Harmony Corp.

HARMONY CORP. 349 NLRB No. 74 781 Harmony Corporation and International Brother- hood of Electrical Workers Local Union No. 995, AFL–CIO. Cases 15–CA–13913 and 15–CA– 14102 April 19, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH The key issue presented in this case is whether the Re- spondent violated the Act by failing to hire or to consider for hire certain applicants who openly indicated their support for the Charging Party Union. We conclude, for the reasons set forth below, that the Respondent violated the Act by engaging in unlawful hiring practices on four occasions.1 I. BACKGROUND The Respondent is a construction company controlled or owned by Turner Industries. Hiring for the Respon- dent is conducted at Turner’s office in Baton Rouge, Louisiana. When supervisors need workers, they send labor-requirement forms to recruiters in Turner’s person- nel office in Baton Rouge. If the supervisors request particular workers, the recruiters try to hire those indi- viduals. Otherwise, the recruiters first seek to fill the positions by transferring available current employees, and then try to hire former employees. Individuals who 1 On May 4, 1998, Administrative Law Judge George Carson II is- sued the attached decision. Pursuant to the Board’s June 7, 2000 Order, Judge Carson reconsidered his decision in light of the Board’s ruling in FES, 331 NLRB 9 (2000), supplemented 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002), and on August 28, 2000, issued the at- tached supplemental decision. The Respondent and the General Coun- sel filed exceptions to the original decision, but did not file exceptions to the supplemental decision. On November 16, 2000, the Board issued a Notice to Show Cause asking the parties to address why it should not adopt the supplemental decision in the absence of exceptions. The Respondent and the General Counsel responded, arguing that their exceptions to the original decision remained viable and should be con- sidered by the Board. On July 18, 2003, the Board ruled that it would consider the parties’ exceptions to the extent that they challenged find- ings that had been reaffirmed in the supplemental decision. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and record in light of the ex- ceptions and briefs and has decided to affirm the judge’s rulings, find- ings, and conclusions only to the extent consistent with this Decision and Order, and to adopt the recommended Order as modified and set forth in full below. The Respondent has excepted to some of the judge’s credibility find- ings. The Board’s established policy is not to overrule an administra- tive law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Stan- dard 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. have never worked for a Turner company receive the lowest hiring preference. The Respondent maintains two personnel logs in the lobby of its Baton Rouge office, one for former employ- ees and one for new applicants. The Respondent’s recep- tionist directs applicants to sign the appropriate log, but the Respondent gives a strong hiring preference to appli- cants who speak directly to the recruiter. During the relevant time period, the Respondent’s recruiter was Buddy Meaut, and the Respondent did not hire anyone who did not speak directly with Meaut. Starting in February 1996,2 and continuing into May, the International Brotherhood of Electrical Workers, Lo- cal Union 995, AFL–CIO (the Union) sent some of its out of work members to seek work from the Respondent. The applicants went in groups, sometimes including a union representative. The applicants included both cov- ert applicants, whose union affiliation was not revealed, and overt applicants, whose union affiliation was re- vealed by clothing, insignia, or self-declaration. In gen- eral, the applicants, including the 31 alleged discrimina- tees in this proceeding, signed one of the two logs main- tained in the Respondent’s lobby. The judge found that the evidence established that a violation occurred on only a single date, February 22, when a covert applicant and overt applicants spoke with recruiter Meaut, but the Respondent hired only the covert applicant. As explained below, in addition to affirming this violation found by the judge, we also find that the Respondent violated the Act in a similar manner on three later dates in April and May. II. FACTS 1. February 22 On February 21, the Respondent had three electrician positions to fill for a project to commence on February 23. On February 22, union member Joe Berthelot ap- plied for a job with the Respondent. He identified him- self to the receptionist as an electrician, but did not reveal his union affiliation. After he told the receptionist that he was a former Turner employee, she sent him to see recruiter Meaut, who interviewed Berthelot and hired him for one of the three available positions. Union Business Manager K. E. (Ricky) Russell, union member B.C. Barnette III, and five other union members arrived in the lobby after Berthelot. All were wearing IBEW organizing committee buttons. The receptionist sent them to talk to Meaut, who told Russell that he had “some stuff coming up” in a few weeks and accepted Russell’s resume. He told the others to give their re- sumes to the receptionist. Meaut also instructed the ap- 2 All dates hereafter are in 1996. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 782 plicants to sign the logbook in the lobby, and suggested that Russell sign the log every other day or so. Russell and Barnette signed the employee log, as they were for- mer Turner employees, and the remaining applicants in this group signed the new applicant log. Meaut did not mention either of the two remaining available positions, which were later filled as a result of offers made to other applicants on February 26 and 28. 2. April 29 On the morning of April 29, covert union supporter Charles Dame bypassed the logs and went directly to Meaut to ask for a job. Meaut directed him to return at 1 p.m. That same morning, union organizer Cliff Zylks and five other applicants, all wearing union buttons, ap- plied for work by signing the logs. The receptionist told Zylks that the Respondent was not accepting applications and did not have openings for electrical work. Dame returned at 1 p.m., as instructed, and was hired by Meaut. 3. May 1 On May 1, Zylks returned with seven other overt union applicants. Zylks asked to sign the log and see Meaut, but the receptionist told him that the Respondent was not hiring and that Meaut was not available. Zylks and the other men left. Later that same day, covert union sup- porter Jerry Maggio went to the Respondent’s office to apply for work. The receptionist told him that the Re- spondent might be hiring and referred him to Meaut, who hired him. Union supporter Robert Hall also applied that day as a covert applicant, and was referred to and hired by Meaut. 4. May 8 On May 8, covert union supporters John Woodward and Wade Nichols went to the Respondent’s office, signed the new applicant log, and waited at the back door for Meaut. Meaut appeared and recorded their names on a logsheet. As they continued to wait, Meaut reappeared, called out both of their names, and offered them em- ployment. Nichols accepted a job, but Woodward de- clined. Later that morning, Zylks and overt union supporter Todd Gautreau went to the Respondent’s office. Gaut- reau signed the new applicant log, while Zylks signed the employee log. Zylks asked the receptionist if the Re- spondent was hiring, and she said they were not. Zylks and Gautreau left. Later that day, covert union supporter Kevin Evans came in and signed the new applicant log. The receptionist directed him to the back door to talk with Meaut, who hired him. The next day, covert union applicant Mark Dugas appeared at the office, signed the new applicant log, located Meaut, and was hired. III. ANALYSIS 1. Refusal to hire The General Counsel’s burden in establishing an unlawful refusal to hire is set forth in FES, supra at 12– 17. In order to prove such a violation, the General Coun- sel must establish three elements: first, that the employer was hiring or had definite plans to hire at the time of the alleged unlawful conduct; second, that the alleged dis- criminatees had experience or training relevant to the requirements of the position, or, alternatively, that the employer has not adhered uniformly to such require- ments, or that the requirements were themselves pretex- tual or were applied as a pretext for discrimination; and third, that antiunion animus contributed to the decision not to hire the alleged discriminatees. Id. at 12. Here, as we now show, the General Counsel has met his burden of establishing these elements with respect to the Respon- dent’s failure to hire union applicants on all four dates, February 22, April 29, and May 1 and 8. The facts detailed above plainly show that the Respon- dent had plans to hire employees on each date and in fact hired employees pursuant to those plans.3 As to Febru- ary 22, the Respondent admits that it had an outstanding “labor requirement” for three electricians on February 21 and that applicants for those positions were hired on Feb- ruary 22, 26, and 28. As to April 29, it is similarly un- disputed that the Respondent had available positions that day.4 As to May 1, the evidence shows that overt union applicants applied and were turned away that day imme- diately before covert union supporter Maggio applied and was hired. Finally, as to May 8, several applicants were hired or offered employment on May 8 and 9, both before and after the overt union applicants applied and were rejected on May 8. Regarding the experience and training of the union ap- plicants, the Respondent stipulated at the hearing that all of them were journeymen electricians, that they were all well qualified, and that none of them was rejected for hire because of any lack of qualifications. Finally, the third element of the FES refusal-to-hire standard, which requires a showing that the Respondent’s antiunion animus contributed to the Respondent’s hiring decisions, has been established by the Respondent’s 3 The hiring of covert union applicants, like any other applicant, pro- vides the factual basis to find that an employer was hiring. See Zarcon, 340 NLRB 1222, 1228 (2003), enfd. 118 Fed. Appx. 113 (8th Cir. 2005). 4 Although covert union applicant Dame applied before the overt un- ion applicants arrived at the Baton Rouge office on the morning of April 29, the Respondent made no commitment to hire him until he returned later that afternoon, after Zylks and the other overt applicants had attempted to apply for work. HARMONY CORP. 783 plainly disparate treatment of overt and covert union ap- plicants5 and the Respondent’s use of false and mislead- ing information to frustrate the overt union applicants’ efforts to gain employment. As shown above, overt ap- plicants Russell, Barnette, and Zylks applied as former employees, but, despite the Respondent’s claim that for- mer employees were to be accorded a preference, the job openings at those times went to applicants who had not indicated any prior employment with the Respondent (or connection with the Union). With respect to providing misleading information, one of the most blatant occa- sions was on the initial day in question, February 22, when recruiter Meaut told overt applicants only that he had “some stuff coming up” in a few weeks, despite the fact that the Respondent had immediate openings yet to be filled—and which were filled by other applicants in the following days. Similarly, the overt applicants were misinformed on each of the other dates in question when they were told that the Respondent either was not taking applications or was not hiring. Contrary to those asser- tions, positions were available, but the Respondent con- sistently offered jobs to applicants who had not demon- strated a union affiliation, while refusing to hire any of the overt applicants. In light of those facts, it is clear that unlawful animus was a driving force behind the Respon- dent’s employment decisions.6 For the foregoing reasons, we find that the General Counsel has made out an initial showing under FES that the Respondent’s failure to hire overt union applicants on February 22, April 29, and May 1 and 8 was unlawfully motivated. In dismissing the complaint allegations regarding the Respondent’s refusal to hire the overt union applicants who applied for jobs on April 29 and May 1 and 8, the judge found that entry into the Respondent’s hiring proc- ess was accomplished only by speaking to Meaut and 5 See Allied Mechanical Services, 341 NLRB 1084, 1086 (2004), and Action Multicraft, 337 NLRB 268, 277 (2001). 6 Members Liebman and Walsh also rely on the Respondent’s other unlawful misconduct, as affirmed in this decision, as a separate basis for finding the Respondent’s animus. Those unfair labor practices include the Respondent’s violation of Sec. 8(a)(1) on May 13, when Foreman Brian Webster interrogated newly hired employees as to whether they were in the Union, and on May 21, when Supervisor Paul Maklary promulgated an unlawful no-solicitation rule barring employ- ees from handing out union literature during breaktimes. The Respon- dent also violated Sec. 8(a)(3) and (1) by discriminatorily terminating employees who had been covert union applicants, but who engaged in statutorily protected activity after they were hired. That group included Dame, who was hired on April 30 and was laid off on May 26 (along with others laid off to mask Dame’s unlawful layoff), and employees Berthelot and Aycock, who were laid off on June 3 after they had in- formed Supervisor Maklary and Project Manager Buddy Means that they were going to engage in a strike because the Respondent was not hiring union members. that signing the Respondent’s applicant log did not con- stitute entry into the hiring process. Thus, the judge found that the overt applicants who sought employment at the Respondent’s office on April 29 and May 1 and 8, did not actually apply for jobs, because they did not in- sist on talking to Meaut. We reject the judge’s finding that entry into the Re- spondent’s hiring process was accomplished only by speaking to Meaut. There is no evidence showing that the Respondent, through its receptionist or otherwise, ever informed the overt union applicants of the desirability or importance of speaking with Meaut. Indeed, the record shows that the receptionist essentially dictated who spoke with Meaut, and that she endeavored to see to it that overt union applicants did not speak with him. Thus, she selectively referred the covert applicants to Meaut and falsely advised overt applicants that Meaut was un- available. Accordingly, speaking with Meaut was effec- tively beyond the overt applicants’ control. Moreover, the record clearly shows that persons who appeared at the Respondent’s office seeking employment were instructed by the receptionist to sign the logbooks for job applicants and often were not told to do anything more. This evidence demonstrates that signing the logs constituted the method by which one applied for a job with the Respondent, at least as far as applicants were informed. Accordingly, we reject the judge’s finding that the overt applicants who sought employment at the Respondent’s office on April 29 and May 1 and 8, did not actually apply for jobs. As we have found that the General Counsel met his initial burden under FES regarding the Respondent’s refusal to hire the overt union applicants, the burden shifts to the Respondent to show that it would not have hired them even in the absence of their union activity or affiliation. FES, supra at 12. Because the Respondent failed to brief the application of FES after this case was remanded for further consid- eration in light of that decision, the Respondent has not expressly presented an affirmative defense under FES. Rather, the Respondent has essentially disputed whether the General Counsel has proved his case in chief, includ- ing the element of animus. Based on the entirety of the record, we find that the Respondent failed to show that it would not have hired any of the alleged discriminatees. Notably, the Respondent has utterly failed to account for the evidence presented by the General Counsel showing that the Respondent disparately treated the overt and DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 784 covert union applicants on all four of the dates in ques- tion.7 Accordingly, we affirm the judge’s finding that the Respondent unlawfully failed to hire union electricians on February 22. In addition, we find that the Respondent unlawfully failed to hire union electricians for openings that existed on April 29 and May 1 and 8. 2. The instatement and backpay remedy Once an unlawful refusal to hire is established, an ap- propriate remedy must be considered. Under FES, when the General Counsel seeks a cease-and-desist order, he need only affirmatively establish that jobs were avail- able. But when, as here, the General Counsel seeks an instatement and backpay remedy, he must establish the number of available positions at the hearing on the mer- its. a. February 22 For the reasons set forth in the judge’s decision, we find that two positions remained available when the overt union applicants applied on February 22, and thus in- statement and backpay for two of those applicants is an appropriate remedy. Russell and Barnette, as former Turner employees, had preference for employment over the other overt union applicants who applied that day, and are therefore entitled to instatement and backpay as of that date.8 b. April 29 The evidence presented by the General Counsel estab- lishes that on April 29, the Respondent hired new appli- cant Dame only after it refused employment to Zylks and five other overt union applicants. As a former Turner employee, Zylks was entitled to a hiring preference over the other overt applicants,9 and therefore is entitled to instatement and backpay as of that date. c. May 1 On May 1, the Respondent hired covert union support- ers Maggio and Hall after Zylks and seven other overt union applicants (Barnette, Frank Hargrove, Douglas Ellis, Jimmy Moore, Don Guarino, Billy O. Long, and Billy Stiles) had applied. Therefore, there were two 7 Although the Respondent has claimed that overt union applicants who were former employees had not recently worked in the trade, the Respondent presented no evidence that its preference policy was lim- ited to those applicants who had recent experience. 8 No exceptions have been filed to the judge’s remedy limiting the relief to be provided to Russell and Barnette on the basis that they were offered, and declined, reinstatement offers in October. 9 Although other overt applicants had also signed the log for former employees that day, those others had indicated that their Turner identi- fication cards had expired, giving them a lower priority under the Re- spondent’s prior employment preference policy. openings available that day. Because, if the Respondent had been operating in a lawful manner, it would have offered employment to Barnette and Zylks on February 22 and April 29, respectively, the other six overt union applicants would have been eligible for the two May 1 job openings. It can be determined in compliance which two of those applicants would have been hired for the positions filled by Maggio and Hall, and who are thus entitled to instatement and backpay as of May 1.10 d. May 8 On May 8, the Respondent refused to hire overt union applicants Zylks and Gautreau, and instead hired covert union supporter Kevin Evans later that day. The Re- spondent therefore had at least one opening available when Zylks and Gautreau applied for work. Because, if the Respondent had been operating in a lawful manner, it would have offered employment to Zylks on April 29, the available position should have been offered to Gaut- reau. Therefore, Gautreau is entitled to instatement and backpay as of May 8.11 3. Refusal to consider for hire Regarding the allegations of failure to consider for hire, the General Counsel must affirmatively establish, first, that the Respondent excluded union applicants from the hiring process, and second, that antiunion animus contributed to the Respondent’s decision not to consider the applicants for employment. The burden then shifts to the Respondent to show that it would not have consid- ered the applicants even in the absence of their union activity or affiliation. FES, supra at 15. The record amply demonstrates that the General Coun- sel met his burden here, as well. With the sole exception of February 22, there is no instance in which overt union applicants were directed to talk with recruiter Meaut, which was a necessary step to being considered for hire. In contrast, covert union applicants were routinely sent 10 Because we acknowledge that the Respondent cannot meet an ob- ligation to offer instatement within 14 days of this Decision and Order to applicants whose identities are yet to be determined, we modify the judge’s order to remove the 14-day limit in that provision as to the applicants who shall be offered instatement for positions that were available on May 1. See Oasis Mechanical, Inc., 346 NLRB 1011 fn. 2 (2006). 11 As indicated by the judge, the Board leaves to compliance the de- termination of how long discriminatees would have worked for the Respondent if they had not been unlawfully refused hire. Dean General Contractors, 285 NLRB 573 (1987). Chairman Battista recognizes that Dean General represents current Board law. He has concerns, however, about whether that case was correctly decided. Inasmuch as evidence adduced at the compliance stage may lessen or eliminate backpay and eliminate the instatement order, he does not pass on the respective burdens of proof as to these matters. See Hi-Tech Interiors, Inc., 348 NLRB No. 18, slip op. at 298 fn. 8 (2006); Progressive Electric, 344 NLRB 426, 429 (2005). HARMONY CORP. 785 by the receptionist to talk with Meaut. Further, even when the overt applicants spoke with Meaut on February 22, Meaut falsely implied that there were no jobs avail- able at that time. Thus, it is clear that the Respondent routinely excluded union applicants from its hiring proc- ess. Based on that evidence, it is also clear that antiunion animus contributed to the Respondent’s decision not to consider the applicants.12 The Respondent did not call Meaut or any other wit- ness to explain why the Respondent would not have con- sidered the overt union applicants for employment even absent their union affiliation. In the absence of any af- firmative defense, we find that the Respondent unlaw- fully refused to consider those overt applicants for em- ployment. When both a refusal-to-hire and a refusal-to-consider for hire violation are found, the remedy for the refusal- to-consider violation is generally subsumed by the broader refusal-to-hire remedy. However, as we have found that more overt union applicants applied for work than there were available positions, we shall order a re- fusal to consider remedy for the discriminatees who, at compliance, are not ordered instated. See Progressive Electric, supra at 426 fn. 2, enfd. 453 F.3d 538 (D.C. Cir. 2006). 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, Harmony Corporation, Baton Rouge, Lou- isiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating any employee about union support or union activities. (b) Promulgating any rule prohibiting solicitation and distribution in nonwork areas on employee breaktimes. (c) Failing and refusing to consider applicants for em- ployment and failing and refusing to hire them because of their union affiliation. (d) Discharging or otherwise discriminating against any employee for supporting International Brotherhood of Electrical Workers, Local Union No. 995, AFL–CIO, or any other union. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 12 We limit our findings regarding the Respondent’s refusal to con- sider for hire to those days when there were available positions. The evidence regarding applicants who may have applied on other dates is insufficient to show any actual refusal to consider. 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 Charles Dame, Tom Jones Sr., Tom Jones Jr., and Gino (last name unknown), full reinstatement to their jobs as class A electricians or, if such jobs no longer exist, to a substantially equivalent position, without prejudice to their seniority or any other rights or privileges to which they would have been entitled if they had not been dis- criminated against. (b) Upon their unconditional offer to return to work, offer J.D. Berthelot and Andras Aycock immediate and full reinstatement to their jobs as class A electricians without prejudice to their seniority or any other rights and privileges. (c) Within 14 days from the date of this Order, offer to Cliff Zylks and Todd Gautreau, if it has not already done so, employment in the jobs for which they applied or, if such jobs no longer exist, in a substantially equivalent position, without prejudice to their seniority or any other rights or privileges to which they would have been enti- tled if they had not been discriminated against. (d) As determined in a subsequent compliance pro- ceeding, offer employment to two of the following appli- cants, in the positions for which they applied on May 1, 1996, or, if such jobs no longer exist, in a substantially equivalent position, without prejudice to their seniority or any other rights or privileges to which they would have been entitled if they had not been discriminated against: Frank Hargrove, Douglas Ellis, Jimmy Moore, Don Guarino, Billy O. Long, and Billy Stiles. (e) Make Charles Dame, Tom Jones Sr., Tom Jones, Jr., Gino (last name unknown), J.D. Berthelot, Andras Aycock, K.E. Russell, B.C. Barnett III, Cliff Zylks, and Todd Gautreau, and the selected applicants for the posi- tions open on May 1, 1996, whole for any loss of earn- ings and other benefits suffered as a result of the dis- crimination against them, in the manner set forth in the remedy section of the judge’s decision. (f) Within 14 days from the date of this Order, remove from its files any reference to its unlawful discharges of Charles Dame, Tom Jones Sr., Tom Jones Jr., Gino (last name unknown), J.D. Berthelot, and Andras Aycock and, within 3 days thereafter, notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (g) Within 14 days from the date of this Order, remove from its files any reference to its unlawful refusal-to-hire applicants, including K.E. Russell, B.C. Barnett III, Cliff Zylks, and Todd Gautreau and, within 3 days thereafter, notify the applicants in writing that this has been done DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 786 and that the refusals to hire and to consider for hire will not be used against them in any way. (h) As determined in a subsequent compliance pro- ceeding, notify, in writing, the discriminatees who are not instated to one of the available positions, that any future job application will be considered in a nondis- criminatory way and notify the discriminatees, the Charging Party, and the Regional Director of future openings in positions that the discriminatees applied for or substantially equivalent positions. (i) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (j) Within 14 days after service by the Region, post at its facility in Baton Rouge, Louisiana, copies of the at- tached notice marked “Appendix.”13 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 15, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, 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 facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the No- tice to all employees employed by the Respondent on or at any time since February 22, 1996. (k) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dismissed as to alleged violations of the Act not specifically found. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE 13 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT promulgate any rule that prohibits you from soliciting and distributing union literature in non- work areas on your breaktime. WE WILL NOT fail and refuse to consider you for hire or to hire you because of your union affiliation. WE WILL NOT discharge or otherwise discriminate against you for supporting International Brotherhood of Electrical Workers, Local Union No. 995, AFL–CIO, or any other union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. WE WILL, within 14 days from the date of the Board’s Order, offer Charles Dame, Tom Jones, Sr., Tom Jones, Jr., and Gino (last name unknown), full reinstatement to their jobs as class A electricians or, if such jobs no longer exist, to a substantially equivalent position, without prejudice to their seniority or any other rights or privi- leges to which they would have been entitled if they had not been discriminated against. WE WILL, upon their unconditional offer to return to work, offer J. D. Berthelot and Andras Aycock immedi- ate and full reinstatement to their jobs as class A electri- cians without prejudice to their seniority or other rights and privileges to which they would have been entitled if they had not been discriminated against. WE WILL, within 14 days from the date of the Board’s Order, offer Cliff Zylks and Todd Gautreau, if we have not already done so, employment in the jobs for which they applied or, if such jobs no longer exist, in a substan- tially equivalent position, without prejudice to their sen- iority or any other rights or privileges to which they would have been entitled if they had not been discrimi- nated against. HARMONY CORP. 787 WE WILL offer employment to two of the following ap- plicants, whose identities are to be determined in the compliance stage of this proceeding, in the positions for which they applied on May 1, 1996, or if such jobs no longer exist, in a substantially equivalent position, with- out prejudice to their seniority or any other rights or privileges to which they would have been entitled if they had not been discriminated against: Frank Hargrove, Douglas Ellis, Jimmy Moore, Don Guarino, Billy O. Long, and Billy Stiles. WE WILL make Charles Dame, Tom Jones Sr., Tom Jones Jr., Gino (last name unknown), J.D. Berthelot, An- dras Aycock, K.E. Russell, B.C. Barnette III, Cliff Zylks, and Todd Gautreau, and the selected applicants for the positions open on May 1, 1996, whole for any loss of earnings and other benefits resulting from our discrimi- nation against them, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharges of Charles Dame, Tom Jones Sr., Tom Jones Jr., Gino (last name unknown), J.D. Berthelot, and Andras Aycock, and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the discharges will not be used against them in any way. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the refus- als to hire K.E. Russell, B.C. Barnett III, Cliff Zylks, and Todd Gautreau and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the refusals to hire will not be used against them in any way. WE WILL notify, in writing, the discriminatees who are not instated to one of the available positions, that any future job application will be considered in a nondis- criminatory way and notify these discriminatees, the Charging Party, and the Regional Director of future openings in positions that the discriminatees applied for or substantially equivalent positions. HARMONY CORPORATION SUPPLEMENTAL DECISION GEORGE CARSON II, Administrative Law Judge. On May 4, 1998, I issued my decision in these cases finding, inter alia, that the Respondent, Harmony Corporation, violated Section 8(a)(1) and (3) of the Act by refusing to consider for hire Union Busi- ness Manager/Organizer K.E. “Ricky” Russell and the six un- ion members who accompanied him to the Respondent’s of- fices on February 22, 1996. I further found that Respondent, in violation of Section 8(a)(1) and (3) of the Act, refused to hire Russell and union member B.C. Barnette III. By Order dated June 7, 2000, the National Labor Relations Board (the Board) remanded this case to me for further consideration in light of its decision in FES 331 NLRB 9 (2000), and directed that I pre- pare a supplemental decision. On July 3, 2000, I issued an invitation to file briefs, granting all parties until August 7, 2000, to address any issues they found pertinent prior to my preparation of the supplemental decision. Briefs were filed by the General Counsel and Respondent. Upon due consideration of the Board’s decision in FES, the existing record in this case, and the briefs submitted, I find it unnecessary to reopen the record as the existing record is fully sufficient to decide this case under the FES framework.1 I further find that my decision of May 4, 1998, contains all of the elements established by the framework set out in FES. The Board’s decision in FES states: To establish a discriminatory refusal to hire, the Gen- eral Counsel must, under the allocation of burdens set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), first show the following at the hearing on the merits: (1) that the respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) that the applicants had experience or training relevant to the announced or generally known requirements of the posi- tions for hire, or in the alternative, that the employer has not adhered uniformly to such requirements, or that the re- quirements were themselves pretextual or were applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the applicants. [Id. at 12. Footnotes omitted.] Regarding the first criterion, the Board notes that its analysis “presupposes that there were appropriate openings in the em- ployer’s work force.” Id. Thus, evidence sufficient to establish a prima facie case of refusal to hire requires the existence of a position that the applicant could have filled. In my decision I found that, on February 22, 1996, the Respondent was actively hiring. Recruiter J.J. “Buddy” Meaut had a labor requirement for three electricians for the Fina project, with a projected start date of February 23. Meaut was in the process of hiring J.D. “Joe” Berthelot, who had not revealed his union affiliation, at the time Russell spoke with Meaut on behalf of himself and the six union members with him. There were two positions open at that time. The second criterion of FES relates to qualifications. In de- ciding this case, I used the analytical framework of Big E’s Foodland, Inc., 242 NLRB 963, 968 (1979), and I did not, as an element of the violation, specifically find that Russell and the six union members with him were qualified. My decision does specifically note: “Respondent stipulated that there was no contention that the union electricians lacked any qualifications to perform electrical work.” Thus, I find that the second crite- rion has been established. Regarding the third criterion that antiunion animus contrib- uted to the decision not to hire the applicants, I found that Re- 1 General Counsel and Respondent agree that it is unnecessary to re- open the record. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 788 spondent Harmony bore animus towards union activities en- gaged in by its employees and that Meaut had reason to believe, on the basis of the organizing committee buttons worn by Rus- sell and the six union members who accompanied him, that these union members intended to engage in organizational ac- tivity. Although Russell spoke with Meaut on behalf of himself and the six qualified applicants with him, Meaut did not inter- view any of them. The two vacant positions were not filled until February 26 and 28. In view of the foregoing, I found that, absent union animus, Respondent would have hired Russell and union member B.C. Barnette III for the two vacancies that ex- isted on February 22 since they had both previously worked for a Turner company and, therefore, had priority over the others with them, none of whom was shown to have previously worked for a Turner company. Thus, I found that General Counsel established a prima facie case. FES provides that, if General Counsel establishes a prima fa- cie case and the respondent “fails to show that it would have made the same hiring decisions even in the absence of union activity or affiliation,” a violation of Section 8(a)(3) of the Act is established. As set out in my decision, Respondent did not rebut General Counsel’s prima facie case. Respondent did not call Meaut to address his conversation with Russell or to explain his failure to interview and test Russell and the union members with him. It proffered no evidence that, on February 22, there were any applicants for the two vacant positions other than Russell and the six union members who accompanied him. In view of the foregoing, I find that my decision contains all findings necessary to establish a failure to hire violation under the framework of FES. The appropriate remedy for such a violation is a cease-and- desist order, and an order to offer the discriminatees immedi- ate instatement to the positions to which they applied or, if those positions no longer exist, to substantially equivalent po- sitions, and to make them whole for losses sustained by rea- son of the discrimination against them. Id. My recommended Order included, inter alia, that Respondent cease and desist from “[f]ailing and refusing to consider for hire, or to hire, employees who identify themselves as members of an IBEW organizing committee” and that Respondent make whole Russell and Barnette, both of whom declined subsequent job offers, as discussed in the remedy section of my decision. I find no basis for altering my recommended Order since the job offers (i.e., offers of instatement) were declined by both dis- criminatees. Regarding the refusals to consider for hire, I found that ap- plication for employment with Harmony was made by speaking to Meaut and that General Counsel established a prima facie case of a refusal to consider for hire Russell and the six orga- nizing committee members who accompanied him on February 22, 1996. In FES, the Board held: To establish a discriminatory refusal to consider, pur- suant 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 employ- ment. 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 af- filiation. If the respondent fails to meet its burden, then a violation of Section 8(a)(3) is established. The appropriate remedy for such a violation is a cease- and-desist order; an order to place the discriminatees in the position they would have been in, absent discrimination, for considera- tion for future openings and to consider them for the open- ings in accord with nondiscriminatory criteria; and an or- der to notify the discriminatees, the charging party, and the Regional Director of future openings in positions for which the discriminatees applied or substantially equiva- lent positions. [Id. at 15.] The only union members who identified themselves as union organizers and spoke with Meaut on a day that Respondent had a labor requirement and, therefore, was hiring were the six members who accompanied Russell on February 22, 1996. Russell was clearly applying for employment on behalf of him- self and the members with him. Meaut’s suggestion that the members leave resumes confirms that he was aware that they all were applying for employment. The fact that Respondent does not accept formal applications until after initially screen- ing a prospective employee is immaterial. Direct contact with Meaut constituted an attempt by these employees to enter Re- spondent’s hiring process. Respondent excluded these appli- cants from its hiring process when Meaut did not grant them interviews or place their names and telephone numbers on the list in the notebook that he kept. Respondent bore animus to- wards union activities engaged in by its employees. The orga- nizing committee buttons worn by these union members gave Meaut reason to believe that they intended to engage in organ- izational activity. Rather than taking the names of these union organizing committee members and suggesting that they return, Meaut excluded them from Respondent’s hiring process by telling them to sign the log in the lobby “every other day or so,” an act that the record establishes was a waste of time because “to get hired at Harmony . . . you need to . . . talk to Buddy [Meaut]” In my decision, I found that General Counsel estab- lished a prima facia case of a refusal to consider for hire Rus- sell and Barnette, who I also found were discriminatorily de- nied employment, and Don Chaney, Tom Gibson, Frank Hargrove, Ken Loupe, and K. Browning. I reaffirm that find- ing, and, consistent with the terminology employed in FES, reword my finding to state that Meaut’s conduct establishes that the Respondent excluded applicants from its hiring process and that antiunion animus contributed to the decision not to con- sider Russell and those who accompanied him for employment. Respondent did not call Meaut to address his conversation with Russell. Respondent did not rebut General Counsel’s prima facie case. General Counsel and Respondent, in their briefs, concur that the findings in my decision are sufficient under the criteria set out in FES. General Counsel contends that, under a FES analy- sis, Respondent should be found to have unlawfully failed to consider for hire all of the alleged discriminatees, i.e., the union HARMONY CORP. 789 members who signed the Respondent’s log books in the lobby. Respondent notes that, since offers of employment were made to Chaney, Gibson, Hargrove, Loupe, and Browning, I need not modify my recommended Order to include the affirmative remedies prescribed in FES. I reject General Counsel’s contention that under FES I should find that an 8(a)(3) violation was established with regard to the union members who simply signed the log books. Under FES, a refusal to consider violation is established by evidence of exclusion of applicants from a hiring process and evidence that antiunion animus contributed to the exclusion from consid- eration. Union affiliated individuals were not excluded from signing the logs in the lobby, and there is no evidence that those individuals were treated any differently from the hundreds of other individuals who signed the logs in Respondent’s lobby. There is simply no evidence of disparity. Charles Dame, Robert Hall, and Chip Woodward each reflected his affiliation with the Union when signing the log on February 5. Each of these indi- viduals thereafter sought to enter Respondent’s hiring process by directly contacting Meaut. They did not reveal their union affiliation. If the log books were an integral part of Respon- dent’s hiring process, Respondent would have been aware of the union affiliation of these individuals and, in view of its animus, would have excluded them from its hiring process. These individuals were not excluded from Respondent’s hiring process. Dame and Hall were hired and Woodward declined an interview. The foregoing events confirm that the signing of the logs did not constitute entry into Respondent’s hiring process. Respondent’s hiring process began with direct contact with Meaut. Meaut excluded known union affiliated applicants by failing to interview them. I reaffirm that entry into Respon- dent’s hiring process was made by speaking to Meaut; “electri- cians everywhere” knew they needed to talk to Meaut to be hired by Harmony. I agree with Respondent that the remedy provided in my rec- ommended Order need not be modified. When speaking with Russell and the six union members who accompanied him, Meaut did not make any statement from which they could con- clude that further contact with him would be useless because of their union affiliation. He invited the discriminatees to submit resumes stating “attention Buddy,” but there is no evidence that any did so. There was no testimony that any of the five dis- criminatees who accompanied Russell and Barnette sought to enter Respondent’s hiring process at any time after February 22 by contacting Meaut individually or with a group. All discrimi- natees alleged in the complaint were offered employment. Chaney, Gibson, Hargrove, Loupe, and Browning were con- tacted by telephone and sent letters by certified mail in late September or early October 1996. Hargrove, the only one of these discriminatees to testify, acknowledged that he declined the offer of employment tendered to him. Respondent’s records reflect that the other four discriminatees all declined the em- ployment offers tendered to them. Meaut testified that he kept an informal list of individuals who contacted him. He kept this list on a monthly basis in a personal notebook, sometimes “[i]t might run over” to 32 or 33 days. He then threw the notebook away and started a new one. Meaut’s practice establishes “ac- tive applications” for each of the discriminatees as of February 22. Id. at fn. 15. In the absence of any additional attempt to contact Meaut, these active applications ceased to be viable at the end of the month when Meaut began keeping a new list of employees. I find no basis for requiring that there be a compli- ance proceeding to determine whether these discriminatees would have been nondiscriminatorily offered employment after February. None of them had prior Turner experience, and none of them contacted Meaut after February 22. The only employ- ees hired in the month of February after February 22, 1996 either had prior Turner experience, as did Russell and Barnette, or were specifically requested by name.2 In view of the job offers made to, and declined by, these discriminatees, I find no need to affirmatively provide that another job offer be made to them. In summary, regarding the refusals to hire, I affirmatively find, pursuant to Respondent’s stipulation that “there was no contention that the union electricians lacked any qualifications to perform electrical work,” that the applicants were qualified, thus meeting the second criterion of the FES framework. Re- garding the refusals to consider, as set out above, I reworded my finding to state that Meaut’s conduct established that the Respondent excluded applicants from its hiring process and that antiunion animus contributed to this exclusion. I find that the record is sufficient to decide this case under the criteria of FES, and that those criteria are met by my sup- plemental findings noted immediately above. My supplemental findings do not affect the Conclusions of Law set out in my Decision. For the reasons stated above, I find no basis for alter- ing the Remedy and recommended Order set out in my deci- sion. I reaffirm my decision of May 4, 1998, except as noted im- mediately above. 2 Fern Carpenter and Kenny Albritton were hired on February 26 and 28, respectively, for the positions that were open when Russell and Barnette applied. Jose Pantoja was requested by name. His name was added to the February 21, 1996, labor requirement sheet, and he was hired on February 29. Donald Dykes was requested by name on a labor requirement sheet dated February 28, and he was hired on February 29, 1996.