Ultrasystems Western Constructors

National Labor Relations Board - Board Decisions

Apr 18, 1995

316 N.L.R.B. 1243 (N.L.R.B. 1995)

1243
316 NLRB No. 186
ULTRASYSTEMS WESTERN CONSTRUCTORS
1 310 NLRB 545.
2 18 F.3d 251. On review, the court reversed the Board’s finding
that full-time union organizer William Creeden was a bona fide ap-
plicant for employment and denied enforcement to that part of the
Board’s Order that pertains to Creeden.
3 Unfortunately, the General Counsel chose not to file a statement
of position on this important issue.
4 310 NLRB at 546, quoting Dean General Contractors, 285
NLRB 573, 574 (1987).
Ultrasystems Western Constructors, Inc. and Inter-
national Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers and Help-
ers, AFL–CIO. Cases 31–CA–17516, 31–CA–
17571, 31–CA–17906 (formerly 20–CA–22467),
and 31–CA–17907 (formerly 20–CA–22468)
April 18, 1995
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On February 26, 1993, the National Labor Relations
Board issued its Decision and Order in the above-cap-
tioned case.1 The Board found, inter alia, that the Re-
spondent violated Section 8(a)(3) by maintaining a hir-
ing policy which screened job applicants to uncover
suspected union sympathizers, and by refusing to con-
sider 66 applicants for employment based on the con-
clusion that they were union sympathizers. The Board
ordered the Respondent to make whole all 66 appli-
cants by reason of the Respondent’s discriminatory re-
fusal to consider them for employment and to offer
them employment in substantially equivalent positions
if the positions at the Rocklin and Bakersfield, Califor-
nia jobsites for which they applied were no longer
available.
On March 3, 1994, the United States Court of Ap-
peals for the Fourth Circuit issued an order enforcing
the Board’s Order in part, denying enforcement in part,
and remanding the case to the Board.2 Although the
court agreed with the Board that the Respondent had
unlawfully refused to consider for hire 65 applicants
(excluding Creeden), it remanded the case to the Board
with the direction ‘‘to tailor more closely its order to
match the discrimination found.’’ Id. at 253. Citing
Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900 (1984), for
the proposition ‘‘that the constraints of the statutory
language require that ‘a proposed remedy be tailored
to the unfair labor practice it is intended to redress,’’’
the court found that the Board went beyond the scope
permitted by Section 10(c) when it ordered the Re-
spondent to make whole and reinstate all 65 applicants.
Id. at 258. The court reasoned, in effect, that because
the conduct found unlawful was a refusal to consider
for hire, not a refusal to hire, the Board could not
order the Respondent to make whole all 65
discriminatees absent a showing that the Respondent
had positions available for them. Thus, for example, if
at the compliance stage of the proceeding it turned out
that only 10 vacancies existed, the court reasoned that
it would go beyond ‘‘neutralizing’’ the discrimination
in regard to hire to order the reinstatement of all 65
applicants. The court added that the Board could neu-
tralize the discrimination in screening by ordering con-
sideration of the 65 applicants in some preferred man-
ner on later jobs and ‘‘perhaps it also could order rein-
statement with backpay for those found, in a compli-
ance proceeding, to have been denied actual posi-
tions.’’ Id. at 259 (emphasis in original). The court re-
manded the case to the Board to fashion a remedy of
its own choosing.
On May 16, 1994, the Board advised the parties that
they might file statements of position concerning the
issues raised by the court’s decision. The Respondent
and the Charging Party filed statements of positions.3
The Board has accepted the court’s remand. In fash-
ioning a remedy, we are mindful of the court’s direc-
tion to fashion an order that is ‘‘congruent with the
scope of discrimination, so that its enforcement neu-
tralizes the discrimination, and does not go beyond.’’
Id. at 259. Consequently, to remedy the Respondent’s
unlawful refusal to consider the 65 applicants for hire,
we shall order it to consider them for hire and to pro-
vide backpay to those whom it would have hired but
for its unlawful conduct. See, e.g., KRI Constructors,
290 NLRB 802 (1988). Backpay, however, shall not be
limited to Rocklin and Bakersfield. For, as explained
in our original decision in this case, the Board has re-
jected any ‘‘precompliance presumption against rein-
statement in the construction industry.’’4 Thus, if at
the compliance stage of this proceeding it is deter-
mined that the Respondent would have hired any of
the 65 applicants it unlawfully refused to consider, the
inquiry as to the amount of backpay due these individ-
uals will include any amounts they would have re-
ceived on other jobs to which the Respondent would
later have assigned them. Finally, if at the compliance
stage it is established that the Respondent would have
assigned any of these discriminatees to current jobs,
we shall order the Respondent to hire those individuals
and place them in positions substantially equivalent to
those for which they applied at Rocklin and Bakers-
field. Such a remedy does no more than place the
discriminatees in the position they would have been in
absent the Respondent’s unlawful conduct.
In its statement of position, the Respondent con-
tends, inter alia, that the ‘‘only conceivable remedy
that would neutralize the affect [sic]’’ of the ‘‘refusal-
to-consider’’ violation would be to order the Respond-
ent to consider the discriminatees for future positions
on a nondiscriminatory basis. The Respondent asserts
that to go beyond this remedy would place the
1244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Indeed, as noted above, the court indicated that ‘‘perhaps [the
Board] also could order reinstatement with backpay for those found,
in a compliance proceeding, to have been denied actual positions.’’
Id. at 259 (emphasis in original).
6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
7 As explained above, in order to remedy the effect of the Re-
spondent’s unlawful conduct, we shall order it to consider the 65 ap-
plicants for hire and to provide backpay to those whom it would
have hired but for its unlawful conduct. Backpay will not be limited
to the Rocklin and Bakersfield jobs, but will include any amounts
these discriminatees would have received on other jobs to which the
Respondent would later have assigned them. Finally, if the Respond-
ent would have assigned any of these discriminatees to current jobs,
it will be directed to hire those individuals and place them in posi-
tions substantially equivalent to those for which they applied at
Rocklin and Bakersfield. Should any individual be entitled to back-
pay, it shall be calculated in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest computed in accordance with
New Horizons for the Retarded, 283 NLRB 1173 (1987).
discriminatees in a position ‘‘far better’’ than they
would have enjoyed absent the Respondent’s refusal to
consider. The Respondent also contends that the court
found that the General Counsel did not prove that jobs
were available and that applicants were qualified to fill
those positions. Asserting that such issues are to be re-
solved at the liability phase of the proceeding rather
than at the compliance stage, the Respondent contends
that the General Counsel failed ‘‘to prove these re-
quired elements of a violation’’ at the hearing and can-
not now relitigate these issues in another proceeding
‘‘under the guise of compliance.’’ We find these argu-
ments without merit.
As to the Respondent’s contention that future con-
sideration on a nondiscriminatory basis is the only ap-
propriate remedy for a refusal-to-consider violation, the
court itself explained that:
a refusal to consider begets a remedy that the em-
ployer must consider, and when the refusal to
consider also results in an actual refusal to hire,
the refusal begets the remedy that the employer
must hire those applicants who otherwise would
have been hired. [18 F.3d at 259. Emphasis
added.]
Thus, if it is shown at the compliance stage of this
proceeding that the Respondent would have hired any
of these applicants but for its unlawful refusal to con-
sider their applications, requiring the Respondent to
make those applicants whole for its unlawful refusal to
hire them does no more than restore the parties to the
positions they would be in absent the unlawful dis-
crimination.5
As to the Respondent’s contention that the General
Counsel failed to prove that jobs were available at
Rocklin and Bakersfield, the court specifically found
that ‘‘it [was] uncontroverted that the applications in
question were submitted to fill existing openings for
employment at both the Rocklin and Bakersfield loca-
tions. Thus, any discrimination in refusing to consider
them could be found to constitute discrimination in re-
gard to hire.’’ Id. at 256 (emphasis added). Accord-
ingly, we find this contention without merit. Finally, as
the court observed, the Board may prove discrimina-
tion in regard to hire by showing:
(1) that the employer is covered by the Act; (2)
that the employer at the time of the purportedly
illegal conduct was hiring or had concrete plans
to hire employees; (3) that anti-union animus con-
tributed to the decision not to consider, interview,
or hire an applicant; and (4) that the applicant
was a bona fide applicant. [Id. at 256. Emphasis
added.]
In sustaining the Board’s finding of this violation, the
court found, in effect, that the Board had established
these elements of a prima facie case. Contrary to the
Respondent’s assertion, the court stated that to escape
all liability, it was the Respondent’s burden to show
that none of the applicants were qualified for the avail-
able positions. In this regard, the court observed that
under the applicable Wright Line analysis:6
If the employer could have extricated itself from
all liability by showing that none of the 66 appli-
cants would have been hired, even without the
impermissible motive, it could have done so, and
the record indicates it attempted to do so. To this
end, Ultrasystems attempted to show that the ap-
plications were stale or that some of the appli-
cants were not qualified or not interested. Even
with that evidence, there was still contrary evi-
dence from which a rational factfinder could
properly have concluded that Ultrasystems’ re-
fusal to consider applications or delaying their
consideration was due, at least in part, to their
union affiliation.
. . . .
Because Ultrasystems was given the opportunity
to show that none of the applicants would have
been hired even in the absence of such improper
motivation, and because the ALJ and the Board
reasonably rejected this argument based upon evi-
dence in the record, we believe that the Board
acted within its power in finding a violation here.
[18 F.3d at 257–258. Emphasis in original.]
In sum, because the court has sustained the Board’s
finding of this 8(a)(3) violation, we reject the Re-
spondent’s attempt to relitigate the issue of its liability
here and shall order it to take the action set forth
above which ‘‘neutralizes the discrimination, and does
not go beyond.’’7 Id. at 259.
1245ULTRASYSTEMS WESTERN CONSTRUCTORS
ORDER
The National Labor Relations Board reaffirms its
Order in the underlying proceeding, 310 NLRB 545
(1993), as modified, and orders that the Respondent,
Ultrasystems Western Constructors, Inc., Rocklin and
Bakersfield, California, its officers, agents, successors,
and assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 2(a).
‘‘Make whole those employee-applicants at Rocklin
and Bakersfield for any losses they may have suffered
by reason of the Respondent’s discriminatory refusal to
consider them for hire in the manner described above
in this Supplemental Decision and Order. Offer those
employee-applicants at Rocklin and Bakersfield who
would currently be employed but for the Respondent’s
saunlawful refusal to consider them for hire employ-
ment in the positions for which they applied or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges to which they would have
been entitled if they had not been discriminated against
by the Respondent.’’
2. Substitute the attached notice for that set forth in
our underlying decision.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT engage in surveillance or create the
impression of surveillance of employee union activity.
WE WILL NOT threaten employees with loss of their
jobs if they do not withdraw their union authorization
cards; WE WILL NOT tell employees that we will be
more cooperative with respect to their future employ-
ment if they abandon their interest in union representa-
tion.
WE WILL NOT tell employees that the job will shut
down if they select a union to represent them.
WE WILL NOT maintain a no-distribution/no-solicita-
tion rule which forbids the distribution and solicitation
of Section 7 protected material anywhere on our con-
struction sites by employees during nonworktime.
WE WILL NOT isolate employees because of their
union activities.
WE WILL NOT maintain any hiring policy which
screens job applicants to uncover suspected union sym-
pathizers, and WE WILL NOT refuse to consider appli-
cants for employment based on our conclusion that
they are union sympathizers.
WE WILL NOT transfer employees to other sites or
discharge them because of their union membership,
sympathies, or background or their activities on behalf
of International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers and Helpers, AFL–
CIO or United Association of Journeymen and Ap-
prentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL–CIO or any other
union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make whole, together with interest, those
employee-applicants at Rocklin and Bakersfield for
any losses they may have suffered by reason of our
discriminatory refusal to consider them for hire in
1988 in the manner described in the remedy set out in
the Supplemental Decision and Order, and WE WILL
offer those employee-applicants at Rocklin and Bakers-
field who would currently be employed but for our un-
lawful refusal to consider them for hire employment in
the positions for which they applied or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges to which they would have been entitled
if we had not discriminated against them.
WE WILL make whole, together with interest, em-
ployees Fred Abbott, Jim Campbell, Fenner LaCroix,
Donald Cauble, Ronald Cauble, and Vern Cleveland
for any losses they may have suffered by reason of the
discrimination against them, and WE WILL offer the
above-named employees immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL remove from our files any references to
the discharges of Fred Abbott, Jim Campbell, Fenner
LaCroix, Donald Cauble, Ronald Cauble, and Vern
Cleveland and notify them in writing that this has been
done and that evidence of this unlawful termination
will not be used as a basis for future personnel action
against them.
WE WILL notify in writing all those individuals who
applied for employment at our Rocklin and Bakersfield
1246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
projects in 1988 and who were unlawfully denied em-
ployment that any future job applications will be con-
sidered in a nondiscriminatory manner.
ULTRASYSTEMS WESTERN CONSTRUC-
TORS, INC.