F & E Erection Co.

F & E ERECTION CO F & E Erection Company and Larry Arnold Slone Case 9-CA-24077 January 19, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On January 22, 1988, Administrative Law Judge Richard L Denison issued the attached decision The Respondent filed exceptions and a supporting 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 brief and has decided to affirm the judge's rulings, findings, I and conclusions as modified and to adopt the recom- mended Order The judge found, and we agree, that the Re- spondent unlawfully refused to hire Larry Slone because it believed or suspected that Slone was a friend or associate of employees Estep and Oxley, whom the Respondent viewed as union activists and troublemakers We do not, however, agree with all the judge's reasoning in this matter On the basis of the judge's crediting of the testi- mony, to which no exceptions have been filed, the judge found that the General Counsel established a prima facie case of unlawful discrimination against Slone Thus, he found that Slone passed the weld ing test with a rating of "fair" from Welding Su- pervisor Zeigenfuse, and was subsequently asked by the Respondent to file an employment applica- 587 tion, on which Slone listed Oxley as a personal ref erence Further, the judge found the Respondent did not hire Slone, at least in part, because Zeigen fuse recommended against hiring Slone 2 Finally, the judge found that Zeigenfuse on two occasions indicated to Oxley and Estep that Slone was not hired because of his friendship with them and be- cause the Respondent viewed Estep and Oxley as troublemakers The Respondent contended, inter alia, that it would not have hired Slone even in the absence of any perceived connection with union activity It argued that all the newly hired welders either had test evaluations superior to Slone's, were entitled to a hiring preference under the collective bargaining agreement, or had welding cards indicating they had previously passed the welding test and had worked for the Respondent, which justified giving them preference Therefore, the Respondent argued, they would have been hired over Slone even in the absence of a belief that Slone was con- nected to Oxley or Estep The judge's appraisal of the Respondent's de- fense concluded that, of the welders hired by the Respondent during the relevant period, three who took the test were entitled to preference, six had better ratings on the test than Slone, and two more who did not take the test and were hired without written comment already had welding cards The judge then determined that, of all the applicants who were hired, three merited no notation by way of evaluation and, therefore, Slone could not neces- sarily be said to have had the poorest evaluation 3 On this ground, he found that the Respondent failed to rebut the General Counsel's case Applicant Source Date of Test Test Evaluation Date of Hire L N Slone Ayer Street District 9/3 9/8 Fair Good 9/22 J Cater Street 9/9 Very Good 9/22 J Capps Street 9/9 Very Good 9/22 J Cagle Street 9/9 Very Good 9/22 J Howell Street 9/9 Good 9/22 J Haygood Street 9/12 Good 9/22 R Grooms Street 9/12 Very Good 9/22 B Tucker Street Card 9/22 J Terry 9/12 Very Good D Eakin Street Card 9/24 C Shepard District 9/24 9/29 J Mullins District 9/25 10/13 A Camp 10/20 Passed S Warner 10/21 Passed Did not want job ' The Respondent has not excepted to the judge s credibility resolu tions 2 According to Job Superintendent Parsons when making hiring deci sions he particularly relied on Zeigenfuse s recommendations as was the case in which Zeigenfuse recommended against hiring Michael Spriggs a former vocational school teacher who passed the welding test Zeigen fuse admitted not linking Spriggs and using his influence to persuade Par sons not to hire Spriggs 9 The judge s analysis is based on the following information contained in the Respondents employment and welding test rosters 292 NLRB No 60 588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Respondent argues that the judge erred in his analysis of the notations concerning the hired welders. It acknowledges that four of those hired had no notation; however, two of them were enti- tled to preference under the collective-bargaining agreement, and the other two already possessed welding cards. Thus, these applicants had attributes which placed them ahead of Slone. The record supports the Respondent's conten- tions. Nine applicants who took the welding test were hired. Of those nine, only C. Shepard and J. Mullins had no notation of evaluation on the test. Both Shepard and Mullins, however, were entitled to preference under the collective-bargaining agreement. Two other applicants, D. Eakin and B. Tucker, were hired with no notation of evaluation. However, neither Eakin nor Tucker took the test because they possessed welding cards; therefore, there was nothing to note by way of evaluation. Accordingly, we find that the Respondent has cor- rectly demonstrated that these four employees had qualifications which placed them ahead of Slone. Notwithstanding that conclusion, we find that the Respondent failed to carry its burden, under Wright Line,4 of showing that it would not have hired Slone in any event. Essentially, the Respond- ent urges that its hiring system is based on rigorous and unvarying objective factors such that Slone's attainment of only a "fair" rating on the welding test doomed his chance to be hired. The Respond- ent's own witnesses, however, destroy any such impression. The testimony of Project Superintendent Par- sons, Welding Supervisor Zeigenfuse, and Sandy Bassham, one of the Respondent's secretaries, re- veals a major subjective element in the Respond- ent's hiring process. Sandy Bassham, who was gen- erally credited by the judge and who was one of the Respondent's secretaries directly responsible for ministerial acts in the hiring process, testified that most applicants who passed the welding test were given applications to fill out immediately thereafter, and that applications were mailed to those few who left the site before being given an application. She emphasized, however, that Project Superintendent Parsons had the authority to in- struct her as to who was worthy of receiving an 4 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB Y. Transportation Manage- ment Corp., 462 U.S. 393 (1983). application. Project Superintendent Parsons, after being pressed to explain what objective basis, if any, he used for deciding whether to ask an appli- cant to fill out an application, finally conceded that it was "not based on any factor." In answer to whether it was just "whim," Parsons replied "maybe." The departure from a strict reliance on objective factors is further emphasized by the testi- mony of Welding Supervisor Zeigenfuse, who stated that he had recommended that Parsons not hire Michael Spriggs, a former vocational school teacher who passed the welding test, on the basis of his subjective evaluation of Spriggs' attitude. The failure to rely strictly on objective factors is also evident in the Respondent's welding test and employment rosters. Thus, for example, there is no explanation in the record why, of persons tested during the period September 3 through 21 (the period on which the Respondent focuses in its brief), an applicant listed as "J. Terry," who was rated "Very Good," was not hired, while appli- cants listed as "J. Howell" and "J. Haygood," who were rated only as "Good," were. Similarly, there is no explanation why an applicant listed as "S. Warner," who, like Slone, merely "passed" the ex- amination, was apparently offered a job but (lid not accept it. Furthermore, the. testimony of the Respondent's witnesses concerning the role of written job appli- cations in the hiring process similarly presented a confusing picture, suggesting both that sentiments of Project Superintendent Parsons not recorded on any of the Respondent's records could well play a part in the process and that the Respondent sought at the hearing to misrepresent the circumstances under which Slone was given an application. As noted earlier, Sandy Bassham testified that most applicants who passed the welding test were given applications to fill out immediately thereaf- ter, that applications were mailed to those who left the site before being given an application, and that Parsons had the authority to instruct her as to who should receive an application. She also testified that the applications served the purpose of allow- ing the Respondent to check the references (both job references and personal references) of qualified candidates and that it was "standard practice" to check out references listed on the form. The cred- ited testimony of Larry Slone and his wife that a secretary from the Respondent's office called F & E ERECTION CO 589 Slone's home to announce that she was mailing out an application which Slone should return promptly is consistent with Bassham's testimony In contrast to Bassham, Project Superintendent Parsons testified that applications were not given out on a regular basis to those who passed the ex amination and that some applicants might not even fill out an application until after they had been hired Both Parsons and his wife, Susan, who also worked as a secretary for the Respondent, gave misleading testimony aimed at suggesting that it was a mystery how Slone could have received an application The judge concluded that Susan Par sons, who answered, "Not that I can remember," in response to the question whether she had talked to Slone's wife, actually had made that call and was not being candid about it in her testimony The picture given by the Respondent's evidence, therefore, suggests both that the hiring system was not so highly calibrated and objective as to dictate that Slone would not have been hired after receiv- ing the `fair" rating and that the Respondent pre sented misleading testimony about its application procedure and its handling of Slone's application in particular Accordingly, we find that, despite the Respondent's showing that applicants actually hired during the relevant period had qual'fications which objectively would place them ahead of Slone, the Respondent failed to prove that, even absent unlawful motivation, it would not have hired Slone 5 Its refusal to hire him is therefore in violation of Section 8(a)(1) and (3) of the Act Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 US 989 (1982), see also Atlas Corp, 256 NLRB 91, 99 (1981) (after the General Counsel has established a prima facie case and the burden of proof has shift ed, the respondent does not meet its burden if the 8 As noted above once the General Counsel has made out a puma facie case that unlawful motives were a factor the Respondent bears the burden of showing that even in the absence of antiunion considerations the refusal to hire would have occurred in any event for valid rea sons NLRB Y Transportation Management Corp supra 462 U S at 400 (emphasis added) It is for that reason that the consistency of the Re spondent s hiring system is properly scrutinized here The Respondent placed its system in question by asserting among other things that its nondiscriminatory reasons for hiring applicants other than Slone were their ratings on the welding test These ratings can support the Respond ent s claim that Slone would not have been hired in any event only if the Respondent shows that the ratings actually determine the ranking of ap plicants for hiring If on the other hand the evidence shows (as it does here) that the Respondent does not simply rank applicants on the basis of their ratings and hire them accordingly but instead allows the whim or personal feelings of supervisors to determine whether an applicant who passes the test is asked to submit an application for hire then the Re spondent has failed to establish its Wright Line defense that Slone would not have been hired under the normal operation of its hiring system It is because the Respondent argues that the rating system controls here that it must explain for example why it did not hire Michael Spriggs and why it hired applicants who were rated good before applicants rated very good evidence on the respondent's defense does not pre ponderate in favor of either party) 6 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, F & E Erec tion Company, Holden, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Order s Member Cracraft agrees with her colleagues that the Respondent vio lated Sec 8(a)(3) and (1) of the Act by refusing to hire Slone She does so for the following reasons She agrees with the judge that the General Counsel established a strong prima facie case of unlawful discrimination against Slone Thus under Wright Line the burden shifted to the Re spondent to show that it would not have hired Slone even in the absence of any perceived connection with union activity The Respondent has shown nondiscriminatory reasons for hiring all applicants before Slone with the exception of S Warner who merely passed the welding test The record is inconclusive as to whether Warner was offered a job by the Respondent The Respondents records introduced by the General Counsel indicate only that Warner Did not want job Given the ambi gutty in the evidence it was the Respondents burden to show that Warner was not offered a job Absent such a showing any ambiguity must be resolved against the Respondent Resolving this ambiguity against the Respondent it appears that Warner was offered a job and Slone was not The Respondent has failed to explain why Under Wright Line the Respondent has the burden of clarifying any ambiguity in the evidence in order to rebut the General Counsels prima facie case The Respondent here has not met that burden Thus the Respondent failed to establish that it would not have hired Slone even in the absence of his perceived connection with union activity Accordingly the Respondent violated Sec 8(a)(3) and (1) by failing to hire him Gorey Edward Lindsay Esq, for the General Counsel Roger A Wolfe and Larry W Blalock Esqs (Jackson Kelly Holt & O Farrell) of Charleston West Virginia for the Respondent DECISION STATEMENT OF THE CASE RICHARD L DENISON Administrative Law Judge This case was heard in Charleston West Virginia on 16 17 and 18 June 1987 The charge in Case 9-CA-24077 was filed on 9 March 1987 by Larry Arnold Slone an individual The complaint, issued 24 April 1987 alleges that F & E Erection Company the Respondent, violated Section 8(a)(1) and (3) of the Act by refusing to hire the Charging Party for employment at the Respondent s job site at Holden West Virginia on or about 8 September 1986 in order to discourage employees from engaging in union or protected concerted activities Alleged also as a threat in violation of Section 8(a)(1) of the Act is a statement by one of Respondents supervisors to employ ees concerning the reason Slone was not hired The Respondents answer denies the allegations of unfair labor practices alleged in the complaint, and as serts an affirmative defense that the charge is barred by the 6 month limitation period specified in Section 10(b) of the Act On the entire record in the case including my evaluation of the 703 page transcript over 100 pages 590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of exhibits, consideration of the briefs, and observation of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION Based on the allegations in paragraphs 2(a), (b), and (c) and 3, respectively, of the complaint, admitted by the Respondent's answer, I find that the Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; and that the United Mine Workers of America is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. II. SUPERVISORY AND AGENCY STATUS Based on the allegations of paragraph 4 of the com- plaint, admitted in the Respondent's answer, I find that the Respondent's job superintendent, Nick Parsons, and its welding technician/supervisor, Eugene Zeigenfuse, are supervisors of the Respondent within the meaning of Section 2(11) of the Act, and agents of Respondent within the meaning of Section 2(13) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Since May 1986, Respondent has been erecting a huge electrically powered dragline, worth over $20 million, at the Hobet Mining Company's No. 7 mine near Holden, West Virginia. At the time of the hearing in this matter, according to F & E's project superintendent, Maron "Nick" Parsons, completion wa:; expected in mid-July 1987. Since the manufacturer of the dragline, Marion Power Shovel, a division of Dresser Industries, warrants this machinery, Marion has at all times maintained a field welding specialist (otherwise known as a welding techni- cian or manufacturing engineer) on the jobsite with power to ensure proper assembly by F & E. This author- ity includes, in relevant part, the final approval or disap- proval of the results of standardized welding tests taken by applicants for employment as welders with F & E on the project. On 11 June 1986, Respondent and the United Mine Workers of America entered into a collective-bargaining agreement for the Hobet No. 7 construction project. Among the many provisions of the lengthy contract are relevant clauses requiring work to be performed "by members of the Union to the extent permitted by law," prohibiting supervisors from performing unit work, gov- erning the filing and processing of grievances, and speci- fying priorities controlling the recall rights of laid-off employees through a panel system. As the Hobet No. 7 project began, Respondent pur- sued its plan to hire approximately 40 welders, along with other classifications, e.g., ironworkers, laborers, millworkers, pipefitters, electricians, and painters. Two types of welders were employed. Class "A" welders are those qualified to perform X-ray welding. Class "B" welders are qualified to perform other welding. To be el- igible for consideration for employment on the project, a welder either had to pass the standard welding test, ad- ministered by Eugene Zeigenfuse , F & E's welding su- pervisor, and Ayward Hearl "Harold" Oxley, a Class "A" union welder with 25 years' experience, or produce .a card certifying that the test had previously been passed . Respondent's records show that between 3 June and 21 October 1986, 137 applicants took the welding test . One of the applicants who passed the test, Larry Arnold Slone, was not hired and, as a result on 9 March 1987, filed with the Board the charging Case 9-CA- 24077, which gave rise to this proceeding.' B. Respondent's Failure and Refusal to Hire Larry Slone It is the General Counsel's theory that Larry Slone was not hired by Respondent because F & E's supervi- sion believed or suspected that Slone was a friend or as- sociate of Omer Estep and Ayward Oxley, F & E em- ployees whom Respondent allegedly viewed as employee activists and troublemakers. Omer Estep, a welder of some 30 years' experience, was hired on 9 June 1986 by F & E as a Class "A" welder. He worked on the Hobet No. 7 project until laid off on 21 March 1987. Estep's long experience as a union welder and his employment early in the project resulted in younger and less experienced employees consulting him about what could and could not be done on the project under the collective-bargaining agreement. Ac- cording to Estep, his dispensing advice was resented by Assistant Project Superintendent Dalton Allison, who began calling Estep `old man troublemaker.2 On 14 August 1986, Estep filed a grievance complaining that he had observed Allison performing bargaining unit work on 13 August.3 Allison claimed that he had only assisted another employee for 1 or 2 minutes, but Estep insisted Allison worked for 15 or 20 minutes. Although Estep could not remember in detail the entire conversation he had with Allison about the grievance, Estep insisted that Allison told him he did not like having the grievance filed against him.4 The grievance was settled at step 3 on ' In its answer the Respondent asserted as an affirmative defense that this proceeding is barred by the 6-month limitation period contained in Sec. 10(b) of the Act, because the complaint alleges that the refusal to hire Slone occurred on or about 8 September 1986, and the instant charge was filed on 9 March 1986. Because it is well settled that the run- ning of the 10(b) period does not begin until the person adversely affect- ed acquires knowledge of the facts which give rise to the violation and because it is clear that Slone did not learn he would not be hired until on or about 22 or 23 September, when other welders were hired, I find this defense is without merit. Burgess Construction Corp., 227 NLRB 765, 766 (1977). 2 It was stipulated that Allison is a supervisor within the meaning of Sec. 2(11) of the Act. 3 Jerry Kerns, president of UMWA Construction Local 1582 that rep- resents Hobet No. 7 employees, testified that Estep's grievance was one of two grievances filed and settled during the course of a harmonious re- lationship with F & E on this project. ° Estep is corroborated by the testimony of welder Nolan Ayer, that on another occasion when Allison and the electrician foreman were per- forming unit work, he heard Allison say "We'd better quit. Here comes that union rathole," as Estep approached . Ayer's testimony was not chal- lenged by cross-examination. Allison did not testify. Estep and Ayer are credited. F & E ERECTION CO 2 September, and the settlement became effective on 8 September 1986 Respondents records show that Larry Slone was the 109th employee to take the welding test on the Hobet No 7 project Arrangements to take the test were made by Jerry Kerns, president of UMW Construction Local 1582 The test was administered by Oxley under Zeigen fuse s supervision shortly after Slone s arrival on the jobsite at 7 30 a in on 3 September 1986 The test con sisted of four phases flat wire, vertical wire, vertical stick, and overhead stick In each phase the applicant welds together two metal bars, producing four test plates or coupons A central sample is then cut from each test plate Each coupon, stenciled with the appli cant s test number, is then bent 90 degrees to the weld, and cleaned or dressed with a file or grinding wheel, a process designed to reveal flaws or fractures 5 The test coupons are first evaluated by Zeigenfuse and obvious failures are eliminated If in Zeigenfuse s judgment the test results appear to pass he or Oxley take the coupons to the Marion representative for examination and final determination Once approved by the Marion representa tive, F & E may consider hiring the applicant in accord ance with the priorities specified in the collective bar gaining agreement First precedence is given to laid off F & E employees registered on the company panel nation wide Next, laid off employees of other employers regis tered on the local UMW district panel are considered Thereafter Superintendent Parsons is free to hire off the street Because panel registrations are constantly changing, these considerations require meticulous atten tion when the employer is hiring Larry Slone had never previously been employed by F & E and was not a UMW member at the time he took the welding test It is undisputed that, despite a small fracture in the flat wire test weld Larry Slone s coupons were approved by 5 During the hearing much time was devoted by counsel for the Gen eral Counsel to litigating the tangential issue of whether Welding Super visor Zeigenfuse assisted some applicants in passing the welding test by improving the appearance of their test welds before a pass or fail deter mination In his testimony Omer Estep defined dressing up or dress ing down as synonymous terms used to describe a process in which flaws in test welds are supposedly eliminated or made invisible by filing grinding and hammering In this context Estep claimed he had seen Zei genfuse dress the test weld of applicant Nolan Ayer and that Zeigenfuse had told him he had dressed down the test welds of two other applicants However Oxley testified he had never seen Zeigenfuse dress down a test weld and Ayer testified Zeigenfuse had filed one of his test welds to assist him in inspecting a small flaw Finally James E Shuck the Marion field welding specialist onsite at the time of the hearing credibly testified that dressing up or down was a technique using filing or grinding to reveal possible flaws in test weld coupons He distinguished dressing from peening a form of cheating whereby a peening hammer is used to beat the edges of a defect together to attempt to conceal the flaw Ac cording to Shuck peening is quite easy to detect when the test cou pons are examined and he has never seen any peened test coupons on the Hobet No 7 job Shuck s independent status on the jobsite and his candid answers to questions at the hearing convinced me of his objectivity I find and conclude in the light of Shuck s testimony that any dressing up or down engaged in by Zeigenfuse was for the purpose of making his preliminary examination for flaws and not for improper purposes More over there is not a scintilla of evidence that any of the alleged improper improvement of test weld samples was directed toward excluding Larry Slone from Respondents employment Thus I also conclude that this issue is immaterial to the question of whether or not Slone was the victim of unlawful discrimination 591 the Marion representative, and thus he passed the test 6 When so informed by Oxley Slone asked when to report for work Oxley said he did not know, and took Slone to the construction trailer, where Oxley inquired Slone heard Parsons tell Oxley that he would be in touch with Slone As they left the trailer, Oxley told Slone that the Company would be in touch with him and that he would probably begin the following Monday' On 10 or 11 September, Susan Slone received a phone call from a person who said she was a secretary at F & E The secretary, who did not identify herself by name, stated that they were mailing Larry Slone an application that he should fill out and return promptly to the Com pany because he would probably be starting work that Monday or the following Monday Larry Slone complet ed and returned the application, dated 13 September, as instructed Slone listed Harold Oxley as the first of three personal references on his application 8 Larry Slone was never hired by Respondent During the week of 22 September, nine new welders began work for F & E When Oxley noticed that Slone was not among them, he went to Parsons office and, in the pres ence of Zeigenfuse, asked if Slone was going to be hired Parsons replied that they were not going to hire Sloan because the other applicants had better looking welding tests Zeigenfuse agreed Oxley stated that he did not be lieve that and left the office 9 8 Slone described the fracture as probably one eighth inch or so- maybe a bit bigger or a little smaller Oxley testified it was three thirty seconds of an inch A one eighth inch fracture is considered to have failed Parsons denied ever talking directly with Slone or giving him any as surances and indeed there is no evidence that there was any conversa tion between Slone and Parsons Oxley testified that Parsons stated that Slone would probably begin the following Monday and that they would be in touch with him Slone testified that he heard Parsons say to Oxley only that they would be in touch with Slone not that the following Monday would be the probable starting date 8 During the time period in issue Parsons employed two secretaries Their duties included checking employees references and informing em ployees by telephone that they had been hired and when to report to begin work Called as a witness for the Respondent Sandy Bassham cre dibly testified that such calls are made only on specific instructions from Parsons after a decision to hire has been made Bassham denied that she had never been told to notify Slone that he had been hired but that it was possible Mrs Susan Slone had been told that the Company was sending an application to be completed and returned She denied having talked to either Slone or his wife According to Bassham the chief pur pose of obtaining an application is to check the applicants references She admitted knowing that Slone had applied but denied that she had checked his references or that Parsons had ever told her Slone was hired The other secretary is Susan Parsons wife of Maxon Nick Parsons who serves as office manager but those duties are essentially the same as her counterpart Accordingly when instructed by her husband she like wise makes calls to notify applicants that they have been hired and when to report Susan Parsons was indefinite in her answers to crucial ques tions She repeatedly answered Not that I remember when asked if she had a telephone conversation with Susan Slone or if Maron had told her Slone was hired or if she had been asked to check Slone s references Clearly someone in accordance with Respondents acknowledged proce dures asked Slone to return a completed application I am persuaded that she was being evasive not candid in her testimony and that it was most probably she who called Susan Slone whose account I credit 9 Parsons gave a similar account of this conversation Zeigenfuse denied ever talking to Oxley about why Slone was not hired but did not specifically deny being present in Parsons office at this time 592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD About the last week of September or the first week of October, according to Oxley and Omer Estep Zeigen fuse approached them while they were working at the boom table Estep asked why the Company would not hire Larry Slone Zeigenfuse answered Well, they re not going to Between me and you and Hearl you all are considered troublemakers and they re not going to hire him because you filed that grievance Zefgenfuse denied ever talking to either Oxley or Estep about why Slone was not hired, or that he ever discussed Estep s grievance with either Estep or Oxley He denied telling Oxley or Estep that they were trouble makers, or that Estep s grievance had anything to do with his evaluation of Slone On cross examination by Respondent, it was revealed that in his affidavit to the Board Estep omitted any reference to this conversation However, I am satisfied that this omission was an over sight because Oxley fully described the incident in his Board affidavit Thus the testimony of Oxley and Estep concerning this incident are mutually corroborative and are credited Consequently, I find that the Respondent violated Section 8(a)(1) of the Act by threatening that Slone had not been hired because Respondent considered Estep and Oxley troublemakers and because Estep had filed a grievance, as alleged in paragraphs 5 and 7 of the complaint 10 At the end of October Slone called F & E and talked to one of the secretaries He did not obtain her name He asked when he would be hired, and according to Slone she replied, If you passed the test you re the next one to be hired Sometime between the last of September and early November Larry Slone learned from Oxley that F & E had hired other welders and Oxley s opinion concerning why they had not hired Slone On 3 March 1987 Slone completed and signed NLRB charge forms that he had obtained from Union President Kerns The charge was docketed by the Regional Office on 9 March 1987 According to Ayward Oxley and Omer Estep during the last part of February or first week of January 1987 Zeigenfuse had approached them once again and engaged them in conversation concerning Slone Oxley s and Estep s versions are similar Accord ing to Estep, one day around the first of January Zei genfuse approached while he and Oxley were working on the tub Zeigenfuse began by saying Well your buddy done it again Estep responded What do you mean my buddy? Then Zeigenfuse stated that Slone had went to the National Labor on us and filed charges At this point Estep retorted Ziggy let s get one thing straight Slone is not my buddy I've only met him one time Zeigenfuse ended the conversation by answering Well maybe not he s Hear] s buddy then 11 10 I have carefully evaluated this incident in the context of the total circumstances surrounding it and its relationship to the case as a whole in accordance with the requirements of the Board s decision in Rossmore House 269 NLRB 1176 (1984) affil sub nom Hotel Employees Local 11 v NLRB 760 F 2d 1006 (9th Cir 1985) and other applicable Board deci sions in the area of 8(a)(1) conduct 11 Zeigenfuse denied that this conversation ever occurred I do not credit his denial Both Estep and Oxley were far off the mark concerning the estimated date on which this conversation allegedly occurred since Slone s charge was not filed until 9 March Furthermore in this instance neither Estep s Board affidavit of 8 April 1987 nor Oxley s statement con Respondent contends that F & E was unaware of any relationship between Slone Oxley, and Estep, and that there is no evidence that its refusal to hire Slone was motivated by discriminatory reasons because Oxley and Estep had not been engaging in protected activity during the time Slone was on the jobsite Respondent argues that to establish a prima facie case the General Counsel must demonstrate by a preponderance of the evidence that Slone was associated with protected activity that F & E was aware of that association and that this activity was the motivating reason for the refusal to hire Slone Under all the circumstances I find and conclude that the General Counsel has adduced sufficient credible evi dence to establish a prima facie case of unlawful discrim ination against him The Respondent needed and was in the process of testing and hiring, welders for the Hobet No 7 project Slone applied was tested and passed He was not hired at a time when others, tested or considered in close proximity to his testing, were hired Parsons conceded that had Slone been selected, he would have been hired on 22 September Parsons further asserted that in making hiring decisions he relies heavily on the recommendations of his foremen in general and Zeigen fuse in particular Zeigenfuse recommended against hiring Slone He likewise, as I have found based on cred ited testimony told proven employee activists that Slone was not hired because he believed they were trouble makers, thereby supplying evidence of improper moti vation Thus the General Counsel has presented evi dence which, if it cannot be overcome by that of the Re spondent warrants a finding of a violation of the Act In addition to its assertion that F & E s failure and re fusal to hire Slone was free from discriminatory intent the Respondent urges that the Board s decision in Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982), absolves F & E because Slone would not have been hired in any event Respondent argues that once the General Counsel has established a prima facie showing that unlawful motiva tion played a part in the course of action taken, the burden of going forward with evidence shifts to the Re spondent to show that such conduct would have oc curred in the absence of an unlawful motive If in the process the Respondent is able to adduce sufficient evi dence to persuade the trier of fact that a preponderance of evidence no longer exists in favor of the General Counsel a violation has not been established Together with the evidence offered by the Respond ent, which has been discussed in earlier portions of this decision the Respondent also refers to Slone s welding test score and the hiring records in evidence which it claims supports this contention I have carefully ana lyzed this documentary evidence, which I find to be in conclusive and therefore not persuasive These records tams any reference to this alleged conversation Despite these discrepan cies I am persuaded that Estep and Oxley told the truth because Zeigen fuse s remarks are consistent with his earlier conversation with the two men Moreover Estep had been outspoken in favor of hiring local West Virginia employees such as Slone instead of importing welders from other regions thus providing a logical explanation to the reference to Slone as Estep s buddy F & E ERECTION CO show that between 3 September and 21 October 1986 29 welders were tested including Slone Sixteen failed Thirteen passed including Slone, of whom nine were hired Three of these received priority consideration by virtue of their position on the district panel Of the re maining six, five were hired off the street from other F & E jobs with the recommendation of their foreman and one was recommended by his brother, an F & E employ ee These six had been evaluated good or very good by Zeigenfuse in his notebook Two additional employ ees hired, without any written comment, already had cards certifying that they had passed the welding test Of the four employees who passed the test but were not hired, one was rated very good, one refused the ,lob, Slone was rated fair, and the remaining applicant drew no written assessment One further employee not hired was tested on 29 August and evaluated good Of all the applicants Slone was the only one rated fair but three employees hired merited no notation by way of evaluation as did those employees who failed the test Thus, Slone cannot necessarily be said to have had the poorest evaluation as Respondent maintains The main fact in support of Respondent's position, established by an examination of its records, is that Slone was not the only employee who passed the welding test during the period of time in question and was not hired In my view, however, this consideration standing alone, is in sufficient to either rebut the General Counsels prima facie case or demonstrate that Slone would not have been hired absent the set of circumstances that caused Respondent to believe he was associated with protected employee activism To the contrary an analysis of the statistics showing those who were hired and those who were not in the light of Zeigenfuse s notes serves to un derscore the great influence that Zeigenfuse had on the selection process Zeigenfuse testified, for example, that he had previously recommended that Parsons not hire a certain Michael Spriggs a former vocational school teacher who passed the welding test on the basis of his subjective evaluation of Spriggs attitude Thus, Zeigen fuse admitted, in this instance, to using his power to in fluence Parsons to the detriment of an applicant he did not like I am persuaded that this is, likewise exactly what he did in the case of Larry Slone Furthermore, I doubt if Zeigenfuse saw any abuse of his authority or perceived any possible illegality in his role in Respond ent s failure to hire Slone Otherwise he would not have been so candid with Oxley and Estep in discussing the motive behind Respondents action Unfortunately for Respondent it is well established that ignorance of the illegal consequences of a course of conduct does not ab solve Respondent from liability for the wrongful acts of its supervisors and agents Nor can Respondent escape its legal responsibility by the fact that Slone was not actual ly a friend or close associate of Oxley or Estep the em ployees who engaged in protected concerted activity by freely discussing with fellow employees union related matters and by filing a grievance The record shows that the Respondent believed or suspected Slone was associ ated with them, through Zeigenfuse s remarks and through Slone s use of Oxley as a reference on his appli cation filed immediately before Respondent decided not 593 to hire him I therefore find that the Respondent violated Section 8(a)(1) and (3) of the Act by its failure and refus at to hire Larry Slone CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in coin merce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 By threatening employees that because one of them had filed a grievance the Company would not hire Larry Slone, the Respondent violated Section 8(a)(1) of the Act 4 By failing and refusing to hire Larry Slone at the Respondents Hobet No 7 project near Holden, West Virginia, in September 1986, the Respondent violated Section 8(a)(1) and (3) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec tion 2(6) and (7) of the Act 6 The Respondent has not violated the Act in any re spects other than those specifically found THE REMEDY Having found that the Respondent has engaged in cer tarn unfair labor practices, I find it necessary to order that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the poli cies of the Act In his brief, counsel for the General Counsel requests the traditional Board remedy for an unlawful refusal to hire and in addition a visitorial provision authorizing the Board to engage in discovery, if necessary, to moni tor compliance with the Board s order In the circum stances of this case I find the visitorial clause request ed by the General Counsel unnecessary, and it is not in cluded in the remedy Having discriminatorily refused to hire Larry Slone the Respondent will be ordered to offer him immediate employment to a position as a welder or if such pose tions no longer exist to any substantially equivalent pose tion to which he would otherwise be entitled except for the Respondents unlawful refusal to hire him, without prejudice to his seniority or other rights and privileges which would have otherwise accrued to him under the collective bargaining agreement between the Respondent and the Union In addition Respondent shall make Larry Slone whole for all wages lost as a result of the unlawful discrimination directed against him Backpay shall be computed in the manner prescribed in F W Woolworth Co, 90 NLRB 289 (1950) with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) i2 The Respondent will also be required to remove from its files any reference to the refusal to hire Larry Slone and 12 Under New Horizons interest is computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp 231 NLRB 651 (1977) 594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD its espoused reasons for that action; and to post an ap- propriate notice. . On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed13 ORDER The Respondent, F & E Erection Company, Holden, West Virginia, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing and refusing to hire applicants because em- ployees supported the Union or assisted the Union, filed grievances, or engaged in protected concerted activities for the purpose of collective bargaining or other mutual aid or protection. (b) Threatening employees that because an employee had filed a grievance or engaged in other protected con- certed activities, certain job applicants would not be hired. (c) In any like or related manner interfering with, re- straining , or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Larry Slone immediate and full employment to a position as it welder or, if welder's jobs no longer exist, to substantially equivalent employment, without prejudice to any seniority rights, benefits, or other rights and privileges which would have accrued to him under the terms of the collective-bargaining agreement between the Respondent and the Union had the Respondent not discriminated against him. (b) Make Larry Slone whole, with interest, for any loss of earnings or benefits he may have suffered by reason of the unlawful discrimination against him, in the manner set forth in the remedy section of this decision. (c) Remove from its records and files any and all ref- erences to the unlawful refusal to hire Larry Slone and any reasons which have been espoused for that action, and notify Larry Slone, in writing, that this has been done, and that evidence of these actions will not be used as a basis for future personnel actions against him. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Hobet No. 7 project near Holden, West Virginia, copies of the attached notice marked "Appen- dix."14 Copies of this notice, on forms provided by the 13 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 11 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 Regional Director for Region 9, after being signed by Respondent's authorized agent, shall be posted by it im- mediately on receipt for 60 days in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to ensure that these notices are not altered, de- faced, or covered by any other material. If Respondent is no longer engaged in business at the Hobet No. 7 jobsite, it shall mail a signed copy of the notice to each and every employee employed at the facility during Septem- ber and October 1986. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 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 WE WILL NOT fail and refuse to hire job applicants be- cause employees have filed grievances under the terms and conditions of a collective-bargaining agreement be- tween the Company and United Mine Workers of Amer- ica, or any other labor organization. Nor will we refuse to hire them because employees have engaged in lawful activities in support of a union or other concerted activi- ties protected by Act. WE WILL NOT threaten employees that job applicants have not been hired by the Company because they are considered to be troublemakers or because employees have filed grievances. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act, WE WILL offer Larry Arnold Slone immediate em- ployment as a welder or, if no welding positions exist, to any substantially equivalent position to which he would have been entitled absent our unlawful refusal to hire him, without prejudice to seniority, benefits, or other rights which would have accrued to him under the terms and conditions of the collective-bargaining agreement be- tween the Company and the Union. WE WILL also make him whole for any loss of earnings and benefits he may have suffered by reason of our discrimination against him, with interest. WE WILL remove from our files any references to the refusal to hire Larry Arnold Slone in September 1986, and WE WILL notify him that this has been done and that evidence of the unlawful refusal to hire him will not be used as a basis for future personnel actions against him. F & E ERECTION COMPANY