Cossentino Contracting Co., Inc.

COSSENTINO CONTRACTING CO. 351 NLRB No. 31 495 Cossentino Contracting Co., Inc. and International Union of Operating Engineers, Local Union 37, AFL–CIO. Case 5–CA–29607 September 29, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH On December 31, 2001, Administrative Law Judge Ar- thur J. Amchan issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. 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 conclusions2 and to adopt the recommended Order as modified and set 1 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. The Respondent has excepted to the judge’s finding that it failed to establish that it had a nondiscriminatory policy of not hiring any indi- vidual who was willing to accept a 25-percent reduction from his pre- vious wage rate. The Respondent argues (1) that the judge erroneously precluded it from eliciting testimony on this issue from its vice presi- dent, Dover Hankins II; and (2) that the judge erroneously relied on the wage histories of applicants Floyd Davis and John Paylor as evidence that the alleged policy did not exist. We agree with the Respondent’s latter point because neither of those hires involved a wage reduction of 25 percent or more. With respect to the former, “we will reverse a judge’s evidentiary ruling only when the party urging such measures demonstrates that the judge’s ruling was not only erroneous, but also prejudicial to its substantive rights.” T. E. Briggs Construction Co., 349 NLRB 671, 673 fn. 7 (2007). Assuming arguendo that the judge’s ruling was erroneous, the Respondent has not shown that the judge’s refusal to allow the testimony it sought to elicit from Hankins prejudiced its substantive rights. Indeed, according to the Respondent’s offer of proof, Hankins would have testified merely that “he would not have approved of the hire” of an applicant willing to accept a wage reduction of 25 percent or more. Such testimony falls short of establishing the existence of a “neutral hiring polic[y], uni- formly applied.” Sunland Construction Co., 309 NLRB 1224, 1229 fn. 33 (1992). 2 In adopting the judge’s conclusions that the Respondent violated Sec. 8(a)(3) and (1) by discriminatorily refusing to consider and hire nine journeymen operators because of their union affiliation, we rely on his finding that on March 20, 2001, receptionist Christina Galster was acting as an agent of the Respondent when she told the discriminatees that the positions for which the Respondent had advertised 2 days ear- lier had been filled. We therefore find it unnecessary to rely on the judge’s additional findings that Hankins ratified Galster’s conduct and that the Respondent was obligated to make an effort to contact the Union and solicit applications from the individuals who came to the Respondent’s office on that date. forth in full below, and to remand certain complaint alle- gations to the judge for further consideration under Toer- ing Electric Co., 351 NLRB 226 (2007).3 Relying on the framework set forth in FES, 331 NLRB 9 (2000), supplemented 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002), the judge found that the Respon- dent violated Section 8(a)(3) and (1) of the Act by refus- ing to consider for hire and by refusing to hire 12 jour- neymen operators because of their affiliation with the Union.4 However, in Toering Electric, supra, which is- sued after the judge’s decision, the Board modified the FES framework. In sum, Toering Electric held as fol- lows: “[P]roof of an applicant’s genuine job interest is an element of the General Counsel’s prima facie case under FES. Thus, if at a hearing on the merits, the em- ployer puts forward evidence reasonably calling into question the applicant’s genuine interest in employment, the General Counsel must prove the applicant’s genuine interest by a preponderance of the evidence in order to prove that the applicant is an employee within the mean- ing of Section 2(3).” Toering Electric, supra at 226. Here, the Respondent raised the issue of the genuine- ness of each applicant’s interest in working for the Re- spondent. The Respondent argues that none of the 12 applicants intended to work for the Respondent because they were asked by the Union to apply and they applied “en masse.” We find no merit in this contention. The record shows that although the individuals went to the Respondent’s office as a group, their behavior was or- derly, they attempted to submit applications in a manner consistent with the Respondent’s established procedures, they had relevant work experience, and there is no evi- dence suggesting that they were there for any reason other than to apply for work with the Respondent. The Respondent also argues that Quinton Anderson, Mark McQuay, Thomas O’Donnell, Lionel Van Dom- melen, and Edward Crizer did not have a genuine interest in employment because they worked full time for the Union and had not worked as operators for at least 5 years. We find that these five applicants fall into two distinct categories. 3 We shall modify the judge’s recommended Order and substitute a new notice to conform to our findings and to the Board’s standard remedial language. 4 Chairman Battista finds it unnecessary to decide whether the Re- spondent violated the Act by unlawfully refusing to consider 9 of the 12 applicants because as discussed below, the Board concludes that, under the FES framework, the evidence establishes a refusal-to-hire violation and the remedy for a refusal-to-consider violation would be subsumed within the broader remedy for the refusal-to-hire violation. See FES, 331 NLRB at 15. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 496 First, with respect to union organizers Anderson and McQuay, their credited testimony establishes that each would have accepted a position with the Respondent if one had been offered. In addition, although they may not have worked as operators recently, they were experi- enced and licensed heavy equipment operators. Further, the judge found that it was possible for Anderson and McQuay to “have fulfilled their obligations both to the Union and to Cossentino.” See NLRB v. Town & Coun- try Electric, Inc., 516 U.S. 85, 95–96 (1995) (“the em- ployer has no legal right to require that, as part of his or her service to the company, a worker refrain from engag- ing in protected activity”). Therefore, assuming ar- guendo that the Respondent “put forth evidence reasona- bly calling into question” Anderson’s and McQuay’s genuine interest in working for the Respondent, we find that the General Counsel has proved their genuine inter- est by a preponderance of the evidence. Second, with respect to Business Agents O’Donnell, Van Dommelen, and Crizer, the judge found that, con- trary to their testimony, they could not continue to per- form their duties for the Union while working for the Respondent. This finding establishes that the Respon- dent put forward evidence “reasonably calling into ques- tion” their genuine interest in working for the Respon- dent. Under Toering Electric, “if at a hearing on the merits, the employer puts forward evidence reasonably calling into question the applicant’s genuine interest in employment, the General Counsel must prove the appli- cant’s genuine interest by a preponderance of the evi- dence in order to prove that the applicant is an employee within the meaning of Section 2(3)” id., slip op. at 1. At the time of the hearing, the General Counsel was un- aware of this burden. Accordingly, in order to insure that all parties, including the General Counsel, have been afforded their due process rights, we find, contrary to our dissenting colleague, that the General Counsel and the Respondent are entitled to an opportunity to adduce addi- tional evidence relevant to the issue of whether these three alleged discriminatees are Section 2(3) employees. Cf. Loyalhanna Care Center, 348 NLRB 917 (2006) (remanding case to permit further litigation in light of issuance of lead decisions defining who is a “supervisor” within the meaning of Section 2(11)); Terry Machine Co., 348 NLRB 919 (2006) (same). Therefore, we shall remand this issue to the judge for further factual devel- opment and consideration.5 5 Instead of remanding the case, Chairman Battista would apply To- ering Electric and reverse the judge as to Business Agents O’Donnell, Van Dommelen, and Crizer. Applying Toering Electric, the Board concludes that Anderson’s and McQuay’s “credited testimony establishes that each would have ac- In summary, we adopt the judge’s 8(a)(3) findings with respect to Stewart Cornwell, John Jakum, Chuck Jenkinson, Michael Jordan, Kenneth Kahl, Leonard Kaniecki, Lucretia McNair-Bey, Quinton Anderson, and Mark McQuay, but we sever and remand the complaint allegations concerning O’Donnell, Van Dommelen, and Crizer for further consideration under Toering Electric. AMENDED CONCLUSION OF LAW Since March 20, 2001, the Respondent violated Sec- tion 8(a)(3) and (1) of the Act by refusing to consider and by refusing to hire the following individuals: Stewart Cornwell, John Jakum, Chuck Jenkinson, Mi- chael Jordan, Kenneth Kahl, Leonard Kaniecki, Lu- cretia McNair-Bey, Quinton Anderson, and Mark McQuay. AMENDED REMEDY Having found that the Respondent discriminatorily re- fused to consider and hire the nine applicants identified above, the Respondent must make them whole for its unlawful conduct against them. The duration of their backpay period shall be determined in accordance with Oil Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007).6 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).7 cepted a position with the Respondent if one had been offered.” Simi- larly applying Toering Electric, Chairman Battista concludes that O’Donnell’s, Van Dommelen’s, and Crizer’s discredited testimony establishes that they would not have accepted a position with the Re- spondent had one been offered. Although these salts testified that, if hired full time by the Respondent, they would have continued to per- form their union duties, the judge expressly discredited this testimony and, for that reason, denied them backpay. The judge found that it was not possible for them to simultaneously work for both the Respondent and the Union: “I find Crizer’s testimony, that he would be able to perform [his Union] functions, at night, while working at Cossentino during the day, to be incredible. . . . As with Crizer, I find that the record herein establishes that O’Donnell and Van Dommelen could not have continued to perform their duties for the Union and worked for Cossentino full-time.” Based on this credibility determination, to which no exceptions were filed, Chairman Battista finds that there is no “additional evidence” which the General Counsel could elicit on re- mand to prove that these salts had a genuine interest in seeking to es- tablish an employment relationship with the Respondent. 6 Members Liebman and Walsh dissented in relevant part in Toering Electric and in Oil Capitol. However, they recognize that both deci- sions represent current Board law and apply them for institutional rea- sons only. 7 Although our order provides for instatement, the instatement award is subject to defeasance if, at the compliance stage, the General Counsel fails to carry his burden of going forward with evidence that the dis- criminatees would still be employed by the Respondent if they had not been the victims of discrimination. Oil Capitol, supra, slip op. at 7. COSSENTINO CONTRACTING CO. 497 ORDER The National Labor Relations Board adopts the rec- ommended order of the administrative law judge as modified and set forth in full below and orders that the Respondent, Cossentino Contracting Co., Inc., Balti- more, Maryland, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to hire, or to consider for hire, job appli- cants because of their union or other protected concerted activities. (b) 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. 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 the following named individuals employment in the posi- tions in which they would have been hired in the absence of discrimination against them or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privileges to which they would have been entitled if they had not been discriminated against: Stewart Cornwell, John Jakum, Chuck Jenkinson, Mi- chael Jordan, Kenneth Kahl, Leonard Kaniecki, Lu- cretia McNair-Bey, Quinton Anderson, and Mark McQuay. (b) Make the above-named employees whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the amended remedy section of this decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful refusal to hire and to consider for hire the employees named in para- Regarding the duration of the backpay period, Chairman Battista notes that this case demonstrates the propriety of Oil Capitol. In that case, the Board held that if the discriminatee is a union organizer or “salt,” like Anderson and McQuay, the General Counsel cannot rely on a rebuttable presumption that the backpay period should continue in- definitely from the date of discrimination until a valid offer of instate- ment has been made. The instant case demonstrates the inequity of applying such a presumption. Part-time Union Organizer Terra Gon- zalez was one of the two individuals the Respondent hired on March 21, the day after the 12 salts were denied an opportunity to apply. Gonzalez did not reveal his union affiliation at the time he applied. Gonzalez started work on March 27, but quit 4–6 weeks later because, the judge found, the Union directed him to do so. Gonzalez testified that he “was told by [the] union to move out of Cossentino because we accomplish our mission.” Since the Union accomplished its “mission” 4–6 weeks after the date of discrimination, it would be inequitable to presume that the backpay period should extend several years beyond that date. graph 2(a), and within 3 days thereafter, notify the em- ployees in writing that this has been done and that the refusals to hire them and to consider them for hire will not be used against them in any way. (d) 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. (e) Within 14 days after service by the Region, post at its facility in Baltimore, Maryland, copies of the attached notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Region 5, 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 March 20, 2001. (f) 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 com- ply. IT IS FURTHER ORDERED that the allegations regarding the Respondent’s refusal to consider for hire and refusal to hire applicants Thomas O’Donnell, Lionel Van Dom- melen, and Edward Crizer are severed from this case and remanded to the administrative law judge for appropriate action as discussed above. IT IS FURTHER ORDERED that the administrative law judge shall prepare a supplemental decision setting forth credibility resolutions, findings of fact, conclusions of law, and a recommended Order, as appropriate on re- mand. Copies of the supplemental decision shall be served on all parties, after which the provisions of Sec- 8 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 498 tion 102.46 of the Board’s Rules and Regulations shall be applicable. 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 refuse to hire, or to consider for hire, job applicants because of their union or other protected con- certed activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. WE WILL, within 14 days from the date of this Order, offer the following named individuals employment in the positions in which they would have been hired in the absence of discrimination against them, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges they would have been entitled if they had not been discriminated against. Stewart Cornwell, John Jakum, Chuck Jenkinson, Mi- chael Jordan, Kenneth Kahl, Leonard Kaniecki, Lu- cretia McNair-Bey, Quinton Anderson, and Mark McQuay. WE WILL make the above-named employees whole for any loss of earnings and other benefits suffered as a re- sult of the discrimination against them, less any net in- terim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to our unlaw- ful refusal to hire and to consider for hire the above- named employees, and WE WILL, within 3 days thereafter, notify the employees in writing that this has been done and that the refusals to hire them and to consider them for hire will not be used against them in any way. COSSENTINO CONTRACTING CO., INC. Thomas J. Murphy, Esq., for the General Counsel. Carl S. Silverman and Lynn E. Brenneman, Esqs. (Hodes, Ul- man, Pessin & Katz), of Towson, Maryland, for the Re- spondent. John M. Singleton, Esq. (Albertini, Singleton, Gendler & Darby), of Owings Mills, Maryland, for the Charging Party. DECISION STATEMENT OF THE CASE ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Baltimore, Maryland, on October 3–5, 23, and 24, 2001. The charge was filed on March 27, 2001, and the com- plaint was issued May 31, 2001. The General Counsel alleges that since March 20, 2001, Re- spondent, Cossentino Contracting Company, Inc., has violated Section 8(a)(3) and (1) of the Act by refusing to consider for hire, and/or refusing to hire, into available positions, 12 em- ployees who were members of the Union. Respondent con- cedes that its receptionist, Christina Galster, failed to give em- ployment applications to these 12 employees on March 20, but contends that she was not motivated by antiunion animus. On the entire record,1 including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a corporation, is engaged in grading (site clear- ing) and utilities work. Until April 12, 2001, when it sold a portion of its business, Cossentino Contracting also performed paving work. Respondent’s office is in Baltimore, Maryland, where it annually purchases and receives goods valued in ex- cess of $50,000 directly from points outside the State of Mary- land. Respondent admits and I find that it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union, Lo- cal 37 of the International Union of Operating Engineers, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES From Thursday, March 14, through Sunday, March 18, 2001, Respondent ran the following advertisement in the Baltimore Sun: Construction Utility/grading contractor seeking experienced operators. Transportation and pre-employment drug testing required. Apply at 8505 Contractors Road. Off Pulaski Hwy., Rose- dale. From March 15 through 18, Respondent also ran an adver- tisement in the Sun for an experienced tandem dump truck driver. On March 19, Respondent’s office administrator, Chris- tina Galster, accepted an application from Leonard McMillan, 1 There are no GC exhibits numbered 98–104. Tr. 773, L. 25, should indicate that witness Steger was cross-examined by Respondent’s coun- sel, Carl Silverman. COSSENTINO CONTRACTING CO. 499 who applied for the dump truck driver position.2 On the morning of March 20, 2001, 12 members of the Un- ion arrived at Respondent’s office to apply for jobs in response to the advertisement for operators. Seven of the employees were journeymen operating engineers on the Union’s out of work list.3 Five of the individuals were full-time employees of Local 37. The five consisted of Quinton Anderson and Mark McQuay, organizers; Thomas O’Donnell, business agent/organizer; Lionel Van Dommelen, business agent and vice president; and Edward Crizer, business agent/hiring hall dispatcher. These five were wearing identical golf jackets with a union logo. Two other employees were wearing hats with a Local 37 insignia and one was wearing a Local 37 jacket. In front of the employees as they entered Respondent’s of- fice, was an “L” shaped desk or counter. Directly in front of them, behind the counter, sat receptionist Mary Overcash and off to the right sat Christina Galster, who was talking to some- body on the telephone. Overcash asked the employees if she could help them. Organizer McQuay told her that the group wanted to submit applications in response to the advertisement that ran in Sunday’s newspaper. Galster put down the tele- phone, said that the positions were filled and that Respondent was not giving out applications. McQuay responded that he couldn’t believe that Cossentino had filled the jobs advertised so quickly. Galster again told the group that the positions were filled and that Respondent was not giving out applications. McQuay thanked her and the group left the office. No later than the afternoon of March 20, Dover Hankins II, one of Respondent’s vice presidents, was aware that a group of individuals had come to Cossentino’s office, that they had sought to apply for operator positions that had been advertised in Sunday’s Baltimore Sun, and that they had been told that the positions were filled and that Galster had refused to give them employment applications. Moreover, Hankins was aware, at least by the afternoon of March 20, that the applicants were most likely members of Local 37.4 The next day, Terra Gonzalez, a Local 37 member and part- time organizer, and his brother-in-law, Lazaro Salas, went to Respondent’s office. The two men applied for operator posi- tions. Neither disclosed Gonzalez’ relationship with the Union. They were given applications, which they filled out. After 2 There are no allegations in this case regarding Respondent’s failure to hire McMillan. The acceptance of his application is relevant in evaluating Christine Galster’s explanation for her conduct on March 20. McMillan’s application indicates that he has been a member of the Union in the past. 3 The journeymen (or journeypersons) were Stewart Cornwell, John Jakum, Chuck Jenkinson, Michael Jordan, Kenneth Kahl, Leonard Kaniecki, and Lucretia McNair-Bey. 4 Members of Local 37 had applied for work en masse at Cossentino on June 1, 1998, and interacted with both Hankins and Galster. In fact, Galster xeroxed employment applications for the union applicants. In 1998, Hankins testified at length in a representation case initiated by Local 37. In 1998 and 1999, the Union picketed Cossentino on a num- ber of occasions, both at its office and at jobsites. Additionally, the Union filed unfair labor practice charges against Respondent, alleging three 8(a)(3) discharge violations. These charges were settled in June 1999, resulting in the payment of over $8000 to union members (GC Exhs. 27 & 28). passing a drug test, Gonzalez and Salas were hired as equip- ment operators by Respondent and started work on March 27. Salas worked for Respondent for only 3 days; Gonzalez worked for Cossentino for a month to a month and half.5 Applicable Legal Principles In FES, 331 NLRB 9 (2000), the Board set forth the analyti- cal framework for refusal-to-hire violations. The General Counsel must show that: (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 alternative, that the employer has not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were ap- plied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the appli- cants. In contrast, to establish a discriminatory refusal to consider, the General Counsel must show that: (1) the respondent ex- cluded applicants from a hiring process; and (2) that antiunion animus contributed to the decision not to consider the appli- cants for employment. Once the elements of a refusal-to-consider violation is estab- lished, the burden shifts to the employer to show that it would not have considered the applicants even in the absence of their union activity or affiliation. Similarly, once the elements of a refusal-to-hire violation are established, the burden shifts to the employer to show that it would not have hired the applicants even in the absence of their union activity or affiliation. The Board stated further in FES that, in a discriminatory hir- ing case, whether the alleged discriminatees would have been hired but for the discrimination against them must be litigated at the hearing on the merits. The General Counsel must show that there was at least one available opening for the applicants. If the General Counsel seeks an affirmative backpay and in- statement order, he must show at the hearing on the merits, the number of openings that were available. However, where the number of applicants 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. Additional Findings and Conclusions Respondent does not dispute that it was hiring operators and that the 12 union applicants had sufficient skills, experience, and training to fill its operator positions. However, it denies that antiunion animus contributed to the decision not to hire the applicants or to consider them for employment. Christina Galster was Respondent’s agent when she told the applicants that the positions for which Respondent had adver- tised 2 days previously had been filled and declined to give them applications. A rank-and-file employee may become an agent of his or her employer via either actual or apparent au- thority. Galster had actual authority to hand out employment 5 The Union sent Gonzalez to Cossentino to apply for work and di- rected him to quit his job 4–6 weeks later. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 500 applications and respond to job applicants. She also had appar- ent authority, in that job applicants would reasonably believe that she was reflecting company policy and speaking and acting for management, Community Cash Stores, 238 NLRB 265 (1978). More specifically, the Board has found clerical employees, who hand out employment applications and interact with job applicants, to be the employer’s agent in a number of cases analogous to the present one. In EPI Construction, 336 NLRB 234 (2001), the Board held that the employer violated the Act through its receptionist, Sandy Garlette, who told a job appli- cant to predate his application so that the employer could avoid hiring union applicants (slip opinion, pages 4, 5, and 19); In GM Electrics, 323 NLRB 125, 127 (1997), the Board found that the employer violated the Act through its secretary, Cecily Eaton, who interrogated a job applicant as to his union mem- bership. In Diehl Equipment Co., 297 NLRB 504 fn. 2 (1989), the Board found secretary/receptionist Beryl Dyer to be the employer’s agent when she told a job applicant that her com- pany didn’t hire union help anymore. Animus Respondent contends that antiunion animus did not contrib- ute to its failure to provide and accept employment applications from the 12 union members on March 20. Rather, it contends that Galster misinterpreted conversations she overheard, and instructions she received, and believed that Respondent was not longer seeking job applicants. Galster is not a credible witness and I conclude that she knew that applicants were from the Union. I also conclude that she misinformed them about the open operator positions and declined to provide them with em- ployment applications as a result of her awareness of Respon- dent’s prior dealings with the Union. I decline to credit Galster’s testimony for a number of rea- sons. First of all, she contradicted herself on several occasions. For example, when I asked her if the applicants had asked for applications, she answered that they did not. A few seconds later, when asked the same question by the General Counsel, she answered, “I guess they did say they wanted applications for the operator’s positions [Tr. 73].” When asked whether there had ever been a previous occasion when a group of more than six individuals had come into Re- spondent’s office to apply for work, Galster initially answered no or, “not that I remember.” After being shown the Union’s video of a group of union members applying for jobs on June 1, 1998, Galster said that her memory was refreshed and that a group came in and wanted to fill out applications. She denied knowing whether they were from Local 37, despite the fact that the video clearly shows several of the individuals wearing hats with the union’s insignia. While it is possible that Galster would not remember a brief one-time encounter with the Union, her testimony is incredible in light of several factors. First of these is the uncontradicted testimony of organizer Mark McQuay that a day or two after the applications were submitted to Respondent in 1998, he returned and spoke to Galster about their status. A day or two after that, McQuay went to Respondent’s office a third time and spoke to Galster again and left her his business card. Union organizers also returned to Respondent’s office to serve a sub- poena for a representation case hearing, at which time organizer Quinton Anderson spoke to Galster. The Union also picketed outside Cossentino’s office on ap- proximately seven occasions. Local 37 also picketed Respon- dent’s jobsites on a number of occasions and filed unfair labor practice charges against Cossentino. Dover Hankins II, testi- fied that the notice Respondent posted as a result of the settle- ment of these charges was displayed on a board in his office, which Galster entered on a recurring basis.6 Based on these facts, I find that Galster immediately realized that the appli- cants entering Respondent’s office on March 20, were from the same union that had sent applicants to Cossentino in 1998, initiated the representation hearing, filed unfair labor practice charges, and picketed Respondent. I find further that she mis- informed the applicants and declined to provide them with ap- plications because she knew or suspected that they were from the Union.7 Moreover, I find that Dover Hankins II, Respondent’s vice president, ratified the unfair labor practice committed by Gal- ster. Hankins testified that on the afternoon of March 20, Gal- ster told him about the group of applicants that had come into the office that morning. Hankins testified that he asked Galster if she had given the individuals applications and that she told him that she did not because she didn’t think Respondent was hiring. Hankins testified that he reprimanded Galster and asked her if the applicants were union people and that she said she didn’t know. I find this testimony incredible as well. I find that Galster informed Hankins that the group of applicants were from the Union or a union. I infer that Hankins believed that since the applicants did not leave a business card or any other documentation of who they were that he was under no obliga- tion to do anything further. On the contrary, I conclude that Hankins’ failure to remedy Galster’s actions constituted a ratification of the unfair labor practices, Dentech Corp., 294 NLRB 924, 927–928 (1984). Given Hankins’ past experience with the Union, including testi- fying at length in a representation proceeding initiated by Local 37, I find that even if Galster did not mention Local 37, that Hankins realized that the March 20 applicants were from the Union. Under these circumstances, I find he was obligated to make an effort to contact the Union and solicit applications from the individuals who came to Respondent’s office.8 Hankins was aware at least by the afternoon of March 20, that Respondent was seeking equipment operators for the grading division. I also discredit the testimony of Galster and Hankins regard- ing the reasons for Galster’s conduct on March 20. They testi- fied that on Friday, March 16, Galster overheard Hankins dis- 6 Galster denied having ever seen the notice, but testified that she was aware that the Union had filed unfair labor practice charges against Respondent. 7 Galster’s normal practice was to give applicants an employment application even if Respondent was not hiring. Her unprecedented failure to do so on March 20, is a further indication that her conduct was motivated by antiunion animus. 8 Local 37 is listed in the Baltimore Yellow Pages, at least on the Internet. COSSENTINO CONTRACTING CO. 501 cussing the contemplated sale of Respondent’s paving division and that Hankins then asked Galster to compile the personnel files of the paving division employees. Respondent contends that Galster inferred from this that Respondent was no longer hiring any employees. This explanation is incredible for a number of reasons. First of all, on Monday, March 19, Galster provided an employment application to Leonard McMillian, and then accepted his completed application. Secondly, it is inconceivable that Galster, without discriminatory intent, would take it upon herself to decide that Respondent no longer needed to hire for the positions for which it had just advertised. This is particularly so because she had placed the advertisements at the direction of Dover Hankins Sr., the grading superintendent (Dover II’s father), rather than Dover II, who informed her of the possibility that the paving division would be sold. More- over, if Galster was confused, she could have contacted either Dover Hankins II, or Kris Davis, the utilities superintendent. I infer that if Galster had acted without discriminatory pur- pose, she would not have decided that the grading division didn’t need operators without checking with Dover Hankins Sr., or some other knowledgeable person. This is particularly true since the sale of the paving division was not finalized until after March 20, and hiring in the paving division continued after that date. The Number of Job Openings Pursuant to FES, at the hearing on the merits, the General Counsel must show the number of job openings available to discriminatees. Respondent argues that there were only two openings, the operator positions for which Lazaro Salas and Terra Gonzalez were hired on March 21, 2001. The argument is based on the contention that it would have considered the discriminatees’ applications for only 2 weeks and that it would not have considered the applicants for positions that were rela- tively lower-paying laborer and pipelaying jobs, which in- volved primarily manual laborer. To the contrary, I conclude that on March 20, there wasn’t a 2-week “shelf-life” for job applications and that Respondent did not have a nondiscrimina- tory policy of not considering individuals who applied for op- erator positions for hire as laborers or pipelayers. The “2-Week” Rule On April 24, 2001, Respondent filed a position statement with the General Counsel, which, stated: The Company has retained applications for at least six months, the purpose of which was to fulfill any reporting re- quirement that might arise for EEO purposes, U. S. Depart- ment of Labor, or any other governmental agency. The Com- pany, however, would not refer to those applications more than “fourteen days” after they were submitted in the event another position or positions opened thereafter. The Com- pany has learned over the years that current applications be- came stale, which meant, after a few weeks or even less, the viable applicants had found employment elsewhere. Good candidates did not “hang around” waiting to be contacted months later. In this connection, Cossentino applicants have been advised to submit new applications if, in the future, they remain or again become available and wish to be considered for employment with the Company (Please see Cossentino’s . . . Entire Application Package . . . , which includes the 14 day requirement for applicants to re-file. (See Attachment A.) [Emphasis added.] According to Dover Hankins II, vice president of the Com- pany, this procedure has been followed over the past several years or more. There is no written “formalization” of this pro- cedure. Attachment A to the position statement is a sheet of paper which reads as follows: PLEASE FILL OUT ENTIRE APPLICATION PACKAGE *YOUR APPLICATION WILL BE REVIEWED BY A SUPERVISOR AND WILL BE CONSIDERED FOR EMPLOYMENT FOR A PERIOD OF (14) DAYS FROM THE DATE OF THE COMPLETED APPLICATION.9 The position statement does not address the question of when the “14-day rule” was implemented. The testimony of Galster and Dover Hankins II, on this issue is evasive, inconsistent, and in at least one instance, completely fabricated. On the first day of hearing, Galster testified that the rule had been in effect for about a year (since approximately October 2000). Two weeks later, she testified that it was initiated about a 1-1/2 years prior to the hearing (spring 2000). Galster testified that she learned of the rule from Hankins, but evaded testifying about precisely what Hankins told her. She stated that, “[a]bout a year and a half ago is when it became effective or in writing.” Respon- dent’s position statement, however, states that there is not a written “formalization” of the rule. Galster testified that the attachment to Respondent’s position statement (attachment A) had been given to job applicants from approximately May 2000 until mid-May 2001. This testimony, I conclude, is a complete fabrication. I draw this conclusion on the basis of several factors: first and foremost is the credible testimony of Mark Steger, who was hired by Respondent in September 2000 and again in May 2001. I credit Steger’s tes- timony that this sheet was not given to him in September 2000 and that he was never told that his application was good for only 2 weeks. I also rely on Respondent’s failure to support this contention with the testimony of any job applicants, includ- ing those who applied for work between May 2000 and March 20, 2001, and were employed by Respondent at the time of hearing.10 9 The text contains a superfluous “AND.” 10 All parties had an opportunity to ask Terra Gonzalez about the 2- week rule notice and none did so. Respondent began using a new application form, including the 2- week rule, by June 11, 2001 (see GC Exh. 39). Among the employees still working for Respondent at the beginning of the hearing, who filled out applications between May 2000 and March 2001, are James Rowland, Justin Cronin, Scott Marsteller, and Donald Fogle. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 502 Dover Hankins, II, testified that Respondent implemented the 2-week rule in about March 2000.11 He did not testify that any applicants were given a sheet with the rule on it. I do not credit Hankins’ testimony on this point for the following rea- sons. First of all, his testimony is incorrect on another material point which leads me not to credit his testimony on any mate- rial issue without reliable corroboration. He testified that he has not, and would not hire an individual who applied for an operator’s position as a laborer, or hire an individual who was willing to accept a 25-percent reduction from his previous wage rate. Hankins’ testimony at least implies that this is company policy. However, this is belied by the application of Floyd Davis (GC Exh. 41). Davis applied for a job as a heavy ma- chine operator on June 19, 2001, seeking a wage rate of $12 per hour. Davis’ application indicates he was earning $12 per hour as a heavy machine operator at John Clark Contracting Com- pany, when he left that firm in January 1999. He was hired by Cossentino in its utility division as a laborer at $9.25 per hour. Although Floyd Davis was apparently hired by Utility Superin- tendent Kris Davis, rather than Hankins, his application leads me to conclude that Respondent had no such policy as that testified to by Hankins.12 Furthermore, there are applications which facially contradict Respondent’s testimony that applications were good for only 2 weeks. Charles Fleury filled out an employment application on January 29, 2001, and started working for Respondent on March 8, 2001. James Rowland filled out an application on February 13, 2001, but didn’t start working for Cossentino until March 15, 2001. Hankins testified that Fleury was hired in January but didn’t start working until March 8, because the weather was too wet for Respondent to use his services. With regard to Rowland, Hankins testified that: “we struck a deal for him to come to work;” that Rowland was supposed to come to work the following week and didn’t because he accepted an- other job. According to Hankins, Rowland called 2-1/2 weeks later and asked if a position was still available. Hankins testi- fied that it was available, but that he couldn’t put Rowland to work until March 15, because the weather was too wet. I decline to credit this testimony, particularly in view of the fact that Respondent failed to corroborate Hankins’ testimony with that of Rowland, who still works for Cossentino. More- over, if the weather was sufficiently dry for Fleury to start work on March 8, it would stand to reason that it was sufficiently dry 11 At Tr. 735–736, Hankins testified that the 2-week rule was dis- cussed in about March 2000, without testifying as to when it was im- plemented. At Tr. 891, he implies that the rule was implemented in this time frame. 12 Kris Davis testified that Floyd Davis said he could operate heavy equipment and could not do so. Kris Davis did not testify that this was the reason that Floyd Davis was hired as a laborer, or that he deter- mined that Floyd Davis could not run heavy equipment before he hired him. From Terra Gonzalez’ testimony, it appears that Respondent took the representations of job applicants regarding their experience and skills at face value when it hired them. Respondent’s purported concern over hiring employees who would be disgruntled because they were being paid too little is also undercut by the fact that it hired John Paylor on July 6, 2001, at a wage rate of $12.50 per hour. Paylor had asked for $16 per hour on his employment application for the position of equipment operator. enough for Rowland to start work as well, if he had already been hired. Contrary to Hankins’ testimony, it appears more likely that Rowland was hired just prior to March 15, on the basis of his month-old job application. Finally, it appears that Jake Sills, who filled out an employment application on Febru- ary 12, 2001, was offered a job on March 9. Respondent has offered no explanation for this apparent departure from the “2- week” rule. From March 20, 2001, through the close of the hearing on October 24, 2001, Respondent filled seven operator positions which could have been filled by the discriminatees. These positions are those filled by the following employees: Terra Gonzalez, hired March 21, 2001; replaced by Stanley Ostasewski on May 8, who was replaced by Albert Snyder on May 14; Lazaro Salas, hired March 21, 2001, who was replaced by Michael Schmidt on May 7, 2001, who was replaced by Eddie, last name unknown; Mark Steger, hired May 9, 2001; terminated his em- ployment on July 6, 2001, and was not replaced; Richard Rufus, hired June 18, 2001;13 Eppie Chapman, hired July 23, 2001; John Paylor, hired July 10, 2001; Freddie Foster, hired late August 2001 (see Tr. 922). Respondent also hired over a dozen employees whose tasks were primarily those of a laborer or pipelayer, rather than the operation of machinery. These include: Edward Smith, hired May 9; Daniel Hudson, hired April 26 ; Floyd Davis, hired June 19; Renard Rufus, hired June 25; Everett Eady, hired May 21; Frank Tolbert, hired July 2; Chris Seckens, hired July 19; Willie Bryant, hired July 16.; Eugene Christopher, hired August 20; Jeffrey Braxton, hired August 8; Donald Whitehead, hired July 26; Jeffrey Fisher, hired August 1; 13 At p. 56 fn. 41 of its brief, Respondent states that while Cossentino hired Richard Rufus as a foreman/operator, no one in the applicant group had the knowledge or skill in utilities necessary to be qualified as a foreman-operator in charge of day-to-day operations of utility crews. I find to the contrary that all of the applicants had the experience, knowledge, skill, and training to perform the job for which Rufus was hired. First of all, Respondent stipulated that the alleged discriminatees had the requisite skills to perform operator jobs for Cossentino if they were hired (Tr. 615). Secondly, Kris Davis’ testi- mony cited by Respondent in its brief merely stands for the proposition that Rufus, an experienced operator, would be in charge of his crew in Davis’ absence. Finally, in the 1998 representation case, Respondent successfully litigated its contention that foremen-operators were merely leadmen and not supervisors. The record with regard to the discriminatees experience, as well as Respondent’s stipulation, satisfies me that they were capable of per- forming the same functions performed by Rufus during his employment at Cossentino. COSSENTINO CONTRACTING CO. 503 Jimmy Wilson, hired June 19; Robert Brown, hired September 17; Benjamin Wilson, a pipelayer, who quit in May 2001 and was rehired on June 18; Greg Matthews, who was rehired into the paving divi- sion on March 26. Respondent’s contentions that it would not have hired any of the discriminatees due to their prior wage history, for labor/pipelayer positions In Aztech Electric Co., 335 NLRB 260 (2001), the Board held that a nondiscriminatory hiring policy that excludes appli- cants who have previously earned significantly more than the employer is offering may violate the Act because it may be “inherently destructive” of employees’ Section 7 rights. In the instant case, it is unnecessary to rely on the Aztech Electric decision. Respondent has not established that it had any such nondiscriminatory policy. To establish that it had such a pol- icy, an employer must do more than rely on self-serving testi- mony at trial. In the instant case, there is no credible evidence that Cossentino had such a policy prior to March 20, and its hiring of Floyd Davis at a wage 23 percent less than that he earned previously, belies the existence of such a policy. Its hiring of John Paylor at $12.50 an hour, when he requested $16, also suggests that Respondent did not have a legitimate nondiscriminatory concern with hiring individuals who would be disgruntled employees due to the fact that their wages were considerably less than those they desired. CONCLUSION OF LAW Since March 20, 2001, Respondent has violated Section 8(a)(3) and (1) of the Act in refusing to hire and refusing to consider for hire the following 12 individuals: Stewart Cornwell, John Jakum, Chuck Jenkinson, Michael Jordan, Kenneth Kahl, Leonard Kaniecki, Lucretia McNair- Bey, Quinton Anderson, Mark McQuay, Thomas O’Donnell, Lionel Van Dommelen, and Edward Crizer. 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. The Respondent having discriminatorily refused to hire the above-named individuals, it must offer them instatement, and, with the exceptions noted below, make them whole for any loss of earnings and other benefits, computed on a quarterly basis from the date they would have started work for Respondent to the date of a proper offer of instatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Re- tarded, 283 NLRB 1173 (1987). Remedy for Discriminatees who were Full-Time Employees of the Union Under current Board precedent there is generally no distinc- tion in the fashioning of a remedy for the discriminatees who were full-time union employees and those that were not, Fergu- son Electric Co., 330 NLRB 514 (2000), enfd. 242 F.3d 346 (2d Cir. 2000). With regard to organizers Quinton Anderson and Mark McQuay, it is possible that they could have per- formed their duties as union organizers in addition to perform- ing work for Cossentino. If the Union deemed that organizing Respondent should take precedence over any other organizing assignments, there is no reason that Anderson and McQuay could not have fulfilled their obligations both to the Union and to Cossentino. Any uncertainty or ambiguity in this regard is resolved against the wrongdoer, Ferguson, supra at 516. The same is not true, however, for Business Agents Thomas O’Donnell, Ed Crizer, and Lionel Van Dommelen. One of the grounds for the Board’s decision in Ferguson is that there was no basis in that record for finding that the organizer’s activities would have been other than incidental to the duties he sought to assume when he applied to the employer for work as an electri- cian, supra at 517. With regard to business agents O’Donnell, Crizer, and Van Dommelen, however, the record establishes that they would have been unable to continue to perform their duties for the Union and work full time for Cossentino. Crizer is the Union’s dispatcher as well as a business agent. He spends much of his workday on the telephone taking calls from out-of-work union members and union contractors seek- ing labor. He also negotiates contracts, settles grievances, and interacts with the union’s shop stewards. I find Crizer’s testi- mony, that he would be able to perform these functions, at night, while working at Cossentino during the day, to be in- credible. O’Donnell and Van Dommelen’s duties also require them to spend a great deal of time during the day on the tele- phone talking to contractors and the Union’s members. They negotiate and service the Union’s collective-bargaining agree- ments and spend significant amounts of time trying to resolve grievances. As with Crizer, I find that the record herein estab- lishes that O’Donnell and Van Dommelen could not have con- tinued to perform their duties for the Union and worked for Cossentino full time. Therefore, I find that they are not entitled to backpay. On the other hand, Respondent should be required to offer instatement to Crizer, O’Donnell, and Van Dommelen. It is at least theoretically possible that they will accept a position with Cossentino and they should therefore be given the opportunity to do so. [Recommended Order omitted from publication.]