Terry's Excavating, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 596 Terry’s Excavating, Inc. and International Union of Operating Engineers, Local Union 139, AFL– CIO. Cases 30–CA–14543 and 30–CA–14930 July 18, 2001 DECISION AND ORDER BY MEMBERS LIEBMAN, TRUESDALE, AND WALSH On March 13, 2001, Administrative Law Judge Jerry M. Hermele issued the attached decision. The General Counsel and the Charging Party each filed exceptions and a supporting brief. The Respondent filed an answer- ing brief to each set of exceptions. 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. The judge found, and we agree, that the Respondent did not violate Section 8(a)(3) and (1) by failing to hire union organizers William Burg, Allan Leider, and Terry Pare. The judge found that there was no direct evidence of union animus by the Respondent. The General Coun- sel and Charging Party have excepted to this finding, citing, inter alia, comments made by the Respondent’s vice president, Sally DeCicco, while interviewing Burg and Leider. Even if those comments may be construed as evidence of union animus,2 however, we agree with the judge’s alternative finding that the Respondent car- ried its burden under FES, 331 NLRB 9 (2000). The Respondent proved that it would not have hired Burg, Leider, or Pare even in the absence of their union activity because they lacked recent driving experience. 1 The General Counsel and the Charging Party have excepted to some of the judge’s credibility findings. The Board’s established pol- icy is not to overrule a 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. At fn. 1 of his decision, the judge observed that upon publication, “unauthorized changes may have been made by the Board’s Executive Secretary to the Presiding Judge’s original version.” It is the Board’s established practice to correct any typographical or other formal errors before publication of a decision in the bound volumes of NLRB deci- sions. 2 Specifically, after Burg told DeCicco that he was interested in or- ganizing the Respondent’s employees, DeCicco said, “All right, so I can be safe to say you don’t really want the job as a truck driver. You want the job just to go ahead and talk to the men to be a union and then, after they would join the union, you would quit?” When Leider stated that he wanted to talk to employees about the union, DeCicco asked him why he couldn’t do that on his own time or after the employees had “punched out.” The judge also found, and we agree, that the Respon- dent did not violate Section 8(a)(1) by interrogating em- ployee Dennis Hebbe in December 1999. During the alleged interrogation, Sally DeCicco asked Hebbe what types of trucks he had driven in his previous job. After he answered, she stated that there had been “problems with the union” and that she needed the information for her attorney. DeCicco asked no questions about union sympathies, union activities, or protected concerted ac- tivities. Thus, we agree with the judge that, in view of the nature of the questioning, it did not constitute inter- rogation which would reasonably tend to restrain, coerce, or interfere with rights guaranteed by the Act.3 Unlike the judge, however, we do not rely on the fact that Hebbe was not an open or active union supporter. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dismissed. Aaron C. Tharpe, Joyce Ann Seizer, and Benjamin Mandelman, Esqs., Milwaukee, Wisconsin, for the Acting General Coun- sel. Gregory B. Ladewski, Esq. (Davis & Kuelthau), Milwaukee, Wisconsin, for the Respondent. Michael D. Lucas, Gainesville, Virginia, for the Union. DECISION1 I. STATEMENT OF THE CASE JERRY M. HERMELE, Administrative Law Judge. As part of a “salting”2 effort beginning in June 1998, three members of the International Union of Operating Engineers, Local Union 139, AFL–CIO (the Union), attempted to obtain work at Terry’s Excavating, Inc. (the Respondent). After their efforts proved unsuccessful, the General Counsel issued a complaint on April 12, 1999, alleging that the Respondent violated Sec- tion 8(a)(1) and (3) of the National Labor Relations Act, and an amended complaint on January 28, 2000, alleging a violation of Section 8(a)(1) based on an illegal December 1999 interroga- tion of an employee. The Respondent’s April 29, 1999 and February 9, 2000 answers denied these allegations.3 3 For the same reason, there is no merit in the contention of the Gen- eral Counsel and the Charging Party that the questioning was unlawful due to the failure to give Hebbe the safeguards required by Johnnie’s Poultry Co., 146 NLRB 770 (1964), enf. denied 334 F.2d 617 (8th Cir. 1965). Where, as here, the interrogation is not “on [a] matter involving . . . Section 7 rights,” 146 NLRB at 774–775, Johnnie’s Poultry does not apply. 1 Upon any publication of this Decision by the National Labor Rela- tions Board, unauthorized changes may have been made by the Board’s Executive Secretary to the Presiding Judge’s original version. 2 This term means a union’s effort to organize a nonunion employer, the analogy being to salting a mine or introducing foreign matter therein. See Tualatin Electric, 312 NLRB 129 (1993). 3 Pursuant to FES, 331 NLRB 9 (2000), the General Counsel further alleged on December 19, 2000 that “[s]ince June 23, 1998, Respondent has hired at least one applicant in a position for which the above-named 334 NLRB No. 82 TERRY’S EXCAVATING, INC. 597 This case was then tried on December 19 and 20, 2000, in Milwaukee, Wisconsin, during which the General Counsel presented six witnesses and the Respondent presented three witnesses. The Union then filed a brief on February 2, 2001, followed by the General Counsel on February 5 and the Re- spondent on February 6.4 II. FINDINGS OF FACT The Respondent is an excavating and trucking business lo- cated in Oconomowoc, Wisconsin. Terry DeCicco has been the President since 1977 and his mother, Sally DeCicco, is the Vice President. The Company currently has four employees: two truck drivers and one foreman/operator. The Company owns three vehicles, two of which are dump trucks. Annually, the Respondent purchases and receives interstate goods and materi- als exceeding $50,000, deriving gross revenues therefrom exceeding $50,000 (G.C. Exs. 1(t), (v); R. Ex. 1; Tr. 12-13, 25, 278-80). The Respondent usually obtains new employees through newspaper advertisements. Applicants apply in person and are interviewed by Mrs. DeCicco, who then checks on their past employment and driving records. Mr. DeCicco makes the final decision on hiring (Tr. 299-301, 375, 397-98). On June 8, 1998, Mr. DeCicco sent a note to his foreman, Glen Gunderson, and employees offering a $300 bonus if they could find a new employee with a commercial driver’s license, “or if you find some one without a CDL and will try hard and gets it real soon” (G.C. Ex. 13; Tr. 60, 348-49). In hiring new employees, DeCicco knows that he has to consider applicants fairly without regard to their union status (Tr. 307). In order to be hired, an applicant must have a commercial driver’s license with re- quired endorsements, recent experience, and a good safety atti- tude and appearance. Also, the applicant must be willing to accept a starting salary of approximately $12 an hour. On oc- casion, truck drivers have been hired without any experience, but applicants with recent driving experience are preferred (Tr. 289-92, 295, 346). New employees are hired as truck drivers and within several months gradually progress to operating other machinery (Tr. 340, 429). The Respondent hired Glen Gunderson in 1989 and two equipment operators in 1993 and 1994. Then in October 1997, two truck drivers were hired with recent experience. They left in 1998 and March 1999 (R. Ex. 1; G.C. Exs. 18-19). On June 23, 1998, the Respondent placed the following newspaper ad: Truck Driver Wanted. ABCD CDL license, wages & benefits based on experience. Apply in person. Terry’s Excavating, S 15 W33816 Wolf Road, Oconomowoc. (G.C. Ex. 2). William Burg, an organizer for the Union, saw the advertisement and took five other union members with him to visit the Respondent’s office on June 25, 1998 (Tr. 83, 91- 92, 163-64, 298, 401). This was the first time multiple appli- cants arrived at once (Tr. 298). Burg and Allan Leider secretly tape recorded their visits, and all subsequent visits to the Respondent (Tr. 439-42, 446). Burg asked for some applications and whether the Company was looking for truck drivers or operators. Mrs. DeCicco responded: applicants applied and for which they were qualified.” (G.C. Ex. 1(dd)). 4 At trial, ruling was reserved on GC Exhs. 61, 62, 63, and 64, and R. Exh. 1. On January 3, 2001, all parties stipulated to the accuracy of those General Counsel Exhibits. So, they will be received. As for Respondent Exhibit 1, because no party objected, it too will be re- ceived. What we do is we always start our men as truck drivers and then we see how if they’re hot dogs and then you know. You don’t want to put them on a big piece of ma- chinery if they get in trouble you know. . .List all the stuff you do, right. And then what he does is he starts moving you up from there. . . It might be real freaky where he just might hire you on as a truck driver. You might just get only two hours a week as a truck driver and you might running a dozer thirty eight hours a week, you know. It all depends what job comes up like that. We do earth work and excavation. When Burg asked if he could fax in the application she said “it is up to you whatever you want to do” but added that her son “would like to talk to you in person” (G.C. Ex. 61). Later that day, Burg and the others sent their applications by facsimile transmission. Burg applied for the job of “truck driver/operator” and disclosed that he was currently employed as the Union’s business agent. He listed three jobs before that, as a foreman/low-boy driver from 1991-98, foreman/operator from 1988-91, and truck driver/operator from 1982-87 (G.C. Ex. 41; Tr. 93, 157-58). The next day, Mrs. DeCicco wrote Burg and the others that they needed to apply in person (G.C. Exs. 14, 20, 42). At trial, she explained that this was the Company’s customary practice and was required by the terms of the newspaper ad (Tr. 401-02). So, Burg returned on June 29, with Leider and Terry Pare, and they filled out job applications in person. Pare applied for the job of “truck driver” and listed his current job as a union organizer and the past jobs of mechanic/crane operator/truck driver from 1989-95 with Price Erecting, and oiler/crane opera- tor from 1986-89 (G.C. Ex. 8). Leider applied for the job of “trucker or operator,” listed his current job as union organizer, and listed the past jobs of operator from 1994-97, operator in 1994, and trucker from 1989-94 (G.C. Ex. 51). Burg simply resubmitted his previous application (G.C. Ex. 11). Mrs. DeCicco then interviewed each man individually. First, ac- cording to Mrs. DeCicco, Leider was polite and said that he would take a pay cut from his current union job. When queried on that, he explained that he would be supplementing his in- come with the Respondent’s job and would be able to talk to the employees about joining the Union. Mrs. DeCicco then asked him “why don’t you do it on your own time?” Leider explained “I can do that too . . . but I would still like to supple- ment my income” (G.C. Ex. 63). Mrs. DeCicco concluded, however, that Leider was primarily an operator, not a truck driver. Also, she was unable to track down the one employer that Leider listed for the “trucker” position he held from 1989- 94 (Tr. 404-09). Next, she interviewed Burg, whom she de- scribed as being disrespectful and sarcastic (Tr. 409-10, 421). Burg denied being rude (Tr. 152). Burg said he was currently making $20 or $25 an hour with the Union, whereupon Mrs. DeCicco asked why he was applying. Burg replied “[w]ell it DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 598 has a chance of maybe becoming union here and making more money.” Then, she said: All right, so I can be safe to say you don’t really want the job as a truck driver. You want the job just to go ahead and talk to the men to be a union and then, after they would join the union, you would quit? Burg denied that he would quit, but when pressed on how long he would expect to stay, said “I don’t know” (G.C. Ex. 62). Finally, she interviewed Pare, whom Mrs. DeCicco also de- scribed as being rude (Tr. 411). Mrs. DeCicco later discussed the three applicants with her son. Mr. DeCicco decided against hiring Burg because he had no recent truck driving experience, was asking for too much money compared to his Company’s starting rate of $12 an hour, and had a bad attitude with his mother (Tr. 293-95). Regarding Pare, he called his references but concluded that he did not have current driving experience (Tr. 305-07). Mrs. DeCicco tried to locate the one employer Leider listed for the past job of truck driver, but was unable to do so. Thus, he rejected Leider too (Tr. 310-11). Instead, Mr. DeCicco hired Nathan Anderson on June 29, who had applied on June 26. Anderson’s current job was a truck driver since 1998, including dump trucks. Anderson had no experience as an equipment operator and had several driving violations from 1993 to 1997. But according to Mr. DeCicco, Anderson’s current license was good and he had current truck driving experience (G.C. Ex. 31; Tr. 314-16). However, Anderson worked for only two weeks (G.C. Ex. 37). So, the Respondent posted an ad with the Waukesha County Technical College on July 8, 1998 for a “dump truck driver.” The ad directed applicants to apply in person, required a “clean CDL drivers license,” and described the job as follows: Drive dump truck with fill/stone and do miscellaneous work on job site. Be willing to learn to operate equipment for more wages. (G.C. Exs. 3-4; Tr. 15-16, 29). Larry Wisniewski applied for the job on July 9, listing his current job as a driver since 1996 (G.C. Ex. 17). Mr. DeCicco hired him on July 13 (R. Ex. 1; Tr. 319-20). Leider learned of the posting too and he wrote a letter to the Respondent on July 28 stating that he, Burg, and Pare were still interested in the job (G.C. Ex. 43). And on July 29, Burg wrote another letter stating that although he requested a $20-an-hour wage during his interview, he “would consider any reasonable offer” (G.C. Ex. 44). The Respondent never con- tacted any of them, and on December 28, 1998, the Union filed a charge against the Respondent claiming that it excluded union applicants from the hiring process (G.C. Ex. 1(a)). The Respondent ran identical ads in two newspapers on March 29, 1999: DUMP TRUCK DRIVER Wages based on experience. Must have “ABCD” license. Yr round work + benefits. Apply in person: Terry’s Excavating S15 W33816 Wolf Road Oconomowoc, WI (G.C. Exs. 5-6). In response, Burg, Leider and Pare filed appli- cations with the Respondent that same day, listing no additional experience or new substantive information (G.C. Exs. 45, 52, 55). Mrs. DeCicco was not there that day and no further inter- views were conducted (Tr. 105-07, 178-82, 217-18). In the spring of 1999, Mrs. DeCicco attended an employment law seminar run by the Metropolitan Building Association. Thereafter, she redesigned the Company’s application form to state that it was good for only 30 days, in an effort to protect the Company if it hired new applicants over those filing older applications (Tr. 301-02, 358, 363, 412). On April 2, 1999, Mrs. DeCicco sent letters to Burg, Leider, and Pare that the Respondent had “reorganized” and that, in view of the coming spring season, they needed to “reapply” on April 9 at 9:30 a.m., if they were still interested (G.C. Ex. 46; Tr. 183, 219). Leider responded on April 12 that they had unfortunately received the invitation too late but were still interested (G.C. Ex. 47). Chris- tian Lee applied for the job on April 21. He had worked as a driver from May 1998 to January 1999, and from 1996 to 1997 (G.C. Ex. 21). He was hired on April 22 because of his recent truck driving experience but quit after just two days (R. Ex. 1; G.C. Ex. 36; Tr. 322-24). On May 10, the Respondent posted an ad with the Depart- ment of Workforce Development seeking a dump truck driver “doing construction work, delivering produce to job, holding transit, basic duties on a construction site.” The ad required “experience” as a dump truck driver and a CDL (G.C. Ex. 49; Tr. 110-11). Timothy Frank applied for the job on May 10, listing driving experience from 1996 to November 1998 (G.C. Ex. 22). Mr. DeCicco hired him and he worked for two months (R. Ex. 1; Tr. 325-26). Burg, Leider, and Pare reapplied with the Respondent on May 10 and 11 (G.C. Exs. 48, 53, 56). Ac- cording to Leider, Mrs. DeCicco was “short with us” during this visit and voices were raised (Tr. 161, 185-86). On May 26, Dennis Hebbe, Jr. applied for the job, and he worked for the Respondent for six months. Mr. DeCicco hired Hebbe because of his recent dump truck driving experience (G.C. Ex. 26; Tr. 252-55, 326-27). On June 1, 1999, the Respondent ran another newspaper ad for a dump truck driver, with “wages based on experience” (G.C. Ex. 7). And on June 3, it posted an ad similar to the May 10 ad, seeking an experienced dump truck driver (G.C. Ex. 50). Burg, Leider, and Pare each submitted yet another application on June 18 and June 21 pursuant to these ads (G.C. Exs. 9, 10, 54). This time, Mrs. DeCicco initially declined to let them fill out another application, but she relented. Then, she got upset and asked them if they would work ten or twelve-hour days without a break (Tr. 114-15, 222-26). In December 1999, Mrs. DeCicco asked Hebbe what type of trucks he had driven in his previous job. She added that she needed this information because there “had been problems with the union. . . .” (Tr. 261-62). In February 2000, Dennis Stitz, Jr. was hired. He had driving experience in former jobs from 1991 to the present (G.C. Ex. 39; Tr. 327). Stitz left in mid- 2000, at which point Rick Hoffman replaced him. Hoffmann TERRY’S EXCAVATING, INC. 599 likewise had driving experience from 1998 to the present (G.C. Ex. 40; Tr. 328-29). III. ANALYSIS Interestingly, the General Counsel does not allege that the Respondent failed to consider the three union applicants for hire; only that it illegally refused to hire them because of their union status.5 To establish this, the General Counsel must show: (a) that the Respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (b) that the applicants had experience or training relevant to the announced or generally known requirements of the positions for hire, or in the alternative, that the employer has not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for discrimination and (c) that antiunion animus contributed to the decision not to hire the applicants. If all three factors are established, the burden then shifts to the Respondent to show that it would not have hired the applicant(s) even if they were nonunion. In this re- gard, the Respondent also has the burden to show that the ap- plicants were unqualified for the sought position(s), or that others, who were hired, had superior qualifications. FES, 331 NLRB 9 (2000). With respect to the first factor, it is clear that the Respondent was hiring when the union applicants applied for work in June 1998 and when they reapplied thereafter. Indeed, nonunion applicants were selected in 1998, 1999, and 2000 in response to the various advertisements. The second factor is also satisfied. At the outset, however, it is concluded that the Respondent was hiring a truck driver, not the more advanced position of opera- tor, as the General Counsel contends. Although Mrs. DeCicco told Burg and Leider during their first visit on June 25, 1998 that a new employee may be moved up to operate more ad- vanced machinery, every single job advertisement placed by the Respondent—on June 23, 1998, July 8, 1998, March 29, 1999, May 10, 1999, June 1, 1999, and June 3, 1999—specifically requested either a “truck driver” or “dump truck driver.” Moreover, Mr. DeCicco and foreman Glen Gunderson credibly testified that new employees are hired as truck drivers and thereafter gradually progress to operate machinery, but then only after a period of several months. But applying the literal requirements of the second FES factor, the three union appli- cants had “experience or training relevant” to the Respondent’s advertised truck driver position. In this regard, Burg drove a dump truck back in the mid-1980s, Leider did so from 1989 to 1994, and Pare did so from 1989 to 1995. Further, Burg, Lei- der, and Pare all had the requisite driving licenses. Upon a thorough review of the evidence, however, the Pre- siding Judge concludes that union animus was not a factor in the Respondent’s decision to reject the three union applicants. First, despite their prolific tape recording of the elderly Mrs. DeCicco’s remarks, there is no direct evidence that the Re- spondent harbored any animus against either unions generally or Local 139 in particular. Second, the December 1999 conver- sation between employee Hebbe and Mrs. DeCicco did not constitute an illegal interrogation. Mrs. DeCicco merely asked Hebbe what type of trucks he had driven in his previous jobs, and after Hebbe responded she stated that she needed this in- formation for her lawyer because there “had been problems with the union. . . .” Mrs. DeCicco made her comment after Hebbe answered her inquiry. Further, the information sought by Mrs. DeCicco had nothing to do directly with unions, and her question was general and nonthreatening. Further, Hebbe was not an open or active union supporter. Therefore, under all the circumstances, this conversation does not establish union animus and it does not constitute a separate violation of Section 8(a)(1), as alleged by the General Counsel. See Central Trans- port, Inc. v. NLRB, 997 F.2d 1180, 1189–1190 (7th Cir. 1993); Sunnyvale Medical Clinic, 277 NLRB 1217 (1985). 5 There were other union applicants who unsuccessfully applied for jobs with the Respondent that are not the subject of the General Coun- sel’s complaint. The General Counsel next alleges a series of discriminatory changes in the Respondent’s hiring practices indicating union animus. First, the General Counsel and the Union point to the Respondent’s June 8, 1998 note to its employees promising a bonus if they could find “someone with out a CDL and will try hard and gets it real soon” as evidence of the Company’s will- ingness to hire drivers without any experience. Presumably this argument encompasses the notion that any driver without a license has no experience. But neither the General Counsel nor the Union confronted any Respondent witness with this dichot- omy. Moreover, the Presiding Judge finds it just as likely from the silent record that the Respondent was not altering its re- quirement that drivers have recent experience. Further, it is significant that this June 8 note predated the Union’s salting effort. Second, the General Counsel is mistaken that the Re- spondent “inexplicably altered the application process” by re- jecting the June 25, 1998 faxed applications in which the union applicants first revealed their union status. It is true that Mrs. DeCicco originally had no objection to Burg’s request to fax in his completed application but she added that a personal inter- view would be required. Further, there is no evidence that the Respondent had accepted faxed applications previously or since, from any union affiliated or nonunion applicant. Indeed, the June 23, 1998 newspaper ad responded to by Burg and the others specifically required the applicant to “apply in person.” In sum, Mrs. DeCicco misspoke when she told Burg that he could fax in his application, and her subsequent request that the union applicants apply in person does not constitute evidence of a nefarious purpose. Third, it is alleged that the Respondent suspiciously changed its job advertisement from “truck driver” in June 1998 to “dump truck driver” in July 1998, presumably to exclude the union applicants. But the Presiding Judge does not view this change as significant. Indeed, the Respondent owns three trucks, two of which are dump trucks. Fourth, the General Counsel is mistaken that Mrs. DeCicco’s April 2, 1999 letter to the union applicants asking them to reapply because of the Company’s “reorganization” is yet another change in the company’s hiring process and is thus evidence of union animus. Rather, this letter seems to have prompted by the Company’s change in its application forms, which now stated that the forms were good for only 30 days. While the Union contends that the 30-day rule was adopted for the proscribed purpose of allowing the Respondent “to wait the union applicants out,” the timing DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 600 thereof does not support such a conclusion. Indeed, this new application form was not adopted until nearly one year follow- ing the alleged discriminatees’ initial June 1998 applications. Rather, a close reading of the record suggests that the Respon- dent adopted this new application in a rote fashion, simply fol- lowing advice Mrs. DeCicco received in a spring 1999 siminar. Moreover, if Mrs. DeCicco truly wanted to “wait out” the union applicants’ applications, she certainly did not have to reinvite them to apply yet again in mid-1999. The General Counsel next alleges several instances of dispa- rate treatment of the union applicants. First, it is pointed out that Mrs. DeCicco typed notes of her interviews with only un- ion applicants and not with any other applicants (G.C. Exs. 9, 10, 24, 27, 34). Aside from the irony of not condemning simi- lar transcriptions by the Union when they secretly recorded meetings with Mrs. DeCicco, the Presiding Judge finds no fault with Mrs. DeCicco typing her notes of interviews with union applicants. Significantly, she only did this in June 1999, fol- lowing the General Counsel’s April 1999 issuance of his first complaint against the Respondent. Further, she also typed one set of interview notes of a nonunion applicant in June 1999 (G.C. Ex. 35). Therefore, it cannot be concluded that Mrs. DeCicco’s typewritten notes indicate union animus. Second, it is alleged that Mrs. DeCicco delayed in checking the references of Burg and Pare, thus indicating that the Respondent did not seriously consider them for employment. Regarding Burg’s and Pare’s June 29, 1998 applications, it is true that, in attached notes, Mrs. DeCicco wrote “no dump truck verification 7/15/98” for Pare (G.C. Ex. 8), and “no verification of dump truck driver 7/19/98” for Burg (G.C. Ex. 11). But there are other undated notes indicating that she inquired about Pare’s and Burg’s past employers, which could just as likely be closer in time to their application dates. Further, the General Counsel failed to elicit at trial any testimony from Mrs. DeCicco that she unduly delayed checking their references. Thus, these sin- gle notations by Mrs. DeCicco do not constitute significant evidence of delay. Third, it is alleged that Mrs. DeCicco’s July 28, 1998 statement that Leider’s driving license checked out okay was more disparate treatment because the Respondent’s established policy is to check an applicant’s driving record after he is hired (G.C. Ex. 64). But Mr. DeCicco testified that his mother takes care of checking driving records (Tr. 375), and she testified that she “usually” does the check after the appli- cant is hired (Tr. 397). Also, there is no evidence that any other union applicant’s driving record was checked quickly, notwith- standing Mrs. DeCicco’s June 29, 1998 interview query of Burg whether she could check his driving record. Thus, on the whole, it cannot be concluded that the Respondent systemati- cally attempted to torpedo union applications with hurried driv- ing license checks. The General Counsel next points to two miscellaneous ex- amples of animus. First, it is alleged that Mrs. DeCicco’s per- sistent questioning of Burg and Leider during their June 29, 1998 interviews about their reasons for applying constitutes animus. On the contrary, a careful reading of both transcripts (G.C. Exs. 62-63) yields the conclusion that the elderly Mrs. DeCicco was simply naïve about why a union employee mak- ing $25 an hour would be interested in a $12 an hour job when he could talk to the Respondent’s employees about the Union before or after work. And second, the General Counsel faults the Respondent’s April 29, 1999 answer, in which it offers the following affirmative defense: applicants William Burg, Allan Leider and Terry Pare tar- geted Terry’s Excavating Inc. for unionization purposes only. None of the three applicants expressed an interest in long- term employment with Terry’s Excavating. (G.C. Ex. 1(1)). Specifically, it is alleged that the above lan- guage “for unionization purposes only” constitutes evidence of animus. But the General Counsel is stretching here, and its cited case, Sommer Awning Co., 332 NLRB 1318 (2000), is inapposite because that Respondent stipulated that it refused to hire union applicants because of their union status. Finally, the General Counsel alleges animus by the two pri- mary Respondent witnesses at trial. With respect to Mrs. DeCicco, she accused Burg of being belligerent during his in- terview, thus allegedly constituting a pretextual reason for not hiring him. True enough, Burg denied being rude and the dry transcript of the June 29, 1998 interview does not reveal any unusual emotion by either Burg or Mrs. DeCicco (G.C. Ex. 62). But Mrs. DeCicco also accused Pare of rudeness and he did not deny this allegation. Further, Mrs. DeCicco testified that Lei- der was polite and that transcript does not rebut her description. Finally, there is abundant evidence that things got testy be- tween Mrs. DeCicco and the union applicants during their 1999 visits. Thus, it is just as likely that Mrs. DeCicco was referring to these later occasions. So, it cannot be concluded that Mrs. DeCicco’s testimony is evidence of a pretextual reason to reject the union applicants. Next, the General Counsel contends that Mr. DeCicco’s trial testimony is proof of his union animus. Specifically, he testified, in response to a question about his view of union organizers applying for work, “[i]t’s something that I would have to deal with, it wasn’t my favorite thing in life, no” (Tr. 307). But the Presiding Judge carefully observed Mr. DeCicco at trial and his answer was straightforward and devoid of any anger. As for the claim that Mr. DeCicco was belligerent when questioned by union attorney Michael Lucas, Mr. DeCicco’s testiness had as much to do with counsel’s per- sistent mispronunciation of his name. In summary, there is no direct evidence of union animus by the Respondent. There was also no separate violation of Sec- tion 8(a)(1) proven in this case. Further, regarding circumstan- tial evidence, the General Counsel has failed to show that the Respondent treated union applicants in a disparate manner, created pretextual reasons for not hiring them, or revealed un- ion animus in its pretrial pleadings or witnesses’ trial testi- mony. Therefore, because the General Counsel has failed to establish any union animus, he has also failed to meet his bur- den of proof under FES regarding an illegal rejection of union job applicants. Moreover, even if animus had been proven, the Respondent has adequately established that the employees it hired begin- ning in June 1998 and thereafter had qualifications superior to union applicants Burg, Leider, and Pare. The plain fact is that the Respondent sought truck drivers with recent driving experi- ence and none of the three union applicants fit the bill. Indeed, TERRY’S EXCAVATING, INC. 601 since October 1997, which is before the union salting effort began, the Respondent has hired only truck drivers, and all of these employees possessed recent driving experience. Nor does the evidence establish that this threshold was a subterfuge for avoiding union applicants. While the driver’s job potentially could transform into the more advanced operator position, for which the union applicants were apparently qualified, the Pre- siding Judge concludes that the Respondent has met any burden in explaining the exact position it was seeking to fill and why, notwithstanding the second-guessing of the General Counsel and the Union regarding the Company’s operations. Accord- ingly, the General Counsel’s complaint will be dismissed. IV. CONCLUSIONS OF LAW 1. The Respondent, Terry’s Excavating, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. 2. The Union, International Union of Operating Engineers, Local Union 139, AFL–CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent did not violate Section 8(a)(1) of the Act in December 1999 by illegally interrogating an employee. 4. The Respondent did not violate Section 8(a)(1) and (3) of the Act by failing to hire William Burg, Allan Leider and Terry Pare since June 1998, and by excluding union-affiliated appli- cants since then. ORDER Accordingly, IT IS ORDERED6 that General Counsel Exhib- its 61, 62, 63, and 64, and Respondent Exhibit 1 ARE RECEIVED IN EDVIDENCE. IT IS FURTHER ORDERED that the General Counsel’s complaint is dismissed. 6 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.