Holo Krome Co.

594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Holo Krome Company and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 376 Case 39-CA-31121 March 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 17, 1988, Administrative Law Judge James F Morton issued the attached decision The General Counsel has filed exceptions and a sup- porting brief and the Respondent has filed cross-ex- ceptions Both parties have also filed answering briefs 2 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 judge granted the Respondent's motion to dismiss the complaint on the ground that the evi- dence offered by the General Counsel was equally susceptible to lawful and unlawful "meanings" and there was an insufficient basis for him to choose the unlawful meaning over the lawful one In find- ing the General Counsel had not established a prima facie case, the judge observed that if the General Counsel had met her burden, he would have found that the Respondents evidence was not persuasive We disagree with the judge's analysis and his conclusion The essential facts are not in dispute The Union conducted an organizing campaign at the Respond- ent's plant in West Hartford, Connecticut, in the spring of 1985 Both Pace and Rutkauski, who had been employed by the Respondent for 11 and 8 years respectively, were active in the campaign They both distributed union literature Pace also at- t We note that the judge incorrectly referred to Subregion 39 as Region 29 and Region 39 2 The Respondent in its answenng brief contends that the General Counsel s exceptions do not comply with Sec 102 46(b)(1) and (c) of the Board s Rules and Regulations in that the General Counsel included ar gument and citation in some exceptions did not state specific grounds for others and did not clearly correlate her supporting brief to the numbered exceptions Although the General Counsels exceptions do not conform in all respects with pertinent sections of the Board s Rules and Regulations they are not so deficient as to warrant disregarding them Barkman Con tracting 276 NLRB 1062 fn 1 (1985) We will however ignore any part of an exception that presents argument or citation We make no determination whether Rutkauski had one or two applica Lions or whether the judge erred in not distinguishing between the former positions held by Pace and Rutkauski because resolution of these matters is not essential to resolution of this case tended a representation case hearing on behalf of the Union and served as the Union's observer at the election In May 1985 the Union lost the elec tion, after which Pace went over to George Camp- bell, then a maintenance mechanic, and offered to shake his hand, saying "no hard feelings " Camp bell replied that he "didn't say that" and then turned and walked away In November 1985, the Respondent had a gener- al layoff that affected Pace and Rutkauski In April 1986 the Union filed a charge (Case 39-CA-3024) alleging that the Respondent had violated the Act by laying off Pace and Rutkauski and by failing to recall them On June 13, 1986, the Regional Direc- tor notified the Union that it was not going to issue a complaint in the matter On Thursday, June 26, 1986, Rutkauski called Daniel Wing, the Respondent's director of industri- al relations, inquiring about any job openings Wing informed him that there were none at the present time Rutkauski replied that he was inter- ested in any hiring the Respondent might be doing Wing admitted knowing that there was an opening for a toolcrib attendant and that it occurred to him that Rutkauski might be interested in the job Nev- ertheless, he told Rutkauski that the Respondent was not hiring On Friday, June 27, Wing received a requisition for two machine setup and operator jobs, i e , a trimmer operator and a centerless grinder operator Wing testified he was in a "rush" to place newspa per ads for these positions as soon as he received the requisition The ads were placed with the newspaper on that same day An ad was also placed for the toolcrib attendant Wing, however, never contacted Rutkauski regarding these open ings even though the Respondent had a practice of hiring by word of mouth These ads ran from Sat- urday, June 28, to Monday, June 30 On June 30, Pace called Wing regarding the openings he had seen advertised Wing advised him to come in and apply any time before 4 30 p in On July 1, 1986, George Campbell, who by then had been promoted to plant manager, told Wing to stop taking applica- tions for the advertised positions because the Re spondent planned to transfer an employee from the second shift to fill the trimmer position and to automate the grinder On Wednesday, July 2, Pace went to the Re- spondent's plant to apply Wing took Pace into his office and asked him what job he was applying for Pace answered the one that was advertised Wing then angrily threw several newspaper advertise- ments on the desk and asked Pace to pick one When Pace picked one of the machine operator po- sitions, Wing told him that the position was already 293 NLRB No 65 HOLO KROME CO taken Pace stated that he was still interested in any other job that might be available Wing then asked Pace what job he was really seeking Pace re sponded that he wanted his old job back Wing told him that that was not possible because the Re- spondent did not have any recall policy The two then argued over whether there were any recall rights Before leaving, Pace stated that he was still interested in any opening Wing testified that Pace displayed "not a very good attitude " Specifically, he referred to Pace's argument about the recall policy 3 On July 3, Rutkauski, who had heard through some friends at the plant of the operator positions, brought in his application for those openings How ever, Wing told him that the Respondent had stopped taking applications for those positions Rutkauski stated that he was still interested in working for the Respondent and to keep him in mind for any future openings At the time of the hearing no new employees had been hired for the machine operator positions At Plant Manager Campbell's urging, the trimmer position was filled by transferring employee John Ovrahim, a trimmer operator on the second shift who had received low evaluations Campbell as- serted that the grinder position was not filled be- cause of plans possibly to automate the function of that machine In August 1986, Respondent hired a former em- ployee, Richard Fecto, as a header operator Fecto had quit the Respondent twice before and had low ratings on his evaluations Neither Pace nor Rut- kauski was considered for that position 4 On September 29, 1986, a complaint was issued in this case On December 31, 1986, Wing wrote to Pace and Rutkauski, stating that there was an opening for a degreaser and that if they were interested they should contact him by January 6, 1987 Rutkauski contacted Wing by January 6 and was hired He began work on January 19 5 Later in January an- other opening came up and Wing attempted to contact Pace by phone several times, but was un- successful On January 28, he sent Pace a certified letter stating that he had tried unsuccessfully to reach him by phone, that there was a position available, and that if Pace was interested he should contact him by January 30 Pace did not do so a In Case 39-CA-3024 the Union had similarly argued that the Re spondent had such a policy 4 Both Pace and Rutkauski had received high ratings on their evalua tions and were good employees The Respondent contended that this was a highly skilled position for which it had trouble hiring and retaining em ployees It claimed that neither Pace nor Rutkauski was qualified 5 The judge incorrectly noted the date that Rutkauski started work as January 17 595 Since January 30, 1987, the Respondent has not considered Pace for any position In April 1987, Pace asked Wing about a possible job vacancy that he had heard about from one of the Respondent's employees Wing informed Pace that the opening was not going to be filled, that Pace's chances of being hired by the Respondent were nil, and that Wing would deny ever having made such a statement On the basis of these facts, the judge reached the conclusion that the best that could be said of the General Counsel's case was that the Respondent knew of the discriminatees' union activities and was aware that they were named in the charge filed by the Union concerning the Respondent's layoffs (Case 39-CA-3024) He found, however, that given the absence of a preexisting policy of preferential recall, there was insufficient basis for him to find an unlawful motive for the failure to hire Pace and Rutkauski The General Counsel argues that the judge failed to consider critical facts in deciding that the evidence was equally sus- ceptible to lawful and unlawful meanings We find merit in this argument and we disagree with the judge's finding that the General Counsel failed to establish a prima facie case The General Counsel submitted significant evi- dence demonstrating the Respondent's animus that was not discussed by the judge It is clear that the Respondent made known its opposition to union representation during the organizing campaign 6 Further, Plant Manager Campbell showed his hos- tility toward the union effort and toward Pace spe- cifically when he refused to shake Pace's hand after the election In addition, Director of Industri al Relations Wing, who handled Pace's and Rut- kauski's requests for work, described Pace as having a bad attitude" about preferential recall (which was also the subject of the Union's charge against the Respondent in Case 39-CA-3024), and showed his irritation at Pace's request for a job by throwing newspaper ads at him and asking him what particular job he wanted Subsequently, when Pace asked Wing about a job opening in April 1987, Wing responded that they were not going to fill the position Wing further stated that Pace's chances of ever returning to the Respondent's employ were "nil" but that he would deny ever having told Pace that 6 Although such statements do not independently violate the Act they can serve as the basis for finding animus Sun Hardware Co 173 NLRB 973 fn 1 (1968) enfd 422 F 2d 1296 (9th Cir 1970) Accord General Battery Corp 241 NLRB 1166 1169 (1979) In finding antiunion animus in this case Member Cracraft does not rely on the fact that the Respondent took the position during the election campaign that it preferred that its employees not be represented by the Union and expressed that view to its employees 596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In addition to the above evidence of animus, there are a number of unexplained inconsistencies or shifts in the Respondent' s treatment of the dis- cnminatees' requests for work When Rutkauski called Wing on June 26, 1986, asking about any job openings that the Respondent might have, Wing said that he had none Wing, in fact, knew of at least one opening (toolcrib attendant), which he ad- mitted Rutkauski might be interested in, but he did not mention it to Rutkauski Furthermore, the Re spondent admitted that it had a policy of hiring by word of mouth, but the following day when Wing received the requisitions for the operator positions, he did not contact Rutkauski, who had j ust ex- pressed a keen interest in returning to the Respond- ent's employ and who, according to the Respond- ent's own records, had been regarded as a very good employee Instead, Wing placed ads in the newspaper for these positions Additionally, when Pace called on June 30, Wing told him to come in and apply, however, when he did so only 2 days later, he was told that the jobs were already filled When Rutkauski came in to apply for the jobs the following day, he was also informed that the jobs were no longer available The Respondent asserted that the jobs were closed because Plant Manager Campbell (who had essentially told Pace he har- bored hard feelings after the election) wanted to fill one by a transfer and the other by automation In sum, the General Counsel presented evidence showing that the Respondent opposed the union effort in which the discriminatees had been promi- nently involved, that Plant Manager Campbell was hostile to Pace after the election, that when Rut kauski contacted Director of Industrial Relations Wing about a job only 2 weeks after the Union's case against the Respondent had been dismissed, Wing told Rutkauski that the Respondent was not hiring, even though he knew of an opening in which Rutkauski might be interested Further, Wing did not contact Rutkauski when Wing re- ceived a job requisition the very next day, even though the Respondent had a practice of hiring by word of mouth When both Pace and Rutkauski re sponded to the Respondent's newspaper ads shortly after they appeared, they were told that the jobs were not available The General Counsel's evi dence also showed that the advertised jobs were not filled because Campbell, who had shown hostil- ity toward Pace, urged that they be filled by trans- fer or be replaced by automation, that Wing dis played anger toward Pace while Pace was apply ing for a job because of Pace's position on prefer ential recall , and that Wing described Pace as having a bad attitude because of his position on recall and later told Pace that his chances of ever returning to the Respondent's employ were nil Contrary to the judge, we do not find that this evi- dence, considered as a whole, is equally susceptible to a finding that the Respondent's motives were unlawful and a finding that they were lawful 7 In- stead, we find that the evidence warrants the infer- ence that the Respondent did not inform the discri minatees about job openings and changed its deci Sion to fill openings because it did not want to hire the employees who, contrary to the Respondent's wishes, had previously attempted to bring in a union and who had been involved in a Board charge against the Respondent advocating a posi- tion on preferential recall that the Respondent op posed We further find that the inference of unlawful motivation is compelled by the Respondent's fail- ure to give a credible explanation of its reasons for refusing to hire Pace and Rutkauski In this regard, we find that the judge erred in finding that the "precise and formalized framework" of Wright Line, 251 NLRB 1083 (1980), enfd 622 F 2d 899 (1st Cir 1981), cert denied 455 US 989 (1982), prevented him from considering the Respondent's asserted reasons for the refusal to hire when deter- mining whether the General Counsel had estab- lished a prima facie case The Board's decision in Wright Line did not disturb the well-established principle that if the stated motive for a discharge (or refusal to hire) is false, the trier of fact may infer that there is another motive that the employer wishes to conceal-an unlawful motive-where the surrounding facts tend to reinforce that inference Id at 1088 fn 12 Shattuck Denn Mining Corp v NLRB, 362 F 2d 466 (9th Cir 1966), Baumgardner Co, 288 NLRB 977 fn 4 (1988), enfd mem 866 F 2d 1411 (3d Cir 1988) We find that the evidence reviewed below is indicative of the falsity of the Respondent's various asserted reasons for not offer- ing jobs to Pace and Rutkauski until after an unfair labor practice complaint had issued concerning them, and we also find that this evidence of falsity reinforces the inference that the Respondent's true reasons were unlawful For these reasons, we find that the General Counsel established a prima facie case that Pace and Rutkauski were denied employment because of their protected activity The burden, therefore, shifted to the Respondent to establish that it would not have hired Pace and Rutkauski even in the ab- sence of their union activities or involvement in Board proceedings In that regard, we agree with ' We note that although the judge made much of the fact that the Re spondent offered jobs when they became available it was only after the Subregion had issued a complaint that the Respondent offered positions to Pace and Rutkauski HOLO KROME CO the judge's finding that the Respondent's reasons for not hiring Pace and Rutkauski are not persua- sive First, the Respondent contended that the ad- vertisements were a mistake Campbell, who is or dinarily in charge of approving such requisitions, did not do so in this instance because his assistant, Tortoro, bypassed him and went directly to Vice President Bononi, who approved the requisitions Bononi, who, if Respondent is to be believed, must have known of Campbell's plan to automate the grinder, nevertheless unquestioningly signed the requisitions that he received from Tortoro Fur ther, it was only after Pace and Rutkauski ex- pressed an interest in returning to the Respondent's employ that Campbell retracted the openings The Respondent's quick change of course raises ques- tions concerning its motive in denying employment to Pace and Rutkauski With respect to Wing's fail- ure to mention a job opening that he thought would interest Rutkauski or his failure to contact Rutkauski when he received the job requisitions, the Respondent offered no explanation Second, the Respondent failed to produce any documentary evidence of a specific plan to auto- mate the grinder or of John Ovrahim's alleged re- quest to transfer 8 It produced a broadly worded memo dated October 21, 1985, that stated that it would be more efficient to use high speed equip- ment, automation, and robotics That memo, how- ever, made no specific reference to the grinder or any other machine, the cost of automation, a time- frame for this procedure, or any other specific in formation Moreover, a request for the necessary equipment was not made until July 16, 1986, 2 weeks after Pace and Rutkauski were denied em- ployment On these grounds, we conclude that the Re spondent failed to meet its burden under Wright Line We therefore find that the Respondent violat ed Section 8(a)(1), (3), and (4) of the Act by failing and refusing to hire its former employees Pace and Rutkauski CONCLUSIONS OF LAW 1 The Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization as defined in Section 2(5) of the Act 3 By refusing to hire Guiseppe (Joe) Pace or John Rutkauski because of their activities on behalf of the Union or because they were named in an 8 The Respondent alleged that Ovrahim had a longstanding request to transfer but did not produce any written evidence of this Nor did it produce any testimony or affidavit from Ovrahim or his supervisor as to this request It is also unexplained why the Respondent would allow an employee who had received poor evaluations to transfer to a more de manding job 597 unfair labor practice charge filed with the Board by the Union, the Respondent has engaged in unfair labor practices violative of Section 8(a)(1), (3), and (4) of the Act 4 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order the Respondent to cease and desist and to take certain affirmative action necessary to effectuate the poli- cies of the Act Specifically, we shall order that the Respondent offer Guiseppe Pace immediate and full employment to the position for which he is qualified and in which he would have been em- ployed but for the discrimination against him, with- out prejudice to his seniority or any other rights and privileges to which he would be entitled absent the discrimination against him We shall also order that the Respondent make Guiseppe Pace whole for any loss of earnings or other benefits from the date he would have been employed but for the dis crimination against him until the date of a proper offer of reemployment9 and that the Respondent snake John Rutkauski whole for any loss of earn- ings or other benefits from the date he would have been employed but for the discrimination against him until the date of his reemployment on January 19, 1989, with backpay to be computed in the manner set forth in F W Woolworth Co , 90 NLRB 289 (1950), and with interest to be comput- ed in the manner set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987) Finally, we shall order that the Respondent remove from its records any references to the unlawful refusal to rehire Guiseppe Pace and John Rutkauski, provide them with written notice of such removal, and inform them that the unlawful refusal to rehire will not be used as a basis for future personnel actions con- cerning them See Sterling Sugars, 261 NLRB 472 (1982) ORDER The National Labor Relations Board orders that the Respondent, Holo-Krome Company, West Hartford, Connecticut, its officers, agents, succes sors, and assigns, shall 1 Cease and desist from 9 The Respondent asserts that Guiseppe Pace has no right to reemploy ment because he effectively declined the Respondents bona fide job offers in late January 1987 and that his right to backpay ended at that time The effect of the Respondents attempts to contact Pace and its written offer of January 28 1987 on the Respondent s liability is a matter best left to the compliance stage of this proceeding 598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) Refusing to hire, reemploy, or otherwise dis criminate against employees because of their engag ing in protected activity (b) Refusing to hire, reemploy, or otherwise dis- criminate against employees because they filed charges with, or otherwise aided and assisted, the National Labor Relations Board in the performance of its functions (c) 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) Offer Guiseppe Pace immediate and full em- ployment to the position for which he is qualified and in which he would have been employed but for the discrimination against him, without preju- dice to his seniority or any other rights and privi leges to which he would be entitled absent the dis- crimination against him, and make Guiseppe Pace and John Rutkauski whole for any loss of earnings and other benefits suffered as a result of the dis crimination against them, in the manner set forth in the remedy section of this decision (b) Remove from its files any reference to the unlawful refusal to hire Guiseppe Pace and John Rutkauski and notify the employees in writing that this has been done and that the unlawful refusal to hire will not be used against them in any way (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (d) Post at its West Hartford, Connecticut facili- ty copies of the attached notice marked "Appen dix "10 Copies of the notice, on forms provided by the Regional Director for Region 34, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material 10 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 (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 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 refuse to hire, reemploy, or other- wise discriminate against employees because of their protected activities WE WILL NOT refuse to hire, reemploy, or other- wise discriminate against employees because they file charges with, or otherwise aid and assist, the National Labor Relations Board in the performance of its functions 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 WE WILL offer Guiseppe Pace immediate and full employment to the position for which he is qualified and in which he would have been em ployed but for the discrimination against him, with- out prejudice to his seniority or any other rights and privileges to which he would be entitled absent the discrimination against him and WE WILL make Guiseppe Pace and John Rutkauski whole for any loss of earnings or other benefits they may have suffered because of the discrimination against them, with interest WE WILL remove from our files any reference to the refusal to hire Guiseppe Pace and John Rut- kauski and notify them in writing that this has been done and that evidence of their unlawful refusal to hire will not be used as a basis for future personnel actions concerning them HOLD KROME COMPANY Thomas M Meiklejohn Esq for the General Counsel Fredrick L Dorsey Esq and Burton Kainen Esq (Siegel O Connor Schiff Zangari & Kamen P C), of Hartford Connecticut for Holo Krome Co DECISION STATEMENT OF THE CASE JAMES F MORTON, Administrative Law Judge The issues are whether Holo Krome Co (Respondent) in vio lation of Section 8(a)(1) (3), and (4) of the National Labor Relations Act, refused to employ Guiseppe (Joe) HOLO KROME CO Pace and John Rutkauski on and since 1 July 1986 be cause of their activities on behalf of International Union, United Automobile, Aerospace and Agricultural Imple ment Workers of America (UAW) Local 376 (the Union) and also because the Union had filed an unfair labor practice charge on their behalf 1 On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I JURISDICTION AND LABOR ORGANIZATION STATUS The pleadings establish, and I find, that Respondent's operations annually meet the Board s nonretail standard for the assertion of jurisidiction in this case I also find, based on the pleadings, that the Union is a labor organs zation as defined in Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background Respondent manufactures industrial fastners and relat ed items at its plant in West Hartford, Connecticut Joe Pace began working for Respondent in 1974 and was employed as a maintenance mechanic in early 1985 when the Union was attempting to organize Respond ent's employees John Rutkauski started with Respondent in 1977 and was also employed in early 1985 as a mainte nance mechanic Both Pace and Rutkauski actively sup ported the Union s organizational effort Respondent was aware of their activity, including their handing out union leaflets outside the West Hartford plant In March 1985 the Union filed a petition in Case 39-RC-589 for an elec tion among the approximately 170 production and main tenance employees of Respondent at that location Pace, at the Union's behest attended the hearing held in that representation case by the Board s Office in Hartford In the ensuing campaign Respondent expressed to its employees its preference that they not select the Union as their collective bargaining representative Respondent did not seek, by any act that would interfere with, re strain, or coerce its employees as to their rights under Section 7 of the Act to influence their choice ' The actual wording of the complaint is that Respondent refused to rehire them because of their activities in behalf of the Union and be cause said employees filed charges with the Board Respondent in its brief would dismiss the 8(a)(4) allegation as no formal amendment to the complaint was made to reflect that the Union had filed the charge on their behalf Respondent also appears to contend that Sec 8(a)(4) does not encompass an allegation of discrimination based on the filing of a charge by another on behalf of an employee I find no merit in either of those contentions The General Counsel stated clearly at the hearing that Respondent was alleged to have violated Sec 8(a)(4) discriminating against Pace and Rutkauski because the Union had filed an unfair labor practice charge naming them as alleged discnminatees Respondent was on full notice of the nature of the alleged wrong and it litigated the matter in full In these circumstances a formal amendment of the com plaint is not essential to a resolution of the issue See Service Merchandise Co 278 NLRB 185 (1986) Nor does Sec 8(a)(4) protect only employees who themselves file charges See Norris Concrete Materials 282 NLRB 289 (1986) 599 Pace served as the Union s observer at the election Respondents present plant manager, George Campbell was then a maintenance mechanic and he was Respond ent s observer The Union lost the election When it was over, Pace offered to shake Campbells hand, saying no hard feelings Campbell then answered that he didn t say that he turned and walked away from Pace In November 1985, Respondent laid off Pace and Rut kauski 2 The Union filed an unfair labor practice charge in Case 39-CA-3024 which charged Respondent with unlawfully laying them off and failing to recall them to work On 13 June 1986, Region 29 issued a letter notify ing the Union that it refused to issue a complaint The Region determined inter alia that no evidence exists that Respondent has a policy of recalling laid off em ployees The incidents that gave rise to the instant case occurred shortly after the issuance of that letter B The Alleged Unlawful Refusals to Employ The General Counsel adduced the following evidence in support of the complaint in this case On 26 June 1986 Rutkauski asked Daniel Wing, Re spondent s director of industrial relations whether Re spondent was doing any hiring Wing replied Not at the present time' Rautkauski then told him that he was in terested in being hired Two days later, ads appeared in local newspapers in which Respondent announced it was looking for production machine operators with setup and operating experience and also for a toolcrib attendant on its second shift Those ads ran on Saturday June 28 to Monday June 30 Wing testified under Section 611(c) of the Federal Rules of Evidence He related that, when he talked to Rutkauski on 26 June he was not aware that Respondent would be advertising on 28 June for machine operators or for a toolcnb attendant The General Counsel does not contend that Respondent unlawfully failed or refused to hire Rutkauski on 26 or 28 June The General Counsel does contend that, by the events in the following week, when taken in overall context, Respondent has been shown to have unlawfully refused to hire Pace and Rat kauski On 30 June Pace telephoned Wing He said that he saw the newspaper ad and told Wing he was interest ed Wing told him that he had to fill out a job applica tion Pace asked what was the best time to do this Wing told him anytime before 4 30' The General Counsel does not allege that by requiring Pace to fill out an application form Respondent placed an unlawful condition as to any right to be considered as a new employee The General Counsel did adduce testi mony that Leo Carrier an employee who quit Respond ent s employ in November 1985, returned in January 1986 without having to fill out an application form There is no other evidence before me On another point, while the General Counsel stipulat ed that Respondent does not have a policy of recalling 2 Respondent s brief states that they were laid off with others as part of a general layoff The Union filed an labor practice charge protesting the layoff then of Pace Rutkauski and one other employee 600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees from layoff, the General Counsel offered testi mony regarding employee Richard Fecto that seemed at first to be challenging the stipulation As it turned out, the General Counsel noted that Fecto was hired in August 1986, although he had received a relatively poor job rating when previously in Respondents employ The General Counsel also sought to show that Fecto had been discharged by Respondent for cause in 1985, the evidence I credit however, is that Fecto had left Re spondent s employ in 1985 of his own volition Further, Fecto did fill out an application form on his being hired in August 1986 His a header operator a highly skilled job and one that Respondent has great difficulty in filling with qualified applicants N The evidence as to employees Carrier and Fecto was offered by the General Counsel as beanng on Respond ent s motive with respect to the following events On 2 July Pace went to Respondents plant, filled out an application form, and told Wing that he was interest ed in the machine setup operators job, one of those ad vertised over the preceding weekend Pace testified that Wing told him that that job was already taken and that there was no job available for him at this moment Wing testified that he told Pace that he had completed his interviews for the two available positions Rutkauski came to Respondents office on 3 July 1986 He filled out two applications-one for the position of trimmer operator and the second for the position of cen terless grinder operator Rutkauski testified that he filled out those two applications because he had been told by friends of his in Respondents employ that Respondent has such openings Wing told him that he had stopped taking applications for those positions The General Counsel does not contend and offered no evidence that Respondent hired employees for any of the positions advertised Pace and Rutkauski told Wing that their applications were filed for any job that opened up On 31 December 1986 Wing wrote to each of them advising that Re spondent had an opening for a degreaser operator on the second shift and that although they had applied for openings on the first shift they should let him know by 6 January 1987 if either was interested Rutkauski applied on 6 January 1987 and was hired The complaint as amended indicates he began work on 17 January 1987 Pace also applied for that job he was told that Rutkauski had already accepted it On 28 January 1987 Wing wrote a certified letter to Pace which stated that he had been unsuccessful in trying to reach Pace by telephone concerning a job op portunity for which he was qualified and which request ed Pace to contact Wing by 30 January if he has any in terest Pace testified that his wife told him that Wing had telephoned and would call again In order to explain why he did not respond to Wing's letter of 30 January Pace related that he took leave from his new job with another employer and that he had gone all over Canada for a vacation without his wife and son I find Pace s explanation fanciful and do not accept it as being offered seriously If it was I reject it as incredible It seemed to me to be an oblique effort on Pace s part to show his disdain for the formal manner with which Re spondent was dealing with him after 11 years service The parties stipulated at the outset of the heanng that since about 30 January 1987 Respondent has not consid ered Pace for any position of employment notwithstand ing that it has job openings for which he was qualified Related to that stipulation is Pace s testimony that in April 1987 he was told by Wing at a bowling alley that his chances of ever being hired by Respondent are nil and that Wing would deny ever having told this to Pace Pace testified that he had asked Wing if Respondent was going to hire a replacement for an employee who was leaving Respondents employ in mid April, and that Wing told him that Respondent was not going to fill that job The complaint before me does not allege that Re spondent since about 1 April 1987 unlawfully failed or refused to consider Pace for employment C Analysis The General Counsel has the burden of making a prima facie showing sufficient to support the inference that conduct engaged in by an employee and protected by the Act was a motivating factor in an employer s decision, which adversely affected that employee Wright Line 251 NLRB 1083 1089 (1980) The Board there went on to state that once the General Counsel has es tablished a prima facie case, burden will shift to the em ployer to demonstrate that the same action would have taken place even in the absence of the protected con duct Finally, the Board, in Wright Line, observed that this more precise and formalized framework will serve to prescribe the necessary clarification of [its] desired process while continuing to advance the fundamental purposes and objectives of the Act This allocation of the burden of proof was held clearly reasonable See NLRB v Transportation Management Corp 462 U S 393 (1983) In Wright Line the Board stated it was appropriate to set forth there a test of causation for cases alleging viola tions of Section 8(a)(3) of the Act In Shell Ray Mining 286 NLRB 466 (1987) the Board applied the Wright Line test in deciding whether the employer there had violated Section 8(a)(4) of the Act In applying this test the Board has held that where the proffered evidence is equally susceptible to two dif ferent meanings one lawful and the other unlawful and where the record as a whole provides an insufficient basis to choose the unlawful meaning over the lawful meaning, the General Counsel will not have met her burden of establishing a prima facie case See Pullman Power Products Corp 275 NLRB 765 (1985) In the case before me the protected activities of Pace and Rutkauski in early 1985 were known to Respondent It engaged in no lawful acts then toward them or anyone else Its layoff of Pace and Rutkauski in November 1985 was motivated solely by economic considerations It ob viously was aware that the Union had named them in an unfair labor practice charge which protested their layoff along with that of at least one more employee It did not thereafter engage in any conduct independently coercive of employee rights under Section 7 The question before me is whether the General Counsel has established prima HOLO KROME CO facie a causal nexus between the protected activities of Pace and Rutkauski in early 1985 (and also between their being named in the unfair labor practice charge which was dismissed on 13 June 1986) and their not being hired in early July 1986 3 The General Counsels brief asserts that Pace was also engaged in protected activity on 2 July 1986, when he restated the Unions view found by Region 39 to be without meet in its letter dismissing the Union s unfair labor practice charge that Respondent had a policy of re calling laid off employees Pace s testimony makes clear that the discussion on recall rights took place after he was told that there was no longer an opening The evidence adduced in the General Counsels case in chief discloses that, when there was a job opening for which Pace or Rutkauski was qualified and that job was actively filled, both were offered the job Rutkauski ac cepted it In January and February 1987 Wing made re peated efforts to reach Pace to offer him a job Pace did not bother to respond to any of those efforts The best that can be said of the General Counsel s case in chief is that Respondent advertised openings in late June and did not hire either Pace or Rutkauski for them If they had had preferential recall rights under a preexisting policy, that might have been enough to warrant a bare inference that they were not hired because of activities protected by the Act It may be, however, that some evidence of disparate treatment would also be needed and there was none Cf Enterprise Aggregates Corp, 276 NLRB 71 (1985) The evidence offered as to employee Leo Carri er s rehiring is too inconclusive to show clear disparate treatment 3 The General Counsel s brief asserts that Pace was also engaged in protected activity on 2 July 1986 when he restated the Union s view found by Region 39 to be without merit in its letter dismissing the Union s unfair labor practice charge that Respondent had a policy of re calling laid off employees Pace s testimony makes clear that the discus sion on recall rights took place after he was told that there was no longer an opening 601 At best, the evidence offered by the General Counsel is equally susceptible to meanings, both lawful and un lawful and there is an insufficient basis for me to choose the unlawful meaning or motive I shall therefore consid er Respondents motion to dismiss and grant it as the General Counsel has not here met the burden imposed on her under Wright Line 4 CONCLUSIONS OF LAW 1 Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization as defined in Sec tion 2(5) of the Act 3 The General Counsel has failed to establish prima facie that Respondent failed or refused to hire Guiseppe (Joe) Pace or John Rutkauski on about 2 or 3 July 1986, because of their activities on behalf of the Union or be cause they were named in an unfair labor practice charge filed with the Board by the Union and thus the evidence offered by the General Counsel is insufficient to establish that Respondent engaged in unfair labor practices viola tive of Section 8(a)(1), (3), or (4) of the Act as alleged [Recommended Order for dismissal omitted from pub lication ] 4 Had the General Counsel met her burden I would be disposed to find that Respondent had not affirmatively rebutted it If it be said that the approach used in deciding this case may be rigid it is nonetheless within the precise and formalized framework advocated in Wright Line supra See also John J Hudson Inc 275 NLRB 874 875 ( 1985) Paten thetically I should note that the evidence offered by Respondent in its case in support of its explanation for not hiring Pace or Rutkauski in July 1986 was not very persuasive The relevant testimony is not in dis pute except perhaps for Plant Manager Campbells testimony that he dis ciplined Foreman Tortora for bypassing him Campbell s account is not credible Initially he gave me the impression that he had disciplined Tor tora severely When asked about it he said in a tone that conveyed that he had taken draconian measures against Tortora that he did not care to comment on it at the time Later he testified he orally reprimanded Tor tora I would find that he did not