Tyger Construction Co.

TYGER CONSTRUCTION CO. 29 Tyger Construction Company and International Brotherhood of Boilermakers, Iron Ship Build- ers, Blacksmiths, Forgers and Helpers Local Union No. 30, affiliated with International Brotherhood of Boilermakers, Iron Ship Build- ers, Blacksmiths, Forgers, and Helpers. Cases 11-CA-12337 and 11-CA-12338 August 9, 1989 DECISION AND ORDER judge and orders that the Respondent, Tyger Con- struction Company, Spartanburg, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Paris Favors Jr., Esq., for the General Counsel. Walter W. Christy, Esq. (Kullman, Inman, Bee & Down- ing), of New Orleans, Louisiana, for the Respondent. Barry Edwards, of Greensboro, North Carolina, for the Charging Party. BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On August 16, 1988, Administrative Law Judge Philip P. McLeod issued the attached decision. The General Counsel and the Charging Party filed ex- ceptions and supporting briefs. The Respondent filed an answering brief as well as cross-exceptions and a brief in support of the cross-exceptions. 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 as modified, and to adopt the recom- mended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law ' The Charging Party and the Respondent have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative 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 reversing the findings We find it unnecessary to pass on the judge's comment that it is not unlawful for an employer to discriminate against individuals being hired for supervisory positions on the basis of their union membership or senti- ments The judge made the following inadvertent factual errors that we find do not affect his ultimate conclusions In sec. III,B, par. 5, the judge er- roneously stated that the dinner meeting took place in July 1987 rather than in July 1986. In his "Analysis and Conclusions," par. 6, the judge inadvertently used the term "higher" rate when, we infer, he meant "hire" rate In finding that the Respondent violated Sec 8(a)(3) of the Act by re- fusing to hire Markus Walton , we place no reliance on the judge's "suspi- cions" as to what precise words Gaskins and Hart spoke to one another in their discussion of Walton's application . Instead, we find the violation based on the judge's crediting of the independent 8(a)(1) violation which established the Respondent 's knowledge of Walton's union activities; Car- trette's credited testimony of what Hart told Walton about why his appli- cation was rejected ; the discrediting of testimony of Gaskins and Hart that Walton's union activities were not discussed in their conversation, and the lack of evidence that the Respondent had a drug abuse policy, along with Walton's undisputed testimony that he had not used drugs for more than 4 years. Based on the above, we find that the General Counsel made a prima facie case of an 8(a)(3) violation in the Respondent 's refusal to hire Walton and that the Respondent did not meet its burden of show- ing that the refusal to hire would have occurred even in the absence of Walton's union activities. DECISION STATEMENT OF THE CASE PHILIP P. MCLEOD, Administrative Law Judge. I heard this case on September 28, 29, and 30 and October 1, 1987, in Wilmington, North Carolina. The charges which gave rise to the case were filed on April 8 and thereafter amended on May 5 and 14, 1987. An order consolidating cases, complaint and notice of hearing issued on May 22, 1987, which alleges, inter alia, that Tyger Construction Company (Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) by informing job applicants not to disclose their union membership if they secured employment with Respondent, informed job applicants that they would not be hired because they listed only union contractors as former employers, and failed and refused to hire various individuals who are members of International Brother- hood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers, and Helpers Local Union No. 30 (the Union) because of their membership in that organization. Following the close of the trial on October 1, the charges were amended to include the names of various other individuals who allegedly were not hired by Re- spondent because of their membership in the Union. On November 24, 1987, counsel for General Counsel filed a motion to reopen the record and amend the complaint to include the names of those various other individuals. On November 25, 1987, I granted the motion to reopen the record, indefinitely extended the time for filing of briefs, and set a date for additional hearing as necessary. On December 15, 1987, counsel for General Counsel filed another motion to amend the complaint herein in order to add the name of one individual who was inadvertently omitted from the earlier motion. By order dated Decem- ber 28, 1987, I granted counsel for General Counsel's further motion to amend the complaint and, having been informed in a telephone conference call with counsel for General Counsel and counsel for Respondent that they were pursuing the possibility of a stipulation which would avoid the necessity of further hearing, I indefinite- ly postponed further hearing herein. Thereafter, counsel for General Counsel, counsel for Respondent, and a rep- resentative of the Charging Party Union entered into a stipulation in lieu of further hearing herein. Upon receipt of the stipulation, I then set a new date for the filing of briefs. In its answer to the complaint, as amended, Respond- ent admitted certain allegations including the filing and serving of the charge; its status as an employer within 296 NLRB No. 10 30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the meaning of the Act; the status of International Broth- erhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers Local Union No. 30 as a labor or- ganization within the meaning of the Act; and the status of certain individuals as supervisors of Respondent within the meaning of Section 2(11) of the Act. Re- spondent denied having engaged in any conduct which would constitute an unfair labor practice within the meaning of the Act. At the trial, all parties were represented and afforded full opportunity to be heard, to examine and cross-exam- ine witnesses, and to introduce evidence. Following the close of the trial , counsel for General Counsel and Re- spondent both filed timely briefs with me which have been duly considered. Upon the entire record in this case and from my obser- vation of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Tyger Construction Company is a South Carolina cor- poration with headquarters in Spartanburg, South Caroli- na, where it is engaged in business as a general construc- tion contractor. This case involves power plant boilers being constructed by Respondent at Roxboro and South- port, North Carolina. In the course and conduct of its business operations, Respondent annually purchases and receives at its North Carolina projects materials and sup- plies valued in excess of $50,000 directly from points out- side the State of North Carolina. In addition, Respondent annually performs services for customers located outside the State of North Carolina valued in excess of $50,000. Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. LABOR ORGANIZATION International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers Local Union No. 30, affiliated with International Brotherhood of Boil- ermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background In early 1986, Respondent was hired by a company known as Cogentrix to erect cogeneration boiler facilities in Southport and Roxboro, North Carolina. Cogenera- tion is simply a method of generating steam by burning fossil fuels such as coal . The steam is then used in part to produce electricity and in part is captured and sold to nearby manufacturing establishments. Cogeneration is a relatively new form of energy pro- duction. The steam is produced in very large dual-boiler units which take several months to construct and install. Shortly before Respondent was hired to construct the two projects at Southport and Roxboro , three other co- generation projects had reached some stage of comple- tion in the Carolinas at Elizabethtown, Kennonsville, and Lumberton. These other projects had been built by other contractors, however, and the projects at Southport and Roxboro were the first work of this nature undertaken by Respondent. The boilers used in this cogeneration method of steam production are fabricated by Foster Wheeler Limited of Canada. Foster Wheeler provides an erection consultant who is present at the jobsite to represent it and to over- see proper installation of the boilers. Walter J. Morin, who was also the erection consultant on the earlier projects in Elizabethtown, Kennonsville, and Lumberton, was designated to act as the erection consultant on Re- spondent's jobs at Southport and Roxboro. B. Events Predating Startup When the Union learned that Respondent had obtained the contract to erect the boilers at Southport and Rox- boro, it sought and obtained a meeting with Respondent. Robert Shackelford, Local 30 business manager, and Richard Chilton, Local 30 president, met with Marvin Duke, Respondent's director of field operations in Char- lotte, North Carolina. Shackelford asked Duke to sign a prehire collective-bargaining agreement with the Union on behalf of Respondent . Duke declined to enter into such a prehire agreement, preferring instead to hire boil- ermakers and welders in the same manner as other em- ployees.1 Respondent entered into an "exclusive referral agree- ment" with the North Carolina Employment Security Commission (E.S.C.) for it to be the exclusive referral agency for all job applicants at both Southport and Rox- boro. Pursuant to this agreement, any person seeking work at either site was to visit the local E.S.C. office and fill out a job application . These applications were collected by the E.S.C. and forwarded to Respondent on a weekly basis. Under the terms of the agreement between Respond- ent and E.S.C., if an employee hired through E.S.C. was laid off through no fault of his or her own, and would therefore otherwise be eligible to receive unemployment benefits, Respondent's account would not be charged for those benefits. Accordingly, this agreement offered a substantial financial attraction to Respondent . Jennifer Stewart, an employee of the North Carolina E.S.C. at its Bolivia office was called as a witness by counsel for General Counsel. Stewart testified Respondent informed E.S.C. the employer complement would reach approxi- mately 250 employees, including approximately 80 boil- ermakers. Stewart testified that well over 5000 applica- tions were received and referred to Respondent. In late July 1986, William G. Loflin and his brother Donald Loflin, both members of the Union, sought em- ployment at Respondent's Southport job as general fore- man and foreman, respectively . Donald Loflin has been a member of the Union since 1972, while William Loflin has been a member since 1974. Both have worked in the ' Counsel for General Counsel contends that Respondent's refusal to sign a preh,re contract with the Union is evidence of unlawful union animus-an argument which I find patently absurd. TYGER CONSTRUCTION CO. 31 boilermaker trade several years . Prior to July 1986, both Loflins had been working on the cogeneration project at Lumberton, North Carolina, mentioned earlier, which was being erected by a union contractor . Walter Morin was the Foster Wheeler erection consultant representa- tive on this project at Lumberton, and he had worked closely with William Loflin as general foreman and Donald Loflin as foreman . It was Morin who suggested that the Loflins seek work with Respondent for the Southport project. Ground clearing and other site preparation work began at Southport during May 1986. Heavy construc- tion was scheduled to begin sometime in August. John Griffiths, Respondent's project manager at Southport, ar- ranged a dinner meeting with Morin for July 28, 1987, to become acquainted and to discuss the timing and se- quence of work. Griffiths and Morin met at a local Southport restaurant . Morin invited William and Donald Loflin to accompany him. Griffiths testified he was not told in advance that the Loflins would accompany Morin. Morin, however, testified that before their lunch- eon meeting, he had a telephone conversation with Grif- fiths. Morin added, "There's a great possibility that I told him that the Loflin boys would be there and they were union people." I do not find this discrepancy signif- icant, particularly in view of the fact that Morin's testi- mony on this point clearly involves a certain amount of speculation . I note too that Morin testified on direct ex- amination the meeting was not scheduled to include the Loflins, that he merely asked them to meet him at the restaurant. In any event what is clear is that Morin invit- ed the Loflins to attend this meeting so that he might in- troduce them to Griffiths. Morin introduced the Loflins to Griffiths as individ- uals with whom he had worked at other Cogentrix job- sites that utilized the Foster Wheeler boilers. Morin sought to convince Griffiths to hire the Loflins for fore- men positions at Southport . The Loflins told Griffiths about their backgounds and work experience. According to William Loflin, he told Griffiths he was a member of Local 30. William Loflin then testified moments later that Griffiths asked him if he had a resume and if he be- longed to the Union . I am sure Griffiths did ask William Loflin if he had a resume, but I find it incredible that Griffiths would ask Loflin if he was a member of the Union immediately after Loflin volunteered that informa- tion on his own . William Loflin admits that in the con- versation with Griffiths, he volunteered to get a with- drawal card from the Union in order to work for Re- spondent. William Loflin testified in addition that during this conversation, Donald Loflin also volunteered to get a withdrawal card from the Union. Donald Loflin, how- ever, denied that either he or William offered to with- draw from the Union. According to both William and Donald Loflin, Grif- fiths told them during this conversation that Griffiths had heard the Union was going to attempt an organizing drive at Southport, and that as a result Respondent was not going to hire anyone that had any association with the Union. Both Griffiths and Morin deny that Griffiths made such a statement . I credit Griffiths and Morin. Griffiths testified credibly that during this conversation, the Loflins volunteered certain information about the Union, including the fact that they were members of the Union and that they were willing to withdraw from the Union in order to work for Respondent . Griffiths testi- fied credibly that in response to the Loflins' statements concerning their work experience, union membership, and willingness to withdraw from the Union , he made no comment other than to explain that all hiring was being done through the North Carolina E.S.C. and to invite them to apply. The Loflins admit that during this con- versation with Morin and Griffiths, Griffiths asked for their telephone numbers and indicated he was interested in them as prospective foremen. As it turned out, Griffiths did not make the decision who to hire for supervisory positions . Rather, hiring de- cisions for general foreman and other supervisory posi- tions were made by Respondent's corporate headquarters in Spartanburg, South Carolina. Respondent hired Charles L. Gaskins, who was employed by another con- struction company on a job that was coming to a close, for general foreman at Southport . Gaskins had worked in the industry as long as, or longer than , Loflin. Gaskins had also constructed boilers similar to those being in- stalled at Southport. James LaCoste, Respondent's manager of human re- sources, testified credibly that an overriding factor in se- lecting Gaskins over William Loflin as general foreman was the pressure applied by Foster Wheeler , and particu- larly by Morin, to hire Loflin. Among the primary func- tions of a general foreman is to advocate the employer's interests in the event of any manufacturer 's defects for purposes of adjusting the price of the purchased product and the assignment of repair costs . Respondent was con- cerned about the potential for split loyalty if the Loflins were selected for general foreman positions on the basis of such a strong recommendation by the boiler manufac- turer's representative . I find this explanation both reason- able and logical. It is not unlawful for an employer to discriminate against individuals being hired for supervisory positions on the basis of their union membership or sentiments. The complaint does not allege and counsel for General Counsel does not contend that Respondent unlawfully discriminated against the Loflins by not hiring them for supervisory positions . Nevertheless, counsel for General Counsel does argue that in not hiring the Loflins for su- pervisory positions because of their union membership, Respondent evidenced general unlawful animus which later affected individuals hired for nonsupervisory posi- tions. I find, however, that Griffiths did not express any unlawful animus against the Loflins or other union mem- bers during the meeting on July 28. C. The Allegation of Class Discrimination Several witnesses were called and examined concern- ing the hiring process used by Respondent at both Southport and Roxboro. As mentioned earlier, the North Carolina E.S.C. forwarded to Respondent a minimum of 5000 applications for the Southport job. These applica- tions asked basic questions concerning the applicant's education , training, and work history. Nowhere was the 32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD applicant asked to provide information concerning his or her union membership or affiliation. LaCoste testified that hiring of employees in craft positions was done at the local jobsites. According to LaCoste, the hiring pro- cedure for both jobsites was essentially the same . Gener- al Foreman Gaskins testified that at Southport he was re- sponsible for the initial screening of job applicants. Ac- cording to Gaskins, once job applications were referred to Respondent's Southport jobsite by the E.S.C., they were sorted according to craft. When the need arose for boilermakers, Gaskins would consult the file and would first select any applicants he knew personally to be good employees. Based upon his lengthy experience, Gaskins was able to identify and select many boilermakers and welders with whom he had previously worked. If Gas- kins was not able to find a sufficient number of employ- ees with whom he was personally familiar, Gaskins then asked the foreman below him to review the applicant files in order to identify people they knew and could rec- ommend. Essentially the same procedure was followed in Rox- boro, North Carolina. Stan Gardner, boilermaker general foreman, and Robert Netherly, welder general foreman, were primarily responsible for hiring boilermakers and welders at the Roxboro site. Netherly, like Gaskins, had worked in the construction trades in that general area for more than 15 years and had become familiar with many individual welders and boilermakers . When Gardner and Netherly were not personally familiar with applicants, they relied heavily upon the references and recommenda- tions of other foremen concerning the qualifications of other applicants. Netherly testified that he recommended individuals be hired that he personally knew to be good employees, and he credibly denied that any of his recom- mendations were based upon an applicant's membership or lack of membership in a labor organization. Netherly named the individuals he recommended for hire, as well as those he knew to have been recommended by other supervisors. The evidence reflects, consistent with Neth- erly's testimony, that most of the employees at Roxboro had previously worked for H. B. Zachery and Brown and Root, both nonunion companies , where Netherly had worked in the past. Thirteen members of the Union applied for work at Respondent's Southport project between May 1986 and June 1987. First to apply was Charles W. Barrier, who submitted an application on May 29, 1986. Barrier did not testify before me. Barry Edwards, the Union's busi- ness agent, testified that Barrier has been a member of the Union since approximately 1972. There is nothing on the face of Barrier's application , however, which would indicate that Barrier is a member of the Union. Various witnesses in this proceeding identified various employers who they knew to be "union" or "non-union" employers. All of the employers listed on Barrier's application were identified by one witness or another as "union" contrac- tors. Gaskins testified credibly that he did not recall ever seeing or considering Barrier's application form and that he did not know the jobs or supervisors listed on Bar- rier's application. William B. Bowling submitted an application on Octo- ber 17, 1986. Bowling did not testify before me. There is nothing on the face of Bowling's application to suggest that he is a union member . Three of the four prior em- ployers listed by Bowling were identified by some wit- ness as "union" contractors. Gaskins testified credibly that he did not recall ever seeing or considering William Bowling's application. Richard T. Sobczynski applied for work on November 12 1986. Sobczynski did not testify in this proceeding, Q there is nothing on the face of his application to sug- gest he is a member of the Union. Edwards identified Sobczynski as a member of the Union's Transit Division. Counsel for General Counsel argues that Sobczynski's prior work experience showed all union contractors. Sobczynski listed only two contractors , however, and only one of them, Capital City Construction Corpora- tion, was identified as a union contractor. The other, Power Plant Maintenance, was identified by Gaskins as a nonunion employer. A review of Sobczynski's applica- tion reflects that the vast majority of Sobczynski's work experience was with Power Plant Maintenance, the non- union employer. Arthur D. Samples submitted an application on No- vember 14, 1986. Samples did not testify in this proceed- ing. His job application reflects that Samples applied for a position as welder, for which he had considerable ex- perience. Samples' application also reflects that he had completed some sort of apprenticeship training with Boilermakers Local 667 and listed this local union as a referral to a job in Charleston , West Virginia. The record is silent as to whether Gaskins ever reviewed or even saw Samples' application. John H. McGuire submitted an application on Novem- ber 19, 1986. McGuire did not testify. There is nothing on the face of McGuire's application to suggest he is a member of the Union. In one section, the application asks whether the individual has ever served an appren- ticeship. McGuire marked the box indicating that he had. The application then asks, "Which craft?" McGuire an- swered, "Boilermakers." Counsel for General Counsel appears to argue this is an indication on its face that McGuire is a member of the Union . I reject this argu- ment. The boilermaker craft is generally considered sepa- rate from the welder craft, and the skills necessary for both are often different. I find nothing in Respondent's application question or in McGuire's answer to reveal union membership . Most of the employers listed by McGuire as a part of his work history were identified by one witness or another as "union" employers . Gaskins testified credibly that he did not recall ever seeing or re- viewing McGuire's application. Larry L. Bowling applied for work at Southport on December 21, 1986 . Bowling did not testify. Although Larry Bowling's application does not specifically state that he is a union member, Bowling peppered his appli- cation with the word "union" in several places. For ex- ample, in the section which asks if he had ever served an apprenticeship, Bowling marked the box, "No." On the next line, which asks, "Which craft?" Bowling wrote, "union boilermaker." In the section describing his work history, Bowling listed his classification in five out of seven cases as being "union boilermaker." Gaskins admit- TYGER CONSTRUCTION CO. 33 ted candidly that he was unable to say whether he had ever seen Larry Bowling's application. Ronnie L. Oakes submitted an application for work at Southport on January 9, 1987. Oakes testified that he had been a member of the Union for more than 16 years, but there is nothing on the face of Oakes' application to sug- gest his union membership. Oakes testified that at the time he applied , he was told by someone at the E.S.C. office in Bolivia that his skills were immediately needed at the Southport jobsite and that he could expect to be hired in the near future. Gaskins also testified that Re- spondent hired a number of welders in early January. Gaskins testified credibly that on January 16, 1987, he pulled Oakes' application along with the applications of several other welder applicants to schedule a test to cer- tify them. Two of the four employers listed on Oakes' application were identified as "union " contractors. Gas- kins testified that he personally attempted to telephone Oakes at the phone number listed on the application to arrange for Oakes to take the certification test , but Gas- kins received no answer . Gaskins then wrote at the top of the application "No answer 1-16-87." In March 1987, Respondent again attempted to call Gaskins to schedule him to come in for a certification test . Oakes was not at home. An entry was made at the top of Oakes' applica- tion which reads, "Not at home . To call back. 3/31/87." Oakes testified he never received a message that Re- spondent had attempted to call him and therefore never returned the call. James R. Tripp applied for work at Southport on Jan- uary 28, 1987 . Tripp's application contains nothing to suggest he is a member of the Union. Tripp's application indicates that at the time he applied , Tripp was already working as a welding instructor at a local technical col- lege. The record is silent as to whether Gaskins re- viewed or even saw Tripp's application. Arthur W. Horton Jr. submitted an application on February 2, 1987. Horton did not testify , and there is nothing on the face of Horton's application to suggest he is a union member. Even Business Agent Edwards was not able to testify whether Horton is a member of the Union. Edwards testified , "He's not a member of-I couldn't say that he is just judging from the contractors he's worked for, he's for-looked like-predominately union contractors." Gaskins testified credibly he did not recall ever reviewing Horton 's application. Rodney D. Shackelford submitted an application for work at Southport through the Wilimington, North Carolina E.S.C. office on February 5, 1987. Shackelford admitted that while there was nothing on the face of his application which specifically stated he was a member of the Union, each employer listed on the work history sec- tion of his application form was a union employer. Gas- kins testified that he did not recall ever seeing or review- ing Shackelford's application. Joseph H. Elliott applied for work at Southport on April 22, 1987. Elliott did not testify at the hearing. While there is nothing on the face of Elliott's application which specifically states that Elliott is a member of the Union, the first entry in the work history section of El- liott's application indicates that from 1975 to 1987 Elliott had been referred out of the hiring hall of Boilermakers Local Union 687 in Charleston, South Carolina. In addi- tion, all of the employers listed in the work history sec- tion of his application were identified by some witness as being union employers. Gaskins testified credibly that he did not recall ever seeing or reviewing Elliott 's applica- tion. William G. Loflin, who is discussed in some detail above, testified that in June 1987 he submitted an appli- cation for a nonsupervisory boilermaker mechanic posi- tion. According to Loflin , he completed and submitted this application to the E.S.C. in Bolivia, North Carolina. This application was not found among those produced by Respondent pursuant to Counsel for General Coun- sel's subpoena for boilermaker job applications . Respond- ent produced numerous applications , and there is no reason to believe that Respondent had this application in its possession . If William Loflin submitted an application in June 1987 as testified , it apparently was never for- warded to Respondent.2 The last union member who applied for work, with Respondent at Southport, Marcus Walton, is discussed in detail below. Ten members of the Union applied for work with Re- spondent at the Roxboro project between November 1986 and February 1987. The first person to apply was Bobby K. Anderson, who applied on November 8, 1986. While Anderson's application does not specifically state that he is a member of the Union, Anderson stated that he served an apprenticeship through the Boilermakers Lodge NTD (National Transit Division), Kansas City, Kansas. In addition, his work history states that from 1969 to 1982 Anderson was referred to various jobs throughout the Boilermakers National Transit Division. At the same time, I note that the two employers he listed as having worked for from 1982 to 1986 were not identi- fied by any witness as union employers. Netherly testi- fied credibly that Anderson 's application, dated Novem- ber 8, was submitted after Netherly's original precertifi- cation of welders. Netherly testified that he had no recollection of ever reviewing Anderson's application, and Netherly was unable to identify any of the employ- ers Anderson listed as being either union or nonunion. Richard Chilton submitted an application for work at Roxboro on November 21, 1986 . Chilton testified that he had been a member of the Union for more than 19 years. Chilton is the Union's president and also its assistant business manager. This information was included on Chilton's job application. Although Chilton is an experi- enced welder and has taught welding to others, he has not worked "with his tools" for more than 5 years. Neth- erly testified that before Chilton could have been hired, he would have to have been given a welding test like all other applicants. Netherly testified candidly that he did not recall whether he ever reviewed Chilton's applica- tion. Thomas W. Sisley submitted an application for work at Roxboro on December 1, 1986. Sisley did not testify. Sisley's application reflects that he had completed an ap- 2 1 note that Donald Loflm also applied for work in a nonsupervisory position and was hired by Respondent 34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD prentice program while employed by Babcock and Wilcox, one of the employers identified as a "union com- pany," through "Local 900." Sisley's application reflects that he has been a certified welder for more than 18 years. Of the four companies listed in Sisley's work his- tory, two were identified as union companies and two as nonunion companies. Sisley's total work experience re- flected on his application reveals a total of 4 years and 4 months work with the union employers and 13 years 2 months with the nonunion employers . There is nothing on the face of Sisley's application which reveals whether he is a member of the Union. Thomas C. Stevenson applied for work at Roxboro on December 9, 1986. Stevenson did not testify, and there is nothing on the face of Stevenson's application to suggest he is a union member. Stevenson's application reflects that he completed an apprenticeship in the Boilermaker craft while employed by the Tennessee Valley Author- ity, and that he had 10 years experience as a welder. Of the five employers listed in Stevenson's work history, one was identified in the record as a nonunion employer and the other four were not identified . The record is silent as to whether Respondent reviewed or even say Stevenson's application. James D. Fuller completed an application on Decem- ber 12, 1986, for work as a boilermaker at Roxboro. While Fuller's application does not specifically state that he is a member of the Union, it does state in the section describing his education that he completed 4 years of "trade school" in a "Boilermaker's apprenticeship pro- gram." Of the five employers listed in Fuller's work his- tory, at least three were identified as union employers. In addition, Fuller named Robert Shackelford and Richard Chilton, the Union's business manager and president, re- spectively, as personal references . Fuller was hired by Respondent as a welder on May 27, 1987. Donald Margensey first applied for a position at Re- spondent's Roxboro project on December 12, 1986. Mar- gensey testified that shortly thereafter he telephoned Re- spondent and was told that they did not have his applica- tion on file . Margensey then submitted a second applica- tion dated January 28, 1987 . Margensey's applications re- flect that he finished an apprentice program as a boiler- maker mechanic/rigger through an apprenticeship pro- gram operated by the Union . All four employers listed in Margensey's work history were identified in the record as being union employers. While Margensey's experience as a boilermaker is substantially less than any of the other applicants, his application also reflects that 6 years of his total experience was in power boiler erection simi- lar to the work performed by Respondent . At the same time, Margensey admitted that he is qualified to perform only plate welding, not tube or pipe welding . There is no evidence that Respondent ever considered or had occa- sion to review Margensey's application. Eugene Johnson submitted an application for work at Roxboro on January 10, 1987. There is nothing on the face of Johnson 's application to reflect he is a union member. The application does reflect, however, that Johnson completed a formal apprencticeship program as a boilermaker through the Union . All four of the em- ployers listed in Johnson's work history were identified in the record as union employers. In addition , Johnson named Shackelford and Chilton as personal references. Netherly candidly admitted that Johnson's work experi- ence appeared to render him qualified to perform the type of work being done by Respondent . Netherly point- ed out, however, that the date of Johnson's application was well after the date when Respondent went through a procedure of precertifying welder applicants for possi- ble employment . There is no evidence to show that Netherly or any other supervisor reviewed Johnson's ap- plication. Jerry W. McBride applied for work at the Roxboro site on February 2, 1987 . There is nothing on the face of McBride's application to reflect that he is a union member. The application does reflect that McBride com- pleted a 4-year apprenticeship as a boilermaker. In re- sponse to the question, "What company?" McBride an- swered, "International Boilermakers." All four of the employers listed by McBride in his work history are identified in the record as union employers . McBride tes- tified that he has been a member of the Union for ap- proximately 10 years and that he worked at the Foster Wheeler boiler installation at Elizabethtown, North Carolina performing identical work as that being done by Respondent, but this is not reflected on McBride's ap- plication . There was no evidence presented by Counsel for General Counsel that Respondent ever reviewed McBride's application. Jeffery K. Parker submitted an application on Febru- ary 2, 1987. Parker's application reflects that he complet- ed a 4 year apprenticeship program as a boilermaker under the supervision of "International Brotherhood of Boilermakers." All except one of the companies listed by Parker was a part of his work history are union employ- ers. Parker's application reflects that he had experience working on the same type of cogeneration units being in- stalled by Respondent . The record is silent as to whether Respondent reviewed or ever specifically considered Parker's application. Richard D. Curtis submitted an application for work at Roxboro on February 26, 1987 . There is nothing on the face of Curtis' application to suggest he is a union member. All three employers listed in Curtis' work histo- ry are identified in the record as union employers. Curtis was hired by Respondent on 7 July 1987 as a welder. Altogether, approximately 13 members of the Union applied for work with Respondent at its Southport project. Approximately 10 members of the Union applied for work at Roxboro. Of the 13 that applied at South- port, none were hired . One, however, Ronnie Oakes, was called twice to be offered work , but could not be contacted on either occasion . I note, too, that Donald Loflin, who is not among the 13, but who is a member of the Union, was hired by Respondent at Southport. Of the 10 who applied at Roxboro, 2, James Fuller and Richard Curtis, were hired by Respondent . The other eight were not hired . At its peak, the employee comple- ment at Southport was expected to reach approximately 250 employees. Well over 5000 applications were re- ceived by the North Carolina E.S.C. and referred to Southport. Fewer than 5 percent, or 1 out of every 20 TYGER CONSTRUCTION CO. 35 applicants, were hired by Respondent at Southport. Of the 119 persons hired by Respondent at Southport in the boilermaker craft, 81 had listed as their last employer a company which was identified in the record herein as a nonunion employer, or their prior employers were pre- dominately nonunion . Three employees were hired in the Boilermakers craft where their last employer was a union contractor or their application indicated they had worked predominately for union contractors. Counsel for General Counsel argues that these facts show that Re- spondent's work force in the Boilermakers craft at Southport was drawn intentionally from nonunion con- tractors. The argument, from which counsel for General Coun- sel would have one infer a discriminatory intent and un- lawful result, ignores altogether the candidly admitted fact that Respondent first sought to hire individuals who the general foreman, foreman, and supervisors knew per- sonally from past experience . Moreover, if one does not limit the inquiry to whether the last employer listed by an applicant is union or nonunion or whether employers are "predominately" union or nonunion, but looks more broadly at the applications for evidence of union affili- ation, a somewhat different picture emerges. In that case, the evidence reflects that Respondent hired boilermaker and welder applicants who indicated union affiliation in a greater number than their representation in the applicant pool. A total of 335 individuals applied at Southport for work as boilermakers and welders. Of those, 48, or 14 percent, reflected some union affiliation or employment. Of the 115 boilermakers and welders hired at Southport, 25, or 22 percent, reflected some union affiliation for em- ployment on their application. Of the 55 employees hired as boilermakers and welders at Roxboro, approximately 38 last worked for nonunion employers or their applica- tions reflect that they worked in the past mostly for non- union employers. Of the 145 total applicants for boiler- maker and welder positions at Roxboro, 19, or 13 per- cent, reflected some union affiliation or employment on their application . Of the 55 hired , 11, or 20 percent, re- flected some union affiliation or employment. D. The Case ofMarkus Walton Markus Walton, a union member for approximately 10 years, testified that he filed three applications for em- ployment with Respondent at Southport . Walton testified that he filed his first application in March 1986 through the North Carolina E.S.C. The application is actually dated May 19, 1986 . Walton applied for a position as an ironworker, but showed predominately boilermaker ex- perience on his application. Walton testified that he filed a second application in October or November 1986, again through the North Carolina E.S.C. According to Walton, this application was also for a position as an ironworker. Walton testified that in applying for a position as an ironworker he was purposely trying to work outside his craft , but Walton claimed he did not know why he was trying to do this. Walton eventually met Patricia Hart , Respondent's project office manager at Southport , through Joseph Cartrette, Walton's distant cousin . Cartrette and Hart were living together at the time . Walton testified that he first met Hart in December 1986. According to Walton, Cartrette introduced Walton to Hart in December at their house primarily so that Hart might help Walton get a job with Respondent . According to Walton's testimony on direct examination, Hart asked Walton if he had filed an application. When Walton said he had, Hart said she would try to find it and see what she could do . Hart told Walton he should check back with her in a few days. According to Walton's direct testimony, that is all that transpired in the first conversation . In later testimony, Walton claimed that in that first conversation, Hart told him that if he was hired by Respondent, he should not mention the fact he "worked out of the Union and had a union card. I do not credit Walton that Hart made this statement. Walton testified that the remainder of the con- versation between him, Hart, and Cartrette involved simply "chit-chat" about Christmas which was soon to arrive. Cartrette and Hart both testified that it was February or March 1987 when Cartrette first introduced Walton to Hart. According to Cartrette, Walton asked Hart about getting a job with Respondent, and Hart asked Walton if he had filed an application. Cartrette did not remember whether Walton said he had or had not , but according to Cartrette, Hart simply told Walton to come out to the jobsite the next day and she would have him file an ap- plication. Hart told Walton she would see what she could do. Hart testified that during the period from March through May, Walton came by the house where she and Cartrette lived several times, each time to borrow money from Cartrette. Hart, like Cartrette, testified that she first met Walton in March 1987, and that during this first meeting they spoke -about the possibility of Walton get- ting a job with Respondent . Hart told Walton that he needed to apply through the E .S.C. Walton said he had already done so . Hart then said she did not recall seeing Walton's application, and she asked what the names were of the companies that Walton had worked for in the past. When Walton named the companies, Hart replied that she had never heard of those companies . Walton volunteered that they were all union companies. Hart then testified, "And I said well, you know, I doubt you would be hired." Hart testified the reason she said this was that Respondent's foreman and general foreman, who were in charge of hiring, were hiring people that they had worked with before on previous jobs and who they knew to be good employees. Hart testified that she had not seen any of the company names mentioned by Walton. Hart testified that she then invited Walton to go ahead and come out to the jobsite the next morning and fill out an application. Hart told Walton she would give it to the general foreman herself. Walton impressed me as being too willing to embellish his own testimony where he thought it might do himself some good. I credit Cartrette and Hart rather than Walton concerning this first meeting. After Walton left their house, Cartrette and Hart con- tinued to talk about Walton . Since it was the first time Hart ever met Walton, they presumably talked about how it was Walton and Cartrette were related and how 36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD they recently met again. Hart testified credibly that during this conversation, Cartrette told Hart that he thought Walton had been a regular drug user at some point in the past. There is no indication Cartrette sug- gested that Walton was still using drugs at that time. As described above, Walton testified that during their first meeting, Hart simply offered to look for the applica- tions which he had already filed with Respondent through E.S.C., and that Walton should check back in a few days. According to Walton, he checked back with Hart and was told that she could not find his applica- tions. According to Walton, it was then that Hart invited him to apply again with Respondent . Walton claims he told Hart during this second conversation that he was not interested only in a position as an ironworker, but that he would take a boilermaker job or any job that was available with Respondent. I do not credit Walton that this second conversation even occurred as described by him. Rather, I have credited Cartrette and Hart, and I find it was in their first meeting that Hart invited Walton to file a new application with Respondent. According to Hart, who I credit, the day after their first meeting, Walton came to the Southport jobsite and filled out a new application for employment . Walton tes- tified he filled out such an application and simply left it with Respondent. According to Walton , after doing this, he returned to Hart's home the following day to follow up on the application. Hart testified that Walton did not just leave the application, but rather that Walton stayed on the jobsite while Hart took the application to Gas- kins. Hart gave the application to Gaskins , who re- viewed it and saw that Walton had been referred by Car- trette. Gaskins asked Hart for her recommendation. Hart told Gaskins "from my understanding . . . Walton has a drug problem . . . ." Gaskins then asked Hart if Re- spondent wanted somebody like that to represent Tyger, and Hart said no. According to Hart, she then went back to Walton and told Walton that Respondent did not need anyone at that time, but that his application would be kept on file and they would call him if an opening oc- curred. Gaskins corroborates Hart concerning the con- versation about Walton's application. Hart and Gaskins both claim that nothing was said between them concern- ing Walton's union membership or sentiments. I frankly do not credit Hart and Gaskins concerning their conten- tion that Walton's drug use was the only issue discussed by them. For reasons which are made clear below, I also do not credit Hart and Gaskins that Walton's union background was not discussed. As noted above, Walton testified that after leaving his third application with Respondent , he returned to Hart's home the following day in order to follow up on it. Ac- cording to Walton, he asked Hart how it went. Hart re- plied, "Not too well." Hart then stated that Walton had all union companies on his application, presumably as part of his work history. Walton replied he had only worked for union companies . According to Walton, Hart then said: Well, I looked at your application and showed it to my boss. He ran his finger down and said these are all Union companies. She said, but he's quali- fied. He said he is absoultely qualified . He said the main office will pitch a fit . He then looked in his desk drawer and pulled out my other applications. Ran his finger down the list of companies I worked for and said this is all Union . He said there's no way. We needed some open shop. He said the main office will not agree to this. Hart denies the entirety of Walton's testimony con- cerning this conversation . Hart testified that after the day Walton came to Respondent's jobsite and applied for work, the next time Walton came to her house was about a week later to borrow money from Cartrette in order to go to a drug rehabilitation meeting . Hart testified that Walton was drunk, that she could smell alcohol on his breath, and that he had a drink while at the house. Ac- cording to Hart, Walton also told her and Cartrette about his past drug problem and stated that he was afraid he might start using drugs again. Walton denied that he ever went to Cartrette's house to borrow money to go to a drug rehabilitation meeting, denied that he ever borrowed money from Cartrette while. there, and denied that he ever had an alcoholic drink at Hart and Cartrette's house. Walton then changed his testimony slightly, admitting that he once asked to borrow $2 from Cartrette to buy gas. Cartrette supports Walton in part and Hart in part. Cartrette first testified that Walton came by his house once to borrow money, and later testified that Walton came by twice to borrow money . Cartrette supports Hart that on one of these occasions, Walton asked to borrow money, apparently for gasoline, in order to go a Narcotics Anonymous meeting. Cartrette also supports Hart that on Walton's last visit, Walton drank with Car- trette. Concerning the issue critical to this case, however, Cartrette supports Walton. Cartrette testified that the day after Walton filed his latest application with Re- spondent, Walton came by their house. Cartrette testified that during the conversation on that day, Hart stated that Gaskins would not hire Walton because he already had two applications on Mark and he was a strong union . That he wouldn't hire him. He was afraid he'd try to organize the job. ... She said that Gaskins wouldn't hire him be- cause he was strong union that he was scared that he would come out there and organize the job. On cross-examination, Cartrette was asked again about Hart's statement. Cartrette testified , "the day after Mark went to put an application in, she (Hart) carried it and gave it to Gaskins and Gaskins said he already had two on him. And she said look at all these jobs he's worked, making twenty some dollars an hour on some of them." Cartrette was then interrupted by counsel and asked questions about a different matter. Analysis and Conclusions Counsel for General Counsel contends that Respond- ent systematically eliminated applicants who were mem- bers of the Union or its affiliates by weeding out and re- TYGER CONSTRUCTION CO. 37 fusing to consider for employment those individuals who listed previous employment history with exclusively or predominately known union companies. Counsel for General Counsel, however, was able to produce little, if any, evidence to support this contention. Counsel for General Counsel's theory is premised on the necessary implication that Respondent reviewed each application it received from the E .S.C. and that Re- spondent was able to draw some reasonable conclusion about the applicants' union membership or sentiments. The evidence does not support either contention. Re- spondent received a minimum of 5000 applications for the Southport job alone. At its peak, Respondent expect- ed to employ approximately 250 individuals. Fewer than 1 out of every 20 applicants was hired . There is no evi- dence that Respondent even attempted to review each application. Indeed, all the evidence points to the con- trary conclusion . At both Southport and Roxboro, the general foreman and foreman culled through the applica- tions received, looking for names of individuals with whom they had worked and were personally familiar. So long as Respondent was able to hire a sufficient number of employees to man its job, Respondent went no fur- ther. The necessary implication of counsel for General Counsel's position, that Respondent reviewed each appli- cation form before hiring was begun , is simply not born out by the evidence. Similarly, counsel for General Counsel 's premise that Respondent could and did discern the applicants' union membership and sentiments from the applications is tenu- ous at best. On the majority of applications of the alleged discriminatees, there is nothing to reveal or even suggest that the particular individual is a member of the Union. It is only through the testimony of Business Agent Ed- wards that the union membership of most of the alleged discriminatees is revealed. In at least one case, Arthur W. Horton Jr., even Edwards was not sure that he was a member of the Union . A review of the work history of many of the alleged discriminatees is an altogether incon- clusive basis for speculating on the applicant 's union membership or sentiments . The application of Richard T. Sobczynski, for example, reflects that the vast majority of his work experience was with a nonunion employer. The application of Thomas W. Sisley similarly reflects only 4 years work with union employers and 13 years with nonunion employers. The work history of appli- cants in the Southeastern United States, to which Re- spondent limits its operations and where most States are "right-to-work" States, is particularly inconclusive of union membership . Someone might work for a "union employer" for years but never join the union, or some- one else might be a member of a union for years but find work mostly on construction projects of "non-union em- ployers." At both Southport and Roxboro, the general foreman and foreman sought first to hire applicants with whom they were personally familiar and whose work they knew to be good . There can be little question that one effect of this was to hire more employees who had recent experience with nonunion employers , since the general foreman and foreman had themselves worked for nonunion employers . Counsel for General Counsel, how- ever, has failed to show that this was the intent of the practice and/or that the practice resulted in any signifi- cant numerical disparity. Instead, the rather clear intent of Respondent's hiring practice was to get employees who the supervisors knew in advance were qualified and capable employees . In short, the evidence is insufficient to show an unlawful discriminatory intent. Certainly there are numerous questions left unan- swered about certain individual applications. It might be said the evidence raises some suspicion that union affili- ation may have played some part in the decision not to hire certain individuals. However, the evidence simply does not support a conclusion that Respondent systemati- cally avoided hiring those individuals who Respondent might suspect were union members based on past em- ployment records. Further, a suspicion even with regard to specific individuals is not sufficient to support a burden of proof which requires that General Counsel es- tablish its case by a preponderance of the evidence. Nor is mere suspicion enough to shift the burden of proof to Respondent. Counsel for General Counsel's argument concerning the facts simply does not hold up, and coun- sel for General Counsel has failed to show that Respond- ent systematically and intentionally excluded any group from consideration for employment at Southport and Roxboro. Nor does the evidence support a conclusion that Re- spondent's hiring procedure resulted in any significant numerical disparity from which it might be concluded that it operated to the disadvantage of union employees. Assuming General Counsel's premise that union member- ship or sentiments can somehow be postulated from the employment applications, one must conclude the statis- tics here demonstrate that union-oriented employees were hired in greater numbers than their representation in the applicant pools . At Southport, 14 percent of all applicants indicated union affiliation, while the actual higher rate was 22 percent. At Roxboro, 13 percent of all applicants were union-oriented, while the actual higher rate was 20 percent . Counsel for General Counsel has failed to prove that Respondent's hiring practice had any unlawful discriminatory effect on union employees. In summary , an analysis of the facts in the present case leads me to the conclusion that counsel for the General Counsel has failed to establish a prima facie case with re- spect to any of the alleged discriminatees except Markus Walton. Accordingly, I shall dismiss all allegations in the complaint except those relating to Markus Walton, which are specifically discussed below. Neither Walton nor Hart nor Gaskins impressed me as telling the whole truth concerning Walton's application and rejection by Respondent. Walton impressed me as being extremely secretive about anything which he thought might be used against him or make him look bad, even on such minor 'points as whether he had a drink with Cartrette. Hart impressed me as being willing to tell the truth where she knew it benefited her position, and being willing to fabricate where she thought that was to her advantage. Gaskins impressed me as basically telling the truth except in his denial that he and Hart spoke about Walton's union membership or sentiments. 38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As between Walton , Hart, Gaskins, and Cartrette, it was Cartrette who impressed me as being most candid, al- though even he seemed capable of some embellishment of his testimony for effect. Considering all of the testimo- ny, I find that Walton was first introduced to Hart by Cartrette at their home in March 1987. I credit Cartrette and Hart that in this first meeting, Hart invited Walton to apply for work with Respondent . Hart admits that in this first meeting with Walton , she told Walton that be- cause he had worked only for union companies , she did not think he would be hired by Respondent . I credit Hart's explanation about her reason for making this state- ment, but Hart does not claim that she offered this expla- nation to Walton and there is no indication she did so. Standing alone without Hart's explanation, her statement to Walton would almost certainly be construed by him as meaning that Respondent would refuse to hire him be- cause of his union background. Accordingly, I find that the statement violates Section 8(a)(1) of the Act. I do not credit Walton that Hart also told him if he was hired by Respondent, not to mention the fact that he "worked out of" the Union or had a union card . From listening to the testimony and observing Walton, I am convinced that this alleged statement by Hart represents nothing more than Walton's proclivity to embellish testimony where he thinks that might help him. Accordingly, I shall dismiss that allegation from the complaint. I credit Hart that after Walton left their first meeting, she and Cartrette continued to talk about Walton, and in this conversation Cartrette told Hart that he thought Walton had been a regular drug user at some point in the past. The next day, Walton went to Respondent 's Southport jobsite and applied for work. Whether Walton remained at the site while Hart took his application to Gaskins, or whether Walton simply left the application with Hart is not particularly significant . What is clear is that Hart personally took the application to Gaskins, and together they decided not to hire Walton . I do not credit Hart and Gaskins that Walton 's union membership or senti- ments were not discussed . The application itself is appar- ently no longer available and in any event not in the record, so it is not clear to what extent the application itself reveals Walton's union membership or sentiments. I strongly suspect Hart volunteered to Gaskins that Walton was a member of the Union and had worked only for union companies. Hart impressed me as a person willing to tell her listener what she thought they wanted to hear. Since Hart and Gaskins were the only two par- ticipants in the conversation, one will never be certain what transpired , but I suspect that after Hart volunteered the information concerning Walton's union membership and employment history, Gaskins did indeed ask Hart for her recommendation. Perhaps trying to second guess what Gaskins wanted to do, Hart volunteered the infor- mation concerning Walton's past drug problem. Gaskins asked if that was the kind of person Respondent wanted to hire. Hart answered that it was not, and so Walton was rejected. In the later conversation at Hart's house, still trying to tell her listener what she thought he wanted to hear, Hart told Walton and Cartrette that it was Gaskins who made the decision not to hire Walton because of Walton's association with the Union. I con- clude that Walton's past association with the Union was the primary reason for him not being hired by Respond- ent, and I therefore find that Respondent's refusal to hire Walton violated Section 8(a)(1) and (3) of the Act. Whether Walton's past drug problem would alone have caused Respondent not to hire Walton is a matter of sheer speculation. Respondent offered no evidence con- cerning any drug abuse policy, and even if it had, Wal- ton's testimony is undisputed that he had not used drugs for more than 4 years. Accordingly, there is no basis for finding that Walton would not have been hired by Re- spondent even if it had not been for his past association with the Union. CONCLUSIONS OF LAW 1. Respondent, Tyger Construction Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers Local Union No. 30, affiliated with International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forg- ers, and Helpers is, and has been for all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. Counsel for General Counsel has failed to prove that Respondent failed and refused to hire Charles W. Berrier, William B. Bowling, Richard T. Sobczynski, Arthur D. Samples, John H. McGuire, Larry L. Bowl- ing, Ronnie L. Oakes, James R. Tripp, Arthur W. Horton Jr., Rodney D. Schakelford, Joseph H. Elliott, or William G. Loflin at, its project in Southport, North Carolina project, or Bobby K. Anderson, Richard Chil- ton, Thomas W. Sisley, Thomas C. Stevenson, James D. Fuller, Donald Margensey, Eugene Johnson, Jerry W. McBride, Jeffrey K. Parker, or Richard D. Curtis at its project in Roxboro, North Carolina, because they were members of the Union or engaged in other union activi- ties or concerted activities within the meaning of. the Act, and those allegations in the complaint shall be dis- missed. 4. Respondent did not inform job applicants not to dis- close their union membership status if they secured em- ployment with Respondent, and that allegation in the complaint shall be dismissed. 5. Respondent, acting through Pat Hart, did inform a prospective employee, Markus Walton, that Walton probably would not be hired because he listed only union contractors as former employers on his job appli- cation, and Respondent thereby violated Section 8(a)(1) of the Act. 6. During March 1987, the exact date being unknown, Respondent failed and refused to hire Markus Walton be- cause of his membership in the Union and/or because Walton had former employment only with union con- tractors, and Respondent thereby discriminated against Walton in violation of Section 8(a)(1) and (3) of the Act. 7. Respondent did not otherwise violate the National Labor Relations Act, as amended. TYGER CONSTRUCTION CO. 39 THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, Tyger Construction Company, Spar- tansburg, South Carolina, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Informing prospective employees that they prob- ably would not be hired by Respondent because they listed only union contractors as former employers on their job applications. (b) Failing and refusing to hire applicants because of their membership in the Union or because they list only union contractors as former employers on their job appli- cations. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Immediately offer Markus Walton a position as boi- lermaker at Respondent's Southport, North Carolina project or, if such a position no longer exists, to a sub- stantially equivalent position without prejudice to his se- niority and other rights and privileges. (b) Make whole Markus Walton for any loss of earn- ings or benefits he may have suffered by reason of the discrimination against him by paying him a sum of money equal to the amount he would have earned from the date of Respondent's discrimination against him to the date of Respondent's offer of employment, less net interim earnings, with backpay to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). (c) Preserve and, on request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records, and reports, and all other records necessary to analysis the amount of backpay due under the terms of this Order. (d) Post at its Southport, North Carolina project copies of the attached notice marked "Appendix."4 s 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 ° 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 " Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by Respond- ent's authorized representative, shall be posted by it im- mediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps 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 or- dered us to post and abide by this notice. Section 7 of the National Labor Relations Act gives em- ployees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT inform prospective employees that they probably would not be hired by Respondent because they listed only union contractors as former employers on their job applications. WE WILL NOT fail and refuse to hire applicants be- cause of their membership in International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forg- ers and Helpers, Local Union No. 30 or because they list only union contractors as former employers on their job applications. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL immediately offer Markus Walton a position as boilermaker at our Southport, North Carolina project or, if such a position no longer exists, to a substantially equivalent position without prejudice to his seniority and other rights and privileges. WE WILL make whole Markus Walton for any loss of earnings or benefits he may have suffered by reason of the discrimination against him by paying him a sum of money equal to the amount he would have earned from the date of our discrimination against him to the date of our offer of employment, less net interim earnings, with appropriate interest. TYGER CONSTRUCTION COMPANY