California Cooperative Creamery

CALIFORNIA COOPERATIVE CREAMERY California Cooperative Creamery and Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 386, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO.' Case 32-CA- 8878 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On February 9, 1988, Administrative Law Judge Jay R. Pollack issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Respondent filed an answering brief. 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,2 and conclusions as modified below. The General Counsel has excepted to the judge's failure to find that the Respondent's office manag- er, Ed Esther, violated Section 8(a)(1) of the Act by informing Ken Love that he was not hired be- cause of his union activities. We find merit in the General Counsel's exceptions. The Respondent purchased its Hughson facility from Knudsen Corporation in November 1986.3 The Respondent commenced operating the facility on December 2 with a supervisory staff and work force composed primarily of former Knudsen offi- cials and employees . Ken Love, a former Knudsen production employee, was not hired by the Re- spondent. On December 24, Love spotted the cars of the Respondent's plant superintendent, Randy Ferguson, and office manager, Ed Esther, outside a local bar. Love entered the bar and bought Fergu- son and Esther a beer. He then asked Ferguson why he had not been hired . Ferguson answered that there were a lot of factors and he did not care to discuss it. Ferguson then left. Love sat down and drank several more beers with Esther. He then asked Esther to tell him the truth about why he was not hired by the Respond- I On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change 2 The General Counsel has excepted to some of the judge 's credibility findings. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for re- versing the findings. s All dates hereafter refer to 1986. 355 ent. Esther stated, "just between me and you," the Respondent was "blackballing" Love because he was a "strong union man." Love replied that he was not a strong unionman and did not even attend union meetings. The judge noted that Esther's authority was lim- ited to office employees and that he had no author- ity or responsibility in the hiring of production and maintenance employees . He found that Esther had expressed a personal opinion. He also concluded that a conversation occurring at a bar after a few drinks should raise no reasonable expectation that Esther was acting on behalf of the Respondent. Accordingly, the judge dismissed this allegation of the complaint on the basis that Esther's remarks were nothing more than speculation or his personal opinion that could not be imputed to the Respond- ent. We disagree. Although Esther did not supervise employees in Love's former department, he was an office manag- er with undisputed supervisory status . Therefore, his remarks to Love were bound to carry some weight-the degree of weight and the likely inter- pretation to be given the remarks depending on their context.4 In this regard, Esther's comments occurred shortly after Love had initiated a conver- sation with Esther and Ferguson , who was respon- sible for the hiring of production and maintenance employees, about the failure to hire Love. Al- though the conversation continued in the social milieu of drinking at a bar, Love's inquiry about hiring to Ferguson and his reiteration of this in- quiry to Esther do not appear to have been purely social, informal, or amicable. Furthermore, Esther's prefatory "just between you and me" would rea- sonably tend to indicate that he was communicat- ing confidential information gained from a manage- ment source instead of merely expressing a person- al opinion, even if that was what he actually was doing. Under these circumstances, Esther would reasonably appear to be acting as the Respondent's agent in making the clearly coercive statement that the Respondent had not hired Love because he was a strong unionman. Accordingly, we find that the Respondent thereby violated Section 8(a)(1) of the Act.5 We agree with the judge, however, that Esther's remarks did not establish union animus with re- spect to the Respondent's hiring process. As the judge found, Esther had no authority or responsi- 4 See NLRB v. Cable Vision. Inc, 660 F.2d 1. 6 (1st Cir . 1981). " Haco Engineering Ca. 265 NLRB 27 (1982) Member Cracraft concurs in her colleagues' finding that Esther's state- ment to Love violated Sec . 8(a)(1) of the Act as it reasonably tended to interfere with, restrain, and coerce employees in the exercise of their Sec. 7 rights. 290 NLRB No. 46 356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bility in the hiring of production and maintenance employees. There also is no evidence that he had any involvement in the decision whether Love or the other production and maintenance employees should have been hired. Accordingly, we do not find sufficient basis for inferring that Esther was speaking with actual knowledge of the Respond- ent's motive for not hiring these employees. AMENDED CONCLUSIONS OF LAW Add the following as Conclusion of Law 4. "4. By informing an employee that it would not hire him because of his past union activities, the Respondent violated Section 8(a)(1)." REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we find it neces- sary to order it to cease and desist and to take cer- tain affirmative action designed to effectuate the policies of the Act. ORDER The National Labor Relations Board orders that the Respondent , California Cooperative Creamery, Hughson, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Informing any employee that he would not be hired because of his past union activities. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its facility in Hughson, California, copies of the attached notice marked "Appendix."6 Copies of the notice, on forms provided by the Re- gional Director, after being signed by the Respond- ent's authorized representative, shall be posted by the Respondent immediately on receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. s If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT inform any employee that he would not be hired because of his union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. CALIFORNIA COOPERATIVE CREAM- ERY William O'Connor, Esq., for the General Counsel. Wesley Sizoo, Esq. (Moore, Sizoo & Cantwell), of Walnut Creek, California, for the Respondent. DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge . I heard this case in trial at Modesto, California, on November 18 and 23, 1987. On June 29, 1987,1 the Acting Regional Director for Region 32 of the National Labor Relations Board issued a complaint and notice of hearing , based on a charge filed on April 23 by Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 386 , Inter- national Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO (the Union), alleging that California Cooperative Creamery (Respondent) has violated Section 8(a)(3) and (1) of the National Labor Relations Act (29 U.S.C. § 151 et seq). The complaint alleges that Respondent violated Sec- tion 8(a)(3) and (1) by refusing to hire employees Tom Johnson, Jay Peeples, Charles Barker, Otis Hale, Ken Love, and Richard Smith because they had engaged in certain protected union activities . The complaint further alleges that Respondent independently violated Section 8(a)(1) by implying to an employee that other applicants had not been hired because of their protected union ac- tivities, and by informing an employee that he was not hired because he was "a strong union man." The parties were permitted during the hearing to in- troduce relevant evidence, examine and cross-examine witnesses, and argue orally. Posttrial briefs were filed on behalf of the General Counsel and Respondent. On the entire record of the case, and from my observation of the witnesses and their demeanor, I make the following I Unless otherwise stated, all dates occurred in 1987 CALIFORNIA COOPERATIVE CREAMERY 357 FINDINGS OF FACT I. JURISDICTION Respondent is a California corporation with its office and principal place of business in Petaluma , California, with a plant located in Hughson , California, where it has been engaged in the nonretail processing, marketing, and sale of milk products. During the 12 months preceding the issuance of the complaint, Respondent shipped goods valued in excess of $50,000 directly to customers located outside the State of California. Respondent admits and I find that , at all times material, it has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent admits and I find that , at all times materi- al, the Union has been a labor organization within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues Respondent purchased its Hughson, California facility in November 1986 from Knudsen Corporation, which had gone into bankruptcy. The Union had represented the production and maintenance employees at the Hugh- son facility at least 10 years under Knudsen 's ownership and Knudsen's predecessors, Foremost and Foremost- Mckesson. Knudsen ceased its Hughson operation on Oc- tober 14, 1986. On November 24, 1986, Respondent finalized its pur- chase of the Hughson facility. It agreed to recognize the Union and met on three occasions for contract negotia- tions but no agreement was reached . During negotia- tions, the Union took the position that the Respondent should hire the former Knudsen employees based on se- niority. Respondent took the position that it would con- sider seniority but would not hire solely on the basis of seniority . No agreement was reached on this subject. Re- spondent began hiring in late November 1986, and its first employees began working on December 2, 1986. Re- spondent hired former Knudsen employees but did not hire on the basis of seniority . After three negotiation ses- sions, a decertification petition was filed in Case 32-RD- 802. Negotiations were suspended at the suggestion of the Union, pending the outcome of the decertification election. On April 17, 1987, the Union lost the represen- tation election and was decertified. Respondent contin- ued to hire former Knudsen employees . At the time of the instant hearing, Respondent had only hired former Knudsen employees to work at Hughson with just three exceptions. Two of the exceptions were part-time summer employees who were sons of milk producers who sold products to Respondent . The other exception was an experienced employee who was hired on the basis of a recommendation of a supervisor. Within this factual background , the General Counsel alleges that Respondent refused to hire Johnson , a union vice president and shop steward, Peeples, Barker, Hale, Love, and Smith because the employees filed grievances or otherwise sought to enforce ' collective-bargaining agreements between the Union and Respondent 's prede- cessors. Further, the complaint alleges that during the interviewing processes, Tim Colbert, Respondent's plant manager, told Gary Guyer, an employee, that Respond- ent had not hired Johnson and Peeples because of their protected union activities. Finally, the complaint alleges that Ed Esther, Respondent's office manager, told Love that Love was not hired because he was "a strong union man." Respondent denies all allegations of the complaint. B. The Hiring Process In November and December 1986, Respondent re- ceived numerous job applications for employment at the Hughson facility. The applications were reviewed by Tim Colbert, plant manager, and Randy Ferguson, plant superintendent. Colbert had been plant manager at the Hughson facility since 1979. Ferguson had been plant su- perintendent at the facility since 1982 and had been a shift superintendent from 1979 to 1982. Colbert and Fer- guson had received instructions from Douglas Hecker, Respondent's comptroller, to use the last seniority list from Knudsen and "pick the best possible employees" from the list. Hecker told Colbert that Respondent wanted a turnkey operation , meaning that the company wanted to start up as close to the date of the plant acqui- sition as possible. Colbert and Ferguson reviewed the ap- plications and chose 28 former Knudsen employees for interviews. The 28 former Knudsen employees were interviewed by Colbert, Ferguson, Hecker, and Ralph Sartori, Respondent's plant manager at it Petaluma facili- ty.2 The 28 employees were all eventually hired by Re- spondent. After the initial interviews, Hecker and Sartori played no further role in the hiring process . There is no allegation nor any evidence that Hecker or Sartori had any union animus, or had any knowledge of union activi- ties by any of the applicants for employment. The first group of employees hired, the foremen, began working on December 2. Several others were hired to help clean up and prepare for a state inspection scheduled on December 7. The work force gradually ex- panded thereafter. As mentioned earlier, all employers hired were former Knudsen employees with only three exceptions. The six alleged discriminatees all applied for employ- ment with Respondent but were not hired. On Novem- ber 28, Johnson, the shop steward and a union vice presi- dent, went to the plant and talked to Colbert. Colbert confirmed that Johnson was not one of the initial hires. Colbert said he had gone through the applications "with great emotions." Colbert said that the warehouse where Johnson worked would probably be the last department to start back up again. Colbert did not inform Johnson that he (Johnson) would not be hired. Johnson attended the negotiating sessions and, in late December, raised the question why he, and other senior employees, had been passed over in the hiring process. Mike Nash , Respondent's CEO, indicated that he be- lieved the employees were only qualified to perform the 2 Colbert reports to Sartori who has responsibility for Respondent's Hughson and Petaluma facilities . Respondent's employees at its Petaluma facility are represented by a sister local of the Union. 358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD jobs listed on the seniority list given Respondent by the Union. Johnson took the position that the senior employ- ee were qualified to perform numerous jobs in the plant based on their past experience with Knudsen . Nash an- swered that he would discuss the matter with Colbert. C. The Alleged Threat by Esther Ken Love, a former Knudsen employee, testified that on Christmas Eve, he spotted the cars of Ferguson and Ed Esther, office manager, parked outside the local bar near the Hughson facility . Love entered the bar with his son and brother. Love bought Ferguson and Esther a beer and then asked Ferguson why he was not hired. Ferguson answered that there were "a lot of factors" and he did not care to discuss it. Love's brother said that Ken knew every job in the plant and began to argue with Ferguson. Ferguson then left. Love sat down with Esther and the two continued to drink and talk. After several more beers, Love asked Esther to tell him the truth about why he was not hired by Respondent. According to Love, Esther said, "just between me and you," Respondent was "blackballing" Love because he was a "strong union man." Love said he was not a strong union man and did not even attend union meetings. Esther testified that after Love pressed him for an ex- planation for not being hired , he told Love that he did not know and that Love should "talk to his other friends." Love's version of this conversation is credited over Esther's denial. Esther is Respondent's office man- ager but has no authority with respect to production and maintenance employees . Further, he had no role whatso- ever in the hiring of production and maintenance em- ployees. Love admitted that Esther was giving his own opinion and not speaking on behalf of Respondent during this Christmas Eve conversation. D. The Statement to Guyer Gary Guyer, a former Knudsen employee who was hired by Respondent, was interviewed by Colbert and Ferguson in late December . Ferguson told Guyer that the employee should be prepared to work a lot of over- time and learn different jobs. Ferguson said there would be no job bidding and employees would have to work in different jobs and different departments . Colbert said that the plant was under new ownership and that only "the cream of the crop" had been hired. He said the plant was starting from scratch and that "there would be no Tom Johnsons or Jay Peeples." Respondent would not hire employees "who couldn't pull their weight," or who were "troublemakers" or "bad eggs." Colbert did not ex- plain what he meant by troublemakers or bad eggs. There was some discussion about benefits, Guyer's skills, and assignments. At some point in the conversation, Col- bert said he did not know if the plant would be union or not, but that it did not make any difference to him. Ferguson testified that no reference was made to John- son or Peeples in the interview with Guyer. He further denied that there was any mention of bad eggs or trou- blemakers. Colbert also testified that there was no refer- ence to Johnson, Peeples, bad eggs, or troublemakers in the interview with Guyer. Colbert admitted that he told Guyer that Respondent did not know whether the Com- pany would be union or not, and that it made no differ- ence to Colbert whether the company was union or not.9 I have decided to credit Guyer's version of this conver- sation over the denials of Ferguson and Colbert . Guyer, a current employee of Respondent , was unlikely to testi- fy against his current supervisors unless his testimony was truthful. E. The Activities and Work Records of the Six Applicants Tom Johnson was the warehouse leadman at the time Knudsen closed the Hughson facility . Johnson was Knudsen's most senior employee and the union shop steward. It is undisputed that Johnson was an active steward and brought grievances on behalf of the Union and employees. In processing the grievances, Johnson dealt with both Ferguson and Colbert. However, there is no evidence that Colbert or Ferguson ever harbored any animus against Johnson for his union activities. According to Ferguson, Johnson would stretch out his work to make it last a full day, and that he did not get along with Peeples, who worked in the warehouse under Johnson. Johnson admitted that he and Peeples did not get along. Although Respondent apparently was pleased with the end result of Johnson's work in the warehouse, it took issue with the amount of time, i.e., total man hours, it took for the work to be done. The employee Respondent now utilizes to perform the warehouse func- tion performs the warehouse job in 20 hours per week elsewhere in the plant. With Johnson and Peeples work- ing full time in the warehouse , Johnson still required ad- ditional assistance from other employees to perform the warehouse function. Jay Peeples had been a warehouse helper since 1977 and was second in seniority to Johnson. The only union or protected activity that the General Counsel could point to was that Peeples took a bereavement leave in 1986. Ferguson at first objected to Peeples' proposed leave but Peeples took the leave anyway . Peeples was paid for the full 2 days of leave without any protest by Ferguson or Colbert. Ferguson testified that Peeples had a poor work record. The deficiencies listed were loss and damage of a product, the falsificaton of production figures , the failure to perform certain weighing procedures, and his lack of qualifications to operate certain machinery . The General Counsel apparently took isssue with Ferguson's conclu- sion that Peeples could not operate certain machinery. The General Counsel points out that early in his employ-' ment with Knudsen, Peeples operated such equipment. However, Peeples had not operated the equipment since 1977 and the equipment had been updated. Charles Barker had been a mix helper since 1954. Barker had filed numerous grievance involving overtime, 9 The decertification petition had been filed and Colbert did not know whether the Union would be decertified or not CALIFORNIA COOPERATIVE CREAMERY vacation pay, boots,4 sick pay, and wage rates. He had a grievance pending at the time of Knudsen's closing. There was no evidence of any animus against Barker be- cause of these grievance activities. Ferguson testified that Barker had made incorrect mixes, had falsified production reports, and was general- ly a marginal and unsatisfactory employee . Barker did not testify. Otis Hale had been employed at the Hughson plant since 1967. His position at the time of the Knudsen plant closure was that of powder bagger. Hale had filed a number of grievances including grievances concerning boots, job duties, lunchbreaks, premium pay, and changes in work schedules. In May 1985, Hale filed a grievance concerning a job bid and a job awarded to another em- ployee. Johnson discussed the grievance with Colbert and they disagreed over Hale's eligibility, to bid on the job in question . Colbert said in this discussion that it would be "a cold day in hell" before Hale was eligible, and that Hale would get the job over Colbert's "dead body." Johnson continued to pursue the grievance, and Hale was eventually awarded the job. In my view, this evidence establishes only that Colbert opposed the griev- ance on the merits. It does not establish that Colbert har- bored any animus against Hale for utilizing the grievance procedure or any animus against the Union. Ferguson testified that Hale had a record of excessive absenteeism, and a record of negligence in operating cer- tain machinery. Ferguson concluded that Hale was a marginal and unsatisfactory employee . Hale did not testi- fy. Ken Love had been employed at the Hughson facility since 1975 . At the time of the Knudsen closing, Love was working in the receiving department. Love had been involved in a number of grievances. On one occasion in 1984, Love refused to run a machine unless he was given boots. Love was sent to Colbert's office where he reiter- ated his position. The next day Love was given boots and he operated the machine in question. Ferguson testified that not hiring Love was "a close call." Love was a marginal employee, although he was acquainted with most, if not all, jobs in the plant. Ac- cording to Ferguson, Love was very poor about filling out charts and logs, and that Love essentially wanted to work days and bag powder with no responsibility. Fer- guson made reference to Love's problems with absentee- ism, although Love had no recent problem with absen- teeism. In fact, Respondent hired some employees who had absenteeism records arguably worse that Love's. Richard Smith had been employed at the Hughson fa- cility since 1979. His positions included butter and powder packer, floorman churn operator, receiving, and loading and checking. Smith filed a number of griev- ances including a grievance concerning boots. In the fall of 1984, Smith was called to Colbert's office and told to perform the work and grieve the boot issue later. Ac- cording to Smith, Colbert said that if Smith pursued the boot issue it would eventually cost Smith his job with 4 Barker, Smith, and Hale had filed grievances concerning the contrac- tual right to wear boots provided by the Company under certain condi- tions. 359 the Company . Colbert testified that he the did not say that the grievance could cost Smith his job . Rather, he said that Smith should perform the work and grieve the matter later. Colbert explained that the failure to perform the work could cost Smith his job . Colbert's testimony on this point is credited. In general, Respondent denies that union activities or union membership had any part in its hiring decisions. Respondent's witnesses, Hecker, Sartori, Colbert, and Ferguson, all testified that Respondent was looking for "multi-talented people that had good records, attend- ance, good attitudes, were good self-motivating employ- ees, or were recommended from another plant like the Knudsen Modesto plant." It is undisputed that Respond- ent gave preference to Hughson employees and former Knudsen employees . These employees were known to be represented by the Union . In hiring operating engineers for the Hughson facility, Respondent hired only former Knudsen employees represented by the Operating Een- gineers. It hired qualified employees but did not hire on the basis of seniority. Respondent's employees at its Peta- luma facility are represented by a union. Respondent acknowledges that , among those employ- ees actually hired , several had been involved with griev- ances, had received warning letters and been disciplined. The record establishes that the decison to hire an appli- cant was based on the personal observations and evalua- tions of Colbert and Ferguson. These two supervisors had personal experience with the employee -applicants based on years of experience with Knudsen and Fore- most, and made the hiring decisions . Thus, in my view, it is the motivation of these two supervisors that is at issue here. F. Analysis and Conclusions The General Counsel, relying on the testimony of Guyer that Colbert said Respondent would hire no Tom Johnsons or Jay Peeples, people who did not carry their weight, troublemakers, or bad eggs, argues that Johnson, Peeples, and the other discriminatees were union activists or union troublemakers. I find the remarks made by Col- bert do not necessarily mean that Johnson and Peeples were union activists or union troublemakers . Peeples' ac- tivities were limited . The remarks could just as easily mean that peeples and Johnson were employees who were not "the cream of the crop," did not perform their share of the work, or were troublemakers in the normal sense of the word. "Absent a showing that the word is being used in a manner 'synonymous with lawful union activity' in the circumstances of a particular case, Em- ployers may . . . hire . . . as they choose if they have sufficient lawful reason , which includes refusal to hire so-called trouble makers ." Guarantee Savings & Loan, 274 NLRB 676, (1985); NLRB v. Aclang, Inc., 466 F.2d 558, 561 (5th Cir. 1972). Neither Colbert nor Ferguson explained what he meant by troublemakers or bad eggs . The reference is ambiguous and could just as likely refer to the supervi- sors' views that Johnson and Peeples were employees who did not pull their weight, and did not get along with other employees. Under the circumstances, I find 360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that Colbert's statement to Guyer would not reasonably tend to restrain, interfere with, or coerce employees in the exercise of their rights. Sun Coast Foods, 273 NLRB 1642 (1985). I find no violation of the Act and, therefore, recommend dismissal of the 8(a)(1) allegation of the com- plaint. I further find this statement to be insufficient evi- dence to establish that Respondent sought to discriminate or discriminated against Johnson or Peeples because of union activities. Further, I find that Esther's comments to Love do not establish a motive for Respondent's failure to hire Love or any other applicant. Esther had no authority or re- sponsibility in hiring production and maintenance em- ployees. His authority was limited to office employees and he had little or no contact with production and maintenance employees. Esther had been drinking and expressed a personal opinion to Love. However, it is clear that he was not speaking on behalf of the Employ- er. Rood Industries, 278 NLRB 160, 163 (1986). A con- versation occurring at a bar after a few drinks should raise no reasonable expectation that Esther was acting on behalf of the Employer. Moreover, Esther had no re- sponsibility for or authority over the hire of Love or the other production and maintenance employees. Under theses circumstances, Esther was not an agent of Re- spondent for hiring production employees, and his re- marks were nothing more than speculation or his person- al opinion, which cannot be imputed to Respondent. Zack Co., 278 NLRB 958 (1986); Abbey Island Park Manor, 267 NLRB 163 (1983). Section 8(a)(3) of the Act expressly prohibits discrimi- nation based on union considerations in the hire of em- ployees. See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 182-187 (1941). It is beyond question that the filing and processing of grievances by an employee, whether a union steward, is a protected by the Act. Mack Trucks, 242 NLRB 651, 656 (1979). Here, Colbert and Ferguson are the agents of Respondent who decided that appli- cants Johnson, Peeples, Barker, Hale, Love, and Smith would not be hired. Accordingly, it is on their motiva- tion that the analysis must focus to determine whether the six alleged discriminatees were denied employment with Respondent because of activity protected by the Act. See, e.g., Guarantee Savings & Loan, 274 NLRB 676 (1985); Advanced Installation , 257 NLRB 845, 854 ( 1981), enfd. mem. 678 F.2d 1231 (9th Cir. 1982). "Essentially, the elements of a discriminatory refusal- to-hire case are the employment application by each al- leged discriminatee, the refusal to hire such, a showing that each was or might be expected to be a union sup- porter or sympathizer, and further showings that the em- ployer knew or suspected such sympathy or support, maintained an animus gainst it, and refused to hire the applicant because of such animus." Big E's Foodland, 242 NLRB 963, 968 (1979); Hoboken Shipyards, 275 NLRB 1507 (1985). Of the six alleged discriminatees, only Johnson had union activities that distinguished him from other job ap- plicants. The other alleged discriminatees did not stand out from other bargaining unit employees hired by Re- spondent. During the period of over 7 years in which Colbert and Ferguson dealt with Johnson as shop stew- ard, there is no evidence that either supervisor harbored any animus against Johnson because of his union or stew- ard activities. The General Counsel produced some evi- dence that the supervisors disputed the merits of certain grievances, particularly the question of the Company's obligation to furnish boots. However, there is no evi- dence that the supervisors did not amicably resolve such disputes. There was no evidence of any subsequent animus or hard feelings. Under the circumstances, the evidence tends more to support a finding of a harmoni- ous relationship between the supervisors and the Union than the union animus argued by the General Counsel. Furthermore, prior to hiring any employees, Respond- ent voluntarily recognized the Union. In hiring employ- ees, Respondent gave preference to its predecessors' em- ployees represented by the Union.5 Respondent contin- ued to give preference to such employees even after the Union was decertified. Respondent voluntarily recog- nized the Union representing its operating engineers. In hiring engineers, Respondent hired only former employ- ees of Knudsen's facility. Such conduct by Respondent strongly militates against a finding that Respondent har- bored any animus toward the Union. See Sun Coast Foods, 273 NLRB 1642, 1644 (1985). Based on the lack of animus against union members and supporters by Respondent, in general, and Colbert and Ferguson, in particular, I find that the General Counsel has not established a prima facie case. By failing to establish such union animus, the General Counsel has been unable to show that Respondent failed to hire the applicants because of union animus. Thus, the record evi- dence is insufficient to establish that Respondent failed to hire the six applicants for any reason other than those of- fered at the hearing. Under such circumstances, the burden does not shift to Respondent to justify its refusal to hire the six applicants. See, e.g., NLRB v. Transporta- tion Management Corp., 462 U.S. 393, 399-403 (1983); Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Finally, the General Counsel seeks to buttress this weak case by arguing that Respondent's reasons for not hiring the employees are pretextual. I find no merit in this argument. The reasons for not hiring the employees are subjective and based on Colbert's and Ferguson's ob- servations and evaluations. None of the reasons were shown to be false. Some of the employees actually hired were not outstanding. However, there is no evidence that such evaluations were tainted by union consider- ations. The subjective reasons for not hiring the appli- cants cannot be used to substitute for the failure to estab- lish a prima facie case. None of the employees was so outstanding that the failure to hire would raise an infer- ence of discrimination. Under the facts of this case, I refuse to substitute my judgment for that of Respond- ent's supevisors.e It is not my place to second guess Re- 5 The existing legal principles establish that Respondent was not obli- gated to hire the employees of Knudsen merely because it purchased the assets of that company. Hoboken Shipyards, supra, Howard Johnson Ca v. Hotel Employees. 417 U.S 249 (1974). a See, e.g, Hoboken Shipyards, supra, NLRB v. Ogle Protection Service, 375 F.2d 497 (6th Cir. 1967), cert denied 389 U.S. 843 (1967). CALIFORNIA COOPERATIVE CREAMERY 361 spondent's hiring decisons. This point is best illustrated by the fact that Johnson and Peeples (two full-time em- ployees) were replaced by one part-time employee. CONCLUSIONS OF LAW 1. Respondent California Cooperative Creamery is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 386, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to show by a pre- ponderance of the evidence that Respondent has violated Section 8(a)(3) and (1) of the Act as alleged in the com- plaint. [Recommended Order for dismissal omitted from pub- lication.]