Oasis Mechanical, Inc., (2006)

• Date: 27 April 2006

OASIS MECHANICAL,INC.

346 NLRB No. 91

1011

Oasis Mechanical, Inc. and Plumbers & Pipefitters

Local 344. Case 17–CA–23050

April 27, 2006

DECISION AND ORDER

BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND

SCHAUMBER

On September 14, 2005, Administrative Law Judge

Thomas M. Patton issued the attached decision. The

Respondent and the General Counsel each filed excep-

tions and a brief in support of their exceptions. The Re-

spondent and the General Counsel also 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, and conclusions, as

modified,1and to adopt the recommended Order as modi-

fied and set forth in full below.2

1In adopting the judge’s make-whole remedy, we do not rely on the

judge’s assumption that Patrick Murray was hired before Jones,

O’Donnell, Franklin, and Mason applied. Instead, we note that, be-

cause Murray was hired for an HVAC position, and the General Coun-

sel has not established that any of the discriminatees were qualified to

perform HVAC work, Murray did not fill a position that would have

been available for the discriminatees, but for the Respondent’s dis-

criminatory conduct.

2We note that the Respondent is free to argue at compliance that in-

statement is not appropriate in this case because it allegedly made the

discriminatees unconditional offers of employment in March 2005.

The Respondent may also argue, at compliance, that the backpay period

was tolled at the time of those offers of employment. In light of the

foregoing, we shall modify the judge’s Order. See Solvay Iron Works,

341 NLRB 208, 208–209 (2004); Desert Aggregates, 340 NLRB 1389

(2003). We also modify the judge’s Order to reflect that, under FES,

331 NLRB 9, 14 (2000), the Respondent’s conduct constitutes not only

a refusal to hire the two applicants who would have been hired (as

determined at compliance), but also a refusal to consider the remaining

applicant, for whom no position would have been available. We further

modify the judge’s Order to include the standard provision ordering the

Respondent to remove from its files any reference to its unlawful con-

duct and to notify the applicants that this has been done. Further, be-

cause we acknowledge that the Respondent cannot meet an obligation

to offer instatement within 14 days of this Decision and Order to appli-

cants whose identities are yet to be determined, we modify the judge’s

order to remove the 14-day time limit in that provision. See Tri-County

Paving, 342 NRLB 1213 (2004). We emphasize, however, that this

variance from our usual time limits does not give the Respondent carte

blanche to delay its offers of instatement after a compliance determina-

tion regarding applicants’eligibility for such offers.

We recognize that the complaint did not allege, and thus the Board

does not find, a “refusal to consider” violation. Thus, the cease-and-

desist order does not contain this phrase. However, the absence of this

violation does not preclude the Board from entering a complete remedy

for the “refusal to hire” violation as to all three discriminatees. This

includes an order that the Respondent consider for hire the applicant for

whom no position existed at the relevant time.

ORDER

The Respondent, Oasis Mechanical, Inc., Princeton,

Texas, its officers, agents, successors,and assigns,shall

1. Cease and desist from

(a) Refusing to hire applicants for employment be-

cause of their activities on behalf of Plumbers & Pipefit-

ters Local 344 or any other labor organization.

(b) In any like or related manner interfering with, re-

straining, or coercing its employees or applicants in the

exercise of the rights guaranteed them by Section 7 of the

Act.

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Offer employment, if it has not already done so, to

two of the following named applicants, whose identities

are to be determined in the compliance stage of this pro-

ceeding consistent with the remedy section of the judge’s

decision, in the positions for which they applied on Feb-

ruary 11, 2005, or if such positions no longer exist, em-

ployment in substantially equivalent positions: Tommy

O’Donnell, Mike Franklin, and Larry Mason.

(b) Consider the remaining applicant for future job

openings that arise in accord with nondiscriminatory

criteria, and notify the applicant, the Charging Party, and

the Regional Director for Region 17 of such openings in

positions for which the applicant applied, or substantially

equivalent positions.

(c) Make the selected applicants whole for any loss of

earnings and other benefits suffered as a result of the

discrimination against them, in the manner set forth in

the remedy section of this decision.

(d) Within 14 days from the date of this Order, remove

from its files any reference to the unlawful refusals to

hire and to consider for hire the three named applicants,

and within 3 days thereafter notify the named applicants

in writing that this has been done and that the refusals to

hire and to consider for hire will not be used against

them in any way.

(e) Preserve and, within 14 days of a request, or such

additional time as the Regional Director may allow for

good cause shown, provide at a reasonable place desig-

nated by the Board or its agents, all payroll records, so-

cial security payment records, timecards, personnel re-

cords and reports, and all other records, including an

electronic copy of such records if stored in electronic

form, necessary to analyze the amount of backpay due

under the terms of this Order.

(f) Within 14 days after service by the Region, post at

its jobsites in the State of Oklahoma, copies of the at-