JS Mechanical, Inc.

JS MECHANICAL, INC. 353 JS Mechanical, Inc., and Sheet Metal Workers’ In- ternational Association, Local Union No. 19. Case 4–CA–29973 March 3, 2004 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On December 10, 2001, Administrative Law Judge Paul Bogas issued the attached decision. The Charging Party filed exceptions and a supporting brief. The Re- spondent filed answers to the Charging Party’s excep- tions and a brief in support of the judge’s decision. 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. We agree with the judge’s dismissal of the complaint in its entirety including, for reasons more fully discussed below, the allegations arising from statements by the Respondent’s superintendent, Matthew Negrotti, on July 13, 2000,2 and from the Respondent’s decisions not to hire organizers Patrick Keenan and Robert DiOrio.3 I. NEGROTTI’S JULY 13 STATEMENTS The Respondent fabricates, installs, and services heat- ing, ventilation, and air-conditioning (HVAC) systems. On July 13, Keenan and six other union organizers— some wearing union hats—came to the Respondent’s office to apply for advertised positions. The Respon- dent’s office manager, Diane Sulzbach, or another office 1 The Charging Party has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all of 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. 2 Unless otherwise indicated, all dates are 2000. 3 In agreeing with her colleagues that the judge correctly dismissed the 8(a)(1) allegation arising from the Respondent’s calling the police to evict union organizers on July 13, Member Liebman adopts the judge’s analysis only insofar as it is based upon the disruptive behavior of the organizer applicants, see Heiliger Electric Corp., 325 NLRB 966, 967–968 (1998), and not insofar as it relies on their intentions. In addition, Member Liebman would not rely on Yellow Freight Systems, 313 NLRB 309, 329–332 (1993), cited by the judge. That case is cited for the administrative law judge’s dismissal of an allega- tion that the employer unlawfully evicted a union representative from its premises. Because the Board’s decision did not mention the issue and the General Counsel apparently filed no exceptions, it is not clear that the finding was reviewed by the Board and thus that the judge’s ruling is actually precedential. worker, told them that the Respondent required appli- cants to set up an appointment by telephone before com- ing in. When the organizers again asked to fill out appli- cations, the Respondent’s superintendent, Matthew Ne- grotti, responded, “Why would you want to? We’re an open shop . . . I can see by the gentleman’s hat, he’s a union worker.” The Respondent’s project manager, Carl Polichetti, who was also present, repeated that the organ- izers would have to telephone first, but the organizers refused to leave. The Respondent’s president, James Smith, also explained the “telephone first” policy and threatened to call the police if the organizers persisted. Because of the tense atmosphere and the organizers’ re- fusal to depart, Smith had Sulzbach call the police. The organizers departed. The judge declined to decide whether the version of Negrotti’s statements that he credited—“Why would you want to [apply for work]; we’re an open shop . . . I can see by the gentleman’s hat, he’s a union worker.”—was unlawful because those statements were not alleged as unlawful in the complaint or in the General Counsel’s brief, and their meaning was not fully litigated.4 In its brief in support of exceptions, the Charging Party argues, inter alia, that the judge should have found that the statements violated Section 8(a)(1). We find it unneces- sary to decide whether Negrotti’s statements, as credited, were closely related to the complaint allegations and fully litigated, because we conclude that, in any case, those statements were lawful. We agree with the judge that Negrotti’s statements conveyed surprise that the organizers wanted to work for the Respondent, and we find that they are not coercive. See, e.g., Colden Hills, Inc., 337 NLRB 560 (2002). Thus, Negrotti made the statements while the Respon- dent’s office staff was explaining the correct application procedure to the organizers, not discouraging them from applying. Cf. J. L. Phillips Enterprises, 310 NLRB 11, 13 (1993). And, to the extent the tone of the conversa- tion became hostile, that hostility was prompted by the organizer applicants’ crowding into the Respondent’s offices and refusing to abide by the Respondent’s appli- cation process. Under these circumstances, we find that Negrotti’s statements would not have reasonably tended to coerce or interfere with the organizer applicants’ exer- cise of their Section 7 rights. 4 The complaint alleges that “[o]n or about July 13, 2000, Respon- dent by Matthew Negrotti . . . told employee-applicants that Respon- dent did not want ‘union guys’ at the Facility, thereby indicating that it was futile for [them] to apply” and that “[b]y the conduct described above . . . Respondent has been . . . in violation of Section 8(a)(1) of the Act.” The judge discredited the union organizers’ testimony that Ne- grotti stated that the Respondent did not want “union guys.” 341 NLRB No. 46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 354 We respectfully disagree with the view that Negrotti’s question was “rhetorical” and that this establishes its unlawfulness. Even if the question (“why would you want to [apply for work]”) was indeed a rhetorical one, we do not believe that this would establish a violation. The rhetorical question was simply reflective of Ne- grotti’s surprise that union members were applying for work at a nonunion shop. Neither the question nor the rest of the statement suggested that the Respondent would not hire union members because of their union affiliation. Our colleague errs in her effort to analogize this situa- tion to a hypothetical one involving a woman who ap- plied for work. In her hypothetical, the shop is “all male,” i.e., women will not be hired. In the instant case, an open shop is simply one in which there is no bargain- ing representative. Obviously, members and nonmem- bers alike can work in a nonunion shop. There is no evi- dence that the Respondent would not permit members to work in its nonunion shop. Further, even if Negrotti’s comments were ambiguous, there would not be a violation. Negrotti followed his statement up with a strenuous denial that it was meant to indicate that the organizers would not be hired because of their union status.5 Our colleague nonetheless asserts that Negrotti’s aggressive manner undercuts his denial. We disagree. Rather, we find that the emphatic manner of Negrotti’s denial more reasonably would be viewed as strengthening it. Nor do we agree with the dissent that the failure of the president or project manner to clarify any ambiguity in Negrotti’s initial statement supports a violation. To the contrary, the significant point is that Negrotti—who ut- tered the statement—issued an emphatic denial and nei- ther manager contradicted it. For all of these reasons, we conclude that the state- ments did not violate Section 8(a)(1).6 5 Specifically, Negrotti testified that he yelled out “.That’s not what I said . . . [and] if you’re telling me that that’s what I said, I’m calling you a liar.” 6 Unlike the majority and the judge, Member Liebman would find that the statements made by Negrotti would reasonably tend to interfere with the organizer applicants’ exercise of their Sec. 7 rights. Negrotti did not testify that he was merely expressing surprise, and the Respon- dent’s own witness, Polichetti, testified that Negrotti’s statements were “rhetorical.” Unlike an innocent inquiry made in the course of a genu- ine dialogue, as in Colden Hills, Inc., supra, 337 NLRB at 562–563, a rhetorical question is not posed in expectation of a response but rather for effect. Although the statements here arguably may have been am- biguous—signifying either the Respondent’s unwillingness to hire union organizers or, as the majority suggests, the Respondent’s doubt that the organizers could have a genuine interest in working for a non- union employer—the rhetorical effect would reasonably have been to suggest that, in the Respondent’s view, the organizer applicants are not suited to work at the Respondent’s “open shop” facility because of their II. THE RESPONDENT’S HIRING DECISION Two months after the organizers’ initial visit to the Re- spondent’s office, Keenan and another union organizer, Robert DiOrio, called and scheduled interviews for Sep- tember 15. They completed applications and were inter- viewed by Polichetti—Keenan at length and DiOrio until he ended the interview peremptorily—but were not sub- sequently contacted. Polichetti discussed the organizers’ applications with Smith after the interviews, and Smith compared their applications with that of Matthew Cahill, whom Smith interviewed 1 month later and ultimately hired for the position. Smith testified that he hired Cahill for the position of fabricator and commercial installer because he was a certified welder, had more current HVAC installation experience, and, in Smith’s view, had better overall qualifications for the job. We agree with the judge that there is no evidence that the Respondent harbored antiunion animus or was moti- vated by animus in its treatment of applicants Keenan and DiOrio.7 We also agree with his finding that the Respondent did not exclude Keenan and DiOrio from its hiring process, and, thus did not unlawfully refuse to consider them.8 With respect to the refusal to hire allegations, we find that, even assuming that the Respondent was unlawfully motivated, the evidence as found by the judge estab- union status. (Suppose, for example, a woman applied for the job and was told, “Why would you want to apply? We’re an all male shop.”) Although during the incident Negrotti strenuously denied that his comments indicated that the organizers would not be hired because of their union status, his aggressive manner undercuts the denial. More- over, neither the Respondent’s president nor the project manager joined in Negrotti’s denial, although both were present during the confronta- tion. 7 Specifically, the judge found that Negrotti’s July 13 statements were not evidence of animus and, in any event, could not have moti- vated the hiring decision because he had no part in it. In addition, the judge declined to infer unlawful motive from Polichetti’s interviews with the organizers, which the judge found were genuine, or from the Respondent’s multiple reasons for its hiring decision, which the judge found were not inconsistent or demonstrably false and were supported by the record. The judge also found that the Respondent’s 1-month delay in filling the position, in the absence of evidence that such a delay was unusual in the Respondent’s operations, did not support an infer- ence of animus. Although Member Liebman generally agrees with the judge’s find- ings, she disagrees with the implication that the absence of evidence that Negrotti participated in the hiring decision is fatal to an inference of unlawful motivation based on his antiunion statements. See GM Electrics, 323 NLRB 125, 125–126, 128 (1997); but cf. Brown & Root Industrial Services, 337 NLRB 619 (2002). 8 In agreeing with the judge and her colleagues’ dismissal of this al- legation, Member Liebman does not rely on the finding that there is no evidence of antiunion animus, but only on the judge’s finding that the organizer applicants were not excluded from the hiring process. FES, 331 NLRB 9, 15 (2000), supplemental decision 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002). JS MECHANICAL, INC. 355 lishes, although he did not specifically so find, that the Respondent met its burden to prove that it would have hired Cahill instead of the organizers based on qualifica- tions alone. FES, 331 NLRB 9, 12 (2000), supplemental decision 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002). We find the Charging Party’s arguments to the contrary to be without merit.9 Smith, who interviewed Cahill and made the hiring de- cision, testified that he chose Cahill because of his piping and wiring experience, because he had more recent over- all HVAC experience, and because he was a certified welder. In exceptions, the Charging Party asserts that, even assuming that the Respondent was in fact looking for a certified welder, it failed to show that Cahill’s welding skills were superior to Keenan’s and DiOrio’s. But, Smith specifically testified that he needed a certified welder for an upcoming project. Cahill clearly had that certification, which the Respondent believed that Keenan and DiOrio lacked. According to Smith’s uncontroverted testimony, the Respondent was in imminent need of a certified welder.10 In addition, the Charging Party ar- gues that Keenan and DiOrio were more well-rounded HVAC mechanics than Cahill in part because of the length of time they had worked in the field. But Smith, who interviewed Cahill himself, testified that he selected Cahill particularly for his piping and wiring skills. When Polichetti asked Keenan and DiOrio during their inter- views whether they had refrigeration piping skills, they stated that they did not, and Keenan indicated when asked that he did not have high voltage wiring skills. Although Keenan testified that he had substantial experi- ence, including as a foreman, working in the HVAC field for employers who did all aspects of that work, he did not specifically testify that he had, or told Polichetti dur- ing his interview that he had, piping and wiring experi- ence.11 Finally, it is undisputed that Keenan had not 9 Member Schaumber would not reach the question whether the Re- spondent has shown that it would have made the same hiring decision absent the organizers’ protected activity. In dismissing the refusal-to- hire allegation, he relies solely on the judge’s finding that the General Counsel failed to establish antiunion animus. 10 DiOrio was not asked at the hearing whether he possessed a weld- ing certification at the time of his interview, and Polichetti did not indicate that he asked DiOrio during the interview. However, Smith’s testimony indicates that he chose Cahill over DiOrio because Cahill was certified, and the General Counsel, while asserting that DiOrio was at least as qualified in welding as Cahill, does not argue that he was a certified welder. Although Keenan testified that he informed Polichetti at his interview that he could quickly be recertified as a welder, the judge credited Smith’s testimony that Polichetti did not tell him this and that Smith believed that recertification would take 1 year. 11 Neither Keenan’s nor DiOrio’s application is in evidence; more- over, Keenan’s resume does not indicate the particular types of work he performed for past employers. According to Polichetti, Keenan stated done full-time HVAC work for at least 8 years.12 Under these circumstances, we find that the Respondent hired Cahill rather than the organizer applicants based on his qualifications and would have made the same decision even in the absence of the organizers’ protected activity. ORDER The complaint is dismissed. Richard Wainstein, Esq. and Amy L. Weiss, Esq., for the Gen- eral Counsel. Michael J. Wietrzychowski, Esq. (Cureton Caplan Hunt Scara- mella & Clark, P.C.), of Delran, New Jersey, for the Re- spondent. Bruce E. Endy, Esq. (Spear, Wilderman, Borash, Endy Sper & Runckel), of Philadelphia, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE PAUL BOGAS, Administrative Law Judge. This case was tried in Philadelphia, Pennsylvania, on July 12, 2001. The Sheet Metal Workers’ International Association, Local Union No. 19 (the Union or Local 19) filed the original charge on November 28, 2000, and the amended charge on January 4, 2001. The Regional Director for Region 4 of the National Labor Relations Board issued the complaint on February 28, 2001. The com- plaint alleges that JS Mechanical, Inc. (the Respondent) vio- lated Section 8(a)(1) and (3) of the Act, by refusing to hire and consider for hire Patrick Keenan and Robert DiOrio because they are members of the Union. The complaint also alleges that the Respondent violated Section 8(a)(1) of the Act by telling union applicants that it did not want “union guys” at the facility and by threatening to call the police if the union applicants did not leave the facility. The Respondent filed an answer and amended answer, in which it denied the substantive allegations of the complaint. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the parties, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation, is a heating and air- conditioning contractor with an office and principal place of business in Ivyland, Pennsylvania. During the year prior to the issuance of the complaint, the Respondent purchased goods valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania in the course of its business. The Respondent admits and I find that it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), when asked that he did have some gas piping experience, but had not done that work in several years and might need retraining. 12 Keenan testified that he had been doing part-time HVAC work during his 8 years as an organizer, but there is no indication that he told Polichetti this, and it is not apparent from his resume. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356 and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent is a contractor that fabricates, installs, and services heating, ventilation, and air-conditioning (HVAC) systems. It has a facility in Ivyland, Pennsylvania, that includes an office and sheet metal fabrication shop. James Smith has been the Respondent’s president and owner since 1990. At the time of the alleged violations, the Respondent employed 15 to 16 persons to do HVAC work. The Respondent has never been a signatory to a collective-bargaining agreement with a union, and its work force has never been represented by a union. The incident on July 13, 2000 For a 2-week period beginning on July 11, 2000, two help- wanted advertisements submitted by the Respondent appeared in a local newspaper. One read: HVAC Service Tech Excellent Wages & Benefits Call 8–4:30 Daily [Respondent’s Telephone Number] The other read : HVAC Commercial Construction Foreperson Excellent Wages & Benefits 8–4:30 Daily [Respondent’s Telephone Number] On the afternoon of July 13, 2000, seven union officials ar- rived together at the Respondent’s facility after seeing or hear- ing about the help-wanted advertisements. Although the adver- tisements did not reveal the name or address of the Respondent, these individuals discerned that the Respondent had placed the advertisements and found their way to the Respondent’s facil- ity. None of the individuals called the telephone number listed in the advertisement to schedule an appointment prior to ap- pearing at the facility on July 13. The seven union officials were: Patrick Keenan (P. Keenan) and Charles Burkert, organ- izers with Local 19; Fred Hammel and Bill Reese, organizers with the roofers’ union; Steven Keenan (S. Keenan), an organ- izer with the plumbers’ union; Fred Cosenza, a representative of the Philadelphia building trades; and Jimmy Cunningham, an organizer with the insulators union. Burkert was wearing a hat on which appeared the statement “Sheet Metal Workers Local 19.” Prior to arriving at the Respondent’s facility, the same group had visited two roofing companies to apply for jobs that were unrelated to HVAC systems. P. Keenan led the group of applicants into a small waiting area adjacent to the Respondent’s office, halting near the en- trance to the office itself. He told [the] staff of the Respondent that he and the others wished to complete applications for the jobs advertised in the newspaper. One of the women working in the office informed P. Keenan that the Respondent accepted applications only from persons who had first telephoned to schedule an appointment and that he and the other organiz- ers/applicants would have to call to schedule appointments before they would be allowed to complete applications. Matt Negrotti Jr., a superintendent with the Respondent, was also present in the office when the organizers/applicants arrived and one of those individuals told Negrotti that they wanted to fill out applications. Negrotti responded, “Why would you want to; we’re an open shop.” An applicant asked Negrotti what he meant by that, and Negrotti pointed to Burkert’s union hat and said, “I can see by the gentleman’s hat, he’s a union worker.” Also present was Carl Polichetti, a project manager for the Respondent. Polichetti explained to the applicants that they would have to call for an appointment if they wished to com- plete applications. Either Negrotti or Polichetti informed Smith that a “bunch of guys” were in the “vestibule” asking for employment applica- tions. Smith approached the organizers/applicants and told them that they would have to call for interviews. The organiz- ers/applicants insisted that they be permitted to complete appli- cations. Smith explained that the Respondent’s policy was to accept applications only from persons who had first telephoned to schedule an appointment, and that the organizers/applicants would have to call for interviews if they wanted to submit ap- plications.1 Although the organizers/applicants had now been informed by three people that they would have to call to sched- ule appointments if they wanted to complete applications, the organizers/applicants continued to ask for applications and declined to exit. Diane Sulzbach, an officer manager who was present, testified that the organizers/applicants gave the impres- sion that they would not leave “until they got what they came for,” that matters became tense, and that she was “freaked out” and “scared.” One of the organizer/applicants, Burkert, admit- ted that he became angry and that he raised his voice to the Respondent’s officials. When the organizers/applicants de- clined to depart, Smith said, “Listen, if you don’t leave, I’m going to have to call the Police.” At least some of the organiz- ers/applicants still declined to exit the premises, and Smith directed Sulzbach to call the police, which she did. The organ- izers/applicants apparently left the building at about this time. The encounter lasted 10 minutes or less. Soon after exiting, Patrick Keenan attempted to call the Re- spondent from outside the office to schedule an appointment, but the phone line was busy. During the period immediately after the organizers/applicants exited the Respondent’s office and waiting area, the Respondent received calls from a number of individuals who scheduled appointments to apply for work, but these individuals did not appear for their scheduled ap- pointments and the record does not reveal if any of these calls were placed by the organizers/applicants. 1 I accept the Respondent’s contention that its policy was to accept employment applications only from individuals who had telephoned to schedule appointments. This finding is consistent not only with the testimony of the Respondent’s officials, but also with the text of the help-wanted advertisements, which state the telephone number, but not the address, of the Respondent. The General Counsel introduced no evidence indicating that the Respondent allowed nonunion applicants to complete applications without first calling to schedule appointments. Moreover, the record shows that the Respondent interviewed individu- als known to be affiliated with unions when those individuals followed the Respondent’s procedure by telephoning first to set up appointments. JS MECHANICAL, INC. 357 The complaint includes an allegation that Smith and/or Ne- grotti told the organizers/applicants that the Respondent did not want “union guys” at the facility. I conclude that the General Counsel has failed to prove that this statement was made. The allegation regarding the “union guys” comment was denied by Smith (Tr. 154), Negrotti (Tr. 115), and Polichetti (Tr. 124– 25).2 The General Counsel’s witnesses on this subject—P. Keenan, Burkert, and S. Keenan—gave testimony that was quite inconsistent. According to P. Keenan, Negrotti said, “We don’t want no union guys around here.” (Tr. 22.) Burk- ert, on the other hand, testified to the quite different statement: “We’re non-Union and we don’t hire Union. We don’t even have an ad in the paper.” (Tr. 75.) The only real similarity between P. Keenan’s and Burkert’s reports of the offending statements is that both explicitly refer to unions in a way that indicates persons associated with unions are not welcome. Moreover, Burkert was unable to specifically identify who made the alleged remark. S. Keenan, who is P. Keenan’s brother, was also unable to identify a specific speaker, but testi- fied that a man in the Respondent’s office said, “[W]e don’t want you guys around here,” and then explained, “You know what you union guys are.” (Tr. 67.) This testimony is at vari- ance with Burkert’s account and only somewhat consistent with P. Keenan’s version of what was said. Based on the inconsis- tencies in the testimony of the General Counsel’s witnesses, as well as the demeanor of those witnesses, and also considering the demeanor and contrary testimony of the Respondent’s wit- nesses, I decline to credit the testimony of the General Coun- sel’s witnesses regarding the alleged unlawful statement. I find that the General Counsel has not met its burden of showing that an official of the Respondent more likely than not made the statement. The failure to hire P. Keenan and DiOrio after interviews on September 15, 2000 For a 2-week period beginning on September 13, 2000, two help-wanted advertisements submitted by the Respondent ap- peared in local newspapers. One read: HVAC Commercial Installation Mechanic Exc. Wages & Benefits Call JS Mechanical @ [Telephone Number] for interview The other read: HVAC Service Technician Commercial & Residential Exc. Wages & Benefits Call JS Mechanical @ [Telephone Number] for interview P. Keenan telephoned the Respondent and scheduled an in- terview for September 15, 2000. Robert DiOrio, another organ- izer with the Union, also telephoned the Respondent, and he, too, scheduled an interview for September 15. On September 2 Sulzbach was present for some of the July 13 episode, but testified that she was very upset during the incident, and could not remember any of the specific statements during the exchange. 15, P. Keenan and DiOrio arrived together at the Respondent’s facility for their appointments. Originally Smith was going to interview P. Keenan and DiOrio himself. However, for reasons that are not entirely clear, he became unavailable to conduct the interviews and directed Polichetti to do so. In the past, Po- lichetti had sometimes interviewed applicants, but generally his involvement in hiring was minimal, and Smith had ultimate hiring authority. After arriving at the Respondent’s facility, P. Keenan com- pleted an application, which he supplemented with a resume. The resume indicated that P. Keenan had been an organizer with the Union from 1992 to the present.3 It did not report work experience for P. Keenan as anything other than an organ- izer after 1992. The resume listed experience with two private employers from 1981 to 1992, but did not state what P. Keenan’s positions or job duties were with those companies. The resume reported, inter alia, that P. Keenan had attended a 4-year journeyman program, a 4-year apprenticeship program, and a 2-year program at the Union’s welding school, but did not state when he had attended or completed those programs. It noted that P. Keenan had “[e]xperience with layout, fabrication, sketching and installation of sheet metal work” “use of brake, form machines and plasma.” The resume does not mention HVAC systems, or explicitly state that any of P. Keenan’s work or training involved such systems. On his application, P. Keenan listed his experience and training as a sheet metal worker.4 P. Keenan’s interview with Polichetti lasted 20–25 minutes. Polichetti looked over P. Keenan’s application and resume and commented, “I see you’re very qualified.” Polichetti went on to make a fairly detailed inquiry into P. Keenan’s experience and capabilities. P. Keenan described work in single-family dwellings, residential units, commercial settings, hospitals, industrial settings, and highrise office buildings. P. Keenan responded in the affirmative when Polichetti asked if he could solder and braze. Polichetti also asked about various skills relevant to HVAC installation and P. Keenan conceded that he lacked a number of these skills. In particular, Polichetti asked P. Keenan if he could do high voltage wiring, refrigeration, evacuation, checking, testing, and charging, and P. Keenan responded that he was not capable of those tasks. Polichetti asked if P. Keenan could do gas piping, and thread couple pip- ing, and P. Keenan indicated that he would require retraining in those areas. Polichetti asked if P. Keenan could do work in- 3 The applications of P. Keenan and DiOrio were not produced at trial; however, the resume that P. Keenan gave to the Respondent was made an exhibit. 4 P. Keenan testified that the apprenticeship program included train- ing in HVAC installation, and that his prior work experience included installation of HVAC systems. However, he did not testify that he conveyed this information on his application. At any rate, P. Keenan testified that he completed the apprenticeship program in 1985 and that he he had not received any additional training between then and the time he applied in September of 2000. P. Keenan testified that the contractors he worked for from 1981 to 1992 installed HVAC systems, but he did not state which of the various installation tasks he himself performed while working for those contractors, nor did he state what precisely he told the Respondent about that work. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358 volving digital controls, and P. Keenan answered that he did not have much experience in that area. When asked whether he was a certified welder, P. Keenan responded that he was no longer certified, but that he had been certified in the past and could become recertified quickly. P. Keenan conceded that welding is a common practice in the HVAC field and is very important to that work. Before the interview ended, P. Keenan offered to enter the Respondent’s shop area and show what types of machinery he could operate, but Polichetti declined the offer. Polichetti interviewed DiOrio after P. Keenan’s interview concluded. At the time of the interview, DiOrio had been a union organizer for a month or two, and prior to that he had been a sheet metal worker for 18 years. On his application, DiOrio stated that he was applying for the positions of fabrica- tor, installer, and helper. He listed experience running a shop where ductwork was fabricated, operating various machines, and sketching. He reported that he had been to a welding school, but the record does not reveal whether he stated that he was, or ever had been, certified as a welder. During the inter- view, Polichetti asked DiOrio about his service experience, and DiOrio responded that he had attended a class on service work for a year, but had no experience actually doing service work in the field. According to DiOrio, service work includes such tasks as installing the unit, wiring the unit, running gas pipe, running the line set from the condenser to the heater, and trou- ble shooting the unit.5 Polichetti asked if DiOrio could perform piping or refrigeration work, and DiOrio responded that he could not, but that he could easily do the sheet metal compo- nent of the work. After about 10 minutes, DiOrio interrupted Polichetti’s questioning and said: “Look, you really know what I’m here for. You know, please give this information to Mister Smith on how we can help him with his manpower problems.” The two men got up, shook hands, and DiOrio left. Polichetti gave the applications of both P. Keenan and DiOrio to Smith. Later Smith and Polichetti briefly discussed the applications and what Polichetti had gleaned during the interviews. Polichetti testified that P. Keenan and DiOrio “didn’t seem like they had the qualifications that virtually all of our other mechanics have,” and “[w]e couldn’t understand how we could . . . work with these guys.” The Respondent never contacted P. Keenan and DiOrio to inform them whether they had been selected for employment. P. Keenan telephoned the Respondent a week after his interview to check on the status of his application and was told that Smith or Polichetti would call him, but neither did. Smith selected Matthew Cahill on October 15, 2000, to fill the opening for which P. Keenan and DiOrio had been inter- viewed.6 Cahill was interviewed by Smith on October 12, 2000. Cahill reported that his most recent employment was in a position he listed as “HVAC,” from March 1998 until Septem- 5 This differs from sheet metal fabrication work for HVAC systems, which usually takes place in a shop and involves making ducts out of flat pieces of metal. 6 The General Counsel concedes that it appears there was only one opening available in the position for which P. Keenan and DiOrio ap- plied. GC Br. at fn. 10. ber 2000. He stated that his duties included “fabrication of duct & installation,” and Mig welding. He reported working prior to that from January 1997 until March 1998 as an “HVAC- Welder,” in which capacity his duties included “fabrication of duct & installation,” and Mig, Tig, and stick welding. The resume states that Cahill had graduated from a welding pro- gram in 1983 and was a certified welder. Smith said that dur- ing the interview he asked Cahill questions to determine how “well-rounded” he was. Smith determined that Cahill’s HVAC experience included “wiring,” but that Cahill lacked boiler experience and service experience. Although Cahill was a member of the Union, the Respondent was not aware of this at the time it interviewed and selected him. Smith testified that he compared Cahill’s application to those of P. Keenan and DiOrio, and decided to select Cahill. Accord- ing to Smith, Cahill was hired primarily because he was a certi- fied welder with both pipe welding and duct welding experi- ence and that the Respondent had an upcoming job that re- quired a certified welder to perform the pipe welding in apart- ments at an airforce base. Smith was aware that P. Keenan had once been certified as welder, but knew that this certification had expired. According to Smith, there was generally a 1-year waiting list to obtain recertification. He was unaware that P. Keenan had told Polichetti that he could be recertified quickly. Smith also stated that in his view Cahill had broader relevant experience than P. Keenan and DiOrio, including experience in wiring.7 He noted that Cahill’s work experience in the HVAC field was very current.8 B. The Complaint Allegations The complaint in this case alleges that the Respondent vio- lated Section 8(a)(1) of the Act by telling organizers/applicants that it did not want “union guys” at the facility, thereby indicat- ing that it was futile for the organizers/applicants to apply for employment. In addition, the complaint alleges that the Re- spondent violated Section 8(a)(1) by threatening to call the police if the organizers/applicants did not leave the facility. The complaint further alleges that the Respondent violated Section 8(a)(1) and (3) of the Act by refusing to hire and consider for 7 The General Counsel argues that Cahill’s application did not indi- cate piping or wiring experience, GC Br. at 32–33, that Cahill’s appli- cation did not claim experience with installation or wiring, id. at 30, and that I should reject Smith’s contention that Cahill’s piping and wiring experience were among the reasons that he was selected instead of P. Keenan and DiOrio. However, the fact that Cahill did not list installation and wiring experience on his application does not prove that Smith was unaware that Cahill had such experience. Cahill (who no longer works for the Respondent and is a member of the Union) was not called as a witness by the General Counsel, and there is no record evidence rebutting Smith’s testimony that he interviewed Cahill and understood that Cahill had experience in piping and wiring. 8 Cahill is a member of the Union, but at the time the Respondent hired him it was unaware of this affiliation. On September 10, 2000, the Respondent hired James Ward as a fabricator, despite the fact that Ward had stated on his application that he was a union sheet metal apprentice. Anthony Visalli, a foreman with the Respondent, testified that the Respondent hired him even though he volunteered during an interview with Polichetti that he was, or had been, affiliated with the Pipefitters’ union. JS MECHANICAL, INC. 359 hire P. Keenan and DiOrio because they are members of the Union. III. ANALYSIS AND DISCUSSION A. Antiunion Remark It is a violation of Section 8(a)(1) for an employer to make statements to applicants indicating that it would be futile for union members to apply for employment. Sunland Construc- tion, 311 NLRB 685, 704 (1993); J. L. Phillips Enterprises, 310 NLRB 11, 13 (1993). The complaint alleges that when the organizers/applicants appeared at the Respondent’s facility on July 13, Negrotti or Smith said that the Respondent “did not want ‘union guys’ at the Facility, thereby indicating that it would be futile for employee-applicants with Union affiliation to apply.” Negrotti and Smith were both supervisors and agents of the Respondent at the time and the General Counsel alleges that the statement violates Section 8(a)(1). Preliminarily, the Respondent contends that “[g]iven the makeup of the group [of organizers/applicants] that arrived en masse and unannounced at the Respondent’s place of business, it is clear that the they had no real intention of seriously apply- ing.” (Respondent’s proposed findings of fact at p. 6, par. 17). Although the Respondent does not explicitly make the argu- ment, it appears to be suggesting that the organizers/applicants were not “employees” entitled to the Act’s protection since they were not bona fide applicants. I conclude that the organiz- ers/applicants, although they were paid union organizers, were bona fide applicants at the time the Respondent allegedly indi- cated that it would be futile for them to apply. Professional organizers, when applying for work, are considered statutory employees entitled to the protections of the Act. NLRB v. Town & Country Electric, 516 U.S. 85 (1995). Several of the organizers/applicants testified credibly that their activities as organizers included attempting to get hired by nonunion com- panies with the intention of trying to organize the company’s work force once hired. Although the organizers/applicants did adopt a rather intimidating posture during their July 13 visit to the Respondent’s facility, I find that one of their objectives at the time of Negrotti’s alleged unlawful statements was to se- cure employment with the Respondent. Therefore, I conclude that the organizers/applicants must be considered employees entitled to the protections of the Act at that time. As discussed above, I have found that the General Counsel failed to meet its burden of showing that, as alleged in the com- plaint, Negrotti or Smith told the organizers/applicants that the Respondent did not want “union guys,” or made any other re- marks to them explicitly stating that union applicants were not welcome. I did find, however, that when the organiz- ers/applicants stated that they wanted to fill out applications, Negrotti responded, “Why would you want to; we’re an open shop” and that when asked what he meant, Negrotti replied, “I can see by the gentleman’s hat, he’s a union worker.” The complaint does not mention these statements by Negrotti and in its brief, the General Counsel does not allege that these state- ments violated Section 8(a)(1). However, the General Coun- sel’s brief does remark in passing that the statements “sug- gested that the applicants were wasting their time.” The mean- ing and legal import of the statements that I find Negrotti made were not fully litigated and I believe it would be inappropriate for me to go beyond the allegations of the complaint and rule on whether those statements violated the Act. It is certainly not clear to me based on the evidence that was presented that Ne- grotti was doing anything more than expressing surprise that union workers wanted to apply with the Respondent. Negrotti did not, at least on the face of it, indicate that union members were disqualified as applicants, or that it would be improper for persons affiliated with unions to work for the Respondent. I conclude that the complaint allegation that the Respondent violated Section 8(a)(1) by stating that it “did not want ‘Union guys’ at the Facility, thereby indicating that it was futile for employee-applicants with Union affiliation to apply for em- ployment” should be dismissed. B. Respondent’s Threat to Call the Police The General Counsel alleges that the Respondent violated Section 8(a)(1) on July 13 by threatening to call the police if the organizers/applicants did not leave the facility. The Re- spondent’s president and owner, Smith, admits he told the or- ganizers/applicants that if they would not leave, he would call the police, but the Respondent contends that such action was not unlawful because of the belligerent and intimidating behav- ior of the organizers/applicants. The General Counsel states that an employer violates Section 8(a)(1) when it threatens to call the police if union representa- tives who are acting lawfully on the employer’s property refuse to leave. At the time Smith threatened to call the police, how- ever, the organizers/applicants no longer had a legitimate pur- pose for being inside the Respondents’ facility. The organiz- ers/applicants who testified about the July 13 episode did not deny that they refused to withdraw from the facility even after being repeatedly told that if they wished to apply they, like other prospective applicants, would have to first schedule ap- pointments by telephone. Moreover, I am convinced that the Respondent’s inhospitality attempts to apply on a walk-in basis did not come as a surprise to the organizers/applicants since the help-wanted advertisements to which the organizers/applicants were responding withheld the Respondent’s identity and loca- tion. Under all the circumstances, I believe that the organiz- ers/applicants were no longer attempting in good faith to initi- ate the Respondent’s application process at the time Smith threatened to call the police. What precisely the organizers/applicants did hope to accom- plish by refusing to leave after being apprised of the Respon- dent’s policy regarding applications is not perfectly clear, al- though it is certainly plausible given the evidence that their aim was to intimidate the Respondent.9 One thing that is clear is 9 As discussed above, I do conclude that earlier in their visit the or- ganizers’ purposes included a legitimate attempt to seek employment. However, once the organizers had repeatedly been apprised of the Respondent’s policy requiring potential applicants to telephone to schedule an appointment, their refusal to leave the premises was no longer part of a legitimate attempt to apply for work. Even if obtaining employment was still among their purposes at the time of Smith’s statement regarding the police, and I doubt that it was, the organizers’ tactic of attempting to bully the Respondent into permitting them to DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 360 that their activities were having the effect of disrupting work in the Respondent’s office. At least four persons employed by the Respondent, including the president of the company, were drawn into the exchange, and one office worker testified credi- bly that she was “freaked out” by the organizers/applicants and left the area. Burkert, an organizer/applicant, admitted that he became angry and raised his voice to an employee of the Re- spondent during the incident. The Board has upheld the right of employers to set rules controlling the access of union appli- cants to their workplace where the presence of those applicants was disruptive of the work of the employer’s office staff. Rainbow Painting & Decorating, 330 NLRB 972, 2000. With respect to union organizers, the Board has also upheld a deci- sion that it was permissible for an employer to have the police evict a union organizer from its premises when the organizer was disrupting work. Yellow Freight Systems, 313 NLRB 309, 329–332 (1993), enf. granted in part denied in part by 37 F.3d 128 (3d Cir. 1994). When Smith warned that he would call the police, the organizers/applicants no longer had a legitimate purpose for remaining inside the Respondent’s facility and were disrupting work in the Respondent’s office. The General Counsel cites Farm Fresh, Inc., 305 NLRB 887 (1991), and Weis Markets, Inc., 325 NLRB 871 (1998), to sup- port its contention that Smith committed a violation when he warned that he would call the police unless the organiz- ers/applicants left the facility. However, neither of those deci- sions supports finding a violation where, as here, the organizer was not engaged in legitimate organizational activities at the time an employer threatened to call the police. Indeed, the decision in Farm Fresh upheld the right of the employer to threaten to have the police eject an organizer suspected of un- protected “blitz” tactics such as scattering union literature in a nonpublic location in the facility. 305 NLRB at 888. In Weis Markets, the employer threatened to have nonemployee organ- izers arrested unless they stopped leafleting on the sidewalks in front of three of the Respondent’s stores. In a decision af- firmed by the Board, the administrative law judge concluded that the employer had violated the Act by excluding the organ- izers, but based this conclusion on the fact that the employer’s leases did not give it the right to control access to the sidewalks in front of the stores. In the instant case, the organizers were actually inside the Respondent’s facility, in a waiting area barely large enough to contain them. The General Counsel has not suggested that the Respondent’s property interests in that area did not include the right to exclude persons from it. More- over, whereas in Weis it appears that the organizers were en- gaging in leafleting activity protected by Section 7, the organ- izers in the instant case had no legitimate purpose inside the Respondent’s facility at the time Smith warned that he would call the police. Thus, Weis does not warrant finding a violation in the instant case. bypass the normal application procedures does not justify their refusal to leave the facility. See W.D.D.W. Commercial Systems & Invest- ments, Inc., 2001 WL 1011927, *23 (NLRB) (decision that union or- ganziers are not meaningfully distinguishable from other ‘employees’ under the statute should not be read to give paid union organizers carte blanche in the workplace; organizers are subject to valid employer rules). For the reasons discussed above, I conclude that the allega- tion that the Respondent violated Section 8(a)(1) on July 13 by threatening to call the police if the organizers/applicants did not leave the facility should be dismissed. C. Refusal to Consider or Hire In order to establish discriminatory refusal to hire in viola- tion of the Act, the General Counsel must first show: “(1) that the respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) that the applicants had experience or training relevant to the announced or generally known requirements of the positions for hire, or in the alterna- tive, that the employer has not adhered uniformly to such re- quirements or that the requirements were themselves pretextual or were applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the applicants.” FES, 331 NLRB 9, 12 (2000). If the General Counsel succeeds in making these showings, the burden shifts to the respondent to show that it would not have hired the ap- plicants even in the absence of their union activity or affiliation. Id. To establish discriminatory refusal to consider, the General Counsel bears the burden of showing: (1) that the respondent excluded applicants from a hiring process; and (2) that anti- union animus contributed to the decision not to consider the applicants for employment. FES, 331 NLRB at 15. The record establishes the first two elements of a refusal-to- hire claim. The evidence shows that the Respondent was seek- ing to fill an opening in September and October 2000 when P. Keenan and DiOrio applied and were denied employment. Furthermore, it is clear that P. Keenan and DiOrio had experi- ence and training in the sheet metal and HVAC fields that was relevant to significant aspects of the HVAC mechanic/installer position that Respondent was seeking to fill. The General Counsel stumbles, however, at the requirement that it show the existence of antiunion animus that contributed to the decision not to hire the applicants. In an effort to meet its burden with respect to this element, the General Counsel first relies on Ne- grotti’s alleged statement, 3 months earlier, that the Respondent did not want “Union guys” around. However, as discussed above, I found that the General Counsel failed to show that Negrotti made that statement. The statements that Negrotti was shown to have made indicated surprise about the organiz- ers/applicants desire to apply for work with the Respondent, but do not establish antiunion animus. At any rate, there is no evi- dence that Negrotti was involved in any way with the decision not to select P. Keenan and DiOrio for employment. The al- leged discriminatees were interviewed by Polichetti and the hiring decision was made by Smith after a discussion with Po- lichetti. Thus even if the General Counsel had shown that Ne- grotti harbored antiunion animus, it still would have failed to show that Negrotti’s antiunion feelings contributed to the deci- sion not to hire P. Keenan or DiOrio. The General Counsel also argues that animus is shown by the fact that Polichetti described the position as “residential installer” during the interviews whereas Smith testified that the position he wanted to fill was “commercial installation me- chanic.” I do not consider it particularly telling that Polichetti called the position something somewhat different than what JS MECHANICAL, INC. 361 Smith called it. Polichetti did not place the help-wanted adver- tisement and did not make the hiring decision. He was called upon to interview the applicants only when Smith unexpectedly became unavailable. Moreover, there was no evidence that the distinction between residential installer and commercial in- staller was significant, and, indeed, Polichetti testified that gen- erally anyone who could do commercial installation could also do residential installation. At any rate, Polichetti’s basic view that the experience of the two alleged discriminatees was unap- pealingly narrow from the Respondent’s point of view is con- sistent with Smith’s explanation for rejecting them in favor of Cahill, regardless of the precise title of the position. The General Counsel also argues that antiunion motive can be inferred from the Respondent’s “shifting, inconsistent and clearly pretextual” explanations for rejecting the alleged dis- criminatees. (GC Br. at 28–29.) I disagree. Smith, who made the decision to select Cahill, testified that he did so because Cahill, unlike either Keenan or DiOrio, was a certified welder with both pipe and conduit welding experience, and because Cahill’s HVAC experience was broader than theirs and in- cluded wiring experience. Most of the experience of the al- leged discriminatees, at least their more recent hands-on ex- perience, was in the area of sheet metal fabrication, which in- volved constructing metal ducts for HVAC units, but did not encompass HVAC-related tasks such as piping, wiring, evacua- tion, and charging. Smith also stated that he was favorably impressed with the fact that Cahill had very current experience in the HVAC field, in contrast to P. Keenan, whose recent work was as a union organizer. While there is, I grant, some basis for difference of opinion about whether the Respondent se- lected the best applicant, the reasons given by the Respondent for choosing Cahill instead of P. Keenan and DiOrio are coher- ent and have support in the record. Certainly those reasons are not so clearly false as to satisfy the General Counsel’s burden of showing animus. Indeed, the record did reflect that P. Keenan had worked almost exclusively as an organizer —not as a sheet metal worker, much less an HVAC specialist—for ap- proximately 8 years prior to applying. Similarly, the evidence showed that DiOrio’s experience as a sheet metal worker in- cluding work involving HVAC units, but that this HVAC work was largely limited to fabricating ducts, and did not include doing service work such as installation, wiring, running gas piping, and trouble shooting. Cahill, on the other hand, worked full-time in the HVAC field from 1997 until September 2000. Cahill reported that he had experience wiring HVAC units, and that he was a certified welder with both pipe and duct welding experience. The General Counsel argues that antiunion animus is shown by the fact that Smith has given different reasons for selecting Cahill over P. Keenan and DiOrio. I do not believe that this shows animus, or even pretext, under the facts present here. An employer will frequently have multiple reasons for considering one applicant better suited for a position than another. The fact that the Respondent, or another employer, gives more than one reason for selecting a particular applicant does not, without more, show that any of those reasons are untrue. Here, Smith’s reasons—i.e., that Cahill had broader, more recent, HVAC experience and that his status as a certified welder was of value for a large upcoming project—are not inconsistent or incom- patible with one another and each may reasonably have played a part in the selection decision. The General Counsel also attempts to raise an inference of animus by noting that after P. Keenan and DiOrio applied, the Respondent left the position unfilled for a month before hiring Cahill. In my view, a month-long selection process is not so protracted as to raise an inference of antiunion animus. The General Counsel did not produce any evidence that a 1-month selection period was very unusual in the Respondent’s opera- tions or that it was contrary to the practices of other employers in the industry. Finally, it is worth noting that at least three of the seven in- dividuals hired by the Respondent in September and October of 2000 were either current or former union members. In the case of two of those hirees—Anthony Visalli and James Ward —the evidence showed that the Respondent was aware of the union affiliation at the time it made the selections. Although it is still possible that the Respondent would seek to exclude other union members, that evidence does cast further doubt on the General Counsel’s allegation of discriminatory hiring. I also conclude that the General Counsel has failed to meet its burdens with respect to the allegation of discriminatory re- fusal to consider. First, the evidence does not show that P. Keenan and DiOrio were excluded from the hiring process. The Respondent interviewed P. Keenan at length and in detail regarding his experience and qualifications. The Respondent began a similarly thorough interview with DiOrio, but DiOrio chose to terminate the interview before its completion. After the interviews, Polichetti and Smith discussed the qualifica- tions and experience of the two alleged discriminatees. Smith compared the qualifications of the alleged discriminatees to those of Cahill before deciding to select Cahill. The reasons that Smith gave for his selection are not incoherent, contrary to the record, or otherwise implausible. I conclude that the Re- spondent did not exclude the discriminatees from the hiring process. The General Counsel argues that P. Keenan and DiOrio were denied consideration for employment because Smith did not personally interview them and because their references were not contacted. I do not find it significant that the alleged dis- criminatees were interviewed by Polichetti rather than by Smith. Polichetti sometimes interviewed job applicants and Smith was not available at the time of alleged discriminatees’ scheduled interviews. The fact that after P. Keenan and DiOrio were interviewed and compared to the selected applicant, the Respondent chose not to contact their references does not amount to a failure to consider given the record of this case. There was no evidence that the Respondent contacted the refer- ences of all, most, or even very many, of the applicants who it considered for hire. The fact that the alleged discriminatees only made it so far in the selection process does not mean that they were excluded from that selection process. In any case, had I concluded that the Respondent decided not to fully con- sider P. Keenan and DiOrio for employment, I would still not find a violation since the General Counsel has not shown that antiunion animus contributed to any such decision. This con- clusion is based on the same factors that led me to conclude DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 362 that the General Counsel has failed to demonstrate that anti- union animus contributed the decision not to hire P. Keenan and DiOrio. For the reasons discussed above, I conclude that the allega- tion that the Respondent violated Section 8(a)(1) and (3) by refusing to hire, or consider for hire, P. Keenan and DiOrio should be dismissed. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not been shown to have committed the unfair labor practices alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended 10 ORDER The complaint is dismissed. 10 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended 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 purposes.