T.E. Briggs Construction Co.

T.E. BRIGGS CONSTRUCTION CO. 349 NLRB No. 61 671 T.E. Briggs Construction Company, Inc. and Interna- tional Union of Operating Engineers, Local 302. Cases 19–CA–28619, 19–CA–28744, and 19–CA– 28898 March 30, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On April 8, 2004, Administrative Law Judge John J. McCarrick issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party each filed an answering brief. The Charging Party also filed cross-exceptions and a supporting 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 herein, and to adopt the recommended Order as modified and set forth in full below. I. INTRODUCTION The judge found, among other things, that the Respon- dent, T.E. Briggs Construction Company, Inc., violated Section 8(a)(3) and (1) of the Act by failing to reinstate employee Steven Scheffer, whom the judge found was an unfair labor practice striker, after Scheffer made an un- conditional offer to return to work. Specifically, the judge found that the Respondent should have offered Scheffer reinstatement to a laborer position and an equipment operator position, which the judge found were both substantially equivalent to Scheffer’s prestrike posi- tion as a pipelayer.2 We find it necessary to modify two aspects of these findings. First, although we affirm the judge’s finding that Scheffer engaged in a strike, we find it unnecessary to pass on the judge’s determination that he was an unfair labor practice striker as opposed to an economic striker. Second, although we affirm the judge’s finding that the Respondent unlawfully failed to offer Scheffer rein- statement to a laborer position, we reverse the judge’s finding that the Respondent was required to offer Schef- 1 The Respondent and the Charging Party have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 Neither the General Counsel nor the Charging Party challenge the Respondent’s claim that it did not have pipe laying work available for Scheffer. fer an equipment operator position as well. Unlike the judge, we find that the equipment operator position was not substantially equivalent to Scheffer’s prestrike job as a pipelayer. In all other respects, we adopt the judge’s findings.3 II. FACTS A. The Respondent’s Operation The Respondent excavated trenches and installed un- derground water and sewer pipes in residential subdivi- sions. To accomplish this work it employed pipelayers, laborers, and equipment operators. Pipelayers used laser levels to set the line and grade of the pipes in the trenches, installed the pipes, and then secured the pipes in the ground. They also performed general work, such as raking, shoveling, and cleaning. The Respondent’s laborers performed raking, shovel- ing, and cleaning, and generally assisted the pipelayers. Indeed, pipelayers and laborers frequently worked closely together to install the underground pipes. A la- borer often worked as a “top man,” meaning he posi- 3 In adopting the judge’s findings that the Respondent violated Sec. 8(a)(1) when one of its supervisors told employee Scheffer that he would not be rehired because of his union activities and threatened to throw a rock at him, we do not rely on Industrial Construction Services, 323 NLRB 1037, 1039 (1997), cited by the judge. No exceptions were filed to the 8(a)(1) findings made by the judge in that case. Accord- ingly, Industrial Construction cannot serve as a precedent for the 8(a)(1) violations found in this case. See Whirlpool Corp., 337 NLRB 726, 727 fn. 4 (2002), enfd. mem. 92 Fed.Appx. 224 (6th Cir. 2004). For the same reason, we do not rely on the judge’s citation to Quality Mechanical, 340 NLRB 798 (2003), in adopting his dismissal of allega- tions that the Respondent unlawfully refused to consider for hire, or hire, applicant Tom Stuart. In Quality Mechanical, no exceptions were filed to the judge’s dismissal of similar allegations. Further, in adopting the judge’s dismissal of the allegation that the Respondent unlawfully refused to consider for hire six other union- affiliated applicants, we assume arguendo that the General Counsel carried his initial burden under FES, 331 NLRB 9, 12 (2000), supple- mental decision 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002). However, we find that the Respondent established that it would not have considered the applicants even absent their union activities or affiliation. As the judge found, the Respondent maintained a valid, nondiscriminatory hiring policy according priority to former employ- ees, individuals recommended by supervisors, and individuals that the Respondent’s owner had observed personally working on jobsites. The union-affiliated applicants did not fall within any of these priority cate- gories. Therefore, the Respondent’s refusal to consider them for hire did not violate the Act. Member Walsh concurs in the dismissal of the refusal-to-consider allegations pertaining to Stuart and the six other union-affiliated appli- cants. Assuming arguendo that the General Counsel sustained his initial burden under FES, Member Walsh would find that the Respon- dent demonstrated that the seven applicants would not have been con- sidered even absent their union affiliation because the Respondent was not accepting applications from anyone at the relevant times. Member Walsh also notes that the General Counsel did not allege that the Re- spondent’s statements and conduct toward the union applicants violated Sec. 8(a)(1). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 672 tioned himself alongside the edge of a trench and pro- vided the pipelayer with any supplies he needed. There is some evidence that pipelayers and laborers earned roughly the same wage rate, in the range of $28 to $29 per hour. The Respondent’s equipment operators used heavy equipment—backhoes, for example—to dig trenches for the underground pipes, and then used similar equipment to fill the trenches after the pipes were installed. Equip- ment operators spent most of their working time in the cabs of their equipment; they typically did not work in the trenches. Because of the inherent danger in the equipment operators’ work, they were required to have extensive experience and skill in the smooth operation of the equipment. Equipment operators occasionally helped out with general work, but to a much lesser extent than pipelayers. The record indicates that operators earned a higher wage rate than pipelayers and laborers, in the range of $33 to $34 per hour. B. Scheffer’s Employment and Strike The Respondent hired Scheffer as a pipelayer, and he worked in this position from April 1 until September 10, 2002.4 As was typical of pipelayers, Scheffer primarily performed pipelayer work, but he also performed laborer work. He worked for 2 days on a job in Mukilteo, Wash- ington, performing laborer work exclusively, and was listed as a general laborer on the payroll record for that job. Scheffer occasionally operated equipment when an operator was unavailable, but there is no evidence that Scheffer ever worked solely as an operator on a job. Scheffer received some compliments on his ability to run equipment, but he was also admonished once for operat- ing an excavator incorrectly. The Respondent’s owner, Tracy Briggs, testified that Scheffer lacked polish and experience as an operator. At the time Scheffer was employed by the Respondent, he was also employed as an organizer for the Interna- tional Union of Operating Engineers, Local 302 (the Un- ion). In July, Scheffer began engaging openly in orga- nizing activities among the Respondent’s work force, and during August the Respondent began limiting Scheffer’s job responsibilities. On September 6, Foreman Ken Satterfield told Scheffer that there was no more work for him that day, even though the rest of the crew continued to work. On September 9, Satterfield again told Scheffer that there was no work for him but that the rest of the crew would be working. Satterfield told Scheffer to come back the next day. After leaving the Respondent’s jobsite on September 9, Scheffer joined a picket line related to then-pending 4 All dates refer to 2002, unless otherwise noted. unfair labor practice charges against the Respondent.5 Scheffer still reported to work the next day, September 10, as directed by Satterfield. Scheffer received a work assignment for the day, but told Satterfield that he was going on strike until the Respondent remedied its unfair labor practices. Scheffer remained on strike until November 13. By letter of that date to the Respondent, he made an uncon- ditional offer to return to work. To follow up, Scheffer faxed the same letter to the Respondent in November, and he had the Union place a phone call to the Respon- dent in December. In 2003, Scheffer made additional unconditional offers to return to work in July, August, September, and October. In late July 2003, the Respon- dent sent Scheffer a letter informing him that it had no pipe laying work available. The Respondent, however, did have other work avail- able. In May 2003, the Respondent hired an equipment operator. In June 2003, the Respondent hired a laborer. The Respondent did not offer either position to Scheffer. III. DISCUSSION The record fully supports the judge’s finding that Scheffer commenced a strike against the Respondent on September 10. After Foreman Ken Satterfield told Scheffer on September 9 that there was no work for him, Scheffer joined picketers at the Respondent’s office who were protesting the Respondent’s alleged unfair labor practices. The next day, Scheffer appeared at the Re- spondent’s jobsite and, rather than commence working, he informed Satterfield that he was going on strike. And that is exactly what Scheffer did; he withheld his labor until making an unconditional offer to return to work on November 13. Thus, Scheffer was a striker. See M&M Backhoe Service, 345 NLRB 462, 472 (2005). In the circumstances, however, we find it unnecessary to pass on the judge’s finding that Scheffer was an unfair labor practice striker. The reinstatement rights of an unfair labor practice striker and an economic striker are the same if the employee has not been permanently re- placed. See Allied Mechanical Services, 341 NLRB 1084, 1085 (2004) (citing Anaheim Plastics, Inc., 299 NLRB 79 fn. 3 (1990)). There is no evidence, or claim, that the Respondent permanently replaced Scheffer. Ac- cordingly, once Scheffer made an unconditional offer to return to work on November 13, the Respondent was under a duty to timely reinstate him to his prestrike posi- tion or, if that position no longer existed, to a substan- tially equivalent position. See NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378 (1967); Zimmerman 5 The unfair labor practice charges were later settled prior to the hearing in this case. T.E. BRIGGS CONSTRUCTION CO. 673 Plumbing & Heating Co., 339 NLRB 1302, 1304 (2003) (Zimmerman II).6 As there is no claim that Scheffer’s prestrike job as a pipelayer was available, the remaining issue is whether the Respondent was obliged to offer Scheffer the laborer and equipment operator jobs it filled in mid-2003. As indicated, we find that the Respondent’s obligation ex- tended only to the laborer job, as it, unlike the equipment operator job, was substantially equivalent to Scheffer’s pipelayer position. To determine whether a job is substantially equivalent to an employee’s prestrike job, “the Board considers, among other things, the level of responsibility, skill level, wages, hours, or working conditions of the posi- tions in question.” L.B.&B. Associates, Inc., 346 NLRB 1025, 1028 (2006); Rose Printing Co., supra at 1077– 1078. The employee’s qualifications to perform the job may shed light on whether it is substantially equivalent to his prestrike job, but mere qualification to perform the job will not suffice. See Rose Printing Co., supra at 1078. Applying these principles, we find that the laborer job was substantially equivalent to Scheffer’s prestrike job as a pipelayer. As described, the Respondent’s pipelayers and laborers worked closely together in and around the trenches installing underground pipes. Pipelayers, unlike laborers, used a laser level to set the line and grade of the pipe, but otherwise they often performed many of the same duties. Further, the record indicates that pipelayers and laborers received roughly the same wage rate. Fi- nally, on at least one occasion the Respondent assigned Scheffer to work exclusively as a laborer, indicating that it considered him qualified to perform such work. All of these facts lead us to conclude that the laborer job was substantially equivalent to Scheffer’s prestrike job as a pipelayer. See, e.g., Zimmerman Plumbing & Heating 6 The judge mistakenly read Zimmerman II as holding “that a former striker who makes an unconditional offer to return to work must be reinstated to substantially equivalent positions and to any non- equivalent positions requested for which he may be qualified.” To clarify, strikers are not entitled to reinstatement to nonequivalent posi- tions. See Diamond Walnut Growers, Inc., 340 NLRB 1129, 1131 (2003). Rather, they are entitled to nondiscriminatory treatment in their applications for such positions. See Rose Printing Co., 304 NLRB 1076, 1078 (1991). In Zimmerman II, the Board found that the respon- dent discriminatorily refused to consider former striker Timothy O’Brien for nonequivalent positions for which he had effectively ap- plied. Thus, contrary to the judge, the Board in Zimmerman did not address whether O’Brien would have been entitled to reinstatement to nonequivalent positions in the absence of discrimination and his effec- tive application. Member Schaumber agrees with the general principles described above, but adheres to his partial dissent in Zimmerman II, where he concluded that O’Brien did not apply for nonequivalent jobs and, therefore, that the respondent did not unlawfully refuse to consider O’Brien for such jobs. 339 NLRB at 1307–1308. Co., 334 NLRB 586, 588–589 (2001) (finding substantial equivalency between prestrike and poststrike jobs based on evidence that the jobs were located in the same area, had most of the same duties, involved working with the same materials and tools, and paid approximately the same wage rate). In contrast, the evidence demonstrates that the equip- ment operator position was significantly different from Scheffer’s pipelayer position. The equipment operator position involved significantly more responsibility and required greater skill than the pipelayer position. Equipment operators used dangerous heavy equipment to dig and fill trenches. The operators spent most of their working time in the cabs of the equipment; they did not work directly with the underground pipes or in the trenches. Equipment operators were also paid at a higher wage rate than pipelayers, further indicating that the op- erator job was a more skilled position. Last, although Scheffer occasionally filled in for an equipment operator, there is no evidence that this was a significant part of his job duties. Indeed, the evidence shows that the Respon- dent did not believe that Scheffer had the requisite ex- perience and skill to operate equipment on a regular ba- sis. For these reasons, we conclude that the equipment operator position was not substantially equivalent to Scheffer’s prestrike pipelayer position. See, e.g., Dia- mond Walnut Growers, 340 NLRB 1129, 1131 (2003) (finding that a mechanic position was not substantially equivalent to a lead mechanic position where the latter involved significantly more responsibility and required more skills). Thus, we affirm the judge’s finding that the Respon- dent violated Section 8(a)(3) and (1) by failing to offer Scheffer reinstatement to the laborer position, but we reverse the judge’s finding as to the equipment operator position.7 7 We adopt the judge’s finding that there is “overwhelming evi- dence” establishing that Scheffer did not abandon his employment with the Respondent. Thus, the record shows, and the judge found, that Scheffer made unconditional offers to return to work on November 13 and 22 and December 3, 2002, as well as on July 18, August 4, Sep- tember 4 and October 15, 2003. We recognize that at the hearing the judge limited the Respondent’s cross-examination of Scheffer on the issue of job abandonment, and the Respondent has excepted to the judge’s ruling. However, 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. Monroe Mfg., 323 NLRB 24, 25 (1997). Assuming arguendo that the judge’s ruling was erroneous, the Respondent has not shown that the testimony it seeks to adduce would warrant reversal of the judge’s finding on the job-abandonment issue. Specifically, as noted above, Scheffer made several written offers to return to work. The Respondent has not argued that, if called to testify, Scheffer would refute those documents or disclaim interest in working for the Respondent. Furthermore, the Respondent has failed to demon- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 674 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, T.E. Briggs Construction Company, Inc., Edmonds, Washington, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to reinstate strikers, who have unconditionally offered to return to work, to available substantially equivalent positions, where their former positions no longer exist. (b) Threatening not to rehire employees because of their union activities. (c) Threatening employees with physical harm because of their union activities. (d) 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 former striker Steven Scheffer full reinstatement to the strate what, if any, evidence supports its job abandonment argument other than the fact that Scheffer had, in the past, taken work with an- other contractor while charges relating to his salting activity were pend- ing before the Board. However, “[a]ccepting interim employment normally will have no effect on a striker’s reinstatement rights.” Zim- merman Plumbing & Heating Co., 339 NLRB 1302, 1304 (2003). Our colleague notes that Scheffer filed a charge against another em- ployer (apparently based on a discharge) and thereby sought an offer of reinstatement and backpay from that employer. However, that litiga- tion effort does not mean that he has no interest in working for the Respondent. After all, there was no certainty of victory in that other litigation. And even if he prevailed, he could choose to decline an offer of reinstatement. In short, his claims in the other case do not necessar- ily establish abandonment of interest in working for the Respondent. However, in compliance, the Respondent can litigate the issue of dupli- cate backpay, i.e., backpay from two employers for the same period. Member Schaumber would reverse and remand the job abandonment issue to the judge to take further evidence. By erroneously limiting the Respondent’s cross-examination of Scheffer, the judge interfered with the Respondent’s ability (1) to challenge Scheffer’s credibility concern- ing his efforts to return to work and (2) to prove that Scheffer had left his job with the Respondent to accept other regular and substantially equivalent employment with another contractor. According to the Respondent’s proffer, Scheffer started a salting campaign involving another contractor in May 2002; he went to work there, but later filed unfair labor practice charges against that company. The Respondent claims that Scheffer’s efforts to obtain reinstatement and backpay from that contractor as well as the Respondent for overlapping periods of time provide evidence of job abandonment and show that Scheffer’s efforts to return to work for the Respondent should not be credited. See, e.g., H. & F. Binch Co., 188 NLRB 720, 725 (1971) (Board found that employees’ testimony that they were “satisfied” with their new positions with other companies established job abandonment, despite written offers to return to work for the respondent employer which had been previously submitted by the employees.) laborer position that became available in June 2003, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make Steven Scheffer whole for any loss of earn- ings and other benefits suffered as a result of the Re- spondent’s refusal to reinstate him to the laborer position that became available in June 2003, with backpay and interest thereon to be computed in the manner set forth in the remedy section of the judge’s decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful refusal to reinstate Steven Scheffer and, within 3 days thereafter, notify him in writing that this has been done and that the refusal to reinstate him will not be used against him 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 papers, and all other records, including an elec- tronic 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 Edmonds, Washington, copies of the at- tached notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent imme- diately on 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 no- tices 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 involved in these proceedings, the Re- spondent shall duplicate 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 June 1, 2003. (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 comply. 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.” T.E. BRIGGS CONSTRUCTION CO. 675 IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. 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 fail and refuse to reinstate strikers, who have unconditionally offered to return to work, to avail- able substantially equivalent positions, where their for- mer positions no longer exist. WE WILL NOT threaten not to rehire employees because of their union activities. WE WILL NOT threaten employees with physical harm because of their union activities. 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 former striker Steven Scheffer full rein- statement to the laborer position that became available in June 2003, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL make Steven Scheffer whole for any loss of earnings and other benefits suffered as a result of our refusal to reinstate him to the laborer position that be- came available in June 2003, with interest. 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 reinstate Steven Scheffer and, WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the refusal to reinstate him will not be used against him in any way. T.E. BRIGGS CONSTRUCTION COMPANY, INC. Martin M. Eskenazi, Esq., for the General Counsel. Aaron A. Roblan, Esq. (Jackson Lewis, LLP), of Seattle, Wash- ington, for the Respondent. David Hannah, Esq. (Cedar River Law Professionals, PLLC), of Covington, Washington, for the Charging Party. DECISION STATEMENT OF THE CASE JOHN J. MCCARRICK, Administrative Law Judge. This case was tried in Seattle, Washington, on December 16–18, 2003, upon the General Counsel’s amended consolidated complaint1 that alleged T.E. Briggs Construction Company, Inc. (Respon- dent) violated Section 8(a)(1) and (3) of the Act by telling an employee that he would not be rehired because he was Union, by threatening an employee by lifting a rock and appearing to throw it at him because of the employee’s union activity, by refusing to offer reinstatement to Steve Scheffer, by disparately treating union job applicants, and by failing to hire or consider for hire Tom Stuart, Tom Kennedy, Mark Sandy, Henry Ar- noux, Ron Dahl, Dan Taylor, and Daren Konopaski because of their union activity. Respondent timely denied any wrongdo- ing. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the parties, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a Washington State corporation with an office and place of business in Edmonds, Washington, has been en- gaged in the construction business. During the past 12 months, Respondent, in conducting its business operations, purchased and caused to be transferred to its facilities within the State of Washington goods and materials valued in excess of $50,000 directly from sources outside the State of Washington, or from suppliers within Washington State which in turn obtained such goods and materials from sources outside the State of Washing- ton. 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 International Union of Operating Engineers, Local 302 (the Union) is a labor organization within the meaning of Section 2(5) of the Act. II. THE ISSUES 1. Did Respondent violate Section 8(a)(1) of the Act by: (a) Telling an employee that he would not be rehired because he was union? (b) Threatening an employee by lifting a rock and appearing to throw it at him because of the employee’s union activity? 2. Did Respondent violate Section 8(a)(1) and (3) of the Act by refusing to offer reinstatement to Steve Scheffer, by dispar- ately treating union job applicants and by failing to hire or con- sider for hire Tom Stuart, Tom Kennedy, Mark Sandy, Henry Arnoux, Ron Dahl, Dan Taylor, and Daren Konopaski because of their union activity? 1 At the hearing, the General Counsel moved to amend the amended consolidated complaint at par. 8(b) to correct the date to July 7, 2002, and to add Daren Konopaski as an alleged discriminatee. I granted the General Counsel’s motion. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 676 III. ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Introduction Respondent is an underground utility contractor. In the course of its business, Respondent excavates trenches and in- stalls main line pipe, storm and water pipe, and sewers into trenches in residential subdivisions. Respondent employs pipe- layers, operators and laborers. Pipelayers set the line and grade for pipe that is put into trenches. Operators run the equipment that dig trenches. Laborers perform a multitude of functions, including cleaning catch basins, raking and shoveling, picking up garbage, and supporting the pipe laying operation. The re- cord reflects that there is much cross over among the job duties of pipelayers, operators, and laborers. Tracy Briggs (Briggs) is the owner and president of Respondent. Ronald Smith (Smith) is Respondent’s superintendent of construction. Douglas Ross (Ross) is Respondent’s project manager. Cody Walker (Walker) is Respondent’s estimator. Ken Satterfield (Satterfield), William Leady (Leady), and Kelly Daniels (Daniels) are Respondent’s foremen.2 2. The refusal to rehire Steven Scheffer Steven Scheffer (Scheffer) was employed by Respondent as a pipelayer, equipment operator, and laborer from April 1 through September 10, 2002.3 Scheffer was also an organizer for the Union at the time of his employment with Respondent. In the course of his employment with Respondent Scheffer performed pipe laying duties, laborer’s work, and operated various types of equipment, including excavators, hole packers, loaders, dozers, and backhoes for 35 of the 118 days he worked for Respondent. Between April 1 and July 18, Scheffer re- ceived numerous compliments from his supervisors concerning the quality of his work. During this period of time Scheffer’s supervisor, Leedy, said Scheffer was a good excavator operator and should be running equipment full time for Respondent. When Scheffer admitted he made a mistake laying some pipe, Briggs told Scheffer he appreciated guys like him and that Scheffer was the type of guy they would like to keep around. On June 25 Briggs wrote Scheffer a letter of recommendation and gave him a $1.50-an-hour raise. On April 25, Scheffer was working at Respondent’s Mada- lyne Lane project with employees, Jim Nicholson, Sean Ryan, and Joe Primacio. Foremen Leady and Ken Tannehill (Tanne- hill) were also present. Around noon two business agents from the Union came to the jobsite and spoke to Jim Nicholson (Nicholson), a member of the Union. After the conversation with the union agents, Nicholson left the job. Later Leady was asked by Sean Ryan what happened to Nicholson. Leady re- plied that the union agents asked Nicholson to leave the job since Respondent was nonunion. Leady said that Briggs was going to be upset because he paid Jim [Nicholson] to leave the 2 In its answer, Respondent admitted, and I find, that Briggs, Smith, Ross, Walker, Satterfield, Leady, and Daniels are supervisors within the meaning of Sec. 2(11) of the Act. 3 All dates refer to 2002, unless otherwise noted. Union when he hired him.4 Later that day Briggs and Smith came to the jobsite. Briggs asked Tannehill if he was union. Tannehill replied, no. Briggs turned to Scheffer and asked if he was union or if he had been a member of a union. Scheffer said, no. Briggs then said, “Good, then I won’t have to worry about losing you.”5 On July 18, Scheffer was working at Respondent’s Vineyard jobsite. At about 6:45 a.m., Amir Gadiwalla (Gadiwalla), a person of East Indian descent and the director of organizing for the Union, spoke to Respondent’s employees about the Union. Gadiwalla handed out union literature and stickers to the em- ployees. Scheffer put a union sticker on the center of his hard hat that said, “United We Bargain, Divided We Beg, Local 302.” After Gadiwalla left the jobsite, Respondent’s foreman, Satterfield, told Scheffer and other employees that he had been a member of the Union and nearly starved to death waiting on the out of work list. He said the Union was a rip off and the only reason that “f—king sand nigger was out there telling us union wise was because he had a full-time union job and basi- cally he was just out there telling us lies and bullshit.” Later that day Satterfield told Scheffer and Jake Ford that, “if we wanted to be union and work union, we should go work for a union company because T.E. Briggs Construction would never be union.” Satterfield also told Scheffer and Ford that he was trained in the Army to kill people like Amir. Later that day Satterfield asked Scheffer what the sticker on his hard hat meant. Scheffer thereafter openly engaged in union organizing activities while working for Respondent including, speaking to employees about the Union, passing out union literature on the jobsites and wearing union insignia on his clothing while at work. On August 9, during the 10 a.m. coffeebreak on Respon- dent’s Sunlit jobsite, Scheffer was talking to Respondent’s employees Ford and Ryan about wages and working conditions under the union contract. Satterfield came up and told Scheffer he was not allowed to talk about the Union on the job, that he was not allowed to possess union literature on the job and that he would have to get the union contract off the site. Satterfield said he was operating under Brigg’s authority. Later that day, Satterfield told Scheffer that Scheffer could no longer run equipment for Respondent. When Scheffer asked why, Satterfield replied that’s what Tracy wanted. When Scheffer asked if this had anything to do with the Union and his union activities, Satterfield said, yes it did. Later that day when Scheffer saw a laborer, Ryan, operating equipment, Scheffer asked Satterfield why Ryan was allowed to run equipment when he could not, Satterfield replied, “[Y]ou stirred the pot.” On August 13 at the Sunlit project near the end of the day, Satterfield told Scheffer that he could no longer drive the com- pany truck to and from the jobsite. Scheffer had been driving the company truck on a daily basis prior to this time. When 4 GC Exh. 3 is Nicholson’s payroll record for August 14, 2001, which reflects reimbursement from Respondent for $900 in union dues. 5 Briggs denied interrogating Tannehill or Scheffer. I credit Schef- fer’s testimony. I found Briggs’ testimony vague and inconsistent particularly regarding his testimony concerning paying Keopenick for withdrawing from the Union. T.E. BRIGGS CONSTRUCTION CO. 677 Scheffer asked if this had anything to do with his union activi- ties, Satterfield responded, “You stirred the pot, Steve. You and I both know what it’s about.” On September 6 at about 1:30 p.m. on the Sunlit jobsite, Satterfield told Scheffer that there was no more work for him on the job that day but the rest of the crew would be working. Scheffer watched the crew work for over an hour doing curb grade, work that Scheffer had done in the past. On September 9, Scheffer went to the Sunlit jobsite but was told by Satterfield that there was no work for him although the rest of the crew would be working. Scheffer was told to report to the Sunlit jobsite on September 10. Scheffer left the Sunlit jobsite and went to Respondent’s office where he participated in an unfair labor practice strike and walked a picket line. The picket signs stated that Respondent violated Federal law and had committed unfair labor practices.6 On September 10, Scheffer reported to the Sunlit job at 7 a.m. and told Satterfield he was going out on strike until the unfair labor practices had been remedied. Scheffer remained on strike until November 13 when he made an unconditional offer to return to work in a letter of November 13.7 On November 22, a copy of the November 13 letter was faxed to Respondent.8 On December 3, Gadiwalla called Respondent’s office and advised a clerk to bring to Brigg’s attention that Scheffer had made an unconditional offer to return to work. Scheffer made additional offers to return to work on July 18, August 4, September 4, and October 15, 2003. On July 21, 2003, Scheffer received a letter from Respondent that advised there was no pipe laying work available.9 In late May or early June 2003, Respondent hired Jim Miller (Miller) as a laborer and Charles McJunkin (McJunkin) as an operator. In January or February 2003, Briggs first spoke to McJunkin at a jobsite. Respondent had previously worked at this jobsite and there were issues about Respondent’s place- ment of fill. McJunkin was the operator at that site, working for another employer. In resolving the issue of Respondent’s placement of the fill, Briggs observed McJunkin operating equipment at the site. McJunkin asked Briggs if he was hiring and Briggs said no. Later in March or April, McJunkin again approached Briggs and gave him his phone number. Briggs first considered McJunkin for hire in May 2003. Miller was hired in June 2003 after he approached Respondent’s superin- tendent, Ron Smith about a job. 3. The February 11 and March 14, 2003 refusal to allow Schef- fer and Tom Stuart to apply for work On February 11, 2003, Scheffer and union member Tom Stuart (Stuart) went to Respondent’s Edmonds, Washington office. Stuart was wearing a hat with Local 302 insignia on the front. As Scheffer and Stuart approached the office door, Jer- emy Ball, Respondent’s estimator, ran to the front door and locked it. There was a no hiring/not accepting applications sign 6 Prior unfair labor practice charges were pending at the time Schef- fer was on strike. The charges were settled after the trial opened in 2003 before this trial commenced. 7 GC Exh. 7. 8 GC Exh. 8. 9 GC Exh. 9. in the office window. Scheffer had gone to Respondent’s office to unconditionally offer to return to work and Stuart had gone to apply for work as an operator. On March 14, 2003, Todd Werner (Werner), an unemployed union member, went with Scheffer and Stuart to Respondent’s office in Lynnwood, Washington. When Werner approached Respondent’s office, both Scheffer and Stuart were out of sight. Werner was wearing no union insignia. Werner was allowed to walk into the office without difficulty and asked for a job appli- cation. A person advised that Respondent was not hiring and provided Werner with a business card. On March 14, 2003, after Werner’s visit, Scheffer and Stuart went to Respondent’s Lynnwood, Washington office to apply for work. Stuart was again wearing his union hat. Respon- dent’s estimator, Walker, met Scheffer and Stuart at the office door. Walker said that the office was closed, that Respondent was not hiring and that Scheffer and Stuart were not welcome there. 4. The June 6, 2003 refusal to hire or consider for hire Tom Kennedy, Mark Sande, Henry Arnoux, Ron Dahl, Dan Taylor, and Daren Konopaski On June 6, 2003, Union Organizer Todd Hassing (Hassing) went to Respondent’s Ash Way jobsite and spoke with Respon- dent’s foreman, Kelly. Hassing said that he was an equipment operator looking for work. Kelly said that Respondent was going to hire a crew within the month since they had just picked up a new job. Kelly told Hassing he had to go through Respondent’s office as all hiring was done at the office. Kelly then gave Hassing, Respondent’s general superintendent’s, Ron Smith, business card, and told Hassing to call the office. Hassing immediately called Respondent’s office and spoke to an individual who identified herself as Kerry. Hassing told Kerry he had spoken to Kelly who said Respondent was going to hire a pipe crew but that all hiring was done at the office. Kerry said that Briggs did all of the hiring. Hassing asked if he could come in and fill out an application. Kerry said he could and gave Hassing driving directions. When Hassing got to Respondent’s office, he observed a sign in the window that said Respondent was not hiring or taking applications. Hassing went into the office where Cody Walker was present. Hassing spoke to Walker and said he was there to fill out an application. Walker handed him an application and said, “You can either take it with you or you can fill it out here. Hassing filled out the application in the office and had the clerk make a copy.10 While Hassing was filling out the application, Walker asked him what he did. Later, Hassing called Briggs and Briggs told him Respondent was not hiring. Meanwhile, on June 6, 2003, Scheffer, Tom Kennedy (Ken- nedy), Mark Sande (Sande), Henry Arnoux (Arnoux), Ron Dahl (Dahl), Dan Taylor (Taylor), and Daren Konopaski (Ko- nopaski)11 went to Respondent’s Lynnwood, Washington office to apply for work as operators. As the men approached the office door, Walker met the first applicant, Sande, at the front 10 GC Exh. 12. 11 There was competent testimony that each of the applicants was a qualified equipment operator. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 678 door and blocked his entry into the building. Walker said Re- spondent was not hiring or accepting applications. After some discussion about whether Respondent operated out of this building, Walker added that they were not welcome there and asked them all to leave. On June 12, 2003, Janet McKinney (McKinney) went to Re- spondent’s Lynnwood, Washington office to apply for work. She was wearing no union insignia. McKinney walked into Respondent’s office without difficulty and was told that the person doing applications was gone until the next week. When McKinney asked if she could back, she was told yes. When McKinney came back on June 24, 2003, she entered Respon- dent’s office without difficulty and was told Respondent was not hiring. 5. The July 7, 2003 statement that Scheffer would not be rehired because he was union and the threat to throw a rock at Scheffer On July 7, 2003, Scheffer went to Respondent’s Ash Way jobsite. Scheffer parked his car on a public road and watched the work. Respondent’s foreman, Leady, approached Scheffer and said there wasn’t much happening there that day. After Scheffer’s conversation with Leady, Hassing, an organizer for the Union, arrived at the jobsite and both men sat on the hood of Scheffer’s car. At that point Respondent’s superintendent, Ross, came up to Scheffer and Hassing. Ross told Scheffer and Hassing that they were on private property. Scheffer replied that they were on a public road with no “no parking” signs or construction cones. Ross then surrounded Scheffer’s car with construction cones and said, “Now, you’re in my work area. Get out of here or I’m calling the cops.” Scheffer then asked Ross why Respondent had hired a new guy12 and had not brought Scheffer back to work. Ross replied, “Because I was a union member and I was an operator.” When Scheffer said he would have been happy to do laborer’s work, Ross said, “There’s no f—king way we’re going to hire you back. You’re Union.” After exchanging a few epithets, Ross walked away from Scheffer’s car, bent over and picked up a rock and made a throwing motion in Scheffer’s direction but did not release the rock. As Ross walked away he said, “You’re f—king lucky. Get the hell out of here.”13 12 The employee who was performing laborer’s work was Jim Miller. Scheffer also observed new equipment operator Chuck McJunkin working on Respondent’s jobs 13 Ross denied saying Scheffer would not be rehired because he was Union and denied making a throwing motion with a rock toward Schef- fer. I credit Scheffer’s testimony. Ross was a nonresponsive inconsis- tent witness. Ross initially denied putting cones around Scheffer’s car but on cross-examination admitted doing so. Leedy admitted he did not observe the entire conversation between Ross and Scheffer, therefore he was not in a position to corroborate Ross’ version of the facts. On the other hand Hassing was present and corroborated Scheffer’s version of the facts. B. The Discussion 1. The alleged 8(a)(1) conduct14 The General Counsel has alleged that Respondent violated Section 8(a)(1) of the Act by threatening not to rehire Scheffer because of his union activity and by threatening him with physical violence because of his union sympathy. It is well established that an employer who threatens not to hire or rehire an employee due to union activity violates the Act. Structural Finishing, Inc., 284 NLRB 981, 982 (1987); Starco, Inc., 323 NLRB 977 (1997); and Industrial Construc- tion Services, 323 NLRB 1037, 1039 (1997). Here, on July 7, 2003, Respondent, through Superintendent Ross, told Scheffer he would not be rehired because he was union. This statement violated Section 8(a)(1) of the Act. It is also the case that an employer who threatens employees with physical violence violates the Act. The Board found an employer who threatened to throw rocks at a union organizer violated Section 8(a)(1) of the Act. Zarcon, Inc., 340 NLRB 1222, 1228 (2003). On July 7, 2003, at the same jobsite where Ross told Scheffer he would never be rehired because he was union, Ross picked up a rock and made a throwing motion in Scheffer’s direction. Like the threat to throw rocks in Zarcon, Ross’ feigning to throw a rock at Scheffer was a threat of physical violence and came on the heels of his statement that Respondent would not rehire Scheffer because he was union. Ross’ action violated Section 8(a)(1) of the Act. 2. The refusal to offer reinstatement to Scheffer Counsel for the General Counsel contends that Respondent violated Section 8(a)(1) and (3) of the Act by refusing to offer Scheffer reinstatement after he made an unconditional offer to return to work from an unfair labor practice strike. Respondent counters that Scheffer was not an unfair labor practice striker since he gave no reasons to indicate he was an unfair labor practice striker, that Scheffer abandoned his employment with Respondent by accepting regular and substantial equivalent employment elsewhere, and that there was no available work for Scheffer to perform upon his offer to return to work. It is settled that both economic strikers and unfair labor practice strikers retain their status as “employees” under Section 2(3) of the Act. See NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345 (1938). As a result, an 14 In its brief, the Charging Party alleged that Respondent violated Sec. 8(a)(1) of the Act by locking its office door on February 11 and barring applicants from entering its office on June 6, 2003, and by telling employees they were not welcome at its office on March 14 and June 6, 2003. The General Counsel did not allege these acts as inde- pendent violations of Sec. 8(a)(1) in the amended consolidated com- plaint and did not seek to amend to complaint to allege these Acts as violations of Sec. 8(a)(1) of the Act. Neither in his brief did counsel for the General Counsel allege these acts were violations of Sec. 8(a)(1) of the Act. It is well established that the Charging Party cannot enlarge upon or change the General Counsel’s theory of the case. Kimtruss Corp., 305 NLRB 710, 711 (1991). While an unpleaded but fully liti- gated matter may support an unfair labor practice finding, I find that the matters alleged by charging party were neither pled nor fully litigated and I will make no findings that unfair labor practices were committed. Hi-Tech Cable Corp., 318 NLRB 280 (1995). T.E. BRIGGS CONSTRUCTION CO. 679 employer violates Section 8(a)(3) and (1) of the Act by fail- ing to immediately reinstate strikers upon their uncondi- tional offer to return to work, unless the employer estab- lishes a legitimate and substantial business justification for failing to do so. See NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378 (1967); Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 278 (1956); Marchese Metal Industies, 313 NLRB 1022, 1032 (1994); Laidlaw Corp., 171 NLRB 1366, 1368 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1970). In Zimmerman Plumbing & Heating Co., 339 NLRB 1302, 1304 (2003), the Board held that a former striker who makes an unconditional offer to return to work must be reinstated to sub- stantially equivalent positions and to any non-equivalent posi- tions requested for which he may be qualified. Scheffer made unconditional offers to return to work on November 13 and 22 and December 3, 2002, as well as on July 18, August 4, September 4, and October 15, 2003. The record reflects that Scheffer was hired by Respondent as a pipelayer. During the course of his employment with Re- spondent, however, Scheffer performed other duties including equipment operation and laborer’s work. Concerning Schef- fer’s duties working on pipe laying crews, Superintendant Ross said Scheffer was a pipelayer/laborer. Ross said a laborer and pipelayer, “basically have the same multiple tasks. Labor work could be-a Laborer and a Pipe layer do a lot of the same things. A Laborer may use a shovel and a broom. A Pipe layer will use a shovel and a broom with other tasks, too, to go with it.”15 Respondent asserts that Scheffer said he considered laborer’s work below him. However, there is no evidence he ever re- fused to perform such work or that he indicated he would not perform such work upon reinstatement. There is also evidence that Scheffer frequently operated equipment.16 The record is replete with evidence of Scheffer’s operation of many types of heavy machines. Other than one occasion when Briggs told Scheffer not to strike the ground so hard with the bucket of the backhoe,17 Scheffer regularly re- ceived compliments from his supervisors for the quality of his operator work. Scheffer was told by Supervisor Leedy he should be operating equipment full time for Respondent. Briggs assertion that Scheffer was not qualified to operate ma- chinery is without support in the record. Respondent filled the positions of operator and laborer in late May 2003 after Scheffer made an unconditional offer to return to work. These are substantially equivalent positions for which Scheffer was qualified. Moreover, there is considerable evidence that antiunion ani- mus motivated Respondent’s failure to offer Scheffer rein- 15 Tr. at p. 475. 16 While Respondent attempted to minimize Scheffer’s use of equipment to clean up chores at the end of the day, the record is clear that Scheffer operated equipment at various times while on the job. Indeed, when Briggs admonished Scheffer for striking the ground too hard with the backhoe, Scheffer was operating equipment during the workday. 17 Briggs did not remove Scheffer from operating the backhoe and gave no direction to prohibit him from operating heavy equipment. statement. Briggs interrogated employees about their union membership, Satterfield told employees if they wanted to be union they should work for a union company, Satterfield said he was trained to kill people like Union Director of Organizing Gaddiwalla, Satterfield told Scheffer he could not have union literature on the jobsite, Satterfield told Scheffer he could not operate Respondent’s equipment because of his union activity, and Ross told Scheffer he would not be rehired because he was Union and threatened Scheffer with a rock. Unless Respondent can establish a legitimate and substantial business justification for failing to reinstate Scheffer after No- vember 13, 2002, to an available job for which he was quali- fied, the General Counsel has established Respondent has vio- lated Section 8(a)(1) and (3) of the Act. In its defense, Respondent argues that 3D Enterprises Con- tracting Corp., 334 NLRB 57 (2001), provides guidance for the proposition that Scheffer was not an unfair labor practice striker since he did not give reasons for going on strike. I note initially that the judge in 3D Enterprises Contracting found that there were no underlying unfair labor practices to give rise to an unfair labor practice strike. Thus, the remainder of his decision regarding intent is dicta. The judge found further that there was no evidence of employees’ intent concerning the purpose of the strike, as expressed at the time it occurred: The requirement that the General Counsel introduce evidence of employees’ expressions “at the time of the relevant events” is a minimal one, especially since employer representatives are seldom present when such expressions are made. Except for the testimonies of Montoney and Huff about what hap- pened before and after the June 2 union meeting, however, the General Counsel offered only the type of evidence that the Board rejected in [Thorpe]—the employees’ “subjective rea- sons for striking, as asserted for the first time at the hear- ing.”18 Respondent’s reliance on 3D Enterprises Contracting is misplaced. Here, there is evidence of Scheffer’s intent as ex- pressed at the time of the relevant events. On September 10, Scheffer reported to the Sunlit job at 7 a.m. and told his super- visor, Satterfield, he was going out on strike until the unfair labor practices had been remedied. The previous day, Scheffer had walked a picket line in front of Respondent’s office where picket signs were displayed stating that Respondent violated Federal law and had committed unfair labor practices. Scheffer need not provide a reasoned explanation for actions. The only requirement is evidence of employees’ expressions at the time of the relevant events. Here, Scheffer put Respondent on notice that he was going on strike to protest unfair labor practices. I find that Scheffer was an unfair labor practice striker as of Sep- tember 10, 2002. Respondent takes the position that Scheffer abandoned his right to reinstatement by Respondent.19 The Board has held in 18 3D Enterprises Contracting Corp., supra at 75. 19 At the hearing, I precluded Respondent from questioning Scheffer about his interim employment on the ground that it was irrelevant. Assuming, arguendo, that Respondent established Scheffer had taken other substantially equivalent employment, there is overwhelming evidence that Scheffer did not abandon his employment with Respon- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 680 Zimmerman Plumbing & Heating Co., 334 NLRB 586, 588 (2001) (Zimmerman I) that: A former striker awaiting reinstatement may accept in- terim employment elsewhere. Indeed, the Board has rec- ognized that the right to seek interim employment is a vital adjunct to the exercise of the right to strike and is itself protected activity. See Christie Electric Corp., 284 NLRB 740, 759 (1987). Accepting interim employment normally will have no effect on a former striker’s reinstatement rights. One exception is that if a former striker accepts other “regular and substantially equivalent employment,” within the meaning of Section 2(3), then he forgoes his re- instatement rights with the employer. See Marchese Metal Industries, 313 NLRB at 1028–1031 (1994); Little Rock Airmotive, Inc., 182 NLRB 666, 667 (1970), enfd. in per- tinent part 455 F.2d 163 (8th Cir. 1972). . . . . Determining whether a former striker’s interim em- ployment constitutes “regular and substantially equivalent employment” cannot be answered by a “mechanistic ap- plication of the literal language of the statute.” Little Rock Air Motive, 182 NLRB at 666–667. Thus, while the Board compares the terms and conditions of the striker’s interim job to his prestrike job, the Board ultimately gives control- ling weight to whether the “striker intended to abandon his employment with the employer by accepting interim em- ployment with another employer.” Marchese Metal, 313 NLRB at 1030. See also Rose Printing Co., 304 NLRB at 1076 fn. 3. Accord: Alaska Pulp Corp., 326 NLRB 522, 524 (1998), enfd. in part and remanded in part sub nom. Sever v. NLRB, 231 F.3d 1156 (9th Cir. 2000). The Board presumes that the striker did not intend to forfeit his rein- statement rights; the burden is on the employer to prove otherwise. See Marchese Metal, 313 NLRB at fn. 1 and 1031. After remanding the case to the judge, in Zimmerman Plumbing & Heating Co., 339 NLRB 1302 (2003) (Zimmerman II), the Board affirmed the judge who found that employee O’Brien had not abandoned his employment by taking interim employment elsewhere, noting that O’Brien, despite his higher paying and substantially equivalent interim employment, had continued to express interest in his employment with the re- spondent. Finally, Respondent contends that after November 13 there was no available work for which Scheffer was qualified. While Respondent admits that in late May or early June 2003, it hired Miller as a laborer and McJunkin as an operator, it argues that Scheffer was underqualifed to be an operator and had expressed dent. It must be remembered that Scheffer was a “salt,” employed by the Union with permission to take jobs with nonunion employers, for the purpose of organizing their employees. Thus, even if Scheffer had taken other employment as a “salt” he would have been available to return to work with Respondent. Moreover, Scheffer’s continued state- ments of his availability to return to work with Respondent from No- vember 13, 2002, through October 15, 2003, belie any intent on his part to abandon his employment with Respondent. no desire to work as a laborer. As noted above, I have found Scheffer was qualified to perform work as both an operator and laborer. I find Respondent’s failure to reinstate Scheffer was moti- vated by his union activity and violated Section 8(a)(1) and (3) of the Act. 3. The failure to hire or consider for hire the union applicants Counsel for the General Counsel argues that Respondent dis- criminatorily failed to hire and failed to consider union appli- cants for hire on February 11, March 14, and June 6, 2003. Respondent takes the position that it did not violate the Act since the union applicants’ conduct removed them from the protection of the Act, there is no evidence that they were quali- fied to fill available positions, Respondent was not hiring at the time they applied, there is no evidence antiunion animus moti- vated Respondent and its nondiscriminatory hiring policy would have precluded the union applicants from being consid- ered for hire. In FES, 331 NLRB 9 (2000), the Board promulgated a test to establish a discriminatory refusal to hire. The General Counsel must show: (1) [T]hat 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 an- nounced or generally known requirements of the positions for hire, or in the alternative, that the employer has not adhered uniformly to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for dis- crimination; and (3) that antiunion animus contributed to the decision not to hire the applicants. Once this is established, the burden will shift to the respondent to show that it would not have hired the applicants even in the absence of their un- ion activity or affiliation. [Id. at 12.] The employer has the burden of proof to show that the appli- cant did not meet its criteria for the position, was unqualified for the position or was not as qualified as others who were hired. FES, supra. In refusal to consider for hire cases the Board in FES estab- lished the following test: To establish a discriminatory refusal to consider, pursuant to Wright Line, supra, the General Counsel bears the burden of showing the following at the hearing on the merits: (1) that the respondent excluded applicants from a hiring process; and (2) that antiunion animus contributed to the decision not to consider the applicants for employment. Once this is established, the burden will shift to the respondent to show that it would not have considered the applicants even in the absence of their union activity or affiliation. [Id. at 15.] a. Tom Stuart Counsel for the General Counsel argues that Respondent both failed to hire and failed to consider Stuart for hire. On February 11 and March 14, 2003, Stuart attempted to apply with Respondent for a position as an operator. While there is no doubt that Stuart was a qualified operator, there is insuffi- cient evidence that Respondent was hiring or had concrete T.E. BRIGGS CONSTRUCTION CO. 681 plans to hire any operators in February or March 2003. Coun- sel for the General Counsel argues that Respondent was consid- ering McJunkin for hire during the January to March 2003 pe- riod. However, the record reflects that it was McJunkin who was lobbying for a job with Respondent and until mid-May Briggs consistently told McJunkin Respondent was not hiring. I find that the General Counsel has failed to establish a prima facie case that Respondent discriminatorily refused to hire Stu- art since there is no evidence Respondent was hiring or had concrete plans to hire on February 11 or March 14, 2003. FES, supra. With respect to the allegation that Respondent failed to con- sider Stuart for hire, there is some evidence that Respondent gave nonunion applicants greater access to Respondent’s office than union applicants. Counsel for the General Counsel argues nonunion identified applicants Werner, Hassing, and McKinney were each given access to Respondent’s office and Hassing was allowed to fill out an application. There is no evidence Respon- dent was aware that Werner, Hassing, or McKinney were union members at the time they went to Respondent’s office or at the time they were told Respondent was not hiring. When Stuart and Scheffer approached Respondent’s office on February 11, 2003, wearing union insignia, the door was locked. When Stuart and Scheffer went to Respondent’s office on March 14, 2003, wearing union insignia they were told by Walker they were not welcome and to leave the property. In addition, the record is replete with evidence of antiunion animus. Not only were Scheffer and Stuart told they were not welcome at Respondent’s office, Briggs interrogated employees about their union membership, Satterfield told employees if they wanted to be union they should work for a union company, Satterfield said he was trained to kill people like Union Direc- tor of Organizing Gadiwalla, Satterfield told Scheffer he could not have union literature on the jobsite, Satterfield told Scheffer he could not operate Respondent’s equipment because of his union activity, and Ross told Scheffer he would not be rehired because he was union and threatened Scheffer with a rock. I find that counsel for the General Counsel has established a prima facie case under FES that Respondent discriminatorily failed to consider Stuart for hire. Respondent counters that it would not have considered Stuart for hire under its nondiscriminatory hiring policy. Briggs testi- fied without contradiction that its hiring policy considers first candidates who have worked for Respondent, second individuals recommended by supervisors, and persons Briggs has observed personally working on jobsites before it hires off the street. In the only instances where Respondent hired employees after Novem- ber 2002, they were hired consistent with this policy. Briggs personally observed McJunkin’s work on a jobsite and Miller was recommended by Supervisor Smith. In Quality Mechanical Insulation, 340 NLRB 798 (2003), and Brandt Construction Co., 336 NLRB 733 (2001), hiring policies similar to Respondent’s were found to be lawful. I find that Re- spondent’s hiring policy was a valid nondiscriminatory means of securing a qualified work force. Since Stuart, unlike McJunkin and Miller, did not fall within one of the categories of applicants considered before applicants “off the street,” the failure to con- sider Stuart did not violate the Act. I will recommend dismissal of this portion of the complaint. b. Tom Kennedy, Mark Sandy, Henry Arnoux, Ron Dahl, Darren Konopaski, and Dan Taylor Counsel for the General Counsel contends that on June 6, 2003, Respondent failed to consider Kennedy, Sandy, Arnoux, Dahl, Konopaski, and Taylor for hire. On June 6, 2003, Ken- nedy, Sandy, Arnoux, Dahl, Konopaski, Taylor, and Scheffer approached Respondent’s office as a group, walking single file to apply for work as operators. As Kennedy, who was the first of the group, got near the office door, Walker blocked his entry and said Respondent was not taking applications. As in the case of Stuart, counsel for the General Counsel con- tends that Respondent treated union applicants disparately from nonunion applicants. As in Stuart’s case, I find that Respondent gave nonunion applicants greater access to its office than union applicants. I find counsel for the General Counsel has estab- lished a prima facie case under FES that Respondent discrimina- torily failed to consider Kennedy, Sandy, Arnoux, Dahl, Ko- nopaski, and Taylor for hire. The Respondent treated union ap- plicants in a different manner from the nonunion identified appli- cants who were permitted to enter Respondent’s offices. More- over, as noted above, there is a plethora of anti-union animus that has been directed toward Respondent’s employees. Like in Stuart’s case Respondent argues that it would not have considered Kennedy, Sandy, Arnoux, Dahl, Konopaski, and Tay- lor for hire under its hiring policy. There is no dispute that Ken- nedy, Sandy, Arnoux, Dahl, Konopaski, and Taylor did not fall within any hierarchy of applicants Respondent considered for hire before walk in applicants. There is no evidence that Re- spondent has disparately applied its hiring policy at any time. Accordingly, I find that Respondent’s failure to consider Ken- nedy, Sandy, Arnoux, Dahl, Konopaski, and Taylor for hire did not violate the Act. I will recommend dismissal of this portion of the complaint. 4. Respondent’s disparate treatment of union applicants Counsel for the General Counsel alleges that Respondent’s disparate treatment of union applicants is an independent viola- tion of the Act. Counsel for the General Counsel cites Quality Mechanical Insulation, supra, to support its argument that Re- spondent may not treat union applicants differently from nonun- ion applicants. Initially, in Quality Mechanical Insulation, the Board noted that there were no exceptions filed to the judge’s finding that the employer did not discriminatorily fail to hire or consider for hire. While Respondent may not have given the union applicants access to its office, I have found that Respon- dent has uniformly applied its nondiscriminatory hiring practice that gives priority to applicants other than those who walk in “off the street.” In no case herein, was an applicant hired who applied “off the street,” including Werner, Hassing, and McKinney. Moreover, other than Hassing who was given an application in error as Respondent was not hiring, there is no evidence that any walk in applicant was allowed to fill out an application for em- ployment with Respondent. Thus, there is no evidence that Re- spondent has treated union applicants in a disparate manner in its hiring process. Accordingly, I conclude that there has been no disparate treatment of union applicants established and I will DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 682 dismiss that portion of the complaint. Brandt Construction Co., supra. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing and refusing to immediately reinstate unfair labor practice striker Steven Scheffer to his former or substan- tially equivalent positions on his unconditional offer to return to work, Respondent violated Section 8(a)(1) and (3) of the Act. 4. By telling Steven Scheffer that he would not be rehired be- cause of his union activities and by threatening Steven Scheffer with physical violence, Respondent violated Section 8(a)(1) of the Act. 5. Respondent did not otherwise violate Section 8(a)(1) or (3) of the Act. THE 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 effectuate the policies of the Act. Since the Respondent unlawfully failed and refused to reinstate unfair labor practice striker Steven Schef- fer on his unconditional offer to return to work, I shall recom- mend that the Respondent be required to reinstate him immedi- ately to his former position or, if that position no longer exists to a substantially equivalent position, without prejudice to his sen- iority or any other rights or privileges previously enjoyed, dis- missing, if necessary, any persons hired after May 15, 2003, and make the striker whole for any loss of earnings and other benefits suffered as a result of the Respondent’s refusal to reinstate him from the date of his offer to return to work on November 13, 2002. Backpay is to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987). [Recommended omitted Order from publication.]