J. A. Croson Co.

J. A CROSON CO. J. A. Croson Company and Plumbers Union, Local No. 59, United Association of Journeymen & Apprentices of the Plumbing & Pipefitting In- dustries of the United States & Canada, AFL- CIO. Case 9-CA-19674 20 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 21 August 1984 Administrative Law Judge James J. O'Meara Jr. issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, the Charging Party filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and an answering brief to the General Counsel's exceptions. 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, and conclusions' and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' The judge concluded, and we agree, that 1 February 1983 is the ap- proprtate date on which the 10(b) period commenced and, therefore, the charge was timely filed In so finding, we rely also on the fact that there is no evidence that the Respondent ever notified or advised the inter- viewees of its decision not to hire them Moreover, the uncontroverted evidence adduced from the General. Counsel's witnesses established that during and after the October and November interviews, some of these individuals were advised by the Respondent that they were being consid- ered for future employment DECISION STATEMENT OF THE CASE JAMES J. O'MEARA JR., Administrative Law Judge. This case was tried in Cincinnati, Ohio, on August 25, 1983. Charges were filed by Plumbers Union, Local No. 59, United Association Of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States & Canada, AFL-CIO (the Union). That charge, filed on May 18, 1983, alleges that about November 30, 1982, and thereafter, the above-named Employer had discriminated against James Lawson by refusing to employ him be- cause of his membership in Plumbers Union, Local No. 59. An amended charge was filed on May 27, 1983. This charge was identical to the original charge except that it included 11 additional discriminatees. A complaint was filed on July 11, 1983, alleging that about February 1, 1983, and since that date, the Respondent has refused to hire 8 of the 12 discriminatees named in the amended charges because the individuals joined, supported, or as- 149 listed the Union and engaged in concerted activities with the purpose of collective bargaining or other mutual aid or protection, and in order to discourage employees from engaging in such activities and other concerted activities for the purpose of collective bargaining and/or mutual aid or protection, in violation of Section 8(a)(1) and (3) of the Act. The Respondent, in its answer to the com- plaint, denies that it has violated the Act. It has also filed a motion to dismiss the complaint on the grounds that the complaint is barred pursuant to provisions of Section 10(b) of the Act. The Respondent's motion to dismiss was reserved pending the hearing since such motion was grounded on the facts composing the alleged unlawful discrimination. On the entire record, including my observation of the demeanor of the witnesses, and in consideration of the briefs filed by the General Counsel, Respondent, and the Charging Party, I make the following FINDINGS OF FACT 1. JURISDICTION The Respondent is an Ohio corporation with an office and place of business in Columbus, Ohio. It has been en- gaged as a mechanical contractor in the building and construction of commercial and office facilities. In the course and conduct of its business operations the Respondent has purchased and received at its facility in Columbus, Ohio, products, goods, and materials valued in excess of $50,000 from points outside the State of Ohio. Respondent admits in its pleading, and I find, that it is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act The Union is now, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. I further find that it will effectuate the policies of the Act to assert jurisdiction in this case. II. THE RESPONDENT AND ITS BUSINESS The Respondent is engaged in the contracting business in the State of Ohio, and elsewhere, where it undertakes to bid for and perform plumbing contracts as a part of commercial construction contracts. The plumbing con- tracts undertaken by Respondent are managed by its vice president, David Croson. As the Respondent obtains plumbing contracts, it engages plumbers on an as-needed basis. Respondent employs three methods in obtaining plumbing personnel to perform its various contracts: public notice or ads in local newspapers; referrals from employees, other contractors, and persons acquainted with its needs from time to time; and "walk-in applica- tions." Respondent is a "non-union contractor" having refused, at least from November 1981, to consider a col- lective-bargaining contract for its employees. 111. THE CINCINNATI CONTRACTS In late January 1982, Respondent was the successful bidder on the plumbing portion on a construction project referred to as the Cincinnati hospital project. Again in 274 NLRB No. 31 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 1982, Respondent was the successful bidder for the plumbing work on the Hamilton County Jail. During the summer of 1982, these Cincinnati jobs required a low complement of plumbers, since the Company was then engaged in doing preliminary work such as drawings, or- dering of materials, job meetings, and some preparation necessary to dovetail the work with other trades. In con- sultation with Respondent's job foreman in Cincinnati, it was determined that it would be necessary to engage "a lot of manpower in a very short period of time." Such manpower was not then available from the Respondent's usual employees since they were engaged by Respondent on jobs in Columbus, Ohio, and elsewhere. In order to obtain new personnel, the Respondent, on October 6, 1982, placed an ad in two of Cincinnati's newspapers. The ad generated approximately 81 telephone responses from October 6 to November 1. Of those 81, 50 to 60 filed applications with the Respondent. Approximately 25 to 30 of such applicants participated in a personal interview, while another 5 or so were interviewed by telephone. A week or two after placing the ad in the newspaper, Respondent's management realized that the estimate of plumber personnel needed for the Cincinnati jobs made by the job foreman had changed. The progress of the new job was slower than anticipated and the need to fill plumber positions was not materializing. Simultaneously, other Respondent's employees in Columbus and else- where were becoming available to an extent not previ- ously anticipated. Because of this, Respondent deter- mined that it would not be necessary to hire any of the plumber applicants generated by the October 6 newspa- per ad. On February 1, 1983, Respondent hired West Davis who was referred to Respondent for employment by a local plumbing inspector. The reference referred to Davis as having excellent character, being very honest, a hard worker, and a member of a minority race (from which Respondent was required to employ, pursuant to the terms of its contract). Respondent later hired two other plumbers on Febru- ary 1, 1983. Tony Parker was referred to Respondent by another employee. He came with high recommendations as to character, honesty, and hard work, and he also was a member of a minority race. In late February 1983, or early March, Don Belford, contacted Respondent to advise him that he had received his plumbers license. Belford had first applied with Respondent in October or November during Respondent's ad campaign. Respond- ent was aware that Belford was working on another con- struction site where Respondent was also working. Croson recalled talking to Belford during the fall of 1982 employment campaign in a telephone interview and was also impressed with Belford's application. IV. MOTION TO DISMISS COMPLAINT UNDER SECTION 10(B) The Respondent filed a motion at the onset of the hearing to dismiss the complaint on the grounds that the acts on which the complaint issued occurred more than 6 months prior to the filing of the charge with the Board. The facts comprising the basis of Respondent's motion were congruous with the evidence of the parties' respec- tive cases and the 10(b) motion was taken under advise- ment and argued in the briefs of the parties The complaint was issued on July 11, 1983, based on a charge filed on May 27, 1983. That charge alleges that about November 30, 1982, and thereafter, the Respond- ent discriminated against 12 potential employees by re- fusing to employ them because of their membership in the Union The complaint alleges with specificity that since about February 1, 1983, Respondent has refused to hire eight of these potential employees because of their union membership. Thus, on the face of the complaint, and the charge on which it was issued, there are no grounds for dismissal of the complaint pursuant to provi- sions of Section 10(b). The Respondent argues that the refusal to hire the eight discriminatees was made in October and early No- vember 1982 and, if this refusal is deemed to be discrimi- nation and an unlawful labor act, that the complaint en- forcing it is barred by Section 10(b). The General Coun- sel contends that the unfair labor act of unlawful discrim- ination in hiring took place after the October-November period and specifically alleges that such unlawful acts occurred about, or after, February 1, 1983. It is clear that any discrimination comprising an unlawful labor act which occurred in October or November 1982 was barred by Section 10(b) of the Act since the charge on which the complaint is based was not filed until May 27, 1983. However, the complaint alleges that the unfair labor practice comprising the discrimination in hiring took place about February 1, 1983, and is within the scope of the charge filed on May 27, 1983. In that charge the charging party alleged that, "on or about the 3rd day of November, 1982, and thereafter.. . ." Thus, a charge that discrimination in hiring practices in violation of the Act occurred about February 1, 1983, is properly based upon the charge filed on May 27, 1983, and is not barred by Section 10(b) of the Act More significantly, the General Counsel does not plead nor does he argue that the discrimination against the po- tential employees took place in October or November 1982. Contrariwise, the General Counsel pleads and argues that the discrimination took place in February and April 1983. Accordingly, Respondent's motion to dismiss the com- plaint on the grounds that it is barred under Section 10(b) of the Act is denied. V. DISCUSSION AND CONCLUSIONS The General Counsel has stated the issue framed by the complaint and the charge in this case as follows: Whether Respondent violated Section 8(a)(1) and (3) of the Act on or about February 1 and April 4, 5, and 11, 1983, by refusing to hire the individuals named in the complaint because of their union membership. The method employed by the Respondent to acquire a body of applications from which to choose in order to man their two Cincinnati, Ohio jobs was to place a newspaper ad in two local Cincinnati newspapers. This J A CROSON CO method is one of several which the Respondent ordinari- ly pursues in its quest for employees. The other method includes the so-called walk-on method where applicants inquire about the availability of positions, and a third method is where potential applicants are referred to the company by current employees and others who are fami- lar with the company. A The Ad Campaign The ad was placed in early October 1982 because the Respondent had acquired two new Cincinnatti contracts which it was anticipated would require a substantial in- crease in their plumber personnel This need for addition- al plumbers was originally estimated by Respondent since they were then engaged in other plumbing jobs in Columbus, Ohio, and elsewhere, and their usual comple- ment of employees was engaged The procedure fol- lowed by the Respondent in this instance was as follows: The applicant in response to the ad usually initiated contact by telephone A record of such contact was made by a company secretary and applications were invited from the caller. After the application was received or simultaneously with the receipt of the application, if feasible, the Applicant was inter- viewed by an employee or Mr. Croson, the vice- president. An evaluation was recorded on the appli- cation and the application was then maintained in the company records. The details of such employment procedure in the case of the eight alleged discriminatees is as follows: John J. Noppert filed his application on October 26, 1982 On that date he was also interviewed by Mr. Croson. Noppert alleges that during the inter- view he was asked by Croson whether he was a member of the local union Noppert replied affirma- tively. Croson noted Noppert's experience and cata- gorized his ability as "good" and labeled the appli- cant as "somewhat possible." Dale Petit responded to the company ad in Octo- ber by telephoning the company office. Approxi- mately one week after his initial contact, Petit was telephoned by Croson and interviewed During the interview Petit informed Croson that he was a member of Union Local 59. Croson told Petit that his qualifications were "good" and requested that Petit submit a application for employment. Petit submitted an application on November 6. No fur- ther statement either orally or written regarding union membership appeared in Petit's application or dialogue with Respondent. Albert Johnson responded to the ad by telephone in October 1982, and was requested to meet with Croson at the jobsite for an application and inter- view. Another plumber, Ron Garrett, was also in- terested in a position with Respondent and both ap- plicants met with Croson in order to fill out appli- cations and submit to an interview After the appli- cations were filled out and when reviewed by Croson, the applicants were asked, "Are you guys members of Local 59?" Both answered affirmative- 151 ly. Garrett's application clearly disclosed his affili- ation with Union Local No. 59 After the interview, Croson characterized the employment possibilities by noting on the application in regard to Johnson, "possible" and in regard to Carrett, "somewhat pos- sible " Jimmy Lawson also responded to Respondent's ad. He filed an application and was interviewed by Croson During the interview Croson noted that most of the jobs on which Johnson had experience were union jobs and commented upon this to Lawson who in turn acknowledged that he was a union plumber. The application and interview caused Croson to note the employment possibilities as "somewhat possible." Robert Meade applied for employment by filling out an application on November 2, when he met with Croson on the hospital jobsite. During the interview, Meade told Croson that he was "out of Local 59." Croson stated that it doesn't make any difference, he was looking for qualified men. Croson evaluated Meade's application and interview as "possible." Robert Morton filed an application on November 2, 1982, when he was interviewed by Croson at the hospital jobsite. The jobs listed by Meade com- prised three "union jobs." No dialogue regarding Local Union No. 59 was raised by either party during the interview. Croson characterized the em- ployment possibilities as "possible." Donald Fourth responded to the ad by contact- ing the phone number in the ad. He spoke to some- one on the phone, got a job application, and took it to the jobsite. The application was allegedly left with someone on the jobsite and no further record or knowledge as to the location of this application is available to this record. Allegedly Fourth turned the application over to one of the workmen on the site Subsequent to the taking of applications as described above, the Respondent experienced a change in its need for plumbing personnel. The Cincinnati jobs did not progress as rapidly as initially anticipated and, as a result, regular employees of Respondent were becoming avail- able from other jobs throughout the area on which Re- spondent's work was being completed. Respondent deemed that it would be unnecessary to hire any addi- tional plumber personnel over and above those becoming available to it who were currently on their payroll on other jobsites. Thus at that time there were no jobs available to the applicants, including the alleged discriminatees. There was no discrimination in the hiring practices of Respond- ent. None of the applicants responding to the October ad of Respondent were hired, notwithstanding their union affiliation, known or unknown. It appears from the record, as set forth above, that Respondent had solicited the applicants and conducted interviews in good faith and anticipated hiring such employees . Evidence of this fact is found in the evaluation of the applicants where Croson had indicated his evaluation of the applicant as 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "possible" or "somewhat possible" with regard to em- ployment potential It appears that Respondent intended to add to its complement of plumbers until such need di- minished Respondent, through Croson, knew to some extent that the applicants and interviewees were mem- bers of the local union. Either this fact was discussed during the interview; it appeared on their application; or it was reflected by the experience of the applicant in working on union jobs. It is deemed that Croson, an ex- perienced contractor, would know to a great extent which plumbers were members of the local plumbing union Notwithstanding this scienter, there is no evidence in this record that this knowledge was used as a factor in the decision not to hire any of the applicants developed from the November 1982 ad campaign. B. Subsequent Random Hirings After the advertising campaign conducted by Re- spondent in October 1982, the Respondent filled its com- plement of plumbers from various sources. Respondent contends that this complement was primarily obtained by the transfer of its employees from various completed jobs to the current job at the Cincinnati jail and hospital. The record shows that from August 1, 1982, to the date of this hearing, 19 plumbers and 6 apprentices were on Re- spondent's payroll on the 2 Cincinnati jobs The General Counsel has established that eight plumbers, and two ap- prentices of these, were not currently members of the plumbers union The status of the remaining 11 plumbers and 4 apprentices as to union affiliation is not disclosed. Of these 10 nonunion employees, the record shows the hiring circumstances of 6. Those six are Callargo, Knockelman, Godfrey, Davis, Parker, and Balford. Of these six employees, the cases of three, Davis, Parker, and Balford are contended by the General Counsel to constitute specific acts of discrimination against union plumbers in the hiring practices engaged in by Respond- ent. The first of these six whose hiring records are known is Kenneth Callargo. Callargo applied for employment during the October campaign conducted by Respondent through the local advertising The interview, conducted by David Croson on October 12, resulted in an observa- tion by Croson that the candidate "looked good." Subse- quently, and approximately the end of October, an open- ing on another job for a welder arose in Prebble County, Ohio. Croson recalling that Callargo was profficient in welding hired him as a welder on the Prebble County job. Subsequent to this engagement and after the welding job in Prebble County was concluded, Callargo was transferred to the Cincinniti operations of Respondent. The General Counsel does not contend that the engage- ment of Callargo was in itself an act of discrimination against a union plumber. Richard Knockelman was hired in October 1982, his resume having been received by Respondent on October 11, 1982. Knockelman, from 1959 to 1981, was self-em- ployed in the Knockelman Company were he had done all phases of the business including design, estimating, and supervision. The Respondent hired Knockelman to do drafting work in October 1982 and he is currently listed on the payroll records of Respondent as a plumber. The General Counsel does not contend that the hiring of Knockelman in October 1982 is a violation of the Act Godfrey was an apprentice plumber hired in April 1983. His hiring is not deemed discrimination on the part of Respondent which violates the Act. West Davis Jr applied for employment with Respond- ent on January 28, 1983. He was referred to Respondent by Fred Robertson, apparently a plumbing inspector West was interviewed by Marty Schmitt, a plumber em- ployee of Respondent. Schmitt found West to have had a Cincinnati license and was a plumber-journeyman Al- though he had limited experience on commercial work he was deemed to be eager to learn and familar with all aspects of journeyman plumbers work. As a result of Davis' application, reference, and interview, he was hired by Respondent on February 1, 1983 Respondent contends that at the time of hiring Davis, it did not com- pare his qualifications with those of plumbers' applica- tions which it had on file which arose from the October 1982 ad campaign. It stated that one of the reasons for hiring Davis is that Davis was a member of a minority race which would assist the Respondent in maintaining a biracial mix in its employees There is no evidence other than conjecture that the Respondent engaged Davis be- cause he was not a member of the Union. There is no evidence that Respondent considered Davis' lack of union affiliation in determining to hire On the contrary, the determination to hire him was made on the need of Respondent to maintain the necessary racial mix among its employees. On April 1, 1983, Respondent hired Anthony Parker, who was referred to Respondent by Wilard Barnnett. Parker was a self-employed plumber from 1979 to 1983. He was also a member of a racial minority and furthered Respondent's need to maintain a representative number of minority race employees pursuant to the provisions of this contract. There is no evidence in this record that Parker's experience was compared with the experience of applicants responding to the October ad campaign of Respondent or that his experience was compared with the experience of applicants from that campaign on file with Respondent A third employee was hired approximately April 5, 1983, by the name of Donald Balford. Balford was among the applicants who responded to the 1982 ad campaign of Respondent. At the time he applied in the fall he did not have a license as a plumber issued by the city of Cincinnati. In February 1983, Balford recontacted Croson and advised him that he had obtained his Cincin- nati license and was available for work There is no evi- dence that Balford's experience was measured against others who had applied for work at the time of the fall ad campaign. The General Counsel argues that since Davis, Parker, and Balford are not members of the Union, the Respond- ent is discriminating against members of the plumbers union in the hiring of plumbers in Cincinnati. He argues that the failure of Respondent to employ plumbers re- sponding to its ad campaign in the fall of 1982 and the hiring of three plumbers in February and April 1983, has made a sufficient showing to support the inference that J A CROSON CO protected conduct was a "motivating factor" in the com- pany's decision, and that the policy of the Board stated in Wright Line, 251 NLRB 1083 (1980), is applicable As- suming for discussion that the General Counsel's prima facie showing is sufficient to invoke Wright Line, it be- comes the onus of the Respondent to demonstrate that the same action would have been taken in the absence of the protected activity. Of the hirees employed by the Respondent since the acquisition of the Cincinnati con- tracts only Davis, Parker, and Balford were hired as journeyman plumbers. Davis and Parker had two unique qualities applicable to their status. Both Davis and Parker were recommended for employment by the Re- spondent by a plumbing inspector and a current employ- ee of the Respondent, respectively, and both were mem- bers of a minority race which enabled Respondent to comply with racial mix requirements of its contract. Bal- ford had recontacted Respondent after he received his li- cense which created an opportunity to bring himself, again, to the attention of Respondent in April 1983. As above stated, the prima facie showing of the General Counsel which triggered the onus on Respondent to show that his reasons for employment of the three plumbers was not unlawfully motivated, is extremely weak. Certainly Respondent's evidence that its reasons for hiring Davis and Parker were without consideration of their union status is sufficient to meet and discharge the onus raised by the General Counsel's case. There is no showing of a nexus in Balford's hiring and his rela- tionship with a union. It seems apparent that all of Re- spondent's hiring in the Cinrinnati area for the Cincin- nati contract comprised random hiring, both as to time of engagement and as to the nature of the job for which the individual was employed. The hiring of Balford cannot be said to establish that Balford was hired be- cause he was a nonunion plumber. As suggested above, the employment of the Cincinnati personnel was appar- ently without a preconceived plan other than the day-by- day maintenance of sufficient qualified personnel to meet Respondent's needs. It does not establish that Respond- ent engaged in discrimination in the hiring of nonunion plumbers. There is no evidence that the Respondent, in the course of its hiring, compared the technical qualifica- tions of Davis, Parker, and Balford with those of plumb- ers in its file of applicants. Such comparison would not be expected in the execution, of random hiring as I find to have been the practice of Respondent at this time. The General Counsel attempts to buffer the innuendo of discrimination by contending that Respondent has dis- played "union animus." It is clear that Respondent was a "non-union contractor" and that it had rejected efforts to persuade it to voluntarily enter into a collective-bargain- ing agreement with the plumbers union. No petition for union representation was ever filed by the Union. It is Respondent's nght to avail itself of the Act in arranging 153 its labor relations and exercising its option not to volun- tarily enter into a collective bargaining agreement. This record does not contain evidence of acts on the part of Respondent which comprise union animus. I find no "union animus" on the part of Respondent which will support the General Counsel's theory. Counsel for the Union argues that the evidence dis- closed that all of Respondent's employees hired by Re- spondent in Cincinnati were checked by the union head- quarters and found nonunion The record discloses from payroll records that the Respondent employed 19 plumb- ers and 6 apprentices at its 2 Cincinnati jobs Of these 19 plumbers, 8 were checked by the Union and found not to be current members. Of the six apprentices, two were checked, and found not to be current members of the Union. This evidence does not disclose the status of the remaining 11 plumbers and 4 apprentices. Counsel's point might have been persuasive if none of Respondent's em- ployees were shown to be union plumbers. From the evidence in this record and in consideration of the briefs and arguments of counsel, I cannot con- clude that the hiring practices engaged in by the Re- spondent resulted in discrimination against union employ- ees in favor of nonunion employees. I have found that the employment by the Respondent for plumber-employ- ees at its Cincinnati base of operations was done at random and not as a part of discriminatory hiring prac- tices. CONCLUSIONS OF LAW I. J. A. Croson Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Plumbers Union, Local No. 59, United Association of Journeymen & Apprentices of the Plumbing & Pipefit- ting Industry of the United States & Canada, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to establish by a preponderance of the evidence that Respondent has en- gaged in unfair labor practices as is alleged in the com- plaint. On these findings of fact and conclusions of law and on the entire record, I issue the following rec- ommended' ORDER It is ordered that the complaint is dismissed in its en- tirety. I If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses