Sproule Construction Co.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350 NLRB No. 65 774 Sproule Construction Company and International Union of Operating Engineers, Local Unions 139, 150, and 234. Case 33–CA–12381 August 15, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS KIRSANOW AND WALSH On December 30, 1998, Administrative Law Judge Ar- thur J. Amchan issued the attached decision. The Re- spondent filed exceptions. The General Counsel filed a brief in support of the decision and a brief in answer to the Respondent’s exceptions. On May 11, 2000, the Board issued its decision in FES,1 setting forth the analytical framework for refusal- to-hire and refusal-to-consider cases. On June 14, 2000, the Board remanded this case to the judge for further consideration in light of FES. On June 27, 2000, the judge issued a notice inviting the parties to file briefs addressing the FES framework as it applied to this case, including whether the record was sufficient to decide the issues presented. The General Counsel and the Union filed briefs. On October 3, 2000, the judge issued the attached supplemental decision. The Respondent filed exceptions. The General Counsel filed a brief in support of the supplemental decision and a brief in answer to the Respondent’s exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decisions and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions3 as 1 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). 2 The Respondent 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 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. In addition, some of the Respondent’s exceptions contend that the judge’s rulings, findings, and conclusions demonstrate bias and preju- dice. On careful examination of the judge’s decisions and the entire record, we are satisfied that the Respondent’s contentions are without merit. In adopting the judge’s finding that the Respondent violated Sec. 8(a)(1) by interrogating applicant Tom Hines, we affirm the judge’s finding that Robin Morgan, the office clerical who questioned Hines, was the Respondent’s agent. See GM Electrics, 323 NLRB 125, 125– 126 (1997) (construction office clerical who greeted applicants, dis- cussed hiring needs with applicants, and provided and collected appli- cations was employer’s agent). Further, in finding that the Respon- dent’s questioning of applicants Hines and Mark McCaffrey was unlawful, we apply the standard set forth in Rossmore House, 269 NLRB 1176, 1177 (1984), enfd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985) (“whether under all the circumstances modified below and to adopt the recommended Order as modified and set forth in full below.4 The Refusals to Hire The judge found that the Respondent violated Section 8(a)(3) by refusing to hire four union salts on May 22, 1997,5 and by refusing to hire 25 union salts on May 28.6 The analysis to be undertaken in evaluating refusal-to- hire and refusal-to-consider allegations is set forth in FES, supra. Applying the FES analysis here, we affirm the judge’s findings that the Respondent was hiring and had concrete plans to hire at the relevant times, that the salts all met the generally known requirements of the positions, and that the Respondent’s actions regarding the salts were motivated by the salts’ union status. For the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act”). The questioning here was coercive given that (a) the questioning occurred while the applicants were seek- ing employment; (b) the applicants sought to conceal their support for the Union; (c) the Respondent offered no legitimate explanation for the questioning; and (d) the questioning occurred in the context of serious unfair labor practices. We accordingly find it unnecessary to pass on the judge’s finding that the questioning was “inherently coercive.” See Hi-Tech Interiors, Inc., 348 NLRB 304, 304 at fn. 3 (2006). Member Walsh agrees with the judge that the questioning of Hines and McCaffrey was “inherently coercive.” Gilberton Coal Co., 291 NLRB 344, 348 (1988), enfd. mem. 888 F.2d 1381 (3d Cir. 1989) (“questions concerning union preference, in the context of job application inter- views, are inherently coercive and unlawful”); M. J. Mechanical Ser- vices, 324 NLRB 812, 812–813 (1997), enfd. mem. 172 F.3d 920 (D.C. Cir. 1998) (same). Accordingly, he agrees with his colleagues that the interrogations violated Sec. 8(a)(1). In affirming the judge’s finding that the Respondent violated Sec. 8(a)(3) by discharging employee Mark McCaffrey, we particularly rely on the following facts: upon observing McCaffrey distributing union authorization cards, a supervisor immediately went into Respondent Official Daniel Sproule’s office, and Sproule immediately thereafter summoned McCaffrey into the office where Sproule accused McCaffrey of being a union organizer and discharged him. In affirming the judge’s finding that the Respondent violated Sec. 8(a)(3) by failing to reinstate three unfair labor practice strikers, we note that union direction of strike activity is consistent with the pro- tected character of a strike. We accordingly reject the Respondent’s argument that the Union’s strike directions to two of the strikers ren- dered their strike unprotected. See Allied Mechanical Services, 320 NLRB 32, 39–40 (1995), enfd. 113 F.3d 623 (6th Cir. 1997); Allied Mechanical Services, 332 NLRB 1600, 1608 (2001). 3 No exceptions were filed with regard to complaint allegations that the judge dismissed. 4 We shall modify the recommended Order to conform to the viola- tions found. We shall also modify the judge’s recommended Order in accordance with our decision in Ferguson Electric Co., 335 NLRB 142 (2001), and we shall substitute a new notice to conform to the Order as modified and in accordance with Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th Cir. 2004). 5 All dates are in 1997, unless otherwise indicated. 6 Although the judge’s discussion makes clear that he found a re- fusal-to-hire violation with regard to all 25 May 28 applicants, the judge’s conclusions of law and recommended Order mistakenly ex- clude May 28 applicant Ed Crawford, who was also one of the May 22 refusal-to-hire discriminatees. SPROULE CONSTRUCTION CO. 775 these reasons and for the additional reasons set forth be- low, we find that the Respondent violated Section 8(a)(3) by refusing to hire the four May 22 applicants, by refus- ing to hire 5 of the 25 May 28 applicants, and by refusing to consider the remaining May 28 applicants. 1. Whether the salts were within the Act’s protection The Respondent contends that the salts were not “bona fide applicants” within the Act’s protection. In support of this contention, the Respondent relies on the fact that many of the salts were full-time paid union officials. However, as the judge explained, the Supreme Court in NLRB v. Town & Country Electric, Inc.7 found that a salt is an employee within the Act’s protection notwithstand- ing that he is a full-time paid union official. The Re- spondent also argues that the salts were not within the Act’s protection because they wore union insignia, car- ried video cameras, and did not fill out applications. However, the record shows that the May 22 salts submit- ted applications, the May 28 salts attempted to submit applications but were thwarted by the Respondent’s re- fusal to provide application forms, and all the salts were present at the Respondent’s premises when they applied or attempted to apply for work.8 Accordingly, we find that the salts were within the Act’s protection.9 2. The number of vacancies Under FES, if, as here, the General Counsel seeks a backpay and instatement remedy for a refusal-to-hire violation, the General Counsel must prove, among other things, that there were vacancies for the alleged discrimi- natees. 331 NLRB at 14. In his supplemental decision, the judge found that the General Counsel proved at least 12 vacancies available for the 4 May 22 applicants and the 25 May 28 appli- cants. The judge based this finding on the fact that the Respondent issued 12 more paychecks on the July 18 pay date than it issued on the May 30 and June 6 pay dates (55 paychecks on May 30 and June 6, and 67 on July 18). The Respondent excepts, noting that it issued fewer than 67 paychecks on some pay dates in August.10 However, 7 516 U.S. 85 (1995). 8 The Respondent has also asserted that the salts were “unruly.” However, the Respondent’s evidence in support of this contention is limited to hearsay or conclusory statements and, as such, does not dem- onstrate the existence of any specific conduct that would have placed the applicants outside the Act’s protection. 9 In finding that the salts were within the Act’s protection, Chairman Battista and Member Kirsanow do not pass on whether there can be circumstances where an alleged discriminatee is not a bona fide appli- cant and is therefore not entitled to the protection of the Act. They find that in the circumstances of this case, the alleged discriminatees are bona fide applicants. 10 The Respondent asserts, citing GC Exh. 22, that the number of paychecks decreased to 57 in August. However, that exhibit shows that the fact is that, at least as of July 18, there were 67 posi- tions. There is no contention or showing by the Respon- dent that applications are treated as nullities if there is no position at the precise moment of application. Thus, we conclude that there were 12 vacancies for the discrimina- tees. We further note that the judge also found that there may have been more than 12 preunfair-labor-practice- hearing vacancies, and that he deferred litigation regard- ing those additional vacancies to compliance proceed- ings. Although no party contends that the judge should have found more than 12 vacancies,11 the Respondent argues in its exceptions—and we agree—that, under FES, the General Counsel must prove the vacancies at the unfair labor practice hearing; proof of the vacancies cannot be deferred until the compliance stage of the pro- ceeding. FES, supra at 14. Therefore, the judge erred in providing the General Counsel with an opportunity to prove additional vacancies at compliance. For these rea- sons, we shall affirm the judge’s finding that the General Counsel proved 12 vacancies, but we will modify the Order consistent with FES.12 With respect to the allocation of the vacancies proved, we find that the judge correctly allocated vacancies to the four May 22 applicant-discriminatees. However, the judge also should have allocated vacancies to the three the Respondent issued 67, 65, 59, 60, and 58 paychecks on pay dates August 1, 8, 15, 22, and 29, respectively. 11 Because no party contends either that the judge should have found more than 12 vacancies, or that the Board should find more than 12 vacancies at this stage of the proceeding, Chairman Battista and Mem- ber Kirsanow do not agree with their colleague that it is appropriate to consider whether additional vacancies existed for the May discrimina- tees. 12 Member Walsh disagrees with the finding that there were only 12 vacancies available for the discriminatees. The judge found that there were “at least 12 job openings” between May 30 and July 18, 1997, but that the General Counsel would have the opportunity during compli- ance to prove that there were in fact other openings available for the discriminatees. In light of that additional opportunity given them to prove other vacancies, the General Counsel and the Union did not challenge the judge’s finding that there were “at least” 12 vacancies. Because of the failure of the parties to challenge that tentative figure, the Chairman and Member Kirsanow now hold the parties to that num- ber. There would have been no need for the General Counsel or the Union to have challenged that number in exceptions because the judge’s decision provided the General Counsel with the opportunity to prove additional vacancies at compliance. Although Member Walsh agrees with his colleagues that the judge improperly granted the Gen- eral Counsel the opportunity to prove additional vacancies at compli- ance, Member Walsh finds, in these circumstances, that the Board is not precluded from independently examining the record of the unfair labor practice hearing to determine if additional vacancies were in fact proved. A careful examination of the record reveals that the judge’s methodology undercounted the number of vacancies, and that the Gen- eral Counsel proved that there were actually 17 available vacancies for the May 28 discriminatees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 776 nonapplicant discriminatees (McCaffrey, Patrick Hines, and Tom Hines) whose employment was unlawfully ter- minated before July 18, the date by which the Respon- dent had hired 12 new employees. Allocating 4 of the 12 vacancies to the 4 May 22 applicant-discriminatees, and 3 of the 12 vacancies to the 3 pre-July 18 nonapplicant discriminatees, leaves 5 vacancies for the May 28 appli- cant-discriminatees. We therefore find 5 vacancies available for the 25 May 28 discriminatees. In sum, we find that the Respondent violated Section 8(a)(3) by refusing to hire the four May 22 applicant- discriminatees, by refusing to hire 5 of the 25 May 28 applicant-discriminatees, and by refusing to consider the remaining 20 May 28 applicant-discriminatees.13 THE AMENDED REMEDY As explained above, the Respondent violated Section 8(a)(3) by discharging Mark McCaffrey, by refusing to reinstate unfair labor practice strikers Patrick Hines, Tom Hines, and Donald Duehr, by refusing to hire the four May 22 applicant-discriminatees (Ed Crawford, Scott Saylor, Dick Petersmith, and Ron Downing), by refusing to hire five May 28 applicant-discriminatees, and by re- fusing to consider the remaining 20 May 28 applicant- discriminatees. We affirm the judge’s reinstatement and make-whole remedies regarding McCaffrey, Patrick Hines, Tom Hines, and Duehr. We also affirm the judge’s instate- ment and make-whole remedies regarding the four May 22 applicant discriminatees. With regard to the May 28 applicant-discriminatees, we shall defer to compliance the determination as to which of these 25 discriminatees would have been hired for the five vacancies proven by the General Counsel and are thus entitled to instatement and make-whole remedies. See R. J. Corman Railroad Construction, L.L.C., 349 NLRB 987, 990 (2007); FES, supra at 14. With regard to the remaining 20 discrimina- tees, we will provide the customary refusal-to-consider remedy: A cease and desist order; an order to place the dis- criminatees in the position they would have been in, absent discrimination, for consideration for future openings and to consider them for the openings in ac- cordance with nondiscriminatory criteria; and an order to notify the discriminatees, the charging party, and the Regional Director of future openings in positions for which the discriminatees applied or substantially equivalent positions. 13 In so doing, we reverse the judge’s finding that the Respondent violated Sec. 8(a)(3) by refusing to hire all 25 May 28 applicant- discriminatees. R. J. Corman Railroad Construction, supra slip op. at 4–5 (quoting FES, supra, 331 NLRB at 15). In the instant case, all of the discriminatees are union salts. In Oil Capitol Sheet Metal, Inc.,14 the Board re- cently modified the evidentiary requirements to be ap- plied in determining reinstatement, instatement, and backpay-period-duration issues where the discriminatee is a union salt. Therefore, the judge’s amended remedy is modified in accordance with Oil Capitol, which shall be applied in compliance.15 Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), and interest shall be computed in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987).16 ORDER The Respondent, Sproule Construction Co., Galena, Il- linois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging employees because of their union af- filiation and/or because they have engaged in protected activity, such as organizing. (b) Failing to reinstate unfair labor practice strikers following an unconditional offer to return to work. (c) Refusing to hire or consider for hire employee- applicants because of their union affiliation or to dis- courage union activities. (d) Coercively interrogating employee-applicants or employees concerning their union membership, activi- ties, or affiliation. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 14 349 NLRB 1348 (2007). 15 Member Walsh dissented in relevant part in Oil Capitol. See 349 NLRB 1348, 1357. Regarding the present proceeding, he recognizes that the majority view in Oil Capitol is current Board law, and accord- ingly, for institutional reasons only, he approves its application in com- pliance. 16 While our order provides for reinstatement or instatement of some discriminatees, that reinstatement or instatement is subject to defea- sance if, at the compliance stage, the General Counsel fails to carry his burden of going forward with evidence that a discriminatee would still be employed by the Respondent if the discriminatee had not been the victim of discrimination. Oil Capitol Sheet Metal, supra slip op. at 7. Robin Landwer, one of the 25 May 28 applicant-discriminatees, died prior to the unfair labor practice hearing. Accordingly, his entitlement, if any, to instatement and backpay as determined in compliance will be tolled by his death. Ed Crawford was one of the four May 22 refusal-to-hire discrimina- tees; he accordingly is entitled to instatement and backpay for the May 22 discrimination. He was also one of the May 28 applicant- discriminatees. If it is determined in compliance that Crawford (after having been hired on May 22) would have ceased employment prior to May 28, he would then be entitled to a separate refusal-to-hire or re- fusal-to-consider remedy for the May 28 discrimination. SPROULE CONSTRUCTION CO. 777 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Mark McCaffrey, Patrick Hines, Tom Hines, and Donald Duehr reinstatement to the positions they would have held absent the Respondent’s discrimination against them or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges to which they would have been entitled. (b) Make Mark McCaffrey, Patrick Hines, Tom Hines, and Donald Duehr whole, with interest, for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the amended remedy section of this Decision. (c) Within 14 days from the date of this Order, offer Ed Crawford, Scott Saylor, Dick Petersmith, and Ron Downing instatement to the positions for which they ap- plied or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges to which they would have been entitled. (d) Make Ed Crawford, Scott Saylor, Dick Petersmith, and Ron Downing whole, with interest, for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the amended remedy section of this Decision. (e) Offer instatement to the five discriminatees from the following list who are identified in the compliance stage of this proceeding as the discriminatees who would have been hired, to the positions for which they at- tempted to apply or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges to which they would have been entitled: Ed Crawford, Jay Pierce, Don Vallance, Terry Wal- dron, Dennis Zuleger, Lenore Liebau, Willie Ellis, Richard Otto, Brian Halder, John Ruddish, Steve Sul- ley, Scott Dahl, Garry Larrow, Richard Carrell, Ronald Vining, Dennis Luciani, Gary Kriesher, Carl Buss, Robin Landwer, Mike Milliken, DeWitt Wegner, Char- lie Bowen, Wayne Mau, Anthony Rossi, and Jeffrey Miller. (f) Make whole the five discriminatees listed in para- graph (e) above who are identified in the compliance stage of this proceeding as discriminatees who would have been hired, for any loss of earnings and other bene- fits suffered as a result of the discrimination against them, in the manner set forth in the amended remedy section of this Decision. (g) Consider, in accord with nondiscriminatory crite- ria, the remaining discriminatees listed in paragraph (e) above for future job openings that arise, and notify the discriminatees, the Charging Party, and the Regional Director of such openings in positions for which the dis- criminatees attempted to apply or substantially equiva- lent positions. (h) Within 14 days from the date of the Board’s Order, remove from its files any reference to the unlawful dis- charge of, refusal to reinstate, refusal to hire, or refusal to consider for hire the discriminatees listed in paragraphs (a), (c), and (e) above and within 3 days thereafter, notify them in writing that this has been done and that the dis- charge, refusal to reinstate, refusal to hire, or refusal to consider for hire will not be used against them in any way. (i) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (j) Within 14 days after service by the Region, post at its facility in Galena, Illinois, copies of the attached no- tice marked “Appendix.”17 Copies of the notice, on forms provided by the Regional Director for Region 33, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since May 22, 1997. (k) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 17 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 778 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT coercively interrogate employees con- cerning their union membership, activities, or affiliation. WE WILL NOT discharge employees because they sup- port International Union of Operating Engineers, Local Unions 139, 150, and 234 or any other labor organiza- tion. WE WILL NOT fail to reinstate unfair labor practice strikers following an unconditional offer to return to work. WE WILL NOT refuse to hire or consider for hire job ap- plicants because they support the Union or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, offer Mark McCaffrey, Patrick Hines, Tom Hines, and Donald Duehr reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges to which they would have been entitled. WE WILL, within 14 days from the date of the Board’s Order, offer Ed Crawford, Scott Saylor, Dick Petersmith, and Ron Downing employment in the jobs for which they applied or, if such jobs no longer exist, in substan- tially equivalent positions, without prejudice to their sen- iority or any other rights or privileges to which they would have been entitled. WE WILL make Mark McCaffrey, Patrick Hines, Tom Hines, Donald Duehr, Ed Crawford, Scott Saylor, Dick Petersmith, and Ron Downing whole for any loss of earnings and other benefits suffered as a result of our unlawful discrimination against them, less any net in- terim earnings, plus interest. WE WILL offer employment to the 5 of the 25 dis- criminatees on the following list whom the Board deter- mines in the compliance stage of the Board’s proceed- ings should have been hired, to the five available posi- tions for which they attempted to apply or, if those posi- tions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges to which they would have been enti- tled: Ed Crawford, Jay Pierce, Don Vallance, Terry Wal- dron, Dennis Zuleger, Lenore Liebau, Willie Ellis, Rich- ard Otto, Brian Halder, John Ruddish, Steve Sulley, Scott Dahl, Garry Larrow, Richard Carrell, Ronald Vining, Dennis Luciani, Gary Kriesher, Carl Buss, Robin Land- wer, Mike Milliken, DeWitt Wegner, Charlie Bowen, Wayne Mau, Anthony Rossi, and Jeffrey Miller. WE WILL make whole those five discriminatees for any loss of earnings and other benefits suffered as a result of the discrimination against them, less any net interim earnings, plus interest. WE WILL notify in writing the remaining 20 discrimi- natees, the Union, and the Regional Director when open- ings arise, and WE WILL consider them in a nondiscrimi- natory manner for these openings. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharge of, refusal to reinstate, refusal to hire, or refusal to consider for hire Mark McCaffrey, Patrick Hines, Tom Hines, Donald Duehr, Ed Crawford, Scott Saylor, Dick Petersmith, Ron Downing, Jay Pierce, Don Vallance, Terry Waldron, Dennis Zuleger, Lenore Lie- bau, Willie Ellis, Richard Otto, Brian Halder, John Rud- dish, Steve Sulley, Scott Dahl, Garry Larrow, Richard Carrell, Ronald Vining, Dennis Luciani, Gary Kriesher, Carl Buss, Robin Landwer, Mike Milliken, DeWitt Wegner, Charlie Bowen, Wayne Mau, Anthony Rossi, and Jeffrey Miller, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the discharge, refusal to reinstate, refusal to hire, or re- fusal to consider for hire will not be used against them in any way. SPROULE CONSTRUCTION CO. Judith T. Poltz, Esq., for the General Counsel. Richard Reichstein, Esq., of Chicago, Illinois, for the Respon- dent. Michael D. Lucas, of Gainesville, Virginia, for the Charging Party. SPROULE CONSTRUCTION CO. 779 DECISION STATEMENT OF THE CASE ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Peoria, Illinois, on October 6–9, 1998. The charge was filed September 8, 1997,1 and the complaint was issued on January 20, 1998. On the entire record,2 including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Charging Party, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a construction contractor, which has an office and place of business in Galena, Illinois. During 1997, it per- formed services in excess of $50,000 outside of Illinois. Sproule Construction is therefore an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union, International Union of Operating Engi- neers, Locals 139, 150, and 234, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES Sproule Construction contracts to perform such services as site preparation for construction projects, which entails moving and sometimes removing dirt. It also performs concrete work and installs water pipes. Its employees operate bulldozers, front-end loaders and other construction vehicles. They also drive trucks on public roads. Sproule has performed work re- cently in Illinois, Iowa, and Wisconsin, the States in which Local Unions 139, 150, and 234 represent employees doing the type of work performed by Respondent. Representatives of Local 234 in Iowa had a meeting with Daniel and Michael Sproule, president and vice president of Respondent, in 1996.3 The Union broached the subject of a collective-bargaining agreement to the Sproule brothers at that time. Respondent did not act on the suggestion. In the spring of 1997, Respondent was awarded a contract by the city of Dubuque, Iowa, to clear farmland for a industrial park. The contract entailed moving approximately 1 million yards of earth and installing sewer lines. The project was scheduled to last over 1 year. On May 12, 1997, Ed Crawford, a business representative of Local 234 in Dubuque, drove to Respondent’s office at the Sproule’s farm outside of Galena, and left his business card. He did not receive a telephone call from anyone at Sproule Construction. Starting about May 17, Crawford began seeing classified advertisements placed by Respondent in the Dubuque and Galena newspapers. For example, one which ran on May 21, in the Dubuque Telegraph-Herald, proclaimed “Operators 1 All dates are in 1997, unless otherwise indicated. 2 Respondent’s 1997 and 1998 payroll records were received as GC Exhs. 34 and 35. Other exhibits had already been received as G.C. Exhs. 34 and 35. Thus, the record contains two GC Exhs. 34 and two GC Exhs. 35. The payroll records are sealed exhibits and the other GC Exhs. 34 and 35 are not. 3 The Sproule brothers each own 50 percent of Respondent. Wanted” and directed potential applicants with experience in running heavy construction equipment to apply in person at Respondent’s office at the Sproule’s farm. Crawford and his business manager decided to embark upon a “salting” campaign at Sproule. On May 20, Crawford called Local 234 journeyman Donald Duehr, and asked him to apply for a job with Respondent. Duehr arrived at the Sproule farm at 7 a.m. on May 21, and applied for a job. His employment application listed a number of prior employers, generally known to be union contractors. When looking at Duehr’s application, Dan Sproule told him that Respondent was nonunion and intended to remain so. Nevertheless, Respondent offered Duehr a job at $8 per hour, which he accepted. Duehr began working for Sproule Con- struction the same day. Duehr told Dan Sproule that he had four friends from Water- loo, Iowa, who were leaving a job and were looking for work. At about 11 a.m. on May 22, Ed Crawford, Scott Saylor, Dick Petersmith, and Ron Downing arrived at Respondent’s Galena office wearing union hats and jackets. All four are Local 234 journeymen and all, except Downing, are full-time employees of the Union. Saylor is vice president of the Local and Pe- tersmith is a member of the Union’s executive board. The four entered the office and told Robin Morgan, one of Respondent’s secretaries, that they wanted to apply for work. Scott Saylor began running a concealed tape recorder. Morgan noticed that Petersmith had a video camera and told him that he could not use it in the office. He then lowered it, but attempted to use it later in the conversation. Morgan gave the four em- ployment applications, which they filled out and on which they indicated that they were union organizers. Morgan told them that Respondent hires union employees but does not pay union wages; instead it would pay $8 per hour. The four said they would be willing to work for $8 per hour. While the four were still in the office, Morgan contacted Mi- chael Sproule. She told the four that the Company needed two equipment operators in Dubuque immediately and that Michael Sproule was on his way back to the office to talk to them. When Sproule returned, he asked the four what kind of equip- ment they could run. Satisfied with their answers, Sproule told the four to come to work the next day. Then Scott Saylor told Mike Sproule that they intended to try to organize Respon- dent’s employees before and after work and on their breaks. Mike Sproule said, “[T]hen you’re not going to work here.” Saylor reiterated that the four were willing to work for Respon- dent but were going to try to organize the company. Sproule responded, “[I]it ain’t never gonna happen.” When Saylor asked if that meant that Respondent was not going to hire them, Mike Sproule said, “Let me think about it and I’ll get back to you.”4 None of the four was ever contacted by Respondent. A few hours later, Tom Hines, another union journeyman, arrived at Respondent’s office to apply for a job. He had also 4 Respondent strongly objected to my receipt of the tape made by Scott Saylor and a transcript made from the tape. Both are admissible. Indeed, it may be reversible error to exclude such evidence, Plasters’ Local 90, 236 NLRB 329 (1978), enfd. 606 F.2d 189, 192 (7th Cir. 1979); Fontaine Truck Equipment Co., 193 NLRB 190 (1971). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 780 been recruited by Ed Crawford to be a covert salt. Hines was given an employment application by Robin Morgan. While he was filling out the application, Morgan asked him if he was a union member.5 Hines did not respond. That evening Hines found a message from Daniel Sproule on his answering ma- chine. He was instructed to call Respondent’s office the next morning. He did so and was told to report for work on Tuesday morning, May 27. On Friday morning, May 23, Mark McCaffrey, an organizer for Local 150 in Rockford, Illinois, went to the Sproule offices to apply for a job. McCaffrey was interviewed by Daniel Sproule. McCaffrey told Sproule that he had been working in a family business but was in the process of relocating because his wife was starting school in Dubuque. Sproule asked McCaffrey if his family business was unionized and McCaffrey said it was not. Dan Sproule hired McCaffrey and told him to report on Tuesday, May 27, the day after Memorial Day. On May 27, McCaffrey was assigned for work with John Lyden and spent the day digging up septic tanks. Tom Hines and Donald Duehr worked at a project on Garfield Street in Dubuque under the direction of Foreman Brian Jacobson. The next morning McCaffrey arrived at work at about 6:40 a.m., 20 minutes before work began. He handed out union authorization cards to the 10 or so employees congregating in the mechanics’ shop. Shortly thereafter, Daniel Sproule sum- moned McCaffrey into his office. Sproule asked McCaffrey if he was a union organizer. McCaffrey responded affirmatively. Sproule told him that he had lied in the employment interview and that therefore Respondent was going to lay him off. Daniel Sproule then reiterated that McCaffrey was being laid off, not fired. McCaffrey asked when Respondent would need him. Sproule told him to call the office. McCaffrey called the next Thursday, June 5, and also on June 10, 12, and 16. Each time he spoke to Robin Morgan. During the first call, Morgan put McCaffrey on hold. When she returned, Morgan said that she had spoken to Daniel Sproule and that Respondent did not have any work for McCaffrey. She gave him essentially the same message in the other phone calls. On June 10, McCaffrey gave Morgan his telephone numbers at home and at work and his pager numbers and told her to have Daniel Sproule call him. He was never contacted.6 Respondent’s payroll records indi- 5 I credit Hines’ testimony to this effect. Respondent did not call Morgan as a witness to contradict him and it is not implausible that Morgan would ask about Hines’ union affiliation a few hours after Michael Sproule’s encounter with Saylor, Crawford, Petersmith, and Downing. 6 I credit McCaffrey’s testimony with regard to what transpired on May 28, and with respect to his telephone calls to Respondent after- wards, despite his less than convincing testimony about why he taped recorded conversations with Daniel Sproule. Sproule’s contrary testi- mony is not credible. Sproule testified that McCaffrey was sent home on May 28 because it was raining. His account is as follows: John Lyden came into the office and asked what to do with the employees. Sproule told Lyden to send them home. While Respondent didn’t bother to call Lyden as a witness to corroborate Sproule’s account, both Tom Hines and Donald Duehr testified that they went to work on the Garfield Street project that day and were sent home at 8:30 a.m. because it was raining harder. Thus, I am convinced that, contrary to Sproule’s testimony, all the cate that it hired at least five employees in the first half of June 1997. On May 28, a few hours after McCaffrey left work, a cara- van of 25 union members, many of whom wore union para- phernalia, arrived at the Sproule offices. They included at least nine full-time union employees; Ed Crawford, Local 234 busi- ness representative, Richard Otto, a Local 139 organ- izer/business agent from Green Bay, Wisconsin, Scott Dahl, a Local 150 business representative, Mike Milliken, business representative, Terry Waldron, business representative, Jay Pierce, a Local 150 business representative, Charlie Bowen, a Local 150 business representative, Willie Ellis, a Local 139 business representative, and DeWitt Wegner, vice president of Local 139. The other operating engineer members of the caravan were journeymen Gary Kriesher, Brian Halder, Jeffrey Miller, John Ruddish, Carl Buss, Robin Landwer, Steve Sulley, Wayne Mau, Lenore Liebeau, Dennis Luciani, Tony Rossi, Dennis Zuleger, and Richard Carrell. Also present were Gary Larrow, a teamster, Don Vallance, who was either a journeyman or apprentice operating engineer and Ron Vinning, a truckdriver. Business Representative Jay Pierce went into the office and asked for employment applications. The group was told that Respondent was not taking applications and to get off the Sproule property. Later the same afternoon, Ed Crawford called Pat Hines, a Local 234 journeyman, and asked him to apply for work at Sproule as a covert salt. Hines went to Respondent’s offices the next day and was told Sproule was not taking applications, but that he would be contacted if the Company needed him. A week later, on June 4, Pat Hines called Respondent’s office again and was hired on the spot. He reported for work Mon- day, June 9. Another new employee started the same day. On the evening of June 10, Ed Crawford called Tom Hines and suggested that the Hines brothers go on strike the next day, which they did. On June 12, the Hines brothers sent Dan Sproule a letter, which had been drafted for them, stating that they were striking to protest the firing of Mark McCaffrey and Respondent’s refusal to hire Crawford, Saylor, Petersmith, and Downing. The Hines brothers returned to the Sproule office on June 19, with a letter informing Respondent that they were uncondition- ally ending their strike. They gave the letter to Wendy Greene, Respondent’s office manager. Greene handed the letter to Robin Morgan, who called Mike Sproule. When she got off the phone, Morgan told the Hines brothers that they would have to bring the letter back and she refused to accept it. Tom and Pat Hines were never recalled to work. Between July 5 and 15, Respondent placed newspaper adver- tisements for experienced heavy equipment operators. Respon- employees in the shop were not sent home at the beginning of the workday. Moreover, Sproule confirms that he asked McCaffrey if his family firm was unionized on May 27, and that he called McCaffrey a liar on May 28. I also credit McCaffrey with regard to his repeated telephone calls to Respondent after May 28. In this regard, I note that Respon- dent did not call Robin Morgan as a witness to contradict McCaffrey and offered no reason for its failure to do so. SPROULE CONSTRUCTION CO. 781 dent’s payroll records indicate that it hired at least 10 new em- ployees between June 27 and July 18, and over 20 employees in July and August. While Respondent was looking for new em- ployees, Donald Duehr, acting upon the suggestion of Ed Craw- ford, went on strike on July 11. He informed Michael Sproule that he was striking to protest Respondent’s failure to recall the Hines brothers. On July 28, Duehr hand-carried a letter to Re- spondent’s office informing it that he was prepared to return to work that day, unconditionally. Mike Sproule was made aware of this letter shortly after it was delivered. Duehr was never recalled to work by Respondent.7 Sproule’s payroll records indicate that it hired many new employees after July 28, includ- ing eight in the month of August. Analysis A. On May 22, 1997, Respondent Violated Section 8(a)(1) and (3) in Refusing to Hire Scott Saylor, Ed Crawford, Dick Petersmith, and Ron Downing In NLRB v. Town & Country Electric, Inc., 516 U.S. 85 (1995), the U. S. Supreme Court held that paid union organizers are employees within the meaning of the Act. It is therefore a violation of Section 8(a)(1) and (3) to refuse to hire such a per- son because they are a paid union organizer and/or because they intend to organize, M. J. Mechanical Services, 324 NLRB 812 (1997); Sunland Construction Co., 309 NLRB 1224 (1992). Respondent offered jobs to Saylor, Crawford, Petersmith, and Downing. Mike Sproule then withdrew those offers when informed that the four men intended to organize his workers. There is no question that the refusal to hire these individuals was motivated by their announced intention to engage in activi- ties protected by the Act. Respondent’s refusal to hire these employees violates Section 8(a)(1) and (3). Sproule argues that at least some of these employees were not bona fide job applicants because, as in the case of Crawford and Saylor, they were paid an annual salary of $60,000 by the Union. Therefore, contends Respondent, they really didn’t want to work for Sproule at $8 per hour. This argument over- looks the fact that organizing Sproule, or least pressuring the company into a prehire agreement was a very important objec- tive for the Union. When it obtains large contracts such as the one for the Dubuque industrial park, Respondent poses a direct threat to the standard of living of the union employees in its locality. It is therefore quite possible that the Union decided that Sproule warranted the undivided attention of one or more of its organizers, to the extent that it wanted them to work for Sproule full time.8 7 Duehr’s letter of July 28 states that he went on strike to protest the firing of McCaffrey and the refusal to hire Crawford, Saylor, Pe- tersmith, Downing, and others. It does not specifically mention the Hines brothers. While Michael Sproule testified that Duehr did not give him a reason for going on strike, I credit Duehr’s testimony that he told Sproule that he was striking for Respondent’s failure to recall the Hines brothers. It may be that, as in the case of the Hines’ brothers, the letter of July 28, was written for Duehr by someone else. 8 Mark McCaffrey insisted that his motive in seeking work at Sproule was primarily to augment his $60,000 a year salary by moonlighting. However, I conclude that his primary motive was to B. Respondent Violated Section 8(a)(1) and (3) in Discharging Mark McCaffrey on May 28, 1997. Respondent also Violated Section 8(a)(1) in Inquiring into McCaffrey’s Union Background in the Employment Interview of May 23 I have concluded that Daniel Sproule discharged Mark McCaffrey on May 28, because he discovered he was a union organizer and that he had been handing out union authorization cards before work. Assuming arguendo that McCaffrey was sent home due to the rain, Respondent violated the Act in not recalling him to work at a time when it was hiring other em- ployees.9 Respondent also violated the Act in inquiring as to whether McCaffrey’s family business was a union firm. Questioning a job applicant about any union affiliation is a coercive interroga- tion prohibited by the Act, M. J. Mechanical Services, supra at 817. C. Respondent Violated Section 8(a)(1) and (3) in Refusing to Consider for Employment the 25 Union Salts Who Came to its Office on the Afternoon of May 28 Twenty-five union members arrived at Respondent’s office on the afternoon of May 28, and through Jay Pierce, requested employment applications. Respondent refused to give them applications or consider them for employment because of their obvious connection to the Union and its organization efforts. All 25 were capable of performing work for which Respondent was seeking help. Respondent contends these applicants were not bona fide ap- plicants. However, the record establishes that all were seeking employment with Respondent. The fact that they may have been doing so primarily to further the Union’s efforts to organ- ize Sproule does not negate their status as bona fide employees, Fluor Daniel, Inc., 304 NLRB 970 (1991), M. J. Mechanical Services, supra. Indeed, the salts who were hired by Respon- dent (McCaffrey, Donald Duehr, Thomas, and Patrick Hines) performed their tasks in a completely satisfactory manner, de- spite the fact that each one was having his salary augmented by the Union. At first blush, one might doubt the sincerity of applicants such as Richard Otto, who traveled to Sproule’s Galena office from Green Bay, Wisconsin, more than 200 miles away. How- ever, there is no basis on which to reject Otto’s testimony that, if hired, he would stay in a motel near the jobsite, and work for Sproule. In this regard, I note that witness Patrick Hines, who lives in Guttenburg, Iowa, was working in Ishpeming, Michi- gan, 444 miles from his home, at the time of the hearing (ap- parently not as a salt). I therefore credit Otto’s testimony and protect the Union’s wages and benefits. Even if, a subsidiary motive was to goad Sproule into the commission of unfair labor practices, if organization efforts failed, his activities and those of the other union members in this case are protected by the Act, M. J. Mechanical Ser- vices, supra at 814. 9 Respondent did not contend at hearing that it fired McCaffrey for lying in his employment interview. Dan Sproule testified that he sent McCaffrey home because it was raining on May 28, and that Respon- dent never heard from McCaffrey again. Thus, McCaffrey’s misrepre- sentations in the employment interview do not provide Respondent with a defense to his discharge. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 782 find that construction workers may work far from home either to earn a living or, as in Otto’s case, to further the organiza- tional efforts of the Union. D. Respondent has Violated Section 8(a)(1) and (3) Since June 19, in Failing to Recall Thomas and Patrick Hines to their Former Positions of Employment at Sproule Construction Thomas and Patrick Hines went on strike to protest Respon- dent’s unfair labor practices in discharging Mark McCaffrey and in refusing to hire Ed Crawford, Scott Saylor, Dick Pe- tersmith, and Ron Downing. On June 19, the Hines brothers informed Respondent of their willingness to return to work unconditionally. Thereafter, Respondent was required to rein- state them, even if it hired permanent replacements, Child De- velopment Council of Northeastern Pennsylvania, 316 NLRB 1145 (1995). Not only did Sproule not reinstate the Hines brothers, it hired new employees to perform the same type of work. In failing to reinstate the Hines brothers, Respondent violated Section 8(a)(1) and (3). E. Respondent has Violated Section 8(a)(1) and (3) in Failing to Reinstate Donald Duehr to his Former Position of Employment Donald Duehr went on strike on July 11, to protest Respon- dent’s failure to reinstate the Hines brothers. On July 28, he informed Sproule of his willingness to return to work uncondi- tionally. Respondent concedes that Duehr performed his job well during the 7 weeks he worked for it. However, it has failed to reinstate Duehr and has hired new employees to per- form the same type of work. This also is a clear violation of the Act. F. Respondent, by Robin Morgan, Violated Section 8(a)(1) in Asking Thomas Hines about his Union Affiliation While he was Applying for Employment on May 22 Whether questions concerning an employee’s union mem- bership are lawful depends on whether they tend to restrain or interfere with the employee’s exercise of rights guaranteed by the Act, Rossmore House, 269 NLRB 1176 (1984). Such in- quiries made during a job interview, however, are inherently coercive, Gilbertson Coal Co., 291 NLRB 344 (1988). Tom Hines had reasonable cause to believe that the question posed to him by Robin Morgan on May 22, was posed on behalf of Sproule Construction, not merely to satisfy her curiosity. Therefore, I conclude that in making this inquiry, Morgan was an agent of Respondent and violated Section 8(a)(1), Commu- nity Cash Stores, 238 NLRB 265, 266 (1978). G. Complaint Paragraphs 5(a), (d), and (e) are Dismissed Paragraph 5(a) of the complaint alleges that Respondent, by Michael Sproule, told job applicants on May 22, that if they were going to try to organize, they were not going to work for Respondent. This allegation refers to Sproule’s statement to Crawford, Saylor, Petersmith, and Downing as he effectively withdrew his offer of employment. I dismiss this subparagraph as being duplicative of paragraph 6(a). I found a violation of Section 8(a)(1) and (3) for Respondent’s refusal to hire four union members with regard to this incident. Sproule’s articula- tion of the reason for his refusal to hire is not a separate viola- tion. Paragraph 5(d) alleges that Respondent, by Jay Kearney, told an employee that another employee had been fired for passing out union cards. This allegation rests on the testimony of Don- ald Duehr, that after his crew went to the Garfield Street pro- ject, Kearney told him an employee was just fired for passing out union cards. Kearney’s statement may have been no more than passing on shop scuttlebutt. The General Counsel has not shown that Duehr had reason to believe that Kearney was speaking and acting for management. Therefore, it has not been established that Kearney was Respondent’s agent. The General Counsel also bears the burden of proving that Kearney was a supervisor. It has not shown that he exercised independent judgment in doing any of the functions enumerated in Section 2(11) of the Act, or that he possessed supervisory authority other than during a sporadic and insignificant portion of his working time, Gaines Electric Co., 309 NLRB 1077, 1078 (1992). The complaint alleges in paragraph 5(e) that Daniel Sproule violated Section 8(a)(1) on or about June 11, in asking employ- ees if they were union. This subparagraph refers to his conver- sation with the Hines brothers after they informed him they were going on strike to protest the firing of McCaffrey and the refusal to hire the four salts of May 22. At this point it was obvious to Sproule that the Hines brothers were at least union sympathizers and I conclude his question or statement confirm- ing their sympathies did not tend to be coercive, particularly when they had just announced their intention to commence an unfair labor practice strike. CONCLUSIONS OF LAW 1. By asking a job applicant, Tom Hines, if he was union on May 22, Respondent violated Section 8(a)(1) of the Act. 2. By asking Mark McCaffrey if his family business was a union company on May 23, Respondent violated Section 8(a)(1). 3. By refusing to hire Scott Saylor, Ed Crawford, Dick Pe- tersmith, and Ron Downing on May 22, Respondent violated Section 8(a)(1) and (3). 4. By refusing to consider for employment the following ap- plicants since May 28, Respondent violated Section 8(a)(1) and (3): Ed Crawford, Jay Pierce, Don Vallance, Terry Waldron, Dennis Zuleger, Lenore Liebau, Willie Ellis, Richard Otto, Brian Halder, John Ruddish, Steve Sulley, Scott Dahl, Garry Larrow, Richard Carrell, Ronald Vining, Dennis Luciani, Gary Kriesher, Carl Buss, Robin Landwer, Mike Milliken, DeWitt Wegner, Charlie Bowen, Wayne Mau, Anthony Rossi, and Jeffrey Miller. 5. By discharging Mark McCaffrey on May 28, Respondent violated Section 8(a)(1) and (3). 6. By failing to reinstate Thomas Hines and Patrick Hines since June 19, Respondent has violated Section 8(a)(1) and (3). 7. By failing to reinstate Donald Duehr since July 28, Re- spondent has violated Section 8(a)(1) and (3). SPROULE CONSTRUCTION CO. 783 REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. Having found that the Respondent violated Section 8(a)(1) and (3) of the Act by refusing to consider 25 applicants for employment, I shall order Respondent to consider them for hire and to provide backpay to those whom it would have hired but for its unlawful conduct.10 In addition, if at the compliance stage of this proceeding it is determined that the Respondent would have hired any of these 25 employee-applicants, the inquiry as to the amount of backpay due these individuals will include any amounts they would have received on other jobs to which the Respondent would later have assigned them. Finally, if at the compliance stage it is established that the Respondent would have assigned any of these discriminatees to current jobs, Respondent shall hire those individuals and place them in positions substantially equivalent to those which they would have been hired for initially. Having found that Respondent unlawfully refused to hire Ed Crawford, Scott Saylor, Dick Petersmith, and Ron Downing, because of their stated intention to organize, I shall order that the Respondent offer them immediate and full employment in positions for which they applied or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. I shall further order the Respondent to make these four employees whole for any loss of earnings and benefits suffered as a result of the discrimination against them with backpay extending from May 22, 1997, the date of the unlawful refusal to hire them, until the Respondent offers them employment. Backpay shall be com- puted in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987).11 Having found that the Respondent unlawfully discharged Mark McCaffrey because of his union activities, I shall order the Respondent to offer McCaffrey immediate and full rein- statement to his former job or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings and other benefits suffered as a result of 10 The current state of the record is insufficient to determine whether Respondent would or would not have hired any of these 25 applicants, if it had considered them on a nondiscriminatory basis, except for Ed Crawford, who was offered employment on May 22. In compliance Respondent will bear the burden of proving that employees hired after May 28, had superior qualifications to the other 24 applicants, H. B. Zachry Co., 319 NLRB 967, 968 (1995). If it is determined that Re- spondent would have hired Robin Landwer, the remedy fashioned at the compliance stage will have to take into account the fact that he passed away between May 28, 1997, and the date of the hearing. 11 Reinstatement and backpay issues in the construction industry will ordinarily be resolved during the compliance process rather than by resorting to presumptions as to how long the discriminatee would have remained employed by the Respondent, Dean General Contractors, 285 NLRB 573 (1987). the Respondent’s discrimination against him. Backpay shall be computed as described in the preceding paragraph. Having found that Respondent unlawfully refused to rein- state unfair labor practice strikers Thomas Hines, Patrick Hines, and Donald Duehr after they unconditionally offered to return to work, I shall order Respondent to offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, discharging, if nec- essary, any replacements, together with backpay from June 19, (in the case of the Hines brothers) and from July 28 (in the case of Duehr). Backpay shall be computed as described above. The Respondent shall also be ordered to remove from its files any and all references to the unlawful employment actions, and to notify the discriminatees, in writing, that this has been done. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended12 ORDER The Respondent, Sproule Construction Company, Galena, Il- linois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to consider for hire applicants on the basis of their union affiliation or based on Respondent’s belief or suspicion that they may engage in organizing activity or other protected activities once they are hired. (b) Refusing to hire applicants on the basis of their union af- filiation or Respondent’s belief that they may engage in pro- tected activity, such as organizing. (c) Discharging employees because of their union affiliation or because they have engaged in protected activity, such as organizing. (d) Failing to reinstate unfair labor practice strikers follow- ing an unconditional offer to return to work. (e) Coercively interrogating job applicants or employees concerning their union membership, activities, and sympathies. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Make whole any of the following job applicants for any losses they may have suffered by reason of Respondent’s dis- criminatory refusal to consider them for hire as determined in the compliance stage of this proceeding. Offer those appli- cants, who would currently be employed but for Respondent’s unlawful refusal to consider them for hire, employment in posi- tions for which they applied. If those positions no longer exist, Respondent must offer these applicants substantially equivalent positions, without prejudice to their seniority or any other rights or privileges to which they would have been entitled if they had not been discriminated against by Respondent: 12 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. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 784 Jay Pierce, Don Vallance, Terry Waldron, Dennis Zuleger, Lenore Liebau, Willie Ellis, Richard Otto, Brian Halder, John Ruddish, Steve Sulley, Scott Dahl, Garry Larrow, Richard Carrell, Ronald Vining, Dennis Luciani, Gary Kriesher, Carl Buss, Robin Landwer, Mike Milliken, DeWitt Wegner, Char- lie Bowen, Wayne Mau, Anthony Rossi, and Jeffrey Miller. (b) Offer each of the following employees immediate em- ployment in the positions they would have received absent Respondent’s discrimination against them, or if those positions are no longer available, to a substantially equivalent positions without prejudice to their seniority or any other rights and privileges, and make them whole for any loss in pay and bene- fits resulting from the discrimination, in accordance with the remedy provision of this decision: Ed Crawford, Scott Saylor, Dick Petersmith, and Ron Down- ing. (c) Offer each of the following employees immediate rein- statement to the positions they held, or if those positions are no longer available, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges, and make them whole for any loss in pay and benefits resulting from the discrimination, in accordance with the remedy provi- sion of this decision: Mark McCaffrey, Thomas Hines, Patrick Hines, and Donald Duehr. (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful employment actions against Mark McCaffrey, Thomas Hines, Patrick Hines, and Donald Duehr or any of the union job applicants mentioned above, and within 3 days thereafter notify them in writing that this has been done, and the action will not be used against them in any way. (e) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Or- der. (f) Within 14 days after service by the Region, post at its Ga- lena, Illinois facility, copies of the attached notice marked “Ap- pendix.”13 Copies of the notice, on forms provided by the Re- gional Director for Region 33, after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility in- 13 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” volved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Respondent at any time since May 22, 1997. (g) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected con- certed activities. WE WILL NOT refuse to hire, discharge or otherwise discrimi- nate against any of you for supporting the International Union of Operating Engineers, or any other union. WE WILL NOT refuse to reinstate any employees who make an unconditional offer to return to work after participating in an unfair labor practice strike. WE WILL NOT coercively question you about your union sup- port or activities. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, offer Mark McCaffrey, Thomas Hines, Patrick Hines, and Don- ald Duehr full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Mark McCaffrey, Thomas Hines, Patrick Hines, and Donald Duehr whole for any loss of earnings and other benefits resulting from their discharge (in the case of McCaffrey) or from our failure to reinstate them (in the case of Thomas Hines, Patrick Hines, and Donald Duehr), less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharge of Mark McCaffrey, and unlawful termination of the employ- ment of Thomas Hines, Patrick Hines, and Donald Duehr, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that the discharge/terminations will not be used against them in any way. SPROULE CONSTRUCTION CO. 785 WE WILL, within 14 days from the date of the Board’s Order, offer Ed Crawford, Scott Saylor, Dick Petersmith, and Ron Downing full employment in positions for which they applied or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges. WE WILL make Ed Crawford, Scott Saylor, Dick Petersmith, and Ron Downing whole for any loss of earnings and other benefits resulting from our refusal to hire them, less any net interim earnings, plus interest. WE WILL make whole, with interest, those of the applicants named below who, as determined in an NLRB compliance proceeding, are found to have suffered economic loss as a result of our failure and refusal to consider them for hire: Jay Pierce, Don Vallance, Terry Waldron, Dennis Zuleger, Lenore Liebau, Willie Ellis, Richard Otto, Brian Halder, John Ruddish, Steve Sulley, Scott Dahl, Garry Larrow, Richard Carrell, Ronald Vining, Dennis Luciani, Gary Kriesher, Carl Buss, Robin Landwer, Mike Milliken, DeWitt Wegner, Char- lie Bowen, Wayne Mau, Anthony Rossi, and Jeffrey Miller. WE WILL offer those applicants listed above who would be currently employed by us, but for our unlawful refusal to con- sider them for employment, employment in positions for which they applied. If those positions no longer exist, we will offer them employment in substantially equivalent positions, without prejudice to seniority or any other rights or privileges to which they would have been entitled if we had not discriminated against them. WE WILL notify in writing all applicants listed above that any future job application will be considered in a nondiscriminatory manner. SPROULE CONSTRUCTION COMPANY Judith T. Poltz and Debra L. Stefanik, Esqs., for the General Counsel. Richard Reichstein, Esq., of Chicago, Illinois, for the Respon- dent. Michael D. Lucas, of Gainesville, Virginia, for the Charging Party. SUPPLEMENTAL DECISION The Board’s Remand Order ARTHUR J. AMCHAN, Administrative Law Judge. I issued my decision in this case on December 30, 1998. On June 14, 2000, the Board remanded this matter to me for further consideration in light of its decision in FES, 331 NLRB 9 (2000). On June 27, 2000, I issued a notice and invitation to the parties to file briefs by August 5, 2000, as to how the FES framework applied to the record in this case. On July 28, the General Counsel moved for an extension of time to file supplemental briefs until September 15, 2000. The Respondent joined in the motion and the Charging Party did not object. The motion was granted. The General Counsel and the Charging Party filed supplemen- tal briefs; Respondent did not do so. The Application of the FES Framework to the Instant Case The FES decision is irrelevant to many of the violations found in this case. I therefore reiterate the following findings and conclusions found at pages slip op. 9 and 10 of the initial decision, which is attached and is incorporated insofar as it is not inconsistent with this supplemental decision. CONCLUSIONS OF LAW 1. By asking a job applicant, Tom Hines, if he was union on May 22, 1997, Respondent violated Section 8(a)(1) of the Act. 2. By asking Mark McCaffrey if his family business was a union company on May 23, 1997, Respondent violated Section 8(a)(1). 3. By discharging Mark McCaffrey on May 28, 1997, Re- spondent violated Section 8(a)(1) and (3). 4. By failing to reinstate Thomas Hines and Patrick Hines since June 19, 1977, Respondent has violated Section 8(a)(1) and (3). 5. By failing to reinstate Donald Duehr since July 28, 1977, Respondent has violated Section 8(a)(1) and (3). At first blush, the FES decision appears relevant to my Con- clusion of Law 3 at page slip op. 9 of the initial decision that Respondent violated Section 8(a)(3) and (1) by refusing to hire Scott Saylor, Ed Crawford, Dick Petersmith, and Ron Downing on May 22, 1997. However, Sproule actually hired these four discriminatees on May 22, 1997, and then withdrew its offer of employment when the four discriminatees told Respondent that they intended to organize Respondent’s work force before and after work and during breaks. Thus, Respondent in effect dis- charged these four employees before they started working. In any event, it is obvious that there were job openings when the discrimination occurred; that the discriminatees had training and experience relevant to open positions and that Respondent unlawfully refused to employ the four discriminatees for these openings. I therefore reiterate my finding that Respondent refused to hire Saylor, Crawford, Petersmith, and Downing and my order that they be instated or reinstated with backpay as set forth in my initial decision. Finally, I modify Conclusion of Law 4 in my initial decision1 and find that Respondent has violated Section 8(a)(3) and (1) in refusing to hire the following employees since May 28, 1997: Jay Pierce, Don Vallance, Terry Waldron, Dennis Zuleger, Lenore Liebau, Willie Ellis, Richard Otto, Brian Halder, John Ruddish, Steve Sulley, Scott Dahl, Garry Larrow, Richard Carrell, Ronald Vining, Dennis Luciani, Gary Kriesher, Carl Buss, Robin Landwer, Mike Milliken, DeWitt Wegner, Char- lie Bowen, Wayne Mau, Anthony Rossi, and Jeffrey Miller. To establish a discriminatory refusal to hire, the General Counsel must show: (1) that the respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful con- duct; (2) that the applicants had experience or training relevant to the announced or generally known requirements of the posi- tions for hire, or in the alternative that the employer has not 1 In my initial decision, I found that Respondent had unlawfully failed to consider the employees named below for employment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 786 adhered uniformly to such requirements, or that the require- ments were pretextual or were applied as a pretext for discrimi- nation; and (3) that antiunion animus contributed to the deci- sion not to hire the applicants. If these elements are established the employer must show that it would have not hired the appli- cants even in the absence of their union activity or affiliation. In FES, supra, the Board held that if the General Counsel seeks a backpay and instatement order, he must show that there were openings for the applicants. Where the number of appli- cants exceeds the number of available jobs, the compliance proceeding may be used to determine which of the applicants would have been hired for the openings. In the instant matter, the record shows that Respondent was in the process of hiring when the 25 discriminatees arrived at its offices on May 28, 1997, and that it hired numerous employees soon afterwards. Respondent stipulated at trial that “all of the Union people are competent and experienced in all the construction equipment that is relevant to this case” (Tr. 369). This would have quali- fied the discriminatees for positions in Sproule’s concrete de- partment as well as its drivers and excavations department (Tr. 587–589). The 25 were not given employment applications because they were union sympathizers and/or union organiz- ers.2 As the Charging Party points out in its supplemental brief, Respondent hired far more than 25 employees in its driver/excavation and concrete departments between May 28, 1997, and the beginning of the hearing in this matter on Octo- ber 6, 1998. My review of Respondent’s payroll records (sealed GC Exhs. 34 and 35) show that Spoule hired at least 21 employees in its driver/excavation department and 17 employ- ees in its concrete department between May 28, 1997, and the end of calendar year 1997. It hired additional employees in both departments between January 1, 1998, and the beginning of the hearing in this matter on October 6, 1998. Some of the employees hired in 1998 were employees who worked for Sproule in 1997 and were recalled or rehired.3 2 Respondent hasn’t offered any alternative explanation for not pro- viding the discriminatees with job applications. 3 I have compared appendix A of the Charging Party’s brief with the payroll records and have found the following errors regarding employ- ees who are listed as starting work for Sproule after May 28, 1997: Driver/Excavation Department (01): Employee SSN 4600 was on Respondent’s payroll the week of July 18, 1997. Employee SSN 4279 was on Respondent’s payroll the week of April 4, 1997. Employee SSN 1716 was on Respondent’s payroll the week of April 4, 1997. Employee SSN 9112 was on Respondent’s payroll the week of February 21, 1997. Employee SSN 7502 was on Respondent’s payroll the week of April 25, 1997. Employee SSN 1453 was on Respondent’s payroll the week of April 4, 1997. Employee SSN 6594 is listed twice. Employee SSN 4210 was on Respondent’s payroll the week of May 2, 1997. Employee SSN 0183 was on Respondent’s payroll the week of May 16, 1997. The fact that Respondent hired at least 38 employees after the 25 discriminatees attempted to apply for work on May 28, 1997, does not establish that there would have been a job avail- able for each one. It may be that some new hires replaced em- ployees who were hired after May 28, and then quit or were fired. On the other hand, it may be that enough employees hired prior to May 28 were replaced than there would have been an opening for each of the discriminatees. I conclude that this is an issue that is appropriately left for the compliance stage of the proceeding. General Counsel’s Exhibit 22 estab- lishes that Sproule issued 55 paychecks on May 30 and June 6, 1997. On July 18, 1997, it issued 67 paychecks. From this I infer that there were at least 12 job openings during this period. Assuming that four of these openings would have been filled by discriminatees Saylor, Crawford, Petersmith, and Downing on May 22, there still would have been at least eight openings for the discriminatees who arrived at Sproule’s offices on May 28. Therefore at the compliance stage, it is to be determined which of the 25 discriminatees would have filled the 8 openings and whether there were in fact other openings that were available to them. AMENDED REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. Having found that the Respondent violated Section 8(a)(1) and (3) of the Act by refusing to hire 25 discriminatees who attempted to apply for work on May 28, 1997, I shall order Respondent to instate with backpay at least 8 of the discrimina- tees, to be determined at the compliance stage, who would have filled the available job openings. If it is determined that there were additional openings, the appropriate additional number of discriminatees shall be instated with backpay. Having found that Respondent unlawfully refused to hire Ed Crawford, Scott Saylor, Dick Petersmith, and Ron Downing, because of their stated intention to organize, I shall order that the Respondent offer them immediate and full employment in positions for which they applied or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. I shall further order the Respondent to make these four employees whole for Concrete Department (02): Employee SSN 7849 was on Respondent’s payroll the week of May 16, 1997. Employee SSN 2303 was on Respondent’s payroll the week of May 16, 1997. Employee SSN 7239 was on Respondent’s payroll the week of May 16, 1997. Employee SSN 0564 was on Respondent’s payroll the week of January 10, 1997. Employee SSN 8643 was on Respondent’s payroll the week of January 10, 1997. Employee SSN 3867 was on Respondent’s payroll the week of January 10, 1997. Nevertheless, my comparison of the payroll records confirms the charging party’s assertion that Respondent hired more employees in 1997 than there are discriminatees. SPROULE CONSTRUCTION CO. 787 any loss of earnings and benefits suffered as a result of the discrimination against them with backpay extending from May 22, 1997, the date of the unlawful refusal to hire them, until the Respondent offers them employment. Backpay shall be com- puted in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987).4 Having found that the Respondent unlawfully discharged Mark McCaffrey because of his union activities, I shall order the Respondent to offer McCaffrey immediate and full rein- statement to his former job or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings and other benefits suffered as a result of 4 Instatement, reinstatement and backpay issues in the construction industry will ordinarily be resolved during the compliance process rather than by resorting to presumptions as to how long the discrimina- tee would have remained employed by the Respondent, Dean General Contractors, 285 NLRB 573 (1987). the Respondent’s discrimination against him. Backpay shall be computed as described in the preceding paragraph. Having found that Respondent unlawfully refused to rein- state unfair labor practice strikers Thomas Hines, Patrick Hines, and Donald Duehr after they unconditionally offered to return to work, I shall order Respondent to offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, discharging, if nec- essary, any replacements, together with backpay from June 19 (in the case of the Hines brothers), and from July 28 (in the case of Duehr). Backpay shall be computed as described above. The Respondent shall also be ordered to remove from its files any and all references to the unlawful employment actions, and to notify the discriminatees, in writing, that this has been done. [Recommended Order omitted from publication.]