Eastern Energy Services, LLC

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 349 NLRB No. 53 554 Eastern Energy Services, LLC and Sheet Metal Workers International Association, Local Union No. 40. Case 34–CA–11315 March 20, 2007 DECISION AND ORDER BY MEMBERS LIEBMAN, KIRSANOW, AND WALSH On August 9, 2006, Administrative Law Judge Law- rence W. Cullen issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The General Counsel filed an answering brief, and the Re- spondent filed a reply 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 conclusions as modified and to adopt the recommended Order as modi- fied and set forth in full below.2 AMENDED REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent unlawfully refused to hire and to con- sider for hire Thomas Kelm, Arthur Bregoli, Gerald Satin, and Kenneth Moore. These individuals are enti- tled to the remedy for unlawful refusal to hire— instatement and backpay—which subsumes the remedy for the Respondent’s unlawful refusal to consider them 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. In affirming the judge’s finding that the Respondent, by Director of Operations Debra Roggero, violated Sec. 8(a)(1) by Roggero’s state- ments to union officials Thomas Kelm and Luke Ford on October 19, 2005, Member Kirsanow relies on Roggero’s statement that she was not going to hire any of the Union’s sheet metal workers. This was a direct avowal of intent to discriminate against union job applicants, having a reasonable tendency to restrain or coerce those individuals in the exercise of their Sec. 7 rights. Having affirmed the 8(a)(1) finding on this basis, Member Kirsanow finds it unnecessary to pass on the judge’s finding of an 8(a)(1) violation for Roggero’s additional state- ment that she does not do business with organizations that file com- plaints with the Department of Consumer Protection and cost her com- pany money. 2 We will amend the remedy section of the judge’s decision to more precisely set forth the appropriate remedy for discriminatory refusals to hire and to consider for hire. We will also modify the judge’s recom- mended Order in accordance with the Amended Remedy and with the Board’s standard remedial language. Finally, we have substituted a new notice to comport with these modifications. for hire. Jobsite Staffing, 340 NLRB 332, 333 (2003). We shall order the Respondent to make these individuals whole for any loss of earnings and other benefits that they may have suffered due to the unlawful actions taken against them in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in ac- cordance with New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent unlawfully refused to consider for hire Charles Bristol, Nicholas Susko, Armand Joseph Richard, Paul Nieves, and Damien Pisani. We shall or- der that the Respondent consider these individuals for future employment in accord with nondiscriminatory criteria. We shall also order that the Respondent notify these individuals, the Union, and the Regional Director for Region 34 in writing of future openings in positions for which these employees applied or substantially equivalent positions. The Respondent will be required to provide such notification until the Regional Director concludes that the case should be closed on compliance.3 If it is shown at a compliance stage of this proceeding that, but for the failure to consider them, the Respondent would have selected any of these individuals for job openings arising after the beginning of the hearing on May 16, 2006, or for any job openings arising before the hearing that the General Counsel neither knew nor should have known had arisen, the Respondent shall be ordered to hire them for any such position and to make them whole for any loss of earnings and other benefits that they may have suffered due to the unlawful actions taken against them in accordance with F. W. Woolworth Co., supra, plus interest as computed in accordance with New Horizons for the Retarded, supra. ORDER The National Labor Relations Board orders that the Respondent, Eastern Energy Services, LLC, Norwich, Connecticut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discriminatorily refusing to consider for hire and refusing to hire applicants for employment because of their union membership or support of the Union. (b) Telling job applicants that the Respondent does not hire sheet metal workers who are union members. (c) Interrogating employees concerning the Union and its members’ engagement in concerted activities. (d) Telling representatives of the Union that the Re- spondent will not do business with the Union or that it will not hire members of the Union. 3 FES, 331 NLRB 9, 15 fn. 15 (2000), supplemental decision 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002). EASTERN ENERGY SERVICES 555 (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the National Labor Relations 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 Thomas Kelm, Arthur Bregoli, Gerald Satin, and Ken- neth Moore instatement to the positions for which they applied or, if those positions no longer exist, to substan- tially equivalent positions, without prejudice to their sen- iority or any other rights or privileges they would have enjoyed absent the discrimination against them. (b) Make Thomas Kelm, Arthur Bregoli, Gerald Satin, and Kenneth Moore whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, with interest, in the manner set forth in the amended remedy section of this Decision and Order. (c) Consider Charles Bristol, Nicholas Susko, Armand Joseph Richard, Paul Nieves, and Damien Pisani for fu- ture employment in accord with nondiscriminatory crite- ria, and notify these individuals, the Union, and the Re- gional Director for Region 34 in writing of future open- ings in positions for which these individuals applied or substantially equivalent positions. If it is shown at a compliance stage of this proceeding that, but for the fail- ure to consider them, the Respondent would have se- lected any of these employees for any job openings aris- ing after the beginning of the hearing on May 16, 2006, or for any job openings arising before the hearing that the General Counsel neither knew nor should have known had arisen, the Respondent shall hire them for any such position and make them whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against them, with interest, in the manner set forth in the amended remedy section of this Decision and Order. (d) 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 Thomas Kelm, Arthur Bregoli, Gerald Satin, and Kenneth Moore, and the unlawful re- fusal to consider for hire Charles Bristol, Nicholas Susko, Armand Joseph Richard, Paul Nieves, and Da- mien Pisani, and within 3 days thereafter, notify them in writing that this has been done and that these unlawful actions will not be used against them in any way. (e) Preserve and, within 14 days of a request or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its facility copies of the attached notice marked “Appen- dix.”4 Copies of the notice, on forms provided by the Regional Director for Region 34, after being signed by the Respondent’s authorized representative, shall be posted 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 at- tached notice to all current employees and former em- ployees employed by the Respondent at any time since July 2005. (g) 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. 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 consider for hire and to hire ap- plicants for employment because of their membership in or support of Sheet Metal Workers International Associa- tion, Local Union No. 40. 4 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 556 WE WILL NOT tell job applicants that we do not hire sheet metal workers who are union members. WE WILL NOT interrogate employees concerning the Union and its activities. WE WILL NOT tell representatives of the Union that we will not do business with the Union or hire members of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights set forth above. WE WILL, within 14 days from the date of the Board’s Order, offer Thomas Kelm, Arthur Bregoli, Gerald Satin, and Kenneth Moore employment in the positions for which they applied or, if these positions no longer exist, in substantially equivalent positions, without prejudice to their seniority or any other rights or privileges they would have enjoyed absent the discrimination against them. WE WILL make Thomas Kelm, Arthur Bregoli, Gerald Satin, and Kenneth Moore whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against them, less any net interim earnings, plus in- terest. WE WILL consider Charles Bristol, Nicholas Susko, Armand Joseph Richard, Paul Nieves, and Damien Pisani for future employment in accord with nondiscriminatory criteria, and WE WILL notify these individuals, the Union, and the Regional Director for Region 34 in writing of future openings in positions for which these individuals applied or substantially equivalent positions. If it is shown at a compliance stage of this proceeding that, but for the failure to consider them, we would have selected any of these individuals for any other job openings, we shall hire them for any such position and make them whole, with interest, for any loss of earnings and other benefits. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful refusal to hire and to consider for hire Thomas Kelm, Arthur Bregoli, Gerald Satin, and Kenneth Moore, and the unlawful refusal to consider for hire Charles Bristol, Nicholas Susko, Armand Joseph Richard, Paul Nieves, and Damien Pisani, and WE WILL, within 3 days thereaf- ter, notify them in writing that this has been done and that these unlawful actions will not be used against them in any way. EASTERN ENERGY SERVICES, LLC Darryl Hale, Esq., and Thomas E. Quigley, Esq., for the Gen- eral Counsel. Bernard E. Jacques, Esq., for the Respondent. Thomas Kelm, for the Charging Party. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN, Administrative Law Judge. This case was heard before me in Hartford, Connecticut, on May 16 and 17, 2006. The complaint is based on a second amended charge filed on January 26, 2006, by Sheet Metal Workers’ International Association, Local 40 (Local 40 or the Union), with the National Labor Relations Board (the Board) and al- leges that Eastern Energy Services, LLC (Eastern Energy or the Respondent has committed violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). The complaint is joined by the answer filed by the Respondent in which it denies the commission of any violations of the Act. After due consideration of the testimony and evidence re- ceived at the hearing and the parties’ contentions at the hearing and the briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The complaint alleges, Respondent admits, and I find that at all times material the Respondent is and has been a corporation with an office and place of business located in Norwich, Con- necticut, where it has been engaged as a mechanical contractor in the heating and air-conditioning industry, that during the 12- month period ending January 31, 2006, Respondent, in con- ducting its operations, purchased and received at its facility goods valued in excess of $50,000 directly from points located outside the State of Connecticut, and that at all material times Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that at all times material the Union has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES This case involves the efforts of the Union to obtain work for its members with Respondent, a mechanical contractor, and Respondent’s response to these efforts. In July 2005, the Union had 500 active members and 35 apprentices in its jurisdiction, which encompasses the entire State of Connecticut. At that time 150 of its members were unemployed. The Union operates as a nonsignatory hiring hall and permitted its members to seek and accept work in the sheet metal industry with nonunion employ- ers. Prior to this period the State legislature had passed legisla- tion requiring employees engaged in the sheet metal industry and other trades to be licensed in order to work in their trade. Respondent employs two separate trades, the plumbers/pipe fitters who work on piping and water and steam flow and sheet metal employees who work on airflow and architectural metal and copper roofing. Both of these trades are regulated by the Connecticut Department of Consumer Protection and the Heat- ing, Piping and Cooling Board. The tradesmen must be licensed to work in the heating, ventilation, and air-conditioning (HVAC) industry. Sheet metal employees are required to have EASTERN ENERGY SERVICES 557 an SM-2 license which authorizes them to perform the entire gamut of sheet metal work. Sheet metal employees who have an SM-5 license are authorized to perform only kitchen duct and exhaust work. Debra Roggero, Respondent’s director of operations, and her partner, Shawn Hixson, Respondent’s project man- ager/estimator, are co-owners of Respondent. They purchased the Respondent on October 20, 2003, from the prior owner who also owned two other companies at the same location, one of which was dissolved and the other of which, Eastern USA Fuel, Inc., was sold to another individual. However, the signs for the two companies remained at the facility including a sign adver- tising hiring of sheet metal workers. On January 20, 2004, Hixson met with Local 40 representa- tives at the request of Paul Massimo, a longtime acquaintance and a former employee of Respondent as well as a member of Local 40. Massimo had worked for Respondent in the past but would leave if he were offered union work under the Local 40 agreement. This was acceptable to Respondent. Massimo talked to Hixson about Local 40 regularly and informed him of the benefits of the Union and of signing an agreement with the Union. Present at the meeting with Hixson were Local 40 or- ganizer Frank Pannone (who was retired as of the date of the hearing in this case), Business Manager David Roche and Business Representative Luke Ford. The meeting was an intro- ductory meeting at which the Local 40 representatives ex- plained how Local 40 worked and assigned labor. Hixson told the union representatives that he was not looking for additional sheet metal workers at that time. The union representatives asked that Local 40 be considered for future work. According to Hixson the meeting was a “generally friendly conversation.” Hixson did, however, sign an agreement with the Pipefitters and Plumbers Local 777 in February 2004 as it had been diffi- cult for Respondent to obtain skilled employees in this trade. By letter of October 21, 2004, Local 40 Organizer Shawn Dukett reminded Respondent’s co-owner, Debra Roggero, that Massimo was an example of the very qualified sheet metal workers that Local 40 could offer. On March 16, 2004, then Organizer Frank Pannone received a call from a contractor who informed him that unlicensed sheet metal workers were performing work at an Olive Garden res- taurant jobsite in Waterford, Connecticut. Pannone visited the jobsite and found that Dendy Mechanical Contractors, Inc., an out-of-state contractor, had unlicensed personnel on the jobsite. By his letter of that date (March 16), he filed a complaint with the Department of Consumer Protection requesting an investi- gation. He subsequently received a telephone call from the Department of Consumer Protection notifying him that three unlicensed sheet metal employees had been found on the job- site. On April 29, 2004, Pannone resubmitted his March 2004 complaint to the Department of Consumer Protection and re- quested another investigation after being notified by the same contractor that unlicensed sheet metal employees were again on the Olive Garden jobsite. When Roggero learned of this from the Department of Consumer Protection, she wrote the follow- ing memo to Dendy. This has become extremely critical. Our employee who pulled the permit now has to go in front of the licensing board and possibly have his licensed [sic] revoked as well as Eastern Energy’s mechanical contractors license. They have also stated since this was the second formal complaint, there are fines that will be assessed. . . . Please understand, Jose or any of your men are not to be back on site at ALL. Not even on the weekends, evenings, etc. They are watching and could re- sult in arrest and further damage our plea to reduce fines and suspension or revoking licenses. Please understand the seri- ousness of this matter and comply. As of July 2005, Local 40’s Olive Garden complaints were still pending. On July 7, the Occupational and Professional Licens- ing Division of the State Heating, Cooling, Sheet Metal, and Piping Work Examining Board issued a formal complaint against the Respondent and issued a notice of hearing set for August 25. Also on July 7, 2005, Local 40 Organizer Thomas Kelm, an- other organizer, Kenneth Moore, and two out-of-work jour- neymen, Arthur Bregoli and Gerald Satin, went to Respon- dent’s facility to apply for work. All of these four individuals were licensed sheet metal journeymen and each of them had over 20 years of experience in the trade. Each of them testified, without rebuttal, that they were available for work as indicated on their applications. The four men entered Respondent’s facil- ity and were directed to Melissa Bradshaw, Respondent’s ad- ministrative assistant. Three of them wore union insignia, openly visual on their clothing and asked for applications. Bradshaw asked them, “Are you union?” They replied in the affirmative. She then said, “We do not hire union sheet metal here.” Kelm, nonetheless, asked her if they could file applica- tions and could take them with them to fill out later and asked if they could be faxed in to Respondent and Kelm also asked Bradshaw if he could take extra copies to be filed by other sheet metal workers who might be interested in employment. Bradshaw agreed to all of the above. She did not request to copy their sheet metal licenses. However, Roggero testified in this proceeding that Respondent normally makes a copy of the applicant’s license. Bradshaw told the employees that the appli- cations were good for 3 years in answer to an inquiry by Kelm. The employees then left the facility and Kelm took photos of two signs in front of the facility which read “SHEET METAL INSTALLERS” and “HELP WANTED.” There was also an- other sign nearby on the property listing three companies in- cluding “EES Eastern Engineering Services.” Employee Paul Massimo testified without rebuttal that on July 15, 2005, Shawn Hixson called him and asked whether he knew an applicant who had applied for employment with the Respondent. Mis- simo told Hixson he did not know the individual. Hixson then asked Massimo why “the Union was sending guys down there” in apparent reference to the four-union member applicants who had filed applications with Respondent on July 7, 2005. Mas- simo told Hixson he did not know. None of the four applicants were ever called for an interview or contacted in any manner by the Respondent. At the hearing on August 25, 2005, a stipula- tion containing a cease-and-desist order was entered into by Dendy Mechanical Contractors, Inc., and the authorized repre- sentative of the Connecticut Heating, Piping, Cooling, and DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 558 Sheet Metal Work Examining Board providing for the payment of a civil penalty of $20,000 by Dendy to the State of Connecti- cut. The charges against all of the other charged parties, includ- ing Respondent Eastern Energy, were dismissed at the hearing. Debra Roggero attended the meeting and, after the conclusion of the hearing, Organizer Kelm who had attended the hearing introduced himself to Roggero and asked to meet with her to discuss Local 40. She told him to call her for an appointment. On September 26, 2005, Local 40 had a second meeting with Hixson, this time at the Pipe Fitters office as Pipe Fitters Busi- ness Manager James Juliano had set up the meeting. Present were Hixson, Luke Ford, business agent for the sheet metal workers, Organizer Thomas Kelm, and Local 40 Business Man- ager David A. Roche. Roche was aware that Respondent had signed an agreement with the Pipefitters and told Hixson, they might need some union help. However, when the Union began to explain the benefits it had to offer, Hixson’s response was negative. Hixson said he did not need the Union’s help as he did not need sheet metal workers and could obtain sufficient help without Local 40 whereas he had signed an agreement with the Pipefitters because he had a problem in getting suffi- cient help from that trade. On October 19, 2005, Kelm and Luke Ford went to a jobsite at the University of Connecticut Student Union Building where Ford had union members working for a union contractor, (Ernest Peterson Roofing). Ford and Kelm saw one of Respon- dent’s pipefitter employees working on black iron duct work, which Local 40 contends these workers were not licensed to perform. After some discussion between the Local 40 represen- tatives and the job superintendent, Ford went to the Eastern Energy office and met with Roggero in her office. Luke intro- duced himself and told her he had people out of work and asked if she could employ his people on the job as Respondent had employees doing the black iron duct work who were not li- censed to do it. Roggero said the business representative of the Plumbers and Fitters had told her it was okay for employees to do this work. At the hearing in this case, Roggero testified she had been told the journeyman licenses of her employees were sufficient to permit her employees to perform this work. At the October 19 meeting Roggero held up a piece of paper and told Ford and Kelm, “I don’t do business with organizations [sic] who file complaints with the Department of Consumer Protec- tion and cost my company money.” She also said she was not going to hire any of the Union’s sheet metal workers as she could get other sheet metal workers as needed from other compa- nies laying them off. Roggero did not deny having made these comments. This was in reference to a charge which had been filed by Kelm on October 7, 2005, with the Department of Con- sumer Protection concerning the performance of black iron duct work which was being performed by a craftsman for Eastern Energy on the student union jobsite at the main campus of the University of Connecticut at Storrs, Connecticut. Kelm’s charge stated that the craftsman performing their installation did not have a valid sheet metal license. Eastern Energy had received a copy of the charge which Kelm recognized as the one being held by Roggero. At the meeting, Kelm told Roggero that Respondent had been hiring and that Local 40 members were being discrimi- nated against by Respondent. Roggero denied the discrimination charge. At that meeting, Kelm resubmitted the applications of the four employees, including himself, who had obtained the blank applications at Respondent’s facility on July 7, 2005. He also submitted the applications of Nicholas Susko, Charles Bristol, Armand Joseph Richard, Paul Hinds, and Damien Pisani that day. Damien Pisani was in the Union’s apprenticeship program and had approximately 5 years’ experience. The other employees were experienced licensed journeymen. It is undisputed that none of the foregoing employees whose applications were submitted on July 7 and October 19, 2005, were ever contacted by the Re- spondent. It is undisputed that the Respondent hired seven employees be- tween July 7, 2005, when Kelm and the other three employees first applied and October 3, 2005, when Respondent ceased hir- ing. Massimo testified, without rebuttal that on August 11, 2005, he called Hixson for a job reference and Hixson told him he had recently hired Mike Brainard and Victor Benintende, who were two sheet metal workers with whom he had worked previously. On September 27, 2005, Kelm met Dave Myers, a former Local 40 member at the Colchester Elementary School. Myers told him Respondent was very busy and had recently hired employees. Respondent hired sheet metal workers for the field or the shop. It hired five sheet metal mechanics and two apprentices after July 7. Respondent contends that Michael Brainard hired on September 6 and Timothy Kirk hired on October 3, were both hired as fore- men. Victor Benintende was rehired as a mechanic on July 13. Warren Sealey was hired as a mechanic on July 25 and David Myers was rehired as a mechanic on July 13. Apprentice Michael Donofrio was hired on August 12 and apprentice Justin Stellers was hired on August 16. Roggero testified that the hiring of Sealey, an African American, helped Respondent to meet its affirmative action goals. Respondent also introduced evidence that it had hired Local 40 members prior to July 7. It is undis- puted that Respondent hired members of Local 40 prior to July 7. However it is also undisputed that Respondent has not contacted or hired any applicant who was a current member of Local 40 since July 7. It appears from the foregoing that Respondent’s failure and refusal-to-consider for hire and to hire members of Local 40 stems from Local 40’s push to advance the employment of its members by Respondent and from the Union’s concerted activities in the filing of charges before the Connecticut Depart- ment of Consumer Protection against Respondent. ANALYSIS I find that the statement made by Melissa Bradshaw to the four applicants for employment on July 7, that Respondent does not hire union members was inherently coercive and violative of the Act and demonstrates Respondent’s animus toward the Union. Her failure to make copies of their licenses demonstrates her knowledge that Respondent did not hire union members. I find that Bradshaw was involved in the application process and was therefore placed in a position of apparent authority on behalf of the Respondent and her comments are attributable to the Respon- dent and constitute violations of Section 8(a)(1) of the Act. G. M. Electrics, 323 NLRB 125 (1997); Little Rock Electrical Contrac- tors, 336 NLRB 146, 153 (2001). I find that the July 15 interrogation of Massimo by Hixson as to why the Union was sending its members to Respondent to EASTERN ENERGY SERVICES 559 apply for work was violative of Section 8(a)(1) of the Act. Al- though Massimo was a known member and advocate of the Un- ion, he was nonetheless an employee under the Act who applied for and received employment from Respondent from time to time. Little Rock Electrical Contractors, Inc., supra at 153; Jules V. Lane, P.D.S., P.C., 262 NLRB 118, 119 (1982). Under these circumstances the interrogation of Massimo by Hixson was in- herently coercive. I find the statement made by Roggero to union representatives Ford and Kelm on October 19, that she would not do business with organizations who file charges with the Department of Con- sumer Protection and cost her company money was inherently coercive and violative of Section 8(a)(1) of the Act. This consti- tuted a threat that she would not hire the Union’s members be- cause of the Union’s engagement in concerted activities on behalf of their membership. Pan American Electric, Inc., 328 NLRB 54, 66 (1999). I find that the General Counsel has established a prima facie case that Respondent refused to consider and hire applicants Kelm, Satin, Bregoli, and Moore and that it refused to consider for hire applicants Charles Bristol, Nicholas Susko, Armand Joseph Richard, Paul Nieves, and Damien Pisani whose applica- tions were filed by Kelm on their behalf on October 19. In NLRB v. Town & Country Electric, 516 U.S. 85 (1995), the United States Supreme Court recognized that the rights of union organizers to apply for jobs and to hold those jobs are protected by Section 7 of the Act. Their union organizer status does not diminish their rights to the protection of Section 7. In the instant case the evidence clearly establishes that Kelm and Moore did not commit any act which would deprive them of the protection of the Act. Clearly they were not hired because of their engage- ment in protected concerted activities and their status as union organizers. Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the General Counsel has the initial burden to establish that: 1. The employees engaged in protected concerted activities. 2. The employer had knowledge or at least suspicion of the employees’ protected activities. 3. The employer took adverse action against the employees. 4. A nexus or link between the protected activities and the adverse action underlying motive. Once these four elements have been established, the burden shifts to the Respondent to prove, by a preponderance of the evidence that it took the action for a legitimate nondiscriminatory business reason. In Fluor Daniel, Inc., 304 NLRB 970 (1991), the Board said that once the General Counsel makes a prima facie case that protected conduct was a motivating factor in the employer’s decision, the burden shifts to the employer to demon- strate that the same action would have taken place even in the absence of the protected conduct. The elements that General Counsel must prove to establish a refusal-to-consider for hire are: (1) The employer excluded applicants from the hiring process and (2) antiunion animus was a contributing factor for the employer’s failure or refusal to consider the appli- cants for hire. FES, 331 NLRB 9, 15 (2000). Once these two elements have been established, the burden shifts to the em- ployer to prove that it would not have considered the appli- cants in the absence of their union activities. Wright Line, supra. The elements of a refusal-to-hire case are: (1) That the employer 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 an- nounced or generally known requirements of the positions for hire, or in the alternative, that the employer has not ad- hered uniformly to such requirements, or that the require- ments were themselves pretextual or were applied as a pre- text for discrimination and (3) that antiunion animus con- tributed to the decision not to hire the applicants. FES, su- pra; Wright Line, supra In the instant case, I find with respect to the refusal to consider that the General Counsel has established that the applicants who filed applications on July 7 and October 19 were excluded from the hiring process and that antiunion animus was a contributing factor for Respondent’s failure or refusal to consider the appli- cants for hire. I find Respondent has failed to prove that it would not have considered the applicants in the absence of their union membership. I also find that with respect to the refusal-to-hire case, that the General Counsel has established that Respondent was hiring during the period beginning with the July 7 applications, that the applicants had experience and training relevant to the generally known requirements of the positions for which they applied and that antiunion animus contributed to the decision not to hire the applicants. Although Respondent put on testimony as to why it hired other applicants than the discriminatees who filed their applications on July 7, I did not find it convincing to establish that the Respondent would not have hired the discriminatees even in the absence of its unlawful motivation. I thus find that the refusal-to-consider for hire and refusal to hire were violative of Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has violated and is violating Section 8(a)(1) and (3) of the Act. THE REMEDY Having found that the Respondent has violated and is violating the Act, it shall be ordered to cease and desist therefrom and in any like or related manner interfering with, restraining, or coerc- ing its employees in the exercise of their rights under Section 7 of the Act and to take certain affirmative actions to effectuate the purposes of the Act including, but not limited to, posting appro- priate notices. Respondent should also be ordered with respect to its failure to consider and hire Bregoli, Moore, Kelm, and Satin, to instate them to the positions for which they applied, or to substantially equivalent positions without prejudice to their seniority or any DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 560 other rights or privileges they would have enjoyed absent the discrimination against them and make them whole for any loss of earnings and other benefits resulting from Respondent’s refusal to hire, less any net interim earnings, plus interest. Wild Oat Markets, Inc., 344 NLRB 717, 719–720 (2005). The reimburse- ment to employees should be computed as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir, 1971). Interest shall be computed as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), at the “short term Federal Rate” for the underpayment of taxes as set out in the 1986 amendment to 26 U.S. Code Section 6621. Respondent should also be ordered to consider Bristol, Susko, Richard, Nieves, and Pisani for future employment, in accordance with nondiscriminatory criteria, to notify them of future openings in positions for which these employees applied, and after a compliance proceeding, make them whole for any loss of earnings and benefits that they may have suffered as a result of Respondent’s unlawful acts. See Wild Oats Markets, Inc., supra. [Recommended Order omitted from publication.]