore, it was not appropriate to infer Employer knowledge
from the fact that the work force was small.
In the present case, however, Quigley’s service on the Un-
ion’s bargaining team made his support for the Union an open
fact. At the time Quigley served as a union negotiator,
Gilliland was his immediate supervisor. I
384
infer that she knew about his union sympathies.
General Manager Oliveras made the actual decisions regard-
ing which Ryder employees to hire. However, he credibly
testified that the sole basis for each hiring decision was Robin
Gilliland’s report about the job applicant.
Specifically, he testified he did look at the employment re-
cords of the job applicants, but based the hiring decisions on
Ms. Gilliland’s recommendations, “when she told me, ‘well
these people here have poor records’ that was enough for me.”
Oliveras further testified that by “poor records,” he meant re-
cords showing attendance problems, such as failure to report
for work or tardiness.
However, the General Manager did not require Gilliland to
make employment recommendations solely on the basis of the
objective attendance records. Rather, he allowed her to take
more subjective factors into account. Oliveras testified that he
told Gilliland that she could consider whether an employee had
a “poor attitude” because he wanted to make sure that the tran-
sition from Ryder to the Respondent was smooth.
From his testimony, I conclude that Oliveras did not want
Gilliland to recommend hiring anyone who would be likely to
“make waves” disturbing the smoothness of the startup period,
and that he told Gilliland as much. Thus,
385
he empowered Gilliland to evaluate a job applicant’s attitude and
potential for disruption.
Allowing Gilliland to consider a job applicant’s attitude
opened the door at least to the possibility of unlawful discrimi-
nation. As stated in James Julian Inc. of Delaware, 325 NLRB
No. 206 (July 15, 1998), “The Board has repeatedly found, with
court approval, that, in a labor–relations context, company
complaints about a ‘bad attitude’ are often euphemisms for
prounion sentiments.” If Ms. Gilliland understood the words
“poor attitude” to embrace union sympathies, she may have
allowed antiunion animus to taint her employment recommen-
dations.
Gilliland thus had the leeway to add an unlawful factor to the
other criteria applied during the assessment process. As I have
previously discussed, the statements Gilliland made to various
employees demonstrate both her hostility to the Union and her
knowledge of the job applicants’ union activities. I find that
she had such knowledge at the time she recommended to Gen-
eral Manager Oliveras that Heiser, Jimenez, Toliver, and Quig-
ley not be hired.
General Manager Oliveras testified that Ms. Gilliland re-
mained employed by Ryder when she made her employment
recommendations to him before Respondent took over the bus
operations, and that she did not begin her
386
position with Respondent until this startup date, August 20, 1999.
Therefore, I must determine whether her knowledge of the
applicants’ union activities may be imputed to the Respondent.
That depends on whether Ms. Gilliland was acting as Respon-
dent’s agent at the time she made the employment recommen-
dations.
Complaint Paragraph IV alleges, in part, that “at all material
times” Robin Gilliland was Respondent’s supervisor within the
meaning of Section 2(11) of the Act and its agent within the
meaning of Section 2(13) of the Act. Respondent’s Answer
admits this allegation.
Although, this complaint paragraph uses the phrase “at all
material times,” it does not define this phrase more precisely. It
does not allege, specifically, that Gilliland was Respondent’s
agent and supervisor before Respondent began performing the
bus services on August 20, 1999. However, I believe that the
complaint, considered as a whole, makes such meaning clear.
Thus, Complaint Paragraph V describes the events which al-
legedly violated the Act, namely, that Respondent refused to
consider and hire the four drivers. The times at which Respon-
dent considered applicants and made its hiring decisions are
certainly material. Indeed, if such times are not material to the
complaint, it is difficult to imagine what time period would be
material.
387
Therefore, I conclude that the complaint plainly alleges that
Gilliland was Respondent’s supervisor and agent at the time she
participated in the hiring decisions even though she did not start
on Respondent’s payroll until later. Further, I find that Re-
spondent has admitted this fact.
Because Ms. Gilliland was acting as Respondent’s agent at
the time she recommended that the four alleged discriminatees
not be hired, the knowledge she then possessed concerning
their union activities should be imputed to the Respondent. See
Jim Walter Resources, 324 NLRB 1231, 1232–23 (1997). The
knowledge and animus of a supervisor making a report about
an employee on which an Employer relies in making an adverse
employment decision are imputable to the Employer.
Moreover, at least in the case of alleged discriminatee
Jimenez, Respondent’s management had knowledge of her
union activity from another source. General Manager Oliveras
credibly testified that on one occasion, he asked Jimenez why
she had been late to work. Jimenez replied that she was late
because she had attended a union meeting. This conversation
took place while Jimenez worked for Ryder. Oliveras knew
that Jimenez had attended a union meeting at the time he de-
cided not to hire her.
388
After receiving the recommendations from Ms. Gilliland,
General Manager Oliveras took them to Respondent’s owner,
Henry Gardunio. The complaint alleges and Respondent’s
Answer admits that Mr. Gardunio is Respondent’s supervisor
and agent.
Oliveras testified as follows: “I met with Mr. Gardunio and I
explained to him that these were the people that Robin had
TRANSPORTES HISPANOS, INC. 1271
recommended that should not be hired based on their record
performance, people that you know that she would prefer not, it
would make it easier for her running a smooth operation. And I
brought it to Mr. Gardunio and he agreed. He said ‘Okay, fine,
if that’s your decision, that’s fine with me.’”
Based on their credible testimony, I find that when they met
on August 16, 1999, neither Oliveras nor Gardunio knew that
the Union represented the drivers employed by Ryder and was
involved in negotiations with that employer. However, from
their testimony, I also infer that both Oliveras and Gardunio
wanted to take over the LTV bus operation in a smooth transi-
tion and did not wish to hire anyone who might disrupt it.
Gilliland had recommended that Respondent not hire Heiser,
Jimenez, Quigley, and Toliver. Oliveras agreed with these
recommendations. However, Owner Gardunio, who is His-
panic, had second thoughts about denying employment
389
to Jimenez. Among all the applicants employed by Ryder, she
alone was Hispanic. To Gardunio, it did not seem quite right for
Transportes Hispanos to reject the one Hispanic applicant.
Jimenez was so concerned about her prospects for employ-
ment with the Respondent that she paid an unexpected visit to
Owner Gardunio in his Chicago office. No one else was pre-
sent during their discussion, which Jimenez described in the
following testimony:

Q. What was said and by whom during this conversation?
A. I know that we talked about some of the employees that at
that time, I did ask him if my name was one of those ques-
tionable persons and he said, yes, it was. Then he told me that
he had asked Robin about me and she had told him that, yes,
yes, I was involved in the Union but that some of their, you
know, bigger supporters for the Union were Frank Heiser and
William Johnson.
. . . .
Q. What happened? What did you ask him?
A. I asked him . . . I asked him about the questionable persons
on there. And that he also told me that, or shall I say that he
asked me if there were any more hardcore union employees
there and I told him no, that William Johnson had already
been
390
terminated.
Q. Did he relay any story to you?
A. Oh, yeah. He wanted to give me an example of the reason
they weren’t really into the Union and he told me a story
about some theater his father owned, in Illinois I believe he
said, that it was, uh, the union shop. I know he explained to
me that it over a switch. That his brother, I believe he said,
was working in the projection room also with some union
employee and the union employee did not show for work and
I remember he said, that his father called the union and they
told him that he could not touch that switch, that was a union
job and he couldn’t touch it. And I know he said they had to
return everybody’s money . . . he said that soon after that his
father kind of got rid of the business.

Gardunio admitted that he told Jimenez about a problem his
father had experienced while operating a theater, and his de-
scription of the theater incident is similar to that of Jimenez.
However, Gardunio squarely denied that Robin Gilliland had
told him that Jimenez was involved in the Union. Similarly, he
denied saying that Gilliland had identified Heiser and Johnson
as bigger supporters of the Union. Further, Gardunio denied
asking Jimenez if there were any more hardcore union support-
ers.
391
In his testimony, Gardunio disclosed that at some point dur-
ing his conversation with Jimenez, when he was discussing her
attendance problems, she explained one instance of tardiness by
saying that she had been at a union meeting, which prompted
Gardunio to ask, “Is there something I should know.”
The statement by Jimenez, that she had attended a union
meeting, concerned Gardunio enough that later, he called Steve
Wilson, the contractor who had awarded Respondent the sub-
contract to provide bus services at LTV. Gardunio asked Wil-
son about the presence of a Union. Wilson brushed off the
inquiry by telling Gardunio that there had been talk about a
Union for a long time, but “they never do nothing, so I would
not worry about it.”
For several reasons, I believe that Gardunio’s testimony is
more reliable than that of Jimenez. First, it impressed me that
Gardunio freely admitted making statements which obviously
could suggest that he harbored antiunion animus. Thus, he
admitted telling Jimenez about his father’s problem with a un-
ion. Additionally, he admitted that he would prefer having a
nonunionized work force. Moreover, he described Jimenez’
statement that she had attended a union meeting and his reac-
tion to it. Such candid testimony indicates that Gardunio ad-
hered to the truth even when it might be costly to do so.
392
Second, my observations of Gardunio when he testified lead
me to believe that he was a reliable witness.
Although the demeanor of Ms. Jimenez did not raise any
doubts in my mind about her testimony, some other factors did
cause me concern. To some extent, Ms. Jimenez had a ten-
dency to interject her opinion into her testimony. When opin-
ion gets mixed with fact, it can sometimes be a source of distor-
tion.
Additionally, Ms. Jimenez had clearly negative feelings
about Ms. Gilliland. Considering that Gardunio ultimately
supported Gilliland’s recommendation not to hire Jimenez, the
negative feelings towards Gilliland could expand to embrace
Gardunio as well. Such feelings might also be a source of bias.
Further, another part of Ms. Jimenez’ testimony raised some
question about her memory. Specifically, she testified that she
was active in the Union’s organizing drive when she was em-
ployed by Great Way. However, that campaign took place in
1996 and Ms. Jimenez testified that she began work with Great
Way in 1997.
For all these reasons, I believe that Gardunio’s account of his
meeting with Jimenez is more reliable. I credit it.
Based on this credited testimony, I find that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1272
393
because of his discussion with Jimenez, Gardunio concluded that
she would have difficulty working with Robin Gilliland, who was
being hired to continue her work as head coordinator of the drivers.
Gardunio told Jimenez that to have a smooth start–up, she would
have to get along with Gilliland. “You’re going to have to get
along with her,” he told Jimenez. “You sometimes will have to
bite your tongue and sometimes you will have to go along with
what your supervisor wants you to do.”
Notwithstanding the possibility of friction between Jimenez
and Gilliland, Gardunio told Jimenez that Respondent would
offer her a job. However, Gardunio later changed his mind
when he talked with his general manager.
When Gardunio told Oliveras about his decision to hire
Jimenez, Oliveras responded that Gardunio was too soft. Oliv-
eras said that if Jimenez already had told Gardunio to his face
that she did not get along with Gilliland, then by hiring
Jimenez, Gardunio was “only looking for problems.”
Gardunio replied, “You know, you’re right. I did put you in
charge.” He told Oliveras that he would like to see Jimenez
employed because it looked bad for a Hispanic company not to
hire the only Hispanic applicant. Nonetheless, Gardunio ac-
cepted the recommendation that Jimenez not be hired.
394
On August 20, 1999, the first day of Respondent’s operation
at LTV, Jimenez reported for work and learned that she would
not have a job. Lynne Toliver also reported for work on that
day and learned that Respondent would not employ her. Re-
spondent notified Frank Heiser and Oscar Quigley by telephone
that they would not be hired.
The complaint alleges two different acts of discrimination
against the four drivers. Paragraph V(a) alleges that Respon-
dent did not consider them for employment. Paragraph V(b)
alleges that Respondent refused to hire them. I will examine
these allegations separately.
As stated by the Board in FES (A Division of Thermo
Power), 331 NLRB No. 20 (May 11, 2000), to establish a dis-
criminatory refusal to consider for employment, the General
Counsel bears the burden of showing the following at the hear-
ing on the merits: (1) that the respondent excluded applicants
from a hiring process; and (2) that antiunion animus contributed
to the decision not to consider the applicants for employment.
Once this is established, the burden will shift to the respondent
to show that it would not have considered the applicants even in
the absence of their union activity or affiliation. If the Respon-
dent fails to meet its burden, then a violation of Section 8(a)(3)
is established.
The evidence shows that Respondent did consider
395
the four alleged discriminatees for employment. Respondent’s
agent, Robin Gilliland, obtained and reviewed the attendance re-
cords of these employees and made recommendations, albeit nega-
tive ones, to General Manager Oliveras, who adopted her recom-
mendations with the approval of the Respondent’s owner.
I do not find that Respondent failed to consider these job ap-
plicants. Therefore, I recommend that the failure–to–consider
allegation be dismissed.
In FES (A Division of Thermo Power), the Board also estab-
lished standards to be applied in analyzing allegations that an
Employer unlawfully refused to hire a job applicant. The
Board held that to establish a discriminatory refusal to hire, the
General Counsel first must prove the following elements:
(1) that the respondent was hiring, or had concrete plans to
hire, at the time of the alleged unlawful conduct;
(2) that the applicants had experience or training relevant to
the announced or generally known requirements of the posi-
tions for hire, or in the alternative, that the employer has not
adhered uniformly to such requirements, or that the require-
ments were themselves pretextual or were applied as a pretext
for discrimination; and
396
(3) that antiunion animus contributed to the decision not to
hire the applicants.
Once the government establishes these elements, the burden
shifts to the Respondent to show that it would not have hired
the applicants even in the absence of their union activity or
affiliation.
Clearly, the government has established the first element.
The record establishes without contradiction that Respondent
was hiring drivers.
The evidence also establishes the second element. At the
time Respondent was hiring, the four alleged discriminatees
held similar positions with another company. Although Re-
spondent has raised an issue concerning the attendance and
punctuality of the alleged discriminatees, it has not contended
that they lacked the necessary qualifications to drive a bus. I
find that the General Counsel has proven that the alleged dis-
criminatees had the necessary experience and training relevant
to the jobs for which they applied.
Further, the General Counsel has proven the third element.
In deciding whom to hire, General Manager Oliveras relied
heavily on the recommendations of Coordinator Gilliland.
Indeed, Oliveras testified that when Gilliland told him that the
four job applicants had poor records, “that was good enough for
me.”
397
Abundant evidence establishes that Gilliland made a number
of different statements indicating that she harbored antiunion
animus and that she knew the discriminatees actively supported
the Union. Gilliland made some of these statements not long
before she began considering applicants and making recom-
mendations regarding their employment.
More specifically, Gilliland made some of these statements
in the context of an organizing campaign the Union began in
about March 1999. Gilliland’s actions include interrupting a
conversation between employees Johnson and Jimenez, asking
them if this was a conspiracy about unions and also asking
them if the Union was going to cause them to lose their jobs.
Arguably, the statements which Gilliland made while acting
as a supervisor for Ryder might not accurately reflect the atti-
tude she later brought to her work for Respondent. For exam-
TRANSPORTES HISPANOS, INC. 1273
ple, a company might impose such strict standards of behavior
on its supervisors, and establish such serious consequences for
breaking those standards, that even a supervisor who had zeal-
ously opposed unions while working for a previous employer
would put aside that attitude when told to do so by his new
employer. Similarly, it is possible that a previous foe of unions
would experience a change of heart.
398
In this case, however, there is no evidence that Respondent
had established or communicated any policies to discourage its
supervisors from discriminatory conduct which violated the
Act. Therefore, I cannot conclude that Gilliland had any reason
to act differently as an agent of Respondent than she had acted
as a Ryder supervisor.
Additionally, there is no evidence that Gilliland experienced
any change of attitude about unions between the time she made
the antiunion statements and the time she made the employment
recommendations. Obviously, she would be most qualified to
testify about it, but she did not appear. However, at the time of
the hearing she still worked as one of Respondent’s supervi-
sors. It is very difficult to accept the suggestion that Respon-
dent had no control over whether or not Gilliland appeared at
the hearing.
Indeed, on the first day of the hearing, witnesses for the
General Counsel testified concerning statements Gilliland had
made which showed antiunion animus. When Respondent
presented its evidence on the second day of hearing, it did not
call Gilliland as a witness, and did not request a continuance in
the hearing to secure her presence. In these circumstances, I
cannot speculate that if she had testified, Gilliland would have
denied making the antiunion statements attributed to her or
399
would have professed that her attitudes had changed before she
began recommending which employees Respondent should hire,
and which it should reject.
As already noted, General Manager Oliveras had told
Gilliland specifically that she could take into account whether
an employee had a “poor attitude” which could cause problems
during the start–up period. Considering Gilliland’s previous
antiunion statements, the absence of any evidence suggesting
that her opposition to unions had changed, and her mandate to
take into account employee attitudes when recommending
whom to hire, it appears almost certain that antiunion consid-
erations entered into her analytical process and contributed to
her recommendations not to hire the four drivers. I so find.
General Manager Oliveras, who made the hiring decisions,
accepted Gilliland’s recommendations and performed little, if
any, independent review. Since antiunion animus contributed
to Gilliland’s recommendations, I find that it also contributed to
the employment decisions which Oliveras made, with the
owner’s approval. Thus, the General Counsel has established
the third necessary element.
Respondent may avoid a finding that it unlawfully discrimi-
nated against the four job applicants by showing that it would
not have hired these applicants even in the
400
absence of their union activity or affiliation. However, I find that
Respondent has not done so.
Respondent contends that it did not hire the four drivers be-
cause of their poor attendance and tardiness records. However,
Respondent has presented no evidence comparing the atten-
dance and tardiness of these four with that of the drivers it did
hire.
Although Respondent did not introduce attendance records
allowing a comparison between those it hired and those it did
not, the General Counsel did introduce some attendance re-
cords. These records are too limited to allow a systematic
comparison between the attendance problems of the applicants
Respondent selected and the applicants it rejected. However,
these records certainly do not establish that the four alleged
discriminatees had any greater attendance problems than their
colleagues.
Respondent bears the burden of proof on this issue. I con-
clude that Respondent has not carried this burden.
Respondent’s decision not to hire Blanca Jimenez presents a
further issue. Respondent’s Owner was ready to hire Jimenez
because she was the only Hispanic among the job applicants.
Ultimately, the Owner allowed his manager to reject Jimenez
after learning from Jimenez that she had problems getting along
with the person who would be her
401
supervisor.
On its face, rejecting a job applicant because she might have
a personality conflict with a supervisor does not appear to dis-
criminate on the basis of union activity. To the contrary, it
appears, at least superficially, to be a legitimate business reason
which would justify the refusal to hire.
However, I believe that in this case, the question is more
complicated than it might first appear. As the recommendation
not to hire Jimenez went up the chain of command from
Gilliland to Oliveras and then from Oliveras to Gardunio, dif-
ferent reasons entered into the decision–making process.
Initially, Gilliland recommended that Oliveras not hire
Jimenez, and antiunion animus contributed to this recommen-
dation. It appears that at first, General Manager Oliveras
adopted Gilliland’s recommendation without independently
reviewing it. However, at some point, Oliveras did consider the
merits of hiring Jimenez, and decided that her personality con-
flict with Gilliland posed a risk to a smooth start–up.
Owner Gardunio had been prepared to override the decision
by Oliveras and hire Jimenez anyway, but he changed his mind
after meeting with Jimenez. In this meeting, he learned both
that Jimenez had a personality
402
conflict with the individual who would be her supervisor and
also that Jimenez had engaged in union activity.
The fact that Gardunio knew about Jimenez’ union activity at
the time he affirmed the decision not to hire her raises the pos-
sibility that the union activity contributed to the ultimate deci-
sion to reject her application for employment. Even though I
have credited Gardunio’s testimony over that of Jimenez, I still
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1274
find it difficult to accept that Gardunio, having learned about
the union activity, made a decision about hiring Jimenez with-
out taking this activity into account.
Gardunio admitted telling Jimenez about the problem his fa-
ther had with a union, and also admitted that if he could have
his preference, his employees would not be represented by a
union. Therefore, I must conclude that to some extent, knowl-
edge of Jimenez’ union activity contributed to Gardunio’s deci-
sion to reject her application for employment.
The evidence supports this conclusion without even consid-
ering the source of the personality conflict between Gilliland, a
rather outspoken opponent of the Union, and Jimenez, an
equally vocal adherent of the Union. Of course, to the extent
that an ostensible personality conflict really concerns opposing
opinions about unionization, it could hardly constitute a lawful
and
403
nondiscriminatory reason justifying a refusal to hire. However, I
need not delve into the nature of the personality conflict between
Gilliland and Jimenez, because I have concluded that Jimenez’
union activity, known to Gardunio, contributed to his decision that
Jimenez not be hired.
Gardunio’s testimony supports this conclusion. Specifically,
he testified that he instructed Oliveras to make sure that the
start–up was smooth and trouble free. His testimony also
shows that Gardunio associated unions with the opposite. He
admitted telling Jimenez about an incident in which union insis-
tence on a work rule disrupted his father’s business.
The fact that Gardunio even told Jimenez about this incident
signifies that at some level, Gardunio continued to associate a
union with trouble or at least the possibility of trouble. At this
point, just before the new operation began, Gardunio wanted to
minimize the possibility of trouble and had focused his general
manager’s attention on the importance of making a smooth
transition. Considering the importance Gardunio attached to
avoiding trouble, and considering the mental association he
made between a union and the possibility of a disruption, it is
difficult to believe that Gardunio simply ignored, or even could
bring himself to ignore, Jimenez’
404
union activity.
Some affirmative evidence might demonstrate that, for rea-
sons unrelated to her union sympathies, Gardunio would have
rejected Jimenez in any event, but the record contains no such
evidence. To the contrary, the record shows that before Gar-
dunio learned about her union activity, he favored hiring
Jimenez because she was Hispanic. The fact that Jimenez did
not get along well with Gilliland certainly may have weighed
against her, but the evidence does not persuade me that this
factor alone would have outweighed Gardunio’s desire to hire
the one Hispanic applicant. Therefore, I find that Respondent
has not carried its burden of showing that it would have re-
jected the employment application of Jimenez even if she had
not engaged in union activity.
In sum, I find that the government has proven that about Au-
gust 20, 1999, Respondent refused to hire Frank Heiser, Blanca
Jimenez, Oscar Quigley, and Lynne Toliver, because these
employees joined and assisted the Union and engaged in con-
certed activities, and to discourage employees from engaging in
these activities. Additionally, I conclude that this refusal to
hire violated Section 8(a)(3) and (1) of the Act, and further
conclude that these four applicants would have been hired but
for the unlawful discrimination against them on or about Au-
gust
405
20, 1999.
Having concluded that Respondent violated the Act by refus-
ing to hire the named discriminatees on August 20, 1999, I
recommend that the Board order Respondent to cease and desist
from this unlawful activity and make the discriminatees whole,
with interest, for the unlawful discrimination against them.
Additionally, I recommend that the Board order Respondent to
post a Notice to Employees.
The remedy for a refusal–to–hire violation also includes an
order that Respondent offer instatement to the applicants it
unlawfully rejected for employment. From the record, it ap-
pears that Respondent already has offered instatement to some
of the discriminatees, and currently employs Frank Heiser and
Blanca Jimenez. I recommend that the Board order the Re-
spondent to offer instatement to the discriminatees only to the
extent that Respondent has not already made a bona fide offer
to instate each discriminatee to the position unlawfully denied,
or, if that position no longer exists, to a substantially equivalent
position.
When the transcript of this proceeding has been prepared, I
will issue a Certification which attaches as an appendix the
portion of the transcript reporting this bench decision. This
Certification also will include provisions
406
relating to the recommended Order and Notice to Employees.
When that Certification is served upon the parties, the time period
for filing an appeal will begin to run.
I sincerely thank counsel for the professionalism and civility
they demonstrated throughout the hearing. The hearing is
closed.