Custom Top Soil, Inc., 121 (1998)

Custom Top Soil, Inc. and International Union of Operating Engineers, Local 17. Case 3-CA-20435

November 16, 1998

DECISION AND ORDER

BY MEMBERS FOX, LIEBMAN, AND HURTGEN On June 22, 1998, Administrative Law Judge Eleanor MacDonald issued the attached decision. The Respondent filed exceptions and a supporting brief. The Acting General Counsel and Charging Party Union filed answering briefs.

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, as modified, and to adopt the recommended Order as modified.

We find merit in the Respondent's exception to the judge's finding that Bookkeeper Michelle Podpura acted as the Respondent's agent and, as such, violated Section 8(a)(1) when she told union members who were applying for work on June 13, 1996, that their union membership would adversely affect their chances of working for the Respondent. The judge erroneously found that Podpura hands out job applications as part of her duties. According to Podpura's uncontradicted testimony, she had no regular role in the job application process. Furthermore, the transcript of a tape recording of her conversation with the applicants on June 13 shows that she clearly indicated that she had no knowledge of, and hence was without authority to speak and act on, matters concerning the Respondent's hiring policies. Under these circumstances, Podpura had neither actual nor apparent authority to speak on behalf of the Respondent concerning the possible impact of the applicants' union affiliation on their employment prospects. We shall therefore reverse and dismiss the 8(a)(1) allegation based on Podpura's statement of personal opinion.

Our reversal of this finding, which the judge cited as evidence of the Respondent's union animus, does not alter his overall analysis of the 8(a)(3) refusal to hire issue. There remains substantial evidence of animus, particularly including the Respondent's unlawful alteration of its application procedure to restrict the submission of applications from union members, its unlawful physical removal of a union representative from its office during union members' attempt to file applications, and its pretextual reasons for not hiring the discriminatees. We

agree with the judge, for the reasons fully set forth in his decision, that the Acting General Counsel has shown that union animus motivated the Respondent's discriminatory refusal to hire qualified union member applicants for available jobs, in violation of Section 8(a)(3).

We note, however, that the judge recommended a backpay remedy for the discriminatees starting from the date that they applied for employment. In this case, the jobs for which the discriminatees should have been hired did not become available until sometime after the application dates. Consequently, the correct starting date for the backpay period is the later date on which the discriminatees would have been hired but for the Respondent's unlawful conduct. See Starcon, Inc., 323 NLRB 977 (1997). We leave to compliance proceedings the determination of the specific date on which each discriminatee would have been hired.2

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders the Respondent, Custom Top Soil, Inc., Cheektowaga and Buffalo, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

1. Substitute the following for paragraph 1(a).

   "(a) Refusing to hire job applicants because they are members of International Union of Operating Engineers, Local 17, or any other union."

2. Substitute the attached notice for that of the administrative law judge.

   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 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.

   2 Member Hurtgen concludes that the better practice is for the General Counsel to establish, in the trial on the merits, the dates on which discrimination occurred, i.e., the dates on which various jobs became available. Notwithstanding this, he would not foreclose the General Counsel from doing so in this case in a supplemental proceeding. However, Member Hurtgen emphasizes that, at whatever stage, the General Counsel bears the burden of proof on the issue.

   1 The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law 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.

   WE WILL NOT physically remove union members from our office when they come to file applications for employment.

   WE WILL NOT change our hiring practices to restrict the receipt of job applications from union members.

   WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

   WE WILL, within 14 days from the date of the Board's Order, offer Bernard Dowdall, Francine Dole, Dan Racine, Duane Cooper, James Minter 3d, Michael Schwec, and James Erhardt employment to the same or substantially equivalent positions for which they applied, without prejudice to their seniority or any other rights or privileges to which they would have been entitled in the absence of our hiring discrimination.

   WE WILL make Bernard Dowdall, Francine Dole, Dan Racine, Duane Cooper, James Minter 3d, Michael Schwec, and James Erhardt whole for any loss of earnings and other benefits resulting from the discrimination against them, less any net interim earnings, plus interest.

   CUSTOM TOP SOIL, INC.

   Ron Scott, Esq., for the General Counsel.

   Jeremy V. Cohen, Esq. (Bond, Schoeneck & King), of Buffalo,

   New York, for the Respondent.

   Michael E. Reilly, Esq. (Morris, Cantor, Barnes, Goodman & Furlong), of Cheektowaga, New York, for the Charging Party.

   DECISION

   STATEMENT OF THE CASE

   ELEANOR MACDONALD, Administrative law Judge. This case was tried in Buffalo, New York, on December 8 and 9, 1997. The complaint alleges that Respondent, in violation of Section 8 (a)(1) and (3) of the Act, threatened to refuse to hire job applicants, refused to hire job applicants, physically removed a representative of the Union from its office and changed its hiring practices to restrict the receipt of job applications. Respondent denies that it has engaged in any violations of the Act.

   On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, the Respondent and the Charging Party in February 1998, I make the following1

   FINDINGS OF FACT

   1. JURISDICTION

      Respondent, a corporation with an office in Cheektowaga, New York, and a facility in Buffalo, New York, is engaged in the construction industry as a site contractor. Annually, Re

      DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

      1 The record is corrected so that at p. 44, LL 5, 6, and 8, and p. 117, L 17, "softic" is replaced by the word "zaftig". The Respondent's motion to correct the transcript dated January 30, 1998, as amended by the General Counsel's letter of February 5, 1998, is granted.

      spondent provides services in excess of $50,000 for enterprises which are directly engaged in interstate commerce. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the International Union of Operating Engineers, Local 17, is a labor organization within the meaning of Section 2(5) of the Act.

   2. ALLEGED UNFAIR LABOR PRACTICES

      1. The Facts

         On June 13, 1996, Chris Hollfelder, an organizer with Local 17, accompanied four members of the Union to Respondent's office in order that they might file applications for employment. Hollfelder waited in the parking lot with union members Bernard Dowdall, Francine Dole, and Dan Racine, while Duane Cooper entered the office and obtained and completed an application. Having established that Respondent was indeed handing out applications to the public, Hollfelder and the three other union members entered the office and asked for applications. The applicants were told to use a long table in the public area of the office for the purpose of completing their applications. It is undisputed that there is a table in the office which is accessible to those who come in to fill out employment applications including the union members who were at the office on June 13. The table is large enough to accommodate up to three people at one time.

         Hollfelder testified that while the three members were filling out their applications, he introduced himself as an organizer for Local 17 to the receptionist sitting behind the sliding glass partition in the entrance area. After a short while, a woman came out of an office located behind the area where the receptionist sat at the glass partition. This woman, who was later identified as Bookkeeper Michelle Podpora, told Hollfelder and the Local 17 members that Respondent was a nonunion company and she asked whether they were from the Operating Engineers. Holl-felder answered her question and then he asked whether the fact that Respondent was...