Kdf Construction, Inc

KDF CONSTRUCTION 891 KDF Construction, Inc and Eastern Indiana Dis trict Council of Carpenters, a/w United Broth erhood of Carpenters and Joiners of America Case 25-CA-16160 22 October 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 17 July 1984 Administrative Law Judge Richard H Beddow Jr issued the attached deci sion The Respondent filed exceptions and a sup porting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed ' We find it unnecessary to pass on the Respondent s exception to the judge s failure to find Stephen Ramsey was not a bona fide employee within the meaning of the Act because the judge found the Respondent did not violate Sec 8(a)(3) and (1) by failing to lure Ramsey DECISION STATEMENT OF THE CASE RICHARD H BEDDOW JR Administrative Law Judge This matter was heard in Muncie Indiana on April 11 and 12 1984 Subsequently briefs were filed by the par ties The proceeding is based on a charge filed on Janu ary 25 1984 by the Eastern Indiana District Council of Carpenters a/w the United Brotherhood of Carpenters and Joiners of Amenca AFL-CIO The Regional Direc tor s complaint issued on March 7 1984 alleges that Re spondent KDF Construction Inc of Muncie violated Section 8(a)(1) and (3) of the National Labor Relations Act by interrogating employees regarding their union ac tivities membership and sympathies and by failing and refusing to hire Stephen Ramsey because of his union ac tivities On a review of the entire record in this case and from my observation of the witnesses and their demeanor I make the following FINDINGS OF FACT I JURISDICTION Respondent is a recently organized general contractor which admittedly provided services in excess of $50 000 to an Indiana company which in turn sold and shipped goods valued in excess of $50 000 to points outside Indi ana during a relevant period Accordingly it is and has been an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act It also is admitted that the Carpenters Union' is a labor organiza tion within the meaning of Section 2(5) of the 'Act II THE ALLEGED UNFAIR LABOR PRACTICES The Respondent was organized in January l83' by majonty owner and president Gary Kirkhn who is ac lively engaged in conducting its day to day business af fairs including the hiring of employees Hiring is also a function performed by the Company s only other super visor construction superintendent Fred Ellis Kirkhn ex ercises final authority but relies heavily on Ellis recom mendation inasmuch as Ellis is a former carpenter ac quainted with many other construction workers in the Muncie area 1 Kirklin formerly worked for Ornn Kirklin and Sons Inc as a job manager That company is also a general, contractor and has been a signator to several bargaining agreements with the Carpenters Union Ellis also was formerly an employee and Kirklin s father is a vice presi dent of the latter company who also serves on the Union s health and welfare and pension board Respondent has had between 8 and 15 employees 3 or more of whom were carpenters by trade It is not a sig nator to any agreement with the Carpenters Union how ever it has received no recognition or bargaining request from any unions and Kirklin testified that he would not have any objection to negotiating with a union if it rep resented his employees Steven Ramsey is a full time salaried professional orga mzer employed and paid by CHOP (Coordinated Hous ing Organizational Program) an organization of two dis tnct councils (the Eastern Indiana District Council and the Wabash Valley District Council) and two locals (La fayette Local 215 and Elkhart Local 565) of the Union Ramsey s vaned organizing techniques included on occasion, attempts to hire on with construction compa Ines in order to make contact with employees During 1983 Ramsey who is a journeyman carpenter worked 2 weeks for Stemberger Construction in Septem ber and 2 days for Fogelman Construction in October He quit the jobs either because he got tired of working because his organizational, activities had gone as far as they could or a combination of the two The Respond ent was selected as a potential target for torganization and on July 26 he visited the jobsite where a facility was being constructed for Pinebrook Recording Studio He spoke with Superintendent Ellis using a composite story of actual and fabricated personal work history , Ramsey testified he told Ellis he was a carpenter moving back to Muncie from Kokomo and lokmg for a job Ellis then said they might have something and asked about his ex penence Ellis testified that Ramsey said he was looking for em ployment and when asked by Ellis about his experience 1 All following dates are in 1983 unless otherwise specified 272 NLRB No 136 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said he had 12 years Ellis said he then asked Ramsey if he had been working and Ramsey replied he had been working in Kokomo for $8 an hour Ramsey testified that after discussing his experience and construction work in general Ellis asked if Ramsey had been in the Union and Ramsey replied he had been at several times but was not at present Ellis agrees that the discussion of experience turned to whether or not Ramsey was in a union and that he told Ramsey he used to work union but now he did not Ellis testified he had assumed Ramsey was not a union man if he had been working for $8 an hour and Ellis wanted to confirm if he would be willing to work for less than the union rate Ramsey testified that Kirklin then joined them and Ellis said Ramsey sounded like a pretty good carpenter whom they should keep in mind if they got any work down the road Ramsey also said he recognized the Kirklin name and told Kirklin that his father had worked for Kirklin s father in the past Kirklin then said they would consider Ramsey if they got some more work and Ellis took his name and phone number Ramsey then gave Ellis the local phone number of his ex wife Ramsey visited the site again on August 11 and was told by Ellis they still did not have anything On August 25 he visited a new jobsite and was told that Ellis was in the hospital and it was not known if Respondent was hiring or not The next day Ramsey testified he visited Kirklin s office told the secretary he was a carpenter looking for work and left his name and the phone number of the union office after she told him Kirklin was usually there in the early morning or late afternoon (This alleged visit was not confirmed by the secretary or by Ramsey s datebook ) During September Respondent instructed secretary Tonja Swain to start requesting job applicants to fill out applications explaining that they thought they would be needing people for a job Swain recalls that Ramsey came to the office several times between October and early December when Kirklin was not in and that on the first occasion when employee Scott Evans also was present she told him he needed to fill out an application Ramsey who was accompanied by another person then declined the offer of a pen with which to fill it out saying that he would take it with him and return it when he came back to talk to Kirklin Ramsey testified that he visited the jobsite on October 11 spoke to no one but visited again on October 18 He testified that he asked Ellis Do you remember me9 and right off the bat Ellis asked if he had a union card explaining that he had tried to call Ramsey at the number Ramsey had left with Ellis but had been referred to the number at the union hall by the woman who an swered the phone and that he had called the hall asked for Ramsey but hung up after the secretary had said he was there Ellis then said it looked like they had some work coming Ramsey said he was still interested and denied being in the Union saying his ex wife was just trying to get even with him Ellis recalls that he and Kirkhn discussed the possibili ty of asking Ramsey about coming to work and that one evening near the end of October he called the number Ramsey had given him getting no answer the first time Then a woman answered and told him that she did not know where Ramsey was or that he was not there Ellis denied making any further attempt to reach Ramsey Ellis was asked no further questions and gave no testimo ny pertaining to Ramsey s alleged conversation with him on October 18 Pamela Ramsey recalled receiving a morning phone call in mid to late October from a male who asked for her ex husband She said he did not live there but gave him a phone number (that of the union hall) where he could be reached and the caller concluded by saying that the call was in connection with filling a job opening She also testified that Ramsey had not called her or made any arrangement for her to receive messages for him at her phone number Around Thanksgiving she spoke with Ramsey about the call and he indicated he seemed to know about it and that he believed it was Ellis Ramsey also testified that on October 19 he visited Respondent s office asked for Kirklin and left his name and number with the secretary The next day he alleged ly visited the office again caught Kirklin in and said he was looking for a carpenter s job He testified that Kirk lin then asked if he was in the Union and when he denied it said that Ellis thought he was Kirklin then asked if he was willing to work out of town and said he would be called if they had anything (Notations in Ram sey s datebook mention visits to Respondent on October 18 and 20 but not on October 19 when it places him in Lafayette ) Kirklin denied that he ever saw or conversed with Ramsey in his office or that he ever made the latter statements attributed to him During October Respondent entered a subcontracting type arrangement with another contractor Ellis and Kirklin began contacting prospective applicants and as noted an attempt was made to reach Ramsey Appli cants who had not already filled out an application were asked to fill out one and then were interviewed by Ellis Ellis interviewed six applicants, and two, Randy Wal drath and Mark Dyer were initially selected based on their experience Ellis evaluation of their skill and abili ty and whether or not they were known personally by Ellis or Kirklin Later two other employees Paul Hadley and Tim Wilson were hired by Kirkhn based on a similar evaluation Waldrath testified that in August when going door to door looking for work he left a resume with Respond ent He was called by Kirklin in early October and asked if he was still interested and told to come in and fill out an application He was then interviewed by Ellis He was asked about his experience but nothing was said about unions until he brought up the subject by asking if it was a union shop Ellis replied in the negative and nothing else was said on the subject Waldrath testified he previously had been a union member and questioned Respondent to find out if he would have to come up with dues and other fees Hadley testified that in October he was told by a friend that Respondent had a spot open and contacted KDF CONSTRUCTION 893 Kirklin who asked his construction experience He had no recollection of anything being said during the conver sation about the union He worked 4 days and was laid off On November 8 Charles Ripley a union member for 15 years called Ellis reminded him of where they previ ously had worked together (on a union job) and asked if he was hiring Ellis said he did not know as Kirklin was out of town and asked Ripley to check back Ripley tes titled that Ellis asked him if he was still in the union said that he (Ellis) had dropped out and said Respondent was a nonunion contractor At some later time Kirklin called him after he visited the office and asked that he fill out an application and volunteered to send one to him Ripley picked it up the next day but did not mail it in for a good while (Ripley s phone records confirm the call on November 8 and show that he called Ellis again on November 9 and 15 and that during this period of time he also made calls to the Union on November 10 15 21 23 and 28) Ramsey next visited one of Respondent s jobs on Janu ary 24 1984 where he spoke with one of the employees The next day the Union started picketing the jobsite and Ellis observed Ramsey with the other pickets On Janu ary 27 1984 a local newspaper carried a picture and ar tide describing union picketing The article discussed wage rates and quoted Kirklin as saying there was no policy concerning hiring nonunion labor and you pay a man what he s worth—not what the union negotiated for him Kirklm did not recall using those words however he remembers being asked by a reporter how his pay rate was established and answering that it was based on experience what he could afford to pay and what the market would bear and that almost everyone who worked for him made a different hourly wage based on their experience On January 27 1984 Kirklin called the union hall on another matter and spoke with Ramsey who had an swered the phone Ramsey identified himself and said he was still looking for a job Kirklin said he had not seen an application from him and that Ramsey needed to fill one out Ramsey who had filed the instant charge with the Board 2 days earlier testified he picked up an appli cation the next day and mailed it in on February 3 or 4 III DISCUSSION On brief the General Counsel argues that Respondent illegally interrogated prospective employees about their union activities citing Russell Stover Candies 221 NLRB 441 (1975) and that it also violated the Act by rejecting Ramsey as an employee because of its union hostility no cases cited Turning first to the evidence of the alleged interroga non I find that the General Counsel has shown only that on July 26 Respondent s superintendent Ellis asked if Ramsey had been in the Union after Ramsey indicated he had been working for $8 an hour (as noted below I do not credit Ramsey s testimony regarding an alleged comment on October 18) that in October in response to a question from job applicant Waldrath Ellis told him that Respondent was not a union shop that job applicant Hadley had no recollection of anything being said about the union during his job interview and that when known union member Ripley asked former coworker Ellis on the phone if Respondent was hiring Ellis asked if Ripley was still in the union and informed him that Re spondent was a nonunion contractor Otherwise the record is devoid of any showing of union animosity on behalf of the Respondent except for the alleged philo sophical disdain for collective bargaining said to be at tnbutable to Kirklm based on an alleged newspaper quo tation that you pay a man what he s worth—not what the union negotiated for him In connection with the latter quotation I credit Kirklin s explanation that he did not use those exact words and as it appears that the so called quotation is actually the reporter s condensed composite interpretation of an interview I find it to be of no probative nature in supporting the General Coun sel s purpose of imputing union animus to Respondent The Board s recent decision in Rossmore House 269 NLRB 1176 (1984) notes its rejection of any per se rule regarding interrogations and reasserts that the basic test for evaluating whether interrogations violate the Act is whether under all the circumstances the interrogation reasonably tends to restrain coerce or interfere with rights guaranteed by the Act Here the questions regard ing union membership took place informally during pre limmary job inquiries and not in the context of formal job interviews Also there is no demonstrated back ground of antiunion sentiment on behalf of the Employ er At least one applicant raised the subject of unions himself and otherwise the questions by Superintendent Ellis were merely innocent spontaneous inquiries occa sioned by the circumstances of his personal knowledge of one applicant and an indication by another applicant that he had been working below union scale The bare inquiries were not pursued and did not tend to convey implicit employer displeasure with union membership Moreover Respondent also established that no new em ployees were hired prior to October 19 and that after that date at least two employees who were hired were known to have been former or current union members The Respondent is shown to be a new organization with few employees and no background of questionable labor practices and under the totality of the circum stances I find the questions to be noncoercive I further conclude that the General Counsel has failed to show that the questions had any reasonable tendency to re strain or interfere with rights guaranteed by the Act and accordingly I find that Respondent is not shown to have violated Section 8(a)(1) of the Act as alleged Union organizer Ramsey first made his interest in em ployment apparent to Respondent during July when Re spondent had no need for additional employees As noted above there is no showing that Respondent had any background of union animus that could motivate it to discriminate against union members However it is shown that Ellis asked Ramsey about union membership and Ramsey replied that he had been in the union but was not at the present Owner Kirklin then joined the conversation which amiably concluded with an indica tion that Respondent would keep Ramsey in mind if they got additional work On October 19 when Respondent 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had its next occasion to hire workers Ellis called Ramsey at the number Ramsey provided Ramsey was not available at that number and he had not made any arrangements for receiving or forwarding messages I credit the independent recall of Pamela Ramsey that she referred Ellis to a number where she thought Ramsey could be reached regardless of Ellis failure to recall that portion of the conversation However I find no persua sive reason to refute Ellis denial that he followed through with an additional call Ramsey testified that he visited the jobsite on October 18 and engaged in a conversation with Ellis where Ellis again asked if Ramsey had a union card said they had some work coming and that he had called Ramsey s number and spoken to a woman Ellis was not asked about the conversation and except for a notation in Ramsey s notebook there is no corroboration of the event I do not credit Ramsey s testimony in this regard based on my overall evaluation of demeanor and espe cially the negative probability rw likelihood that Ellis would have bothered to call Ramsey and then afterwards fail to pursue the apparent reason for the call at their next meeting Ramsey s demeanor while testifying tended to indicate a carelessness with information and recall of events and his mannerisms which displayed a cursory haphazard style Moreover I find his datebook lacking in consistency and insufficient to fully corroborate his recall of events in the face of the conflicting testimony by Re spondent s witnesses I credit the detailed testimony of secretary Swain who recalled the circumstance in October under which she gave Ramsey a job application which he declined to fill out at the time I also credit her testimony that she did not see Ramsey in the office when Kirklin was present In a similar vein I do not credit Ramsey s testimony that he spoke to Kirklin in the office on October 20 Although Ramsey s datebook produced on rebuttal shows cryptic entries for October 18 and 20 in support of his allegation it incon sistently fails to place him in Muncie on October 19 when he also allegedly visited the office Also the same entries in the datebook were made with varied inks and on balance I am not persuaded that it is an accurate re liable record of Ramsey s activities and conversations Ramsey received no further call from Respondent and he made no further pertinent contact with Ellis or Kirk lin until January 27 when Kirklin responded to Ramsey s indication of interest in a job with a request that he submit an application Here the General Counsel has shown only that Ramsey inquired about a job with Respondent that he was asked a noncoercive question regarding union mem bership and that he was never hired The record is bare of persuasive evidence that might tend to show union animus or unlawful motivation that otherwise might sup port an inference that Ramsey was not hired for illegal reasons based on his union membership The record pre sents nothing more than circumstantial evidence which fails to go beyond conjecture surmise or suspicion of discrimination The above evaluation of the record would be true even if Ramsey s testimony regarding the alleged additional questions by Ellis on October 18 and Kirklin on October 20 regarding his union status could be considered to be credible I conclude that the General Counsel has not made a prima facie showing to indicate unlawful motivation or to support an inference that the Respondent s failure to hire Ramsey was for an invalid reason Moreover I find that the record shows that Respondent actually did make a reasonable effort to contact Ramsey and Respondent otherwise has shown that it had valid reasons for select mg other employees including others with a union back ground similar to the apparent union history Ramsey represented himself as having Accordingly even if it could be considered that a prima facie showing was made by the General Counsel the overall record fails to show by a preponderance of the evidence that Respond ent violated Section 8(a)(3) of the Act as alleged and therefore I must recommend dismissal of the complaint CONCLUSIONS OF LAW 1 The Respondent KDF Construction Inc is an em ployer within the meaning of Section 2(6) and (7) of the Act 2 Eastern Indiana District Council of Carpenters a/w Brotherhood of Carpenters and Joiners of America is a labor organization within the meaning of Section 2(5) of the Act 3 Respondent has not engaged in unfair labor prac tices within the meaning of Section 8(a)(1) and (3) of the Act as alleged in the complaint On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed 2 ORDER It is ordered that the complaint be dismissed in its en tirety 2 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