Master Housekeepers, Inc.

908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Master Housekeepers, Inc. and Virginia L. Del Rio and Lawrence Ivan Podwys and Jo Ann Bragg and Sharon lone Parkinson and Lorraine Can Houtin and Evelyn Van Houtin and Tamara L. S. Chalcroft and Kathy Brown. Cases 27-CA- 8605, 27-CA-8606, 27-CA-8607, 27-CA-8608, 27-CA-8609, 27-CA-8610, 27-CA-8624, and 27-CA-8649 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 21 March 1985 Administrative Law Judge Richard J. Boyce issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in response. The National Labor Relations Board has delegat- ed 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, and conclusions only to the extent consistent with this Decision and Order. The Respondent is a maintenance contractor. It was awarded a competitive-bid contract to provide janitorial services beginning 1 October 1983 at Hill Air Force Base, Utah, the only location involved in this proceeding. Before beginning the contract, the Respondent notified the unemployment service, left applications at the base, and placed newspaper ads, announcing job opportunities. Thereafter, on 26-28 September, during the week before starting its contract, the Respondent interviewed prospec- tive employees, including some 233 who had al- ready submitted applications. Fifty-nine of those applications were from employees of the prior con- tractor, TMI. Those employees had been represent- ed by Teamsters Local 976, which had a collec- tive-bargaining agreement with TMI The judge found, inter alia, that Respondent did not interrogate prospective employees, including the Charging Parties about their union activities or membership. We agree. i The judge also found that the General Counsel made out a prima facie case that the Respondent unlawfully failed to hire seven of the Charging Parties2 because of their union ' No party has excepted to the judge's finding that the alleged interro- gations did not occur We note, in conjunction with our discussion, infra, that his dismissal of those allegations is amply supported by the record 2 The consolidated complaint was amended to delete the allegations that the Respondent failed to hire Charging Party Parkinson It is undis- puted that Parkinson in fact was hired as part of the Respondent's initial work force During the second week of work, she announced that she was quitting and way thereafter replaced membership or activities, and that the Respondent failed to rebut that showing. We disagree. In concluding that the General Counsel had es- tablished a prima facie case, the judge relied on his findings that. 1. The employees of the Respondent's predeces- sor, TMI, were represented by the Union. 2. McEntee (the Respondent's vice president) knew that if the Respondent hired enough of TMI's employees the Respondent might inherit TMI's bargaining obligation. 3. The Respondent was reluctant to hire TMI's employees. 4 The Respondent hired only 28 of the 59 non- supervisory TMI employees who applied. These four factors may be necessary to establish a prima facie case, but are not, even collectively, sufficient to do so. However, the judge also relied on a fifth factor, his inference that union avoidance underlay the Respondent's reluctance to hire former TMI employees. In drawing this inference, the judge relied especially on the statement he found Miller made to Brimhall that,"No one from the old contractor was to be called back," "You were union, and the company didn't want anything to do with the Union." The judge inferred that Miller "was speaking from certain knowledge rather than supposition" because of "the degree of her involvement in the hiring process " We conclude that the judge improperly inferred that Miller's comment was based on her knowledge of the Respondent's position vis-a-vis hiring union members The significance of Miller's remark can be determined only after consideration of the con- text in which it was made. Miller had been hired by the Respondent as a first-line supervisor only 2 days before. It is clear that she did not have hiring authority herself and, contrary to the judge, the record shows that she had a rather limited role in the hiring process. Thus, Miller, like Clontz, was asked to go through some applications and for those individuals whom she knew to indicate whether she thought they were good workers. She was told that the Respondent would like to have her opinion, but would not "necessarily hire them." We deem it unlikely that in only 48 hours Miller became so close a confidante that either McEntee or any other member of management would make such a statement to her, particularly in light of the sophistication that the judge attributed to McEntee. Further, the remark makes no sense- Brimhall was known as a strong union advocate, yet was present in the office because she already had been called by the Respondent to come to work. According to Brimhall there were some 50 people around at the time of the comment, some of whom had worked 287 NLRB No. 92 MASTER HOUSEKEEPERS 909 for TMI It is incongruous that in these circum- stances Miller would announce that no one who had previously worked for TMI was to be called to work for the Respondent. Thus, while the Re- spondent has the burden of showing that Miller's comment was not based on her knowledge, we conclude from the record that the Respondent has carried that burden here. The judge also noted, in finding that the Re- spondent refused to hire former TMI employees in order to avoid the Union, that Appel told Bush that the Respondent had "never been union" and would not "have the Union in here", and that the Respondent's hiring of two former TMI first-line supervisors established that the reluctance to hire TMI personnel extended only to those in the bar- gaining unit We note that Appel's remark, like Miller's above, was not alleged or found to violate Section 8(a)(1), and although it may show antiun- ion animus, animus alone does not establish motiva- tion. As to the finding that the Respondent was only reluctant to hire bargaining unit personnel, there is no showing that the Respondent hired TMI's clerical employees, whom it believed to be unrepresented, and it is uncontroverted that the Respondent did not hire TMI's project manager. We therefore find that neither Appel's comment nor the hiring of two TMI supervisors justified the significance the judge attached to them. Assuming, arguendo, that the General Counsel made out a prima facie case, we find that the Re- spondent adequately rebutted that showing. It is undisputed that the Respondent hired 28 of the former TMI employees as part of its initial work force at the base. It is also undisputed that 2 of the 28 were formerly union stewards. Further, the Respondent was aware that virtually all of TMI's employees were union members. Indeed, the only apparent distinction between the Charging Parties here and any of the other TMI employees who applied for jobs with the Respondent is that the Respondent is alleged to have interrogated the Charging Parties as to their union membership or activities during their brief interviews. The judge found, however, that the Charging Parties were not in fact interrogated With the elimination of that distinction, there is no longer any basis on the record for differentiating, on grounds of union membership or activities, between the Charging Parties and the other former TMI employees who were not hired by the Respondent. Similarly, there is no basis for differentiating on those grounds between the 28 former TMI employ- ees hired initially by the Respondent and those who were not Thus, having adopted the judge's finding that the Respondent did not unlawfully in- terrogate the Charging Parties, we further find that there is nothing in the record to distinguish the Charging Parties here, on the basis of union-related considerations, from any of the other former TMI employees, either those who were hired by the Re- spondent, or those who were not. The judge concluded that the Respondent's stated reasons for its reluctance to hire too many former TMI employees, e.g., that TMI had not done a good job on the base, and that the Respond- ent wished to avoid inheriting problems, were shown to be specious We find his conclusion un- warranted The Respondent's vice president, McEntee, testified that he was told of TMI's poor performance by civil engineering, the base group that monitored the contractor's performance; that the Respondent had its own reports to the same effect, and that McEntee deemed TMI to be doing a "lousy job" based on his personal inspection. That testimony was uncontradicted. Further, it is buttressed by the testimony of two of the General Counsel's witnesses to the effect that TMI was not doing the job properly, and that one of the reasons for TMI's losing its contract was the tendency of its upper management to fight base personnel (i.e., quality control, or civil engineering) rather than re- quiring employees to do the job properly The judge also cited the considerable number of TMI employees hired by the Respondent, and its hiring of two former TMI supervisors, in support of his conclusions. We concur that the Respondent hired a substantial number of employees who had worked for TMI. Unlike the judge, however, we find that this fact does not weaken the Respond- ent's defense Similarly, we do not deem Respond- ent's hiring of two former TMI supervisors to be an exoneration of the work performance of all the rest of TMI's employees-particularly in view of the aforementioned testimony concerning TMI's losing its contract. The judge relied in part on his assessment of the Respondent's staffing difficulties, apparently infer- ring that the Respondent had hired some individ- uals rated as low as "1" or "2" during interviews with the Respondent's management.3 We note, however, that it is undisputed that the Respondent did not hire any individuals so rated. The judge commented in this regard that a sampling of hirees' ratings was not of sufficient breadth to detract from a "literal reading" of the testimony regarding staffing. We find his reliance on this point mis- placed. First, he appears to misconstrue the import of McEntee's testimony, as noted above. Second, a Respondent's management interviewers attempted to evaluate pro- spective employees on a "1 to 10" scale 910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD although the sampling may not have included all those hired, there is no showing that all were simi- larly rated . Finally, we note that, as the sampling was selected by counsel for the General Counsel, any defect perceived in it by the judge should not have been attributed to the Respondent. The judge noted it might be contended that the Respondent's declining to hire not only the Charg- ing Parties here but other applicants as well would preclude an inference of wrongdoing . He conclud- ed, however, that the fact the complaint was not so framed was irrelevant . We disagree. The original charge filed against the Respondent by Local 976 (Case 27-CA-8575, noted at fn. 4 of the judge's decision) alleged that the Respondent (a) interrogated employees as to their relationship with the Union, (b) selectively hired employees so there would be less than a majority of union mem- bers, and (c) refused to bargain with the Union. In dismissing the charge , the Regional Director noted, inter alia, that there was no evidence that the Re- spondent's failure to hire a majority of, its comple- ment from TMI was related to their union status. In affirming the dismissal on appeal , the General Counsel relied on the reasons set forth by the Re- gional Director.4 The charges and complaint in the instant proceeding allege that the Respondent inter- rogated the Charging Parties and refused to hire them because of their union membership or activi- ties. Aside from the purported refusal to bargain asserted in the original charge, the only significant difference between that case and the one before us is the testimony (and presumably prior affidavits given to Board agents) by the Charging Parties claiming specific instances of interrogation by the Respondent . The judge found, based on his credi- bility resolutions, that those interrogations did not occur. Thus the present case essentially represents merely a portion of the one already dismissed. Hence, contrary to the judge, we find that the framing of the complaint is highly relevant.5 Indeed, it appears that counsel for the General Counsel may have been contemplating the larger, already dismissed case when he introduced evi- dence here to show that the Respondent had an economic motive to decline to hire any of TMI's employees . Even apart from the fact that that evi- dence tends to redound to the Respondent's favor and undermine the General Counsel's contentions overall, it does not in any event serve to demon- 4 The General Counsel noted additionally that the Respondent' s hiring of the Charging Parties in the instant case would not in any event be suf- ficient basis for concluding that the Union represented a majority 5 In view of our disposition of this case on other grounds , we find it unnecessary to decide whether this factor alone would be determinative We also find it unnecessary to pass on the Respondent 's exceptions to the judge's rulings admitting certain hearsay testimony strate an unlawful motivation for distinguishing be- tween the charging parties and others not hired.6 Accordingly, we shall dismiss the complaint in its entirety. ORDER The complaint is dismissed. MEMBER BABSON , dissenting in part. I cannot join my colleagues' reversal of the judge's finding that the Respondent violated Sec- tion 8(a)(3) and (1) of the Act by failing to hire the seven individuals herein because of their union membership. In my view, the result reached by my colleagues is based essentially on their unwarranted refusal to give proper weight to the judge's credi- bility resolutions. Accordingly, I dissent. As more fully set forth by the judge and as sum- marized by the majority, the Respondent obtained a maintenance contract to provide janitorial serv- ices for an air force base. The Respondent inter- viewed a large number of applicants, including em- ployees previously employed by TMI, the former contractor, where they were represented by the Union. The judge found that the General Counsel established a prima facie case by showing, inter alia, that the Respondent was concerned about hiring a work force that would be comprised of a majority of employees who previously had worked for TMI because that might obligate the Respond- ent to deal with the Union, that Supervisor Miller told an applicant and former TMI employee Brim- hall that TMI employees would not be hired be- cause "You were union, and the company didn't want anything to do with the Union"; and that As- sistant Vice President Appel told Bush, a former TMI employee who had asked why the Union was out of the picture, "We've never been union, and we won't be. We won't have the Union in here." My colleagues, although willing to assume ar- guendo that the General Counsel established a prima facie case, attempt to undermine the judge's reliance on the statements of the two company offi- cials. I find my colleagues' efforts to do so wholly unconvincing. Miller is an admitted supervisor and was involved in hiring employees. In order to s The dissent takes issue with our conclusion that the Respondent did not unlawfully refuse to hire the Charging Parties on three grounds, as- serting that ( 1) the previous dismissal of similar charges by the General Counsel is of no significance, (2) the General Counsel established a prima facie case of discriminatory refusal to hire, and (3) the Respondent failed to rebut that prima facie showing As to the first two of these assertions, we have stated above that, while we are troubled by the judge's findings on these issues, it is unnecessary for us to pass on them With respect to the issue of whether the Respondent rebutted the prima facie case, the dissent merely notes Member Babson's agreement with the judge For the reasons discussed at length, supra, we do not adopt the judge's findings in this regard, and thus dismiss these allegations MASTER HOUSEKEEPERS avoid the principle that an employer is responsible for the acts and statements of its supervisors,' the majority speculates that it is unlikely management would have told Miller, a supervisor employed only 48 hours previously, about its desire to cir- cumvent the Union. I cannot agree with my col- leagues' substitution of speculation for the judge's credibility resolution and his drawing of a reasona- ble inference , in light of Miller's duties, that her comment was based on knowledge of the Respond- ent's position with respect to hiring union members in the unit.2 I also cannot agree with my col- leagues' attaching little or no significance to the fact, based on uncontroverted testimony , that As- sistant Vice President Appel made a similarly clear union avoidance statement to Bush . Indeed, in my view, this additional statement, made by a high- ranking official of the Respondent, further supports the finding not only that Miller made the comment attributed to her, but also that her comment, in fact, was based on her knowledge of the Respond-' ent's position . Accordingly , and for the reasons set forth by the judge, I agree with his finding that the General Counsel established a prima facie showing that the Respondent's failure to hire the seven em- ployees named in the complaint was motivated by union considerations. Further, applying Wright Line, 251 NLRB 1083 (1980), I cannot agree with my colleague's finding that the Respondent met its burden of rebutting the General Counsel 's prima facie showing. Rather, for the reasons amply set forth in the judge's decision, including his reliance in large part on the lack of credibility of the Respondent's witnesses , I agree with the judge's findings that the Respondent's as- serted defenses are specious, transparent, and con- trived 3 i See generally Frank Paxton Lumber Co, 235 NLRB 582, 583 (1978), enfd 108 LRRM 2344 ( 10th Cir 1981 ) (warehouse supervisor's unlawful motivation considered part and parcel of respondent 's motivation because of his status as statutory supervisor) 2 My colleagues do not deny that Miller was involved in the hiring process, but assert , without detailing record evidence, that her involve- ment was limited in so doing , they fail to address the judge's findings that Miller and another supervisor "were given all applications" to evalu- ate and that the Respondent "basically took [their] recommendations " And, contrary to my colleagues , I find it plausible that an employer, which desired to avoid any obligation to deal with a union, would so inform a recently hired supervisor whose first task included evaluating all work applicants 9 My colleagues, in finding that the Respondent rebutted the General Counsel's prima facie case, rely heavily on the General Counsel's dismis- sal of Case 27-CA-85 75 1 note, however, that neither res judicata nor estoppel principles preclude the General Counsel from proceeding on timely filed charge even though prior charges involving the same issue have been administratively dismissed See , e g, American Laundry Ma- chinery, 263 NLRB 944 (1982), Walter B Cooke, Inc, 262 NLRB 626 fn 42 (1982), Operating Engineers Local 406 v NLRB, 701 F 2d 504, 511 (5th Cir 1983) Therefore, the General Counsel was not foreclosed from argu- ing that the Respondent's alleged antiunion discrimination was evidence of its desire to prevent the Union from obtaining majority status , thereby avoiding a bargaining obligation And, as described above , I find that the 911 Therefore, contrary to my colleagues , I would adopt the judge 's conclusion that the Respondent violated Section 8(a)(3) and ( 1), as alleged in the complaint. evidence is clearly sufficient to establish that the Respondent 's failure to hire the seven employees was motivated by an intent to avoid a union majority Winchel W. Reed and Michael T. Pennington, Esqs., for the General Counsel Roy R. Hunsinger, Esq. (Stringari, Fritz, Kregar, Ahearn & Hunsinger), of Detroit, Michigan, for the Respondent. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge. This matter was tried in Ogden, Utah, on August 21-23, 1984. The charges were filed on several dates from November 21 to December 30, 1983. The complaint issued on Janu- ary 31 , 1984, was amended on March 13 and during the trial , and alleges that Master Housekeepers, Inc. (Re- spondent) violated Section 8(a)(1) of the National Labor Relations Act (the Act) in late September and early Oc- tober 1983 by "interrogating prospective employees con- cerning their union activities and membership while em- ployed with a former employer"; and that it violated Section 8(a)(3) and ( 1) about the same time by failing to hire seven people-Jo Ann Bragg, Kathy Brown, Tamara Chalcroft , Virginia Del Rio, Lawrence Podwys, Evelyn Van Houtin , and Lorraine Van Houtin-because of their union membership and activities. I JURISDICTION Respondent, a Michigan corporation headquartered in Detroit, provides janitorial services . It annually causes goods and materials of a value exceeding $50,000 to be transported across state lines, both as provider and pur- chaser, and thus is an employer engaged in and affecting commerce within Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION International Brotherhood of Chauffeurs, Warehouse- men and Helpers of America, Local 976 (the Union) is a labor organization within Section 2(5) of the Act. III. THE ALLEGED MISCONDUCT A Background Effective October 1 , 1983, Respondent assumed a con- tract to provide janitorial services for some 120 buildings at Hill Air Force Base, near Ogden. It supplanted a firm known as Total Maintenance , Inc (TMI), which had been under contract since the preceding January 1. The employees of TMI, and of two predecessor firms going back to October 1980, had been represented by the Union and covered by a succession of labor agreements. Respondent, however, has at all times refused the 912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union's demands that it be recognized as the bargaining representative of Respondent's employees at the base The first communication between the Union and Re- spondent was a letter from the Union dated September 12, in which it congratulated Respondent for being awarded the contract, and asked to be notified when offi- cials of Respondent would be coming to Ogden so that they might discuss "the current [labor] contract covering the employees" at the base. Enclosed with the letter were the prevailing health-and-welfare plan and, perhaps, the total labor agreement. That was followed, several days later, by a telephone call from the Union's secretary-treasurer, Gary Barrow, to Respondent's vice president and comptroller, James McEntee, in Detroit In the resulting conversation, after McEntee had acknowledged receipt of the September 12 letter, Barrow declared that the Union had represented "those people out there" through a succession of con- tractors, and that it was the Union's "position that that should continue " McEntee asked, "how many members" the Union had at the base, and Barrow replied, "[J]ust about everybody with the exception of about four or five people " The record is in conflict concerning the balance of the conversation, and it is not necessary to this decision that there be resolution 1 Near the end of September, at Barrow's behest, he and McEntee agreed to meet about a week later; and, on Oc- tober 5 and 6, they did meet at a restaurant near the base 2 Barrow, iterating the Union's "position," asked that Respondent accord it recognition. McEntee an- swered in the negative, either he or Barrow remarked'to the effect that there was nothing more to say, and the meeting ended That was followed, apparently, by a letter from the Union, dated October 20, renewing the demand for rec- ognition 3 McEntee answered by letter dated October 24, stating that Respondent "does not recognize Local 976 as a representative of our employees and therefore has no obligation to bargain with you."4 Meanwhile, from September 26 to 28, Respondent interviewed roughly 230 prospective employees. Of that number, about 59 were seeking carryover from TMI ' Barrow testified that, when he stated the Union's "position" that rec- ognition should continue, McEntee replied that he had "worked with unions before" and did not have "any problems" with them, that he, Barrow, then asked which of Respondent's officials he could "contact': before October 1 "so that a transition could take place in an orderly fash- ion", and that McEntee answered that he would be in Ogden "about that time" and would call Barrow McEntee testified, on the other hand, that Barrow demanded both rec- ognition and that Respondent sign the TMI contract, to which he replied that he thought that "was illegal " Barrow rejoined, according to McEn- tee, that he was "so well liked there that everybody just signs a con- tract " 2 With Barrow at this meeting were two other union officials, Patricia Hamilton and Doug Hunt With McEntee was Daryl Appel, an assistant vice president for Respondent a The Union's October 20 letter is not in evidence Its existence and substance are inferred from McEntee's October 24 letter, which is part of the record " It is not contended that the refusal to recognize was improper On October 24, 1983, the Union filed a charge alleging that to be unlawful Case 27-CA-8575 The charge was dismissed by the Regional Director for NLRB Region 27 on December 30, which disposition was affirmed by the General Counsel's Office of Appeals on April 9, 1984 Many of the others had responded to newspaper adver- tisements or been referred by a job-placement office. The interviews took place at the Holiday Inn in Ogden, gen- erally lasted from 3 to 5 minutes, and were conducted by McEntee; by an assistant vice president, Daryl Appel; by an assistant project manager, Barbara Jaquays;5 by a management trainee, Cliff Shepherd; and possibly by Re- spondent's project manager at the base, Marty Van Nood.6 The General Counsel contends that the several in- stances of allegedly unlawful interrogation occurred during the course of these interviews. B. The Allegedly Unlawful Interrogations 1 Evidence Seven of the TMI employees interviewed in late Sep- tember-six of the seven alleged discriminatees, plus Sharon Parkinson, who admittedly is "very bitter" toward Respondent'-testified as follows in support of the allegation that there were unlawful interrogations: (a) Jo Ann Bragg testified that, while being inter- viewed by a woman named Barbara, she was asked, among other things, if she "belonged to the Union", and that she said she did. Bragg conceded under cross-examination that certain of those aggrieved herein had compared stories "a number of times," and that she believed she would get her job at the base back "by saying that [Respondent] had questioned [her] about union affiliation."8 (b) Kathy Brown recounted that she was interviewed by McEntee ; and that he asked if she was "in a union," how she felt "about the Union," and how much union dues were Brown answered, so she testified, that she be- longed to the Union and that she is "for unions" because they protect "the rights of the people " (c) Tamara Chalcroft testified that she was inter- viewed by two men-one at first, after which another joined them, that she "volunteered" to the first man that she was a union steward with TMI, and that, after the second man's arrival, the first inquired about her duties as steward.9 (d) Virginia Del Rio testified that, during her inter- view by a woman, she was asked if she "belonged to the Union"; and that she said she did. With Del Rio at the interview was her brother, Salva- tore Juarez, who translated portions of it from English td s Jaquays since has married Daryl Appel, thereby assuming his sur- name She is referred to by her former name throughout this decision 6 The record is in conflict whether Van Nood participated in the pre- startup interview process See fn 11, infra 7 Parkinson was hired by Respondent at the outset, only to be dis- charged October 12, 1983 , when she announced that she would be quit- ting as of the 14th She is bitter, she testified , because Respondent re- duced her hours She averred, however , that that would not cause her to testify falsely 8 Bragg assertedly could not recall who had given her this impression, which was formed before she filed her charge (Case 27-CA-8607) here She stated that her testimony nevertheless was true s Chalcroft stated in an affidavit given during the investigation of this matter that McEntee was one of those to interview her But , seeing him in the courtroom , she testified that the affidavit is in error MASTER HOUSEKEEPERS 913 Spanish and vice versa 10 He likewise testified that she was asked if she "belonged to the Union," and that she answered yes This question and answer were in English, without translation, according to Del Rio and Juarez (e) Parkinson testified that, while being interviewed by a woman and a man who introduced himself as Marty Van Nood, the man asked if she was "a member of the Union"; and that she answered that she was. t i (f) Evelyn Van Houtin testified that she was inter- viewed by a man she believed to have been McEntee; and that he asked if she "worked for the Union " She later amended that he asked if she was "a member of the Union " She assertedly replied in the affirmative. (g) Lorraine Van Houtm, Evelyn's mother, testified that she was interviewed by "a lady and then a gentle- man"; that the man asked if she was "in the Union"; and that she said she was Lorraine professed to have a "crystal clear" recollection of the interview Another seven TMI employees interviewed in late September-five who were on Respondent's payroll at the time of the trial, one, Judy Bush, who was on the payroll from startup to June 1984, and one of the alleged discriminatees, Lawrence Podwys-testified either that they were not asked, or could not recall being asked, any union-related questions.12 More specifically: (a) Bush and Kristal Brimhall each testified of being interviewed by Appel. Brimhall, a self-proclaimed "strong union advocate" while with TMI, stated that he did not ask "anything at all" on the subject, and Bush's description of her interview was devoid of reference to any such development (b) Dennis Clontz,13 Dean Hillan, and Tammie Mayo each testified that he or she was interviewed by Jaquays, and that she posed no queries of a union character Mayo was a union steward while with TMI. (c) Podwys testified that, while being interviewed by a woman, he "volunteered the information on . . being a union steward, and an active one at that," with TMI, but that he could "not recall if anything was asked about that " (d) Anthony Rumph testified that he was interviewed by Appel and Jaquays, with nothing being broached- "no, not that I can remember, no"-about union matters. McEntee testified that he gave the other interviewers "a briefing," the weekend before interviewing took place, in which he . . . told them, basically, that the previous contrac- tor [TMI] had a union and [they] were not to ask anything or talk about unions or anything like that 10 Del Rio's mastery of English is limited She testified , "If I am spoken to slowly , I can understand most of it, not all " 11 As against Parkinson's testimony that Van Nood participated in her interview, McEntee testified that Van Nood was not hired until October I and did no prior interviewing Van Nood did not testify It is not nec- essary that this conflict be resolved 12 Also testifying to this effect were two interviewed and hired in late September and five later interviewed and hired , none of whom had been with TMI 13 Clontz at one time had been the stepson of Maxine (Micki) Clontz, a TMI supervisor carried over by Respondent McEntee continued that he asked none of those he inter- viewed-"maybe a hundred," including Brown and Evelyn Van Houtin-about union membership or kin- dred matters He enlarged that, given his understanding that the TMI employees "were all union" except for the three supervisors and a secretary, there was no reason- "none whatsoever"-to get into that. i 4 Moreover, McEntee testified, it would have been anomalous for him to have done otherwise because he "was the one telling everybody not to ask" such questions Appel corroborated McEntee that the instruction had been given to avoid "any questions that had to do with the Union" Appel added that he was involved in the interview of "75 to 100" applicants, among them Chal- croft, Del Rio, Parkinson, and Lorraine Van Houtin, un- failingly heeding that injunction Jaquays likewise testified that McEntee forbade all questions "regarding union participation, if [the appli- cants] were in the Union, if they were not in the Union " She went on that, while she "couldn't give a number of how many [she] personally interviewed," she never asked "anything at all about unions"; and she spe- cifically dented asking Del Rio,15 Parkinson, or Lorraine Van Houtin "whether or not they had ever been in the Union." 2. Conclusions and reasons As concerns the six interviews-those of Bragg, Brown, Del Rio, Parkinson, and the two Van Houtins- of which there is testimony that questions were asked about union membership, it is found that interrogation of that nature in fact did not occur It must be concluded, therefore, that Respondent did not violate Section 8(a)(1) as alleged in any of those instances That there was no union-related questioning in those interviews is deduced from this complex of factors (a) None of the six so testifying was a neutral wit- ness-five being alleged discriminatees and one, Parkin- son, being "very bitter" toward Respondent. (b) A number of others testified convincingly that no questions of a union-related character were asked of them (c) Bragg admittedly was given to believe she would get her job back "by saying that [Respondent] had ques- tioned [her] about union affiliation." It would be fatuous to suppose that other of the alleged discrimmatees did not share in that belief, and were not sorely tempted to shape their testimony accordingly (d) Bragg also admitted that certain of the aggrieved here had compared stories "a number of times," enlarg- ing the likelihood that the testimony of the six was fla- vored by after-the-fact seasoning. (e) Apart from the telltale patness of the recitals of the six in this regard, their demeanor in the telling suggested a rote exercise rather than the recall of something experi- enced. 14 As earlier noted, the Union's Barrow had told McEntee in a prior telephone conversation'that "lust about everybody with the exception of about four of five people" belonged to the Union 15 Jaquays believed the person with Del Rio to be a son rather than a brother, as was the case 914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (f) Given Barrow's prior representation to McEntee that nearly all of TMI's employees belonged to the Union, the point of such questioning is not readily appar- ent (g) Although the testimony of McEntee, Appel, and Jaquays was not impressively believable in some other respects, they were convincing that McEntee forbade union-related questioning and t hat the prohibition was unfailingly honored by them.16 With respect to the Chalcroft interview, assuming ar- guendo that it was as she described, and further assum- ing that the Board continues to treat "questions involv- ing union membership and union activities in the context of a job interview [as] inherently coercive" within the meaning of Section 8(a)(1),17 the conclusion nevertheless obtains that the question put to her was permissible. It not only was responsive to her volunteered revelation about being a steward at TMI, but did not exceed the subject-matter scope of that revelation-circumstances rendering it harmless and thereby saving it from the principle just stated 18 C. Allegedly Unlawful Failures to Hire 1. Evidence a. Hiring process October 3, a Monday, was Respondent's first day of performance under its contract. Its complement by Octo- ber 5 consisted of 84 nonsupervisory employees, includ- ing 28 carried over from TMI. Most if not all worked part time.19 Also carried over from TMI, in the same roles, were its two first-line supervisors, Maxine (Micki) Clontz and Jocelyn (Lyn) Miller. All were under the ul- timate on-site direction of Marty Van Nood, project manager.20 Among the approximately 31 applicants from TMI not carried over were the alleged discriminatees here- Bragg, Brown, Chalcroft, Del Rio, Podwys, and the two Van Houtins. Hiring decisions in anticipation of October 3 were made, at least for the most part, the weekend of the 1st and 2d. Involved in the process, in addition to the inter- viewers, were Clontz and Miller. McEntee testified that 16 Indeed , McEntee exuded a sophistication in such matters indicating that, were Respondent intent on limiting the carryover of TMI personnel to avoid TMI 's bargaining obligation , he would not have jeopardized the scheme by neglecting to impart such an injunction 14 Service Master All Cleaning Services, 267 NLRB 875, 875 (1983) Operating Engineers Local 948 (Oklahoma Osteopathic Hospital), 238 NLRB 1113 (1978) Moreover, it might be doubted that the Board as now constituted adheres to the principle stated in Service Master All Cleaning Services That decision predated Rossmore House, 269 NLRB 1176 (1984), in which the Board discarded a per se approach to interro- gations generally, instead adopting a totality-of-the-circumstances test Id at 1177-1178 Beyond that, the three-member panel deciding Service Master All Cleaning Services included only one present Board member, Hunter, who , as if anticipating Rossmore House, disagreed with his col- leagues that there had been a violation , citing certain circumstances sur- rounding the interrogation there in issue 267 NLRB at 875 in 2 11 McEntee testified that "the majority is all part-time work " Judy Bush, on the payroll from October 3 to the following June, testified that "all of the employees" worked part time from startup through the re- mainder of 1983 20 Miller became project manager in May 1984 they "were given all the applications [and] asked to give an opinion on anyone they knew", and that, while he was "the final decider," Respondent "basically took [their] recommendations "21 McEntee recounted that Respondent was "looking for energetic people, previous experience, willingness to work, things like that " Union membership did not affect an applicant's "desirability," he testified, nor did it "make any difference" that TMI had had a union con- tract.22 Miller recalled being instructed that experience "counted a lot", and Appel injected that, during advance "discussions" among those to conduct the interviews, they came up with an outline of what to look for in a prospective employee . . First off was first im- pression . . any job experience, transportation, which was needed on the base attendance, atti- tude .. 23 Flexibility in terms of shifts and hours was another con- sideration, according to Appel He echoed McEntee that union membership was of no moment. McEntee testified that, indoctrinating the interviewers, he . . . told them [he] wanted to get a uniform rating system so that, no matter who interviewed the person, we would get an idea of what the first im- pression was on that person, and to use a scale of "I" to "10," with "10" being a man that we all knew as being [a] Bob Soave ["a real cracker-jack employee"] and "1" being a derelict off the streets In practice, however, Respondent did not "strictly follow" this rating system. McEntee elaborated- You get into a situation of desperation It was Sunday night and even into parts of Monday We got into a situation where a lot of the people we were calling we couldn't get ahold of . [W]e didn't have enough staffing-as many as we felt we needed. We couldn't call them fast enough and in time , and we were running short of people and evaluations. We couldn't evaluate them as to how good they were as quickly as we wanted to Toward Sunday night we started going down to some real low numbers that we really didn't want to, just to-to use a colloquialism-to get a warm body there because we had to start up Monday . "l's" were not hired and "2's" were 21 Miller, when first asked if she discussed her "evaluation" of appli- cants with "anyone from" Respondent, testified "I don't remember I am sure we did " She later was more positive in that regard McEntee testi- fied that he overruled the others in "a couple instances " He supplied no useful detail, testifying only, "I can't remember the specific names, but I remember the types of people " 22 McEntee admittedly was aware, however, that Respondent might inherit TMI's bargaining obligation should it hire sufficient of TMI's em- ployees 23 The outline referred to by Appel is not in evidence The record does not disclose if it was in existence at the time of trial MASTER HOUSEKEEPERS 915 not hired "3's" and "4's" I don't know-I can't re- member how desperate we were getting at the time. McEntee later underscored the role of desperation in the hiring process, testifying that Respondent "did not want to hire" "l's" and "2's," but that "in desperation we started to get down to that area 1124 b. Reluctance to hire TMI employees Desperate or not, Respondent admittedly was reluc- tant to hire those from TMI. McEntee amplified. [W]e had some `conversation about the fact that [TMI] was being thrown out and not renewed and they were doing lousy work and that we would have some problems with trying to rehire the previ- ous employees because of their work performance and trying to change their work habits 25 McEntee expanded that quality control and procure- ment people at the base had told him they had a lot of problems with the workers and the work being done properly and compounded with the fact that the supervisor [project manager] constantly was fighting it and couldn't get the work done-constantly fighting the air-base people. Consequently, McEntee testified, . . we did not want to hire too many TMI em- ployees, only pick up the best of the crowd as we could get them, for the fact that we would be inher- iting a problem that had already proved fatal to the previous contractor. An additional reason for eschewing the carryover of TMI employees, according to McEntee, is Respondent's practice on "a location this size" of systematically "cut[ting] the hours and increas[ing] productivity." He elaborated that this is "much easier" with new people be- cause [W]hen you hire a new person, you tell him how many hours he has to clean an area They don't know any different and they will do it in those hours When an old person has been doing a job in, say, six hours, and you know that they can do it in four, they are going to argue with you left and right, and they are not going to do it in four. They are going to fight you tooth and nail Yet another factor influencing the disinclination to hire TMI employees, McEntee testified, was that Respondent would 24 The parties stipulated that, from a sampling of 49 employees on Re- spondent's original payroll, I was a "3," 4 were "4's," 3 were "4=5's," 20 were "5's," 1 was a "5-6," 8 were "6's," 10 were "7's," 1 was an "8," and I was a "9 " By failing to account for 35 employees, this sampling is not of a breadth sufficient to take away from a literal reading of McEntee's testimony 25 McEntee testified that TMI was ousted from its contract 2 months short of its 1-year term This is uncontroverted, although, curiously, the labor agreement between TMi and the Union had a stated expiration date of September 30, 1983 have to pick up the seniority that they had with the previous contractors, no matter how many, as long as they have continuous service McEntee stated that this is dictated either by statute or by regulation of the Department of Labor, and that it means increased overhead, "mostly on vacation days," when employees are carried over from the previous con- tractor. Why, then, faced with these considerations, were any TMI employees hired? McEntee explained: Logistically, this was a huge contract . . . . And even though it is economically best not to hire any of them, feasibly and logistically you should have hired some of them, so we picked the best that we could pick and put them in there, and that makes the startup much easier and smoother The idea is to pick the best, the best ones, to be retained, and start with new people who are energetic and want to work and need a job bad and you get more pro- ductivity out of them Asked why TMI's two first-line supervisors, Clontz and Miller, were carried over in the same capacities, given his view that TMI had done "a lousy job," for which management and employees bore "joint responsi- bility," McEntee answered: My opinion is that they had a total lack of support from upper management in getting their job done . . . . [T]heir decisions would be voided by the top project manager. Their discipline was only good against people who weren't his friends They were suffering from a total lack of upper-management support . . From the reports that I got, you know, from my startup team, reports to me, I would say . they hadn't failed. It was more of an upper-management problem. As for the alleged discriminatees, McEntee testified that they were not even considered-"I would venture to say no, because they didn't get called", that, despite the eventual "warm-body" criterion, none of them quali- fied Further concerning the reluctance to hire those from TMI, Kristal Brimhall, a TMI employee hired by Re- spondent and still on the payroll, testified that she re- marked to Miller the morning of October 3 that "not very many" from TMI seemed to be working for Re- spondent Miller responded, according to Brimhall, that "there were none of [the] names from the old contractor that were to be called back," explaining, "You were union, and the company didn't want anything to do with the Union." Miller testified that she could not recall talking to Brimhall October 3, or that she said-"not that I remem- ber"-Respondent was not going to hire TMI employ- ees; and she denied telling Brimhall "that the company did not want anything to do with the Union " In the same vein, Judy Bush, also a carryover from TMI, with Respondent until June 1984, testified that, 916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD when she said to Clontz on October 3 that she had been "really worried" whether Respondent would hire her, Clontz stated - "You guys' names were not even on the list to be hired . . I added your name to the list." This is uncontradicted, Clontz did not testify Bush further related that, when she asked Appel and Jaquays a few days later "how come" the Union was out of the picture , Appel answered. [Y]ou people don't need the Union spending your money for you We've never been union, and we won't be. We won 't have the Union in here . . [A] union can take your money, and if you want somebody to take your money, a bank can do that for you, and they'll pay interest for you, where the Union does not. Appel did not controvert this testimony. c. Specifics regarding failure to hire alleged discriminatees Evidentiary detail pertaining to each of the alleged dis- criminatees is as follows. (1) Bragg Bragg was hired by TMI in June 1983, and partnered with another alleged discriminatee , Evelyn Van Houtin. She and Van Houtin received two reprimands from the TMI project manager, both in September , apparently- one for failing to clean a restroom and one, as Bragg put it, for "not cleaning good enough ." Bragg asserted with respect to the former that she and Van Houtin "got the bathrooms mixed up and cleaned the wrong one." A. concerns the other, she could not recall the details. She acknowledged that the TMI project manager had com- plained about her and Van Houtin's productivity. As mentioned earlier, Bragg testified that she was interviewed by a woman named Barbara-doubtless Ja- quays. Her application form reveals that she was rated a "4," and that Miller, her TMI supervisor, appraised her as "good." McEntee, called as an adverse witness by the General Counsel at the start of the trial , testified that he could not remember "right off hand" why Bragg was not hired Later, examined by Respondent's counsel during its case, he testified that the two reprimands , reported by Clontz, "entered into it." He added that Miller's "good" received weight, too, . . but one of the things to consider was the fact there was only a "4" on the interview , which was getting down to the lower end of the average, so any other little item would have thrown her out 26 26 As will be seen , McEntee generally professed difficulty recalling reasons when asked, as an adverse witness, why this or that alleged dis- cnmmatee was not hired-but not when later asked by Respondent's counsel Explaining the initial difficulty, he testified that, even though he had reviewed the files of the alleged discnmmatees the day before, and had spoken with Appel and Jaquays "about each and every one" of them, "the names were mixing in together" And, explaining the subse- quent improvement, he testified, "[M]y memory has been refreshed from the hearings and I have also had a chance to talk to Lyn [Miller] and Micki [Clontz] to refresh my memory " Kristal Brimhall and Judy Bush , both carried over by Respondent , testified credibly, supplying names and other details, that several of the TMI employees hired by Respondent, themselves included, had been reprimanded orally and/or in writing while with TMI. Neither Appel nor Jaquays offered testimony about the failure to hire Bragg; and Clontz, as noted, did not testify. (2) Brown Brown first worked at the base, for one of TMI's predecessors , in 1977 . She left in January 1982, returning, with TMI, in February 1983 She worked nights with TMI, holding a daytime job with the Davis County Council on Aging The demands of the daytime job were such that she sometimes was unable to report to TMI as scheduled-a circumstance apparently accepted by TMI without cavi1.27 Brown testified that she never received a reprimand during the time she worked at the base. As previously indicated, Brown was interviewed by McEntee. She told him that she "really enjoyed" her daytime job, that it was "very important" to her; and that, while she needed a job with Respondent , she would not sacrifice the day job to get it She recalled that McEntee responded with kindness and understanding, re- marking, "You get a lot more satisfaction out of helping people than you would out [of] cleaning toilets or va- cuuming." The interview ended , according to Brown, with McEntee saying that it "went well" and that she would be hearing from him. McEntee gave Brown a rating of "6," which he characterized as "top of the av- erage " McEntee, as an adverse witness, explained the nonhire of Brown this way- I believe she . . . had a daytime fulltime job, and she could only work part-time , and I do not think the position was open at the time She was working eight hours a day Later, examined by Respondent's counsel , McEntee testified that Brown was not hired "because of the day- time job and the fact that she couldn 't stabilize her hours for showing up for work, the two of them together " He continued that for Brown sometimes to report late would not have been "acceptable," amplifying. [T]o show favoritism at that particular point would be a real problem, to allow someone to pick their own hours, because we weren't sure what the hours were going to be anyway . . The company policy is, you start at a certain time and . . . we have . . . a set time to leave . . [I]t is as simple as that. Asked if Brown's daytime job was a factor in her non- hire, apart from the problem of reporting on time, McEntee testified: 27 Brown testified "I had a good relationship with my employer He was understanding He accommodated my schedule " MASTER HOUSEKEEPERS 917 Well, we always take that into consideration, the fact that if you work eight hours a day and then you pop right into a part-time job, you don't have the productivity that you would have if you were fresh and hadn't been working all day long. So that always enters into it, and we are in the business of productivity. 28 Miller testified that she never supervised Brown at TMI, and that she could not recall making a recommen- dation to Respondent regarding her. As noted earlier, Clontz, who presumably did supervise Brown, did not testify The failure to hire Brown was not addressed by Appel or Jaquays in their testimony On Monday, October 3, having heard nothing since her interview, Brown went to Respondent's offices at the base. Ascertaining that she did not have a job, she pro- tested the unfairness of the TMI employees' being by- passed for jobs-first to others, eventually to McEntee. McEntee responded, when she asked what he thought the Union was "going to say about this": "There is no union You are not in a union. You're not employed here " Brown withdrew from the encounter when McEntee threatened to have her arrested for trespassing. McEntee testified that this altercation eliminated Brown from future consideration for hire-"If she could get hot-headed with the vice president of the company, I could imagine what she could do to a location supervi- sor " (3) Chalcroft Chalcroft worked on the base from July 1982, with TMI's immediate predecessor, until TMI's departure. She was a union steward while with TMI, as has been noted, and worked nights. She also held a part-time day job, off the base As previously mentioned, Chalcroft was interviewed by two men, one being Appel.29 She stated during the interview that she hoped to work days for Respondent, in which case she would quit her existing daytime job. She also said that she planned to take a trip to Oregon in early October, and asked if she "might be able to get off" for that One of the interviewers replied, as she re- called, that he did not think so, and she remarked, "Well, if it means I will not get the job, I will not take the vaca- tion " At the end of the interview, she testified, one of the interviewers said the situation "sounded positive," and advised her to "stay close to the phone" over the weekend because she would be getting a call one way or the other 28 Similarly, asked by Respondent's counsel without explicit reference to Brown if Respondent has "any preset opinions regarding if a person worked more than one job," Appel testified "We have an opinion throughout the company that when someone works an eight-hour job and comes to work for you on a part-time basis, you may not get the full output of that person's ability, being that they may be tired from the pre- vious job Also, working more than eight hours a day can be very tiring, especially under extended times " Respondent consequently is "less likely," Appel testified, "to hire a person who is working a fulltime job somewhere else " 29 Appel testified that Shepherd began the interview alone, that he ar- rived later Chalcroft's application form reveals that she was rated "4-5," and that Miller appraised her as "Med."30 McEntee, unable as an adverse witness to state why Chalcroft was not hired, testified when asked by Re- spondent's counsel: Well, there was an argument put forth that she felt the vacation was more important than the job. There was also an argument that Lyn [Miller] had rated her as medium, which is not a definite plus, and also the initial rating on her, I think, was a "4" or a "5," so that she didn't have much going for her Appel testified that Chalcroft "was very adamant . that she did not want to miss vacation"; that she "kept repeating" that she "already had this arranged", that he in turn repeated to her that Respondent had "to fill the position" and could not hold it open for her, and that, ultimately, he decided "that her vacation was more im- portant to her than her employment " Appel further testified that, after discussing Chalcroft with Jaquays and Shepherd-he was not sure if McEntee "was in on it or not"-it was decided not to hire her be- cause of . . the simple fact she was going on vacation She would not have been home . . [M]y opinion en- tered into it that her vacation was more important than that job Jaquays did not deal, in her testimony, with the failure to hire Chalcroft. Chalcroft is credited that she offered to abandon her vacation plans rather than risk forfeiture with Respond- ent 31 (4) Del Rio Del Rio worked on the base for "numerous compa- nies," starting in 1974 and ending when TMI left. Del Rio, as noted earlier, was interviewed by Jaquays. Appel testified that he, too, participated in that inter- view Apart from the allegedly unlawful interrogation of Del Rio, previously described, the record contains little of what occurred in the interview Del Rio's application form reveals however, that she was rated a "5," which was signified by Jaquays' reckoning that she was a "medium" or "borderline" prospect It also bears a "good," reflecting Miller's assessment of her. Both Miller and Clontz had supervised her in times past. McEntee, questioned by counsel for the General Counsel, initially testified that, not having "had a chance to review" the Del Rio situation, he could not say why she was not hired.32 He nevertheless speculated, "It so Miller affirmed that this signified "medium," which to her meant "below" a good worker 31 Chalcroft was most believable on this point As is later discussed in detail, Respondent's major witnesses, including Appel, were not impres- sive in the failure-to-hire portion of the case 32 That McEntee had not had a chance to review the Del Rio situation flies in the face of his testimony, elsewhere, that he had reviewed the files of the alleged discriminatees the day before, and had spoken with Appel and Jaquays "about each and every one" of them 918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD could have been that there was no position available when . . her application came out " Questioned by Re- spondent's counsel, on the other hand, he testified that he had discussed Del Rio with Jaquays and Appel, and that word had gotten to him that Clontz considered her "difficult to work with"; that "a lot of times she used her language as an excuse not to do something, her language barrier " That, McEntee summarized, was the reason she was not hired-"It is as simple as that." Clontz, to repeat, did not testify To like effect, Jauquays testified that Clontz had said Del Rio "was a bad worker [that] she refused to do the job"; and that, even though Miller had said she "was a fairly good worker," Clontz' contrary opinion persuaded her against hiring Del Rio. Appel, adverting to Del Rio's interview, testified: "I could just remember basically that she did not speak English very well. She was a pleasant person. That was it." Appel added that Del Rio's language limitations "could" have affected the decision not to hire her. He explained- In communicating job assignments and so on, you have to be able to communicate with the person. The lady did seem to grasp some things that we did say okay, so it is a matter of not just verbal instruc- tions, but you had to go into a physical-type dem- onstration then. She seemed as though she would be able to understand something of that nature, of which she was understanding some things that we were talking about. (5) Podwys Podwys, a union steward while with TMI, worked on the base for about 13 months, TMI having carried him over from its predecessor, He buffed floors for TMI, and thus "worked the whole base" under the direct supervi- sion of the project manager The project manager gave him some compliments, Podwys testified, together with two reprimands One of the reprimands stemmed from his interest in succeeding to TMI's contract at the base, and the other from a perception that he had fomented a sickout during TMI's last days Concerning Podwys' interest in the contract, he had discussed it with "a few" people, but was prevented from bidding by a lack of resources.33 He conceded that to have submitted a bid would have been "an act of dis- loyalty" to TMI.34 As for the sickout matter, TMI had announced in September, contrary to prior understand- ing, that its employees would not be compensated for unused sick leave. That prompted Podwys, by his own admission, to tell the employees that . . if they wanted to take off sick . it was up to them [but] that they should make sure they could get a doctor's excuse before they took any days off Podwys testified, in justification of this. [A]s a steward, it was sort of my responsibility to make sure the people were informed that in order to collect any of that sick leave, that they needed a doctor's excuse . . But, what influenced him "the most" against Del Rio's hire, Appel testified, was . the opinion that was rendered . . by.Micki Clontz . . . that she had problems with Virginia Del Rio, she had problems with her bathroom cleaning, she had problems with the lady's attitude She had problems communicating with her to the point of having to go through a physical-type in- struction, pointing things out, the dust and so on and so forth, the bathrooms. Appel continued that Miller's good opinion of Del Rio also "was taken into consideration," . . but as for influencing it to the negative, no. She [Miller] said in her involvement with this lady she had no problem, but yet Micki had very strong feelings that she did have problems with this em- ployee, so, consequently, I couldn't say who would be working with her in the future, so I had to go with the fact that she may be a problem. Del Rio conceded in her testimony that Clontz had upbraided her, when they worked for TMI's immediate predecessor, for failing to keep the walls in two buildings sufficiently clean, and that, when TMI took over, she overheard Clontz tell its management that Del Rio "had a tendency to leave buildings dirty." The day after counseling his coworkers in this manner-which, as Podwys put it, "was supposed to have been the day that [he] proposed a sick-out"-he took a medically excused day off One other employee, it would appear, did likewise The record does not disclose the extent of professed sick-leave absences, otherwise, that day McEntee, under early questioning by counsel for the General Counsel, testified that Podwys was not hired "because of the previous recommendation from . . either Lyn Miller or Micki Clontz," but that he could not remember "the exact input on the reasoning." Then, answering Respondent's counsel, he testified- This was definitely from the supervisors on the pre- vious actions that he had with his previous contrac- tor We gathered, from the information that we gathered, that he had tried to start a sick-out and that he tried to-well, there were rumors about bid- ding in, but you don't take too much into that, the rumors that he would like to bid the job, but that is not weighted as heavily as the sick-out situation, so that became an automatic reject 38 Podwys testified "if I would have had the means, I would have put in a bid , but I do not have it I'm a small guy " 34 Accepting the premise that TMI was ousted before expiration of its contract, and thus presumably out of the bidding, the disloyalty in Podwys' bidding is not readily apparent MASTER HOUSEKEEPERS 919 Miller averred that some of TMI's employees had told her that they had been advised by Podwys to call in sick, and that she conveyed this information to McEntee, Appel, and Jaquays She added that she might also have mentioned Podwys' "always talk[ing] about he wanted the contract," but that she did not regard that as "any big deal " The matter of the sickout, she summarized, was "the sole reason" she recommended that Podwys not be hired. Podwys was rated "somewhere in the '6' or 7 area," according to McEntee Jaquays, although presumably the one so rating him,35 did not testify about his being bypassed Neither did Appel Respondent hired at least two-Tom Boyd and Tammie Mayo-who had been stewards while with TMI. i (6) Evelyn Van Houtin Evelyn Van Houtin worked at the base about 5 years "off and on," including about 6 months with TMI. As in- dicated earlier, she partnered with Jo Ann Bragg during much of her time with TMI, under Miller's supervision. Also as previously mentioned, she and Bragg received two warnings from the TMI project manager-one for failing to clean a bathroom because of confusion about their assignment, and one, apparently more general, for "not cleaning good enough."36 Further, the project man- ager had expressed dissatisfaction with her and Bragg's productivity. On the other hand, according to Evelyn, Miller gave them compliments "all the time"-"maybe once a week or so." Again as earlier noted, Evelyn was interviewed by McEntee, who recalled rating her "initially as a `6."' A factor in her getting "such a rating," he testified, was her security clearance. He explained- Usually, getting a security clearance is a difficult item, and if you are starting up a job brand new you like to pick up people with security clearances because it saves a lot of paperwork and hassle and you may not be able to get into the area for quite awhile without an escort McEntee testified, when asked by counsel for the Gen- eral Counsel early in the trial why Evelyn had not been hired, "I do not remember that one right off hand." Later, examined by Respondent's counsel, he stated. I got the impression from the supervision that they didn't want to work with her, and she was auto- matically knocked out. When you get a uniform type of impression like that, you just knock them out . . . . I think on this particular case it came from-when I was evaluating these things it was basically with Daryl [Appel] and Barb [Jaquays] on a review-type basis. I can't remember whether Micki [Clontz] and Lyn [Miller] had given the im- pression before that or not, but we-the three of us would go over them and discuss them and I might get feedback Daryl might tell me what Lyn had said about it, or Barbara would tell me what Lyn had said about it, or in some other conversation somewhere on the base Lyn or Micki may have told me about it I can't remember specifically ex- actly where I dust know that it was an automatic reject, which I didn't particular[ly] like to do I don't like getting rid of security clearances. They are very difficult to get, but when it becomes a unanimous decision and you are dealing with super- visors who have to work with the people on a day- to-day basis, sometimes you have to give way like this. Miller testified that, whereas she wrote a "good" on Bragg's application form, she wrote nothing on Evelyn's. She further testified that she told McEntee, Appel, and Jaquays that Evelyn's work "wasn't up to par," but that she did not "recommend not to hire her " Neither Appel nor Jaquays testified about the nonhire of Evelyn (7) Lorraine Van Houtin Lorraine Van Houtin began working on the base, for a forerunner of TMI, in September 1977, remaining until TMI's departure. As previously indicated, she was interviewed, serially as she recounted, by Jaquays and then Appel. Jaquays testified that she took "offense" during the interview be- cause Lorraine "wanted to tell [her] what building she wanted to do and what hours she wanted to work and what she was going to do " Jaquays explained that "it was not [Lorraine's] place" to dictate in this fashion Even so,, Jaquays rated Lorraine a "5." Jaquays also testified that she spoke with Clontz about Lorraine, and that she thought Clontz had said that she had "had problems with" Lorraine and that Lorraine "had gotten a couple of write-ups . . in regards to her work." Jaquays conceded under cross-examination, how- ever, that she could not remember what Clontz said about the writeups; in fact, that she was "not positive" Clontz said anything. Jaquays testified that she neverthe- less concluded, based on the interview and Clontz' obser- vations, that Lorraine "would be a hard person to work with" and should not be hired.37 McEntee, as an adverse witness, testified that he could not remember "right off hand" why Lorraine was not hired Addressing the same issue during examination by Respondent's counsel, he testified that Jaquays and Appel had gotten a report from Micki [Clontz] and Lyn [Miller] that in her particular case she had problems on the job cleaning, and I believe one of the other 31 As mentioned before, Podwys testified that he was interviewed by a woman Only Jaquays of the interviewers fits that description as Evelyn testified that she "got wrote up" once-in connection with the bathroom mixup Bragg testified that they received two warnings Al- though Evelyn seemed to be testifying in good faith, Bragg is credited 37 Jaquays testified that Miller, too, had reported that Lorraine had had "write-ups, warnings, or whatever" Jaquays made no assertion, however, that her negative disposition toward Lorraine was affected by this Miller testified that, never having supervised Lorraine, she expressed no opinion about her work or whether she should be hired 920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD supervisors didn't particularly think that she was a good worker at all McEntee testified that he had learned, in addition, that Lorraine "was pushy and she irritated" Jaquays. Asked if that was "the determining factor" in Lorraine's nonhire, he asserted- No I don't think that was the final factor. That and the fact that the supervisor didn't particularly like to work with her was one of the items, and she had had problems on the job You have to take them all and you have to weigh both decisions or both opin- ions Appel, although participating in the interview of Lor- raine, conceded , "[V]ery little about Lorraine do I re- member " He did offer, however, that he discussed her with Jaquays and Miller, and that Jaquays recommended that she not be hired. She had talked with the supervisors and said that-something to the effect that she had been a problem-or there had been a problem with her at TMI I did not get into that discussion. There is no probative evidence that Lorraine ever was written up or otherwise reprimanded while working on the base Parkinson, also interviewed by Jaquays and Appel and rated a "5," was carried over even though she "came across" to Appel "as being very nasty," and impressed Jaquays as being "a very pushy person," "loud," and "want[ing] to say what she wanted to do and the hours she wanted to work." Miller, however, had written a "good" on Parkinson's application form. 2 Conclusions and reasons In Wright Line,38 the Board stated: [W]e shall henceforth employ the following causa- tion test in all cases alleging violation of Section 8(a)(3) or violations of Section 8(a)(1) turning on employer motivation First, we shall require that the General Counsel make a prima facie showing suffi- cient to support the inference that protected con- duct was a "motivating factor" in the employer's decision Once this is established, the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.39 It is concluded that the General Counsel has made the requisite prima facie showing with regard to the alleged- ly unlawful failures to hire Thus: (a) Respondent's predecessor, TMI, was under obliga- tion to bargain with the Union. 38 251 NLRB 1083 (1980) 31 251 NLRB at 1089 This formulation received Supreme Court ap- proval in NLRB v Transportation Management Corp, 462 U S 393 (1983) (b) McEntee was aware that, were Respondent to hire sufficient of TMI's employees, it might well inherit that bargaining obligation as a matter of law.40 (c) Respondent in fact was most reluctant to hire TMI employees, as revealed by McEntee's testimony that it "did not want to hire too many TMI employees," by Miller's October 3 remark to Kristal Brimhall that no one "from the old contractor [was] to be called back," and by Clontz' October 3 comment to Judy Bush that "you guys' names"-doubtless an allusion to the appli- cants from TMI-"were not even on the list to be hired "41 (d) Respondent hired only 28 of the 59 TMI nonsuper- visory employees to submit applications, bypassing the alleged discrimmatees in the process. (e) That union avoidance underlay the reluctance to hire those from TMI is inferable, most explicitly, from Miller's October 3 explanation to Brimhall for the pauci- ty of carryovers. "You were union, and the company didn't want anything to do with the Union."42 That pur- pose is inferable, as well, from Appel's pronouncement, when asked by Bush why there was no union, that Re- spondent had "never been union" and would not "have the Union in here"; and from Respondent's readiness to hire TMI's first-line supervisors, Clontz and Miller, indi- cating that the reluctance to hire extended only to bar- gaining unit personnel Despite the foregoing, the contention might be made that Respondent's failure to hire not just the seven al- leged discriminatees, but another 24 applicants from TMI not so alleged, necessarily precludes any inference of wrongdoing. The short answer is that the General Coun- sel's prima facie showing would apply equally to all of those not carried over, were the complaint framed to place their situations in issue That it is not so framed, for reasons undisclosed on the record, consequently is ir- relevant to the adequacy of that showing with regard to the seven named in the complaint 43 40 ••[Wlhere the new employer continues operations substantially un- changed and the bargaining unit continues intact, the Board has tradition- ally held that the new employer succeeds to the predecessor's bargaining obligations when a majority of the new employer's work complement is determined to have come from the predecessor's bargaining unit " United Maintenance & Mfg Co, 214 NLRB 529, 532-533 (1974) The Supreme Court has endorsed this view NLRB v Burns Security Services, 406 U S 272, 281 (1972) 41 Brimhall and Bush, respectively, are credited that Miller and Clontz so spoke Brimhall, still on the payroll and evincing both neutrality and competence, was a believable witness Miller was not particularly persua- sive, on the other hand, beyond which her denial of that attributed to her by Brimhall was less than ringing Bush, too, was eminently credible, and her rendition stands unchallenged inasmuch as Clontz did not testify This perhaps indicates that Respondent had intended to hire no TMI bargaining unit people until compelled to discard the idea by the acute- ness of its staffing dilemma Even so, the number of TMI carryovers was well below the union-critical level of one-half, plus one, of the total non- supervisory complement 42 Brimhall , as earlier noted a convincing and ostensibly neutral wit- ness, is credited that Miller made this remark Miller's denial was mark- edly less persuasive That Miller was speaking from certain knowledge rather than supposition is inferable from the degree of her involvement in the hiring process 43 This is not to imply criticism of the complaint's drafting MASTER HOUSEKEEPERS 921 A prima facie showing having been made that the non- hire of the alleged discriminatees was improperly moti- vated, the question remains, under the Wright Line for- mulation, whether Respondent has overcome it by a showing of its own that the seven, or some of them, would not have been hired regardless of antiunion con- siderations. It is concluded that it has not; which is to say that the reasons advanced in justification of its ac- tions are rejected The grounds for rejection are these (a) Given Respondent's staffing desperation, which forced it, in McEntee's words, "to get down to [the] area" of "l's" and "2's" just to "get a warm body there," its emphasis on relevant experience, and that the lowest rating among the alleged discrimmatees was a "4," it beggars belief-except for Podwys and his arguable es- pousal of a sickout at TMI-that they were bypassed for the reasons stated This is especially so in the case of Evelyn Van Houtin, who coupled a "6" with a much- coveted security clearance, and in those of Bragg and Del Rio, both evaluated by Miller as "good," in light of McEntee's testimony that Respondent "basically took" the recommendations of the TMI supervisors. (b) The central reason stated by McEntee for Re- spondent's reluctance to hire those from TMI-that TMI had done "lousy work" and Respondent sought to avoid "inheriting a problem that had already proved fatal to" TMI-is revealed as specious by the unhesitant hiring of TMI's first-line supervisors, by McEntee's explanation for so doing that TMI's downfall was "more of an upper-management problem," which tended to the exon- eration of the rank-and-file as well as the two supervi- sors, and by the considerable number of TMI employees, 28, nevertheless carried over 44 (c) Various of the reasons advanced for turning down, certain of the alleged discriminatees-namely, Bragg, Brown, Chalcroft, and Lorraine Van Houtin-are de- monstrably transparent McEntee's testimony that the two TMI reprimands of Bragg "entered into" the deci- sion not to hire her is largely negated by the fact that several others from TMI, with similar histories, were hired; and his further assertion that Bragg's being a "4" placed her at "the lower end of the average, so any other little item would have thrown her out," is rendered hollow by the aforementioned desperation As for Brown, McEntee's testimony that a reason for her nonhire was that "she could only work part-time" overlooks that virtually all of Respondent's employees work only part time. McEntee also ventured that he did not think a position "was open at the time" for Brown- a patent absurdity. Concerning Chalcroft, McEntee's tes- timony that she "didn't have much going for her" in view of her "4-5" rating is refuted, as was the kindred testimony about Bragg, by the staffing dilemma Then, regarding Lorraine Van Houtin, Jaquays first testified that Clontz had reported "problems with" her at TMI, and that she "had gotten a couple write-ups," only 44 McEntee's subsidiary reasons for the disinclination to retain those from TMI-having to do with their anticipated resistance to change and the accrual of seniority-seemed little more than gratuitous "puffing," to be discounted out of hand to temporize on cross-examination that she was "not positive" Clontz said anything about Van Houtin's being written up Jaquays assertedly also was put off by Lor- raine's aggressiveness about hours, duties, etc , and McEntee cited her pushiness and having irritated Ja- quays as "one of the items" in her nonhire. Yet, Parkin- son, also a "5," was hired, even though found by Appel to be "very nasty," and by Jaquays to be "very pushy," "loud," and "want[ing] to say what she wanted to do and the hours she wanted to work. 1145 (d) The various other stated reasons for bypassing the alleged discriminatees-even if not vulnerable in the manner of those just discussed, and although colorably solid at least in Podwys' case-also are unpersuasive Foremost among the discrediting influences was McEn- tee's professed difficulty, as an adverse witness, in pro- ducing reasons for the failures to hire, despite having re- viewed the files of the alleged discrimmatees only the day before and having discussed "each and every one" of them with Appel and Jaquays.46 This came across as designedly disingenuous, at once impairing his overall credibility and giving rise to an abiding conviction that the reasons later put forth, including that for Podwys, were wholly contrived 47 The reasons finally given by McEntee were flawed, as well, by the vague, sometimes almost speculative, tenor of their articulation, and by the insinuation of leading questions from Respondent's counsel The recitals of Re- spondent's other lead witnesses, Appel and Jaquays, also were tainted in these respects There were, in addition, glaring deficiencies in cor- roboration among McEntee, Appel, and Jaquays-par- ticularly so given the implication of all three in hiring deliberations. It was as if discrete parts of a script had been assigned to each, with no thought given overall co- ordination McEntee's testimony about the nonhire of Bragg, Brown, Podwys, and Evelyn Van Houtin, for in- stance, was bereft of corroboration from the other two, the accounts of McEntee and Appel concerning Chal- croft were diminished by a breach in mutuality (Appel's uncertainty whether McEntee was even "in on" the Chalcroft decision), and by Jaquays' silence on the sub- ject, and the testimony of McEntee and Jaquays about Lorraine Van Houtin • suffered from Appel's near-de- 45 One got the distinct impression, listening to Appel and Jaquays ex- coriate Parkinson, that they were inspired by a misconception that she was an alleged discriminatee-an impression hardly enhancing their credibility 46 McEntee's excuse that "the names were mixing in together" was singularly lame 47 And likely fashioned in significant measure from information gleaned during the General Counsel's case Thus, after his adverse-wit- ness testimony that he could not recall why Bragg, Chalcroft, and Podwys, among others, were not hired, he seemingly seized on their in- tervening revelations as the cornerstone of reasons later propounded in part because of this, Miller is not credited that she told McEntee, Appel, and Jaquays about Podwys' reported instigation of a sickout, and that she coincidentally recommended against his hire Were that true, McEntee surely would have mentioned it when asked about Podwys in the first place It bears repeating, as well, that Miller's credibility in general was not impressive-for many of the reasons, cited above and below, that McEntee, Appel, and Jaquays were unimpressive 922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fault-"very little about Lorraine do I reriember"-even though he participated in her interview.48 Major damage to the credibility of McEntee, Appel, and Jaquays also attended the failure of Clontz to testify. It will be remembered that they, one or all, attributed to her a vital role in the decisions not to hire Bragg, Del Rio, and Lorraine Van Houtin. There is no apparent reason, moreover, why she could not have been called, McEntee having testified that he refreshed his memory during the course of the trial by talking to her and Miller. Finally, the demeanor of Respondent's key witnesses- McEntee, Appel, and Jaquays-while testifying about 48 Jaquays' credibility with respect to Lorraine was dealt a blow, as well, when, as against her testimony that Miller had reported Lorraine's getting "write -ups, warnings, or whatever," Miller testified that, never having supervised Lorraine, she expressed no opinion about her or whether she should be hired the failures to hire was anything but impressive. Indeed, they imparted a tentativeness and an uncertainty once again suggestive of dependence on an unmastered script rather than on their memory of things experienced CONCLUSIONS OF LAW By withholding job offers from and failing to hire Jo Ann Bragg, Kathy Brown, Tamara Chalcroft, Virginia Del Rio, Lawrence Podwys, Evelyn Van Houtin, and Lorraine Van Houtin about October 3, 1983, as found, the Respondent violated Section 8(a)(3) and (1) of the Act as alleged Respondent did not otherwise violate the Act as al- leged.49 [Recommended Order omitted from publication.] 49 All outstanding motions inconsistent with this recommended Order are denied