Extract
Allied Mechanical & Electrical Contractors, 1189 (2006)
State College Electrical & Mechanical, Inc., d/b/a Allied Mechanical & Electrical Contractors, a subsidiary of S&A Custom Built Homes, Inc. and Berrenas Mechanical Services, LLC, a Single Employer and International Brotherhood of Electrical Workers, Local Union No. 5, AFLCIO, CLC. Case 6CA34619
November 30, 2006DECISION AND ORDERBy Chairman Battista and Members Liebman and WalshOn July 7, 2006, Administrative Law Judge John T. Clark issued the attached 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 judges rulings, findings,1 and conclusions as modified, and to adopt the recommended Order as modified below.For the reasons stated by the judge, we find that the Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing to hire applicants David W. Good, Bruce J. Cogan, and Scott M. Sweeney. Contrary to the judge, however, we find that the record does not establish that the Respondent also unlawfully refused to consider Good, Cogan, and Sweeney for hire.Under FES, 331 NLRB 9, 15 (2000), enfd. 301 F.3d 83 (3d Cir. 2002), in order to establish a refusal to consider violation, the General Counsel has the burden of proving that: (1) the respondent excluded the applicants from the hiring process; and (2) antiunion animus contributed to that decision. Once this is established, the burden shifts to the respondent to show that it would not have considered the applicants even in the absence of their union activity or affiliation. [I]n determining whether an employer has excluded applicants from the hiring process, the Board considers all of the surrounding circumstances. C&K Insulation, Inc., 347 NLRB No. 71, slip op. at 1 (2006).Here, we find that the General Counsel failed to satisfy the initial prong of the FES burden by establishing that Cook, Cogan, and Sweeney were excluded from the hiring process. To the contrary, after each of the three submitted an application to the Respondent, he was contacted to schedule an interview. Thereafter, each discriminatee was interviewed at length by the Respondent, and each was administered a test to determine his electrician skills. Considering all of the circumstances, there is insufficient evidence to conclude that Good, Cogan, and Sweeney were excluded from the hiring process.2To the extent that the judge found a refusal-to-consider violation based on language in the standard rejection letter that the Respondent mailed the discriminatees, we disagree. Nonselected applicants, including the discriminatees, were routinely sent letters by the Respondent stating that I will keep your resume on file for one year and will contact you if an appropriate career opportunity becomes available. There is no record evidence as to what, if any, consideration such nonselected applicants received, nor evidence that the discriminatees were treated differently than other applicants sent a rejection letter.3Accor...See the full content of this document
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