NLRB - Exterior Systems, Inc.

Exterior Systems, Inc. and Operative Plasterers and Cement Masons International Association of United States and Canada, AFL–CIO, Local 8. Case 4–CA–29852

November 22, 2002

DECISION AND ORDER

By Members Liebman, Cowen, and Bartlett

On July 18, 2001, Administrative Law Judge D. Paul Bogas issued the attached decision. The General Counsel and the Charging Party filed exceptions and supporting briefs.

The National Labor Relations Board has considered the decision and the record in light of the exceptions1 and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions as modified below and to adopt the judge’s recommended Order as modified.3

1. The General Counsel and the Charging Party except to the judge’s findings that the Respondent did not violate Section 8(a)(3) and (1) by failing to hire or consider for hire James Kilkenny, a union organizer for the Operative Plasterers and Cement Masons International Association of the United States and Canada, AFL–CIO, Local 8 (the Union), after he applied for work on August 16, 2000, and again on October 3, 2000.4

The credited facts relating to these allegations, which are more fully set forth in the judge’s decision, are summarized as follows. The Respondent is a subcontractor that installs exterior insulation finish systems on commercial buildings. Fred Cosenza, a union organizer, contacted Mark Sanders, the Respondent’s manager, pursuant to the Respondent’s newspaper advertisement seeking laborers, stucco mechanics and carpenters, and arranged an interview for himself and “a couple of guys” on August 16. Cosenza then asked six union organizers, including Kilkenny, to accompany him to the Respondent’s jobsite at Children’s Hospital in Van Voorhees, New Jersey, in order to apply for jobs.

Upon arriving at the jobsite, Cosenza presented the applicants to Mark and Sun Sanders and asked where they wanted the applicants to start. Sun Sanders asked if any of the applicants knew how to stucco. When Kilkenny responded that he did, Cosenza informed Sun Sanders again that they were ready to work and this time asked her how many men she needed. She responded that she was not ready and that she couldn’t hire “all these.” Sun Sanders then asked Kilkenny about his stucco experience. After he explained that he had 10 or 11 years of experience, Cosenza urged him to “get up on that wall” and demonstrate his skill. Kilkenny volunteered to get his tools, but stated, “I ain’t gonna rasp.”5

Cosenza first broached the subject of the applicants’ union affiliation and intent to organize the Respondent’s workplace after Mark Sanders started to give Cosenza his business card. Sun Sanders reiterated that she would let them know and Mark Sanders provided a pad of paper to Cosenza so that the applicants could write down their contact information.

At about that point, Cosenza and Kilkenny asked two on-duty workers about their benefits and wages and solicited them to join the Union. Sun Sanders attempted to interrupt this conversation but Kilkenny then shouted to the employees that the union rate was $24.35 an hour with $7 in pension and annuity. Kilkenny then urged the workers to “[g]ive the Local a call” so that he could arrange for them to work for a union contractor. When Sun Sanders scolded him for doing so, Kilkenny mocked Sun Sanders’ Asian accent.

Agitated by the applicants’ behavior, Sun Sanders told them that she planned to talk to her lawyer and told them that she did not want to hire them because they were “too smart acting.” The Sanders then repeatedly asked the applicants to leave the Respondent’s worksite but the applicants refused to do so. Sun Sanders shouted “union piece of shit” and “[g]et the Hell work other place.” Still the applicants insisted that they wanted to work for the Respondent, that they were there in response to the advertisement and were willing to start working. Sun Sanders responded, “I’m sure you guys very good,” and that she would “let them know.” Sun Sanders added that the Respondent was planning to open a “big . . . panel shop,” and would hire “lotta people” and “[m]ight go for union so you never know.” The Respondent did not thereafter contact any of the applicants or offer them jobs and did not hire Kilkenny when he later applied again on October 3, 2000, at the Respondent’s jobsite in Berlin Township, New Jersey.

The judge found that the General Counsel failed to meet his initial evidentiary burden under FES6 of proving that union animus was a motivating factor in the Respondent’s decision not to hire Kilkenny or consider him for hire on August 16 or October 3. Specifically, the judge did find that the Respondent harbored union animus, as exhibited by Sun Sanders’ use of the antiunion expletive referenced above. The judge found, however, that such animus did not contribute to the Respondent’s refusal to hire or consider Kilkenny for hire.

Rather, the judge credited Mark Sanders’ testimony that he did not hire Kilkenny because the group came “onto my jobsite, and was basically ordering us around,” and engaged in behavior that was not “appropriate,” and that Kilkenny intentionally misunderstood Sun Sanders’ speech, “making her look like a dummy.” According to Mark Sanders, the group as a whole was “intimidating us,” and Kilkenny “was going right along with them.” The judge also credited Sun Sanders’ testimony that she felt the applicants treated her like “a stupid woman.” Citing Heiliger Electric Corp.,7 the judge found that the Respondent refused to hire Kilkenny or consider him for hire because he and the other applicants created an “intimidating” and “disrespectful” environment at the jobsite.

Moreover, the judge found that even if the General Counsel had proven that union animus contributed to the Respondent’s decision not to hire or consider Kilkenny for hire on August 16 or October 3, the Respondent satisfied its burden of showing that it would have made the same decision absent Kilkenny’s union affiliation. Specifically, the judge found that the Respondent proved it would not have hired Kilkenny or considered him for hire due to the “disruptive, intimidating, and disrespectful” atmosphere created by the applicants on August 16. The judge found it “not surprising” that Sun Sanders did not forget or forgive that behavior when Kilkenny applied again on October 3.

The General Counsel and the Charging Party contend, inter alia, that there was no credible evidence that the applicants’ activity was disruptive. They argue that the applicants were engaged in protected activity when they solicited the on-duty workers to join the union and engaged them in discussion about wages and work. The General Counsel and the Charging Party further contend that the Sanders’ antiunion animus, as evidenced by the Respondent’s failure to give the organizers applications and by the Sanders’ statements to the applicants, was the true motive for the decision not to hire or consider Kilkenny for hire.

Based on the credited evidence, we agree with the judge that the conduct of Kilkenny and the other applicants was “disruptive” and “disrespectful.” Moreover, based on the judge’s crediting of the testimony of Mark and Sun Sanders as to their reaction to this conduct, we adopt his finding that the Respondent would not have hired or considered Kilkenny for hire regardless of his union activity.8

As the Board explained in Heiliger Electric Corp., supra, “there is no provision in the Act or in the law developed by the Board that would require an employer to . . . [be] subjected to rude or intimidating conduct.”9 Kilkenny and the other applicants behaved in precisely such a manner toward the Sanders at the Respondent’s jobsite and, by doing so, effectively eliminated their opportunity for employment by the Respondent. That they also engaged in union activity by stating their intent to organize the Respondent’s employees if hired does not require the Respondent to disregard their misconduct.

We therefore affirm the judge’s dismissal of the discriminatory refusal to hire and refusal to consider for hire allegations.10

2. The General Counsel excepts to the judge’s finding that the Respondent did not violate Section 8(a)(1) when Sun Sanders told Kilkenny on October 3 that she could not hire him because he worked for the Union office. The facts relating to this allegation are briefly as follows. Kilkenny called Feeley, an out-of-work plasterer and union member, on August 16, after leaving the Respondent’s Van Voorhees jobsite, and directed him to apply with the Respondent. Feeley contacted the Respondent and was hired on that same day after meeting with Sun and Mark Sanders. After the Respondent hired Feeley, Kilkenny told Feeley to contact him if he learned that the Respondent was hiring employees.

In mid-September, the Respondent advised Feeley that it was hiring plasterers. Subsequently, Feeley informed the Sanders that he knew someone who was interested in the position. On October 3, Feeley and Kilkenny arrived together at the Respondent’s Berlin Township jobsite and Feeley introduced Kilkenny to Sun Sanders. Sun Sanders stated that she recognized Kilkenny from his visit on August 16 and would not employ him. She also stated that she could not employ him because he worked for the Union office. Kilkenny then asked if Feeley also could not work for the Respondent because he was a Union member. Sun Sanders replied that Feeley could continue working for her because “it’s a free country.” The Respondent did not contact Kilkenny after his visit to the jobsite.

The judge found that given the context of Sun Sanders’ statements, what she actually meant was that she would not hire Kilkenny due to his rude and disruptive behavior during his August 16 visit to the Respondent’s jobsite, not because of his union affiliation. According to the judge, a reasonable applicant who, like Kilkenny, was cognizant of the surrounding facts would understand what Sun Sanders meant.

The General Counsel argues that the Board should reject the judge’s interpretation of Sun Sanders’ statements. In the General Counsel’s view, the credited testimony demonstrates what was actually said and does not support the judge’s interpretation. For the reasons that follow, we find merit in this argument.

An employer violates Section 8(a)(1) by making statements to employees that union applicants will not be hired.11 Such statements are clearly coercive and have a reasonable tendency to interfere with employees’ rights under the Act.12 The Board has also held that “the supervisor’s motive or intent in making the statement has no relevancy in an 8(a)(1) context.”13 Instead, “the test to determine if a supervisor’s statement violated Section 8(a)(1) is whether under all the circumstances the supervisor’s remark reasonably tends to restrain, coerce, or interfere with the employee’s rights guaranteed under the Act. It is well established that this test does not depend on motive or the successful effect of the coercion.”14

We do not rely on the judge’s interpretation of Sun Sanders’ statements. Even if we were to agree with the judge that Sun Sanders did not actually mean what was said, and that Kilkenny understood the context in which the statements were made, the judge does not properly account for the fact that Sun Sanders made this statement to Kilkenny in front of Feeley, a current employee. There is no indication that Feeley was familiar with Kilkenny’s August 16 behavior. Under these circumstances, Sun Sanders’ statement would reasonably tend to restrain, coerce, or interfere with employees’ exercise of rights guaranteed under the Act, regardless of her intent or motive in making the statement. Her clear words to Kilkenny which were communicated in front of Feeley—that she would not hire him because he worked for the Union office—would reasonably tend to restrain, coerce, or interfere with employees’ rights in violation of Section 8(a)(1). There is nothing ambiguous about her statement and what Sun Sanders may have really meant in making it is beside the point.

The judge found it significant that Sun Sanders “did not state, or imply, that she would consider Kilkenny for hire if he abandoned his union affiliation or activity, or took some other action, nor did she suggest that Feeley would have to do anything, or refrain from doing anything, if he wished to continue to work for the Respondent.” The absence of these additional statements, however, provides no defense for the Respondent. Sun Sanders’ statement is not rendered innocuous simply because she did not make these additional statements, which would have also been unlawful. We therefore find that Sun Sanders’ statement that she would not hire Kilkenny because he worked for the Union office is a violation of Section 8(a)(1).

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, Exterior Systems, Inc., Mount Laurel, New Jersey, its officers, agents, successors, and assigns shall take the action set forth in the Order as modified.

1. Add the following as paragraph 1(c) and reletter the subsequent paragraph:

“(c) Threatening that applicants who are union organizers will be refused employment.”

2. Substitute the attached notice for that of the administrative law judge.

Dated, Washington, D.C., November 22, 2002

________________________________

Wilma B. Liebman, Member

________________________________

William B. Cowen, Member

________________________________

Michael J. Bartlett, Member

(seal) National labor relations board

Member Liebman, concurring.

In line with the careful allocation of evidentiary burdens under FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002), the Respondent has demonstrated that notwithstanding its antiunion animus, it refused to hire union organizer James Kilkenny, and refused to consider him for hire, because of his disruptive and disrespectful conduct, not his union affiliation. Despite our agreement on this point, Member Cowen and Member Bartlett have each chosen, in concurring opinions, to address an issue that was neither raised nor briefed by any party and that we concededly need not examine here. My colleagues separately argue that the Board must supplement or modify the FES framework in some fashion, to address what each apparently believes should be an element of a refusal-to-hire and a refusal-to-consider violation under Section 8(a)(3) of the Act. In their view, the General Counsel has the burden of proving that the employee alleged to have been discriminated against also had a genuine interest in employment—however that may be defined and demonstrated (my colleagues do not articulate a clear and common test). Member Cowen would require this showing as part of the General Counsel’s initial burden; Member Bartlett would not, but he would still place the burden of persuasion on the General Counsel, once the employer produced evidence on the issue (as opposed to treating the matter as an affirmative defense, on which the employer bears the burden of persuasion).

Needless to say, these arguments would be better addressed in a case where they had some bearing on the outcome and where the Board had the benefit of briefing. But because my colleagues have put their views forward, because those views strike me as seriously flawed, and because I am the sole remaining member of the Board that decided FES, I feel compelled to speak to the issue as well. In my view, FES clearly contemplates that the issue of an applicant’s interest in employment will be material only insofar as the employer can establish, as an affirmative defense, that the applicant’s behavior or manifested lack of interest in employment, was the actual basis for refusing to hire or consider him. As this case illustrates, the FES framework effectively permits employers whose actions were not, in fact, based on their proven antiunion animus to defend against claims involving applicants whose own behavior belies a serious intention to secure employment.

The basic principles underlying FES are well established. It is settled that a job applicant is an “employee” under Section 2(3) of the Act. Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941).1 It is settled, too, that union organizers who apply for work (salts) are also statutory employees, immediately protected from discrimination based on their union affiliation—unless it is proven that they have engaged in (or, if hired, would engage in) acts of disloyalty or other conduct inconsistent with the duties of an employee. NLRB v. Town & Country Electric, 516 U.S. 85 (1995).2 Apart from employee status, there is no other status—such as being a “genuine applicant”—that must be established to claim the protection of the Act. Statutory employees, in turn, may not be discriminated against. When antiunion animus was a substantial motivating factor in an employer’s adverse actions toward an employee, it is the employer’s burden to prove that it would have acted in the same way, regardless of the employee’s union affiliation. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).

The Board’s decision in FES is a particularized application of Wright Line. There, after hearing oral argument, a full Board set forth a new analytical framework for deciding discriminatory refusal-to-hire and refusal-to-consider cases. The FES Board was able to strike a balance in determining not only the requisite legal elements of refusal-to-consider and refusal-to-hire violations, but also the respective burdens of the parties, as well as the stage of the case at which issues are to be litigated. The Board took a middle course, as reflected by its rejection of the positions expressed in the concurring and dissenting opinions for then-Members Brame and Fox. Although the FES Board did not explicitly address the issue raised by my colleagues, the decision’s careful crafting obviously implies an intention to resolve all such issues. I see no reason to tinker with the resulting framework. Contrary to my colleagues, I believe that under current law, the Board can and does appropriately address situations where salts are not pursuing legitimate objectives using legitimate means. Such situations strike me as the exception, not the rule.

My colleagues suggest that their approaches are consistent with, or even compelled by, FES. I disagree. The Board was well aware of the “genuine applicant” issue when it decided FES. Member Brame’s concurrence—in which he expressed his own view that the standard for hiring discrimination cases must take into account “whether the alleged discriminatee actually sought work with the employer,” 331 NLRB at 26—was not endorsed by the majority. At the same time, the majority’s opinion made clear that it did “not address affirmative defenses to allegations of discriminatory refusal to consider or to hire applicants for employment and [did] not affect precedent governing such defenses.” 331 NLRB at 12 fn. 6.

FES, then, teaches that an applicant’s lack of interest in employment, however manifested to the employer, may be raised by way of an affirmative defense, i.e., to establish that the employer, notwithstanding its antiunion animus, had a lawful reason for excluding the applicant from the hiring process. In other words, the employer may show that it honestly believed that the applicant was not interested in being hired, or that, in the employer’s view, the applicant’s behavior during the application process demonstrated his unfitness as an employee, and that this was the actual reason he was not hired or considered for hire. Just what evidence will satisfy the employer’s burden is necessarily a question to be decided case-by-case, because it involves an inquiry into the motives of a particular employer in particular circumstances.

FES does not support—indeed, it does not permit—the positions respectively taken by my colleagues. “Applicant status,” as my colleagues describe it, is not an element of the violation and is not an issue on which the General Counsel bears the burden of persuasion. Certainly, FES assumes that the General Counsel can show that the alleged discriminatee applied (or attempted to apply) for a position. But there is nothing in the decision to suggest that this means anything more than that the employee has submitted an application or otherwise conveyed a desire to be hired.3

None of the other cases cited by my colleagues offer the claimed support for their views.4 Sunland Construction Co., 309 NLRB 1224 (1992), was decided before FES and Town & Country Electric.5 Member Cowen describes the decision as addressing “the applicant/employee status of paid organizers.” But he cites only a footnote in which the Board rejected the argument of the amici “that paid union organizers are not ‘employees.’” 309 NLRB at 1229 fn. 35 (emphasis added). Sunland did not require the General Counsel to prove “applicant status”; it held, rather, that an employer could refuse to hire a paid organizer who undeniably did seek employment, but who did so while his union was on strike—circumstances, the Board held, that established a disabling conflict of interest for the organizer. In Blaylock Electric, 319 NLRB 928 (1995), enfd. 121 F.3d 1230 (9th Cir. 1997), also decided before FES, the Board denied an employer’s application for attorney’s fees and expenses under the Equal Access to Justice Act (EAJA), following the General Counsel’s withdrawal of the complaint after the trial in that case. The Board concluded that the General Counsel’s position was substantially justified. In a footnote, it rejected the employer’s argument “that the alleged discriminatees were not bona fide applicants for employment.” 319 NLRB at 928 fn. 1. Clearly, that issue was material to the EAJA claim only insofar as it would support the employer’s affirmative defense in the underlying case. Finally, HVAC Mechanical Services, 333 NLRB No. 24 (2001), decided after FES, used the phrase “genuine applicants” and “bona fide applicant” in describing the respondent employer’s arguments, which it rejected. The decision nowhere suggests that the General Counsel bore the burden of proof on this point. Had the Board intended to depart from the FES framework, it surely would have said so.

The shared flaw in the views of Member Cowen and Member Bartlett is a focus not on the employer’s motive in refusing to hire or consider a statutory employee, but on the intentions of the employee with respect to actual employment. A job applicant without the right intentions, in their view, is not really an applicant at all and so cannot be the victim of discrimination. At bottom, then, my colleagues seek a way around the Supreme Court’s decisions in Phelps Dodge and Town & Country Electric, by effectively creating a new prerequisite for employee status.

Such attempts are at odds with the Act and its policies. Section 8(a)(3) provides that it is an unfair labor practice for an employer “by discrimination in regard to hire . . . to encourage or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3). Quite clearly an employer may discriminate against an applicant for employment, in violation of Section 8(a)(3), even if the applicant has no intention of accepting the job if offered and even if the applicant hopes to be rejected.6 Consider an employer whose consistent policy is not to hire union members, in order to prevent organization of the work force. Following that policy, the employer will reject any union member who applies, regardless of whether the applicant has a genuine interest in obtaining employment. (Indeed, the employer may be entirely unaware of the applicant’s lack of interest.) The employer’s conduct was motivated solely by antiunion animus, discriminated against union members, and necessarily discouraged union membership. It furthers the goals of the Act to detect and redress such discrimination.7

In contrast, treating “applicant status,” as my colleagues describe it, as an element of an 8(a)(3) violation, creates an obstacle to the effective enforcement of the Act. Union members may wish to test their employability—whether for purely personal reasons or as a means of exercising their Section 7 rights, by uncovering antiunion animus and pursuing legal relief—regardless of any present intention of accepting a particular job. Should their efforts produce evidence of unlawful discrimination, there is no reason why the Board should fail to intervene.

Ensuring that the Act protects all persons entitled to protection means assuming, at least initially, that all applicants are genuine unless and until proven otherwise. Member Cowen argues that the “Board should not assume that salts intend to obtain employment, when many times . . . they intend to provoke the employer into not hiring them so that they can file unfair labor practice charges.” But based on my experience at the Board, I cannot subscribe to Member Cowen’s dire description of the practice of salting and its effect on the administration of the Act. The change in our law that Member Cowen proposes would, I fear, discourage the prosecution of many legitimate refusal-to-consider and refusal-to-hire cases, in order to spare the Board from considerably fewer problematic cases.

Somewhat obscured by my colleague’s rhetoric is a point on which we both agree: the Board’s scarce resources should not be wasted on cases of little value in promoting the goals of the Act. But unlike Member Cowen, I see no “rising tide of cases” involving abusive behavior by salts, no persuasive evidence that the Board’s processes are being “co-opted” by unions, and nothing in current law that encourages the General Counsel to pursue meritless salting cases. Presumably if an employer has persuasive evidence that an applicant was not genuine, and that fact explains the employer’s actions, it will present that evidence to the Region during the precomplaint investigation. I am inclined to confidence that the General Counsel does not often issue complaints in such cases.

There is no question that salting cases represent a significant part of the Board’s docket. I am not persuaded that this development reflects an abuse of process. What strikes me, rather, is the energetic effort of at least some employers to avoid considering or hiring union-affiliated applicants, whatever the cost in litigation expenses or backpay remedies. Whether or not this is common practice in the construction industry, it would help explain the rise and persistence of salting campaigns.

Dated, Washington, D.C., November 22, 2002

________________________________

Wilma B. Liebman, Member

National labor relations board

Member Cowen, concurring.

I agree with my colleagues that the Respondent established that Kilkenny’s misconduct was the basis for the Respondent’s decision not to hire or consider him for hire and therefore the Respondent did not violate Section 8(a)(3) and (1). However, I would also dismiss these complaint allegations on another basis; that is, Kilkenny’s offensive conduct establishes that he was not an applicant for employment and therefore the General Counsel did not establish a prima facie case under FES (A Division of Thermo Power), 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002). In this significant respect, my position differs from that of both of my colleagues.

Kilkenny and the group of organizers with whom he associated revealed through their antics during their job interview with the Respondent on August 16, that they were not genuinely interested in obtaining employment, but were simply at the jobsite to provoke the Respondent into not hiring them so that a spurious unfair labor practice charge could be filed. Kilkenny’s offensive and disruptive behavior during the job interview included urging on-duty workers to leave the Respondent’s employment and go to work for a union contractor, making fun of the owner’s Asian accent, and refusing to leave the jobsite despite repeated requests by the Respondent to do so. After this display, which was captured covertly on audiotape by the organizers, the Union then had the audacity to file an unfair labor practice charge on Kilkenny’s behalf, alleging discriminatory failure to hire and failure to consider for hire. In my view, this case strongly illustrates a significant problem that may result when the Board is not attendant to the FES requirement that an alleged discriminatee is in fact an applicant. By ignoring this requirement, the Board may unwittingly allow its processes to be co-opted in a union’s illegitimate and unprotected effort to inflict substantial expenses on targeted nonunion employers who fail to voluntarily recognize the union.

A. FES Requires the General Counsel
to Prove Applicant Status

A claim of discrimination in regard to hire requires that there be an applicant who was denied employment. Accordingly, inherent in the FES framework is the requirement that an alleged discriminatee be “an applicant.” Specifically, with regard to a refusal-to-hire claim, the General Counsel must show, inter alia, “that the applicant had experience or training relevant to the announced or generally known requirements of the positions for hire . . .” and that “antiunion animus contributed to the decision not to hire the applicant.”1 With regard to a refusal to consider for hire claim, the General Counsel must show that the respondent “excluded the applicant from the hiring process” and that “antiunion animus contributed to the decision not to consider the applicant for employment.”2

The Board’s decision in FES did not address the standard for determining applicant status. However, looking to Board precedent, the Board has instructed that the intent to obtain work with the employer is a necessary prerequisite to obtaining applicant status. Significantly, the Board, in its 1992 decision of Sunland Construction Co., considered the applicant/employee status of paid organizers and found that “as long as the organizer is able, available, and fully intends to work for the employer if hired, he will not be disqualified from ‘employee’ status.”3 Because FES did not overrule this precedent, it must be incorporated into the Board’s examination of applicant status in refusal to hire cases under FES. Consistent with this precedent, in a post-FES case, HVAC Mechanical Services, 333 NLRB No. 24 (2001), the Board found that the alleged discriminatees were “genuine applicants” because there was no evidence that “they were not interested in obtaining employment with the Respondent, or that they did not intend to perform their assigned duties if hired.”4 The reason for this genuine intent requirement is simple: an individual cannot suffer a denial of employment that he or she never actually sought. Therefore, it is clear that a discriminatory hiring violation cannot be established unless there is proof that the alleged discriminatee genuinely sought work with the employer.

Consistent with these principles, administrative law judges have issued findings in numerous post-FES cases as to whether alleged discriminatees were bona fide applicants.5 In most of those cases, the judges have considered evidence regarding the intent of the organizer-applicant at the time of application. However, the Board has typically sidestepped the applicant status issue by failing to pass or rely on these findings.6 In one such case, Eckert Fire Protection, Inc., Judge Shamwell aptly explained the importance of alleged applicants being able to show that they were genuinely interested in obtaining work with the employer in light of the underlying policies and remedial nature or the Act:

Clearly, one of the broad purposes and functions of the Act, as amended, is to protect the statutory rights of employees, but also in the process those rights must be balanced against the rights of employers. It is also the policy of the Act to promote labor peace and reduce burdens on commerce occasioned by labor strife. In light of these policies and the remedial nature of the Act, applicants for employment in my view should be bona fidely interested in gaining employment when they submit applications, even where they also harbor an intention from whatsoever source derived to organize or engage in other protected activities if hired. In my view, it is also consonant with the spirit of the Act that such applicants should demonstrate that their applications were submitted in a good-faith attempt to secure employment and not for purposes that run counter to the policies of the Act.7

The Board’s failure to articulate clear guidance in this area has resulted in a rising tide of cases in which union salts have behaved in a hostile, disrespectful, and/or intimidating manner during the application process with a clear purpose of inducing the employer not to hire them so that they could file unfair labor practices with the Board.

In order to make out a prima facie case of discrminatory refusal to hire, or refusal to consider for hire, in my view, FES requires the General Counsel to show that the alleged discriminatee applied for a position under the terms held out by the employer to the public, with a genuine interest in gaining employment with the employer, regardless of a concomitant interest in engaging in lawful organizing. In my view, the crucial inquiry is whether the alleged discriminatee actually intended to gain employment regardless of the motivation for doing so. In other words, regardless of the applicant’s particular reason for wanting the job, whether it be to obtain better pay, a better work schedule, or to organize the employer’s workforce, the applicant must have a genuine intent to work for the employer under the same terms generally offered to all applicants. In this vein, the intent to work for the employer if hired is distinguishable from the desire to organize or any other motivation that the alleged discriminatee may possess.

Evidence of an alleged discriminatee’s conduct during the application process is relevant to the determination of whether he or she is an applicant. This includes whether an alleged applicant engages in offensive behavior inconsistent with a genuine intent to obtain employment.8 Evidence of this character strikes at the very core of the General Counsel’s prima facie case. For example, no one would argue that an individual who throws an application attached to a rock through an employer’s window is in fact an applicant. Accordingly, where an alleged discriminatee behaves in an objectively offensive manner that is antithetical to how one would expect a genuine applicant to behave, the Board should infer that such an individual is not genuinely interested in employment, and dismiss the allegation on that basis.

It should be noted that nothing in the Supreme Court’s holdings in Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941), and NLRB v. Town & Country Electric, 516 U.S. 85 (1995), compels a contrary approach. Phelps Dodge addressed the question of whether applicants are considered statutory employees under the Act, and Town & Country addressed the same question as to paid union organizers. Neither decision addressed the definition of “applicant” under the Act or took away defining applicant status from the Board’s province and responsibility.

The FES burdens of proof are based on those established in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982) for all cases alleging violations of Section 8(a)(3), or violations of Section 8(a)(1) turning on employer motivation.9 Under this burden shifting scheme, the General Counsel must prove by a preponderance of the evidence each and every element of his prima facie case, including applicant status, before the burden will shift to the Respondent to show that it would have taken the same action despite the alleged discriminatee’s union affiliation or activity.10 Accordingly, the requirements of FES, consistent with the purposes of the Act, require the General Counsel to prove that an alleged discriminatee is in fact an applicant as part of his prima facie case. This is not to say that the General Counsel must put on extensive evidence to establish a genuine intent to obtain employment in every case. Where an alleged discriminatee’s application appears genuine on its face, the employer must present evidence to show that the application was not genuine if the employer wishes to challenge the General Counsel’s prima facie case as to the alleged discriminatee’s applicant status, but the ultimate burden of proof remains with the General Counsel.

The Board should not assume that salts intend to obtain employment, when many times, as is clear in this case, they intend to provoke the employer into not hiring them so that they can file unfair labor practice charges. With such a faulty assumption, the door is left open for salting campaigns to be able to enlist the Board’s processes in their efforts to pressure employers into voluntarily recognizing the union and to financially punish uncooperative employers. If the Board is not attendant to the FES requirement that the General Counsel prove that the alleged discriminatee is an applicant, the General Counsel will be prompted to issue complaint in such spurious cases, as is evidenced by this case itself.11 Even if the Board ultimately finds no violation, the union’s objective of inflicting financial harm on the employer will be satisfied and the Board will have allowed itself to be used as the means by which this illegitimate and unprotected objective is attained.12

In Jefferson Standard, the Supreme Court recognized an employer’s right to insist on employee loyalty and a cooperative employee-employer relationship. Jefferson Standard made clear that even otherwise protected activity ceases to be protected if conducted in an excessive or indefensible manner.13 In my view, a union’s litigation-based strategy of filing unfair labor practice charges, without regard for their merit, for the sole purpose of inflicting serious economic injury on nonunion employers, is unrelated and unnecessary to any legitimate and lawful organizing purpose.14 This litigation-based tactic undermines the primary purpose of the National Labor Relations Act, which is to eliminate obstructions to the free flow of commerce by resolving labor disputes through peaceful processes.15 Contrary to this underlying policy, unions who employ this litigation-based salting tactic seek to provoke a labor dispute and cause disruption of commerce. As former Chairman Hurtgen has noted, “although the filing of colorable unfair labor practice charges is protected, [the] filing of spurious charges intended to harass is not protected.”16 The Board must avoid being enlisted in such illegitimate tactics so that it may conserve its limited resources for the adjudication of colorable claims under the Act.

B. Kilkenny Is Not An Applicant

Here, James Kilkenny and the troop of organizers with whom he associated revealed by their insulting, intimidating, and disruptive behavior that they were not interested in obtaining employment with the Respondent. This conduct included disrupting the workplace by shouting to the working employees about their pay and benefits, attempting to persuade them to leave the Respondent’s employment and go to work for a union contractor, bullying and insulting the Sanders, and refusing to leave the jobsite after the Sanders repeatedly instructed them to do so. It is abundantly clear from this record that the organizers were not acting with the objective of getting hired. The only reasonable interpretation of their actions is that they intended to provoke the Respondent not to hire them so that the Union could file a spurious unfair labor practice charge.

Accordingly, I would find that the General Counsel failed to show by a preponderance of the evidence that Kilkenny was an applicant, and therefore failed to make out a prima facie case of discrimination under FES.

C. Conclusion

Accumulated experience has demonstrated the merit in prior warnings that the Board’s processes are being hijacked by salting campaigns in pursuit of illegitimate union objectives that are foreign to the policies the Act is designed to promote. The Board’s past refusal to seriously address these concerns has cost this Agency dearly in lost credibility with reviewing courts and with the public. Valid hiring discrimination cases may be rejected by the courts of appeal because they are viewed with an unwarranted skepticism flowing from the Board’s handling of spurious claims made in salting cases. The Board has devoted precious administrative resources to cases of this character, at the expense of more promptly addressing other cases that do present the problems Congress created this Agency to address.

To remedy this problem, the Board should expressly decide, as is inherently required under FES, whether the General Counsel has proven as part of his initial evidentiary burden that the alleged discriminatee was in fact an applicant; that is, someone who applies for a position under the terms held out by the employer to the public, with a genuine interest in gaining employment with the employer, regardless of a concomitant interest in engaging in lawful organizing. Where the alleged discriminatee’s words or conduct during the hiring process are inconsistent with an intent to seek employment, the case should be dismissed forthwith.

Dated, Washington, D.C., November 22, 2002

________________________________

William B. Cowen, Member

National labor relations board

Member Bartlett, concurring.

Our holding today that an employer may refuse to consider or hire applicants who engage in disruptive, intimidating and disrespectful behavior represents an important step in addressing the issue of inappropriate tactics employed by many job applicants in salting campaigns. However, the type of conduct that Kilkenny and the other union organizers engaged in here is only one way that an “applicant” can demonstrate a lack of bona fides in seeking employment. Approaching the matter more generally, I would find, consistent with FES,1 that the General Counsel must prove that the alleged discriminatee is an applicant for employment with the respondent. In this regard, I would require the General Counsel to prove initially that the individual applied for a position. I would not require the General Counsel to prove in all cases, as part of the prima facie case, that the individual applied for a position with a genuine interest in gaining employment with the respondent. However, if the respondent in its case produced evidence that the individual was not a bona fide applicant, I would require the General Counsel to rebut this evidence. Thus, from the outset and throughout the case, I would find that the ultimate burden to prove this element of the violation resides with the General Counsel.

A. Analytical Framework

The Board’s analytical framework for allegations involving discriminatory refusal to hire or consider for hire is set out in FES, supra. In that case, the Board held that, in order to establish a discriminatory refusal to hire, the General Counsel must first show

(1) that the respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct; (2) that the applicants had experience or training relevant to the announced or generally known requirements of the position, or, in the alternative, that the employer has not adhered to such requirements, or that the requirements were themselves pretextual or were applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision not to hire the applicants. Once this is established, the burden will shift to the respondent to show that it would not have hired the applicants even in the absence of their union activity or affiliation.2

In cases alleging a discriminatory refusal to consider for hire, the General Counsel must show

(1) that the respondent excluded applicants from a hiring process; and (2) that antiunion animus contributed to the decision not to consider the applicants for employment. Once this is established, the burden will shift to the respondent to show that it would not have considered the applicants even in the absence of their union activity or affiliation.3

The burden-shifting framework delineated in FES applies by its terms both to cases alleging a refusal to hire and to those involving a refusal to consider for hire. Indeed, the statutory basis for undertaking the analysis is the 8(a)(3) prohibition against “discrimination in regard to hire.” Although not articulated in the Board’s decision, FES presupposes that the target of the alleged discrimination presented himself to the respondent as an applicant for a job. An individual cannot be discriminated against by being denied employment that he does not actually seek.

For these reasons, I would find that FES implicitly and necessarily requires the General Counsel to establish that the individual applied or attempted to apply for work.4 Typically, the General Counsel’s burden as to this issue would be satisfied by evidence that the alleged discriminatee submitted a job application to the respondent or appeared at the respondent’s workplace and requested hire. In rare cases, when the General Counsel’s evidence showed lesser measures to secure employment, or that the individual’s efforts were thwarted by the respondent, the Board would be required to evaluate on a case-by-case basis the reasonableness of the individual’s actions to determine whether the required showing has been met.

Moreover, not every individual who submits an application or requests to be hired has a real interest in working for the employer. An alleged “applicant” might simply go through the motions of applying for reasons totally unrelated to a desire to secure and perform an available job. For example, a laid-off employee might demonstrate to the employer that he is grudgingly applying for a job in order to maintain eligibility for unemployment compensation. Obviously, an employer is not obligated to offer a job to an individual who conveys a lack of genuine interest in employment.

Section 8(a)(3) requires no different result where the applicant supports or is affiliated with a union. Thus, an employer does not discriminate in refusing to hire an applicant on the basis of union affiliation if the applicant informs the employer that he does not want to work for the employer or is not interested in the available job. Of course, such explicit expressions of lack of interest are the exception. More commonly, an individual demonstrates through less direct statements or through his behavior that he is not interested in the job at issue. Reason dictates that at some point such statements or conduct may also convey to the employer that the individual has effectively removed himself from consideration for employment and thus that he is not a bona fide applicant.

In articulating the test in FES, the Board did not identify the bona fides of an applicant as a discrete element of either the General Counsel’s or the respondent’s case. Nevertheless, other Board decisions make clear the relevance of such an inquiry. For example, in Blaylock Electric,5 the Board agreed with the judge that the alleged discriminatees were bona fide applicants. The Board explained its finding of bona fide applicant status, noting that although the applicants were currently employed at higher wage rates, the record showed that they anticipated being laid off soon, and that their testimony about being unwilling to accept jobs with the employer pertained only to short-term jobs. Similarly, in HVAC Mechanical Services,6 the Board rejected the respondent’s assertion that the alleged discriminatees were not bona fide applicants, finding that “[t]here is no evidence in the record to support the Respondent’s speculation that [the applicants] were not interested in obtaining employment with the Respondent, or that they did not intend to perform their assigned duties if hired.”7

Although the Board in these cases has recognized the relevance of bona fide applicant status, it has not explicitly addressed the relative burdens of the General Counsel and the respondent on this issue. Thus, the question remains as to which party has the burden of coming forward or producing evidence on the issue and which party has the burden of persuasion. I would find that these burdens are appropriately allocated as follows.

As stated above, the General Counsel initially would have a burden of establishing that the alleged discriminatee is an applicant for employment with the respondent. Consistent with FES, this burden would require no more of the General Counsel than to show that the individual applied for or sought a job in the normal sense. The General Counsel need not introduce evidence regarding the alleged discriminatee’s intentions or bona fides in seeking employment.

Assuming the General Counsel has presented sufficient evidence that the alleged discriminatee is an applicant, I would shift the burden of going forward with evidence of a lack of bona fides to the respondent. At this stage, the respondent could raise the issue of the individual’s status as a bona fide applicant by producing evidence of any conduct or statements by the alleged discriminatee, or other circumstances, that tend to contradict a genuine desire to obtain employment. However, while the respondent would have the initial burden of producing relevant evidence that the applicant was not bona fide, I would allocate the burden of persuasion as to this issue to the General Counsel. Thus, the General Counsel would have the ultimate burden of establishing that the applicant is bona fide. I would find it appropriate to place this burden on the General Counsel because applicant status is an essential element of the alleged violation, and because the General Counsel has access to the alleged discriminatee for purposes of obtaining evidence on this subject.

B. Kilkenny’s Status as a Bona Fide Applicant

Applying the above principles to the facts of this proceeding,8 I would find that the General Counsel produced sufficient evidence that Kilkenny applied for work with the Respondent. However, the Respondent produced evidence that he was not a bona fide applicant. I would find that the General Counsel has not satisfied the burden of establishing that Kilkenny was a bona fide applicant, and that the Respondent therefore did not violate Section 8(a)(3) and (1) by not hiring or considering him for hire.

The General Counsel produced evidence, relied on by the judge, that Kilkenny appeared at the Respondent’s jobsites on August 16 and October 3 seeking employment. The record shows that on August 16 Kilkenny presented himself as an applicant for work, and briefly discussed his qualifications with the Sanders. Kilkenny visited the Respondent’s Berlin Township, New Jersey jobsite on October 3 with employee Feeley to apply again. Sun Sanders obviously perceived Kilkenny’s presence as an attempt to secure work with the Respondent. When Feeley introduced Kilkenny, Sun Sanders promptly stated that she recognized Kilkenny and would not employ him.

Although I would find that the above actions demonstrate that Kilkenny applied for a job with the Respondent, I would further find that the Respondent produced evidence that Kilkenny’s conduct during the August 16 visit was inconsistent with any genuine desire to obtain employment. Kilkenny and the other union organizers who arrived together at the Respondent’s jobsite attempted from the start to bully Sun and Mark Sanders, ostensibly with the goal of being hired. While it was Cosenza, the group’s leader, who began by telling an employee that “we’ll probably take your job,” criticizing the Respondent’s choice of equipment, opining that the employees operating a lift “don’t know what they’re doing,” and taking it upon himself to shout steering directions to them, Kilkenny himself engaged in the unruly and disrespectful conduct toward the Respondent. When Sun Sanders attempted to discuss qualifications for performing stucco work, Kilkenny went along with Cosenza’s urging to get his tools and get up on the wall to demonstrate his skill. Kilkenny at first jokingly insisted that he would not perform rasping, a necessary task in plastering work, but later restated his distaste for rasping by recommending that the Respondent “let the guy without the shirt do all the rasping because that stinks.” Kilkenny and Cosenza cajoled the Respondent to allow them to begin work immediately, even after the Sanders repeatedly stated that they did not need all of them and that they did not want them that day. Kilkenny disrupted the work of an employee on a lift at the jobsite by shouting questions about his pay and benefits, and encouraging him to come to the office of the local union, promising that “I can put you out tomorrow.” He also ridiculed Sun Sanders’ accent and “made her look like a dummy,” according to Mark Sanders.

This evidence of “disruptive, intimidating, and disrespectful conduct,” as characterized by the judge, starkly contradicts Kilkenny’s asserted desire to secure a job with the Respondent. No applicant could reasonably entertain an expectation of a job offer after engaging in such a display of inappropriate conduct at a prospective employer’s workplace. Instead, I would find that through his blatant misconduct Kilkenny effectively removed himself from consideration for employment by the Respondent, both on August 16 and upon his return with Feeley on October 3. Thus, considering the evidence produced by the General Counsel and the Respondent, I would conclude that the General Counsel has failed to carry his burden of persuasion that Kilkenny was a bona fide applicant. Accordingly, I would dismiss the allegation that the Respondent unlawfully failed to hire Kilkenny or consider him for hire.

Dated, Washington, D.C., November 22, 2002

________________________________

Michael J. Bartlett, Member

National labor relations board

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated the Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your

benefit and protection

Choose not to engage in any of these protected

activities.

We will not instruct employees not to discuss their wages with other employees.

We will not threaten any employee because he or she supports a union.

We will not threaten that applicants who are union organizers will be refused employment.

We will not in any like or related manner, interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

Exterior Systems, Inc.

Bruce G. Conley, Esq. and Lance Geren, Esq., for the General Counsel.

Thomas M. Barron, Esq. (Parker, McCay & Criscuolo), of Marlton, New Jersey, for the Respondent.

Bruce E. Endy, Esq., for the Charging Party.

DECISION

Statement of the Case

Paul Bogas, Administrative Law Judge. This case was tried in Philadelphia, Pennsylvania, on May 15 and 16, 2001. The Operative Plasterers and Cement Masons International Association of United States and Canada, AFL–CIO, Local 8 (the Union), filed the original charge on October 6, 2000, and the amended charge on December 22, 2000. The Director of Region 4 of the National Labor Relations Board issued the complaint on December 27, 2000. The complaint alleges that Exterior Systems, Inc. (the Respondent), refused to hire and consider for hire James Kilkenny because he is a member of the Union, in violation of Section 8(a)(1) and (3) of the Act. The complaint also alleges that the Respondent violated Section 8(a)(1) of the Act by, inter alia, disparaging the Union to employees, instructing an employee not to discuss his wages with other employees, interrogating an employee regarding his membership in the Union, and threatening an employee because of his support for the Union. The Respondent filed an answer in which it denied the substantive allegations of the complaint.

On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel, the Charging Party, and the Respondent, I make the following findings of fact and conclusions of law.

Findings of Fact

i. jurisdiction

The Respondent, a corporation, performs exterior insulation finishing services in New Jersey and Pennsylvania. Its principal place of business is in Mount Laurel, New Jersey.1 During the year prior to the issuance of the complaint, the Respondent performed services valued in excess of $50,000 outside the State of New Jersey.

The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act.

ii. alleged unfair labor practices

A. Background

The Respondent is a subcontractor that installs exterior insulation finish systems on commercial buildings. This work involves insulating the outside walls of the building, placing a base coat over the insulation and then applying a finish similar to plaster or stucco over the insulation and base coat. Sun Sanders (S. Sanders) and her husband, Mark Sanders (M. Sanders), operate the company, which has been in business for approximately 3 years. S. Sanders is the Respondent’s owner and president, and M. Sanders is the Respondent’s general manager. During the relevant time period the Respondent employed between four and nine persons in addition to S. Sanders and M. Sanders. The Respondent’s work force has never been represented by a union.

August 16, 2000 Incident

In August 2000, the Respondent placed a help-wanted advertisement in a local newspaper. The advertisement read:

CONSTRUCTION Laborers, stucco mechs & carpenters. Hlth bntfs. Work year-round [Respondent’s Telephone Number]

The advertisement was drafted and submitted to the newspaper by M. Sanders based on conversations with S. Sanders. At the time the Respondent employed four or five persons.

Frederick Cosenza, a business representative for the Philadelphia Building Trades Council, and a member of Laborer’s Local 332, observed this advertisement, and telephoned the Respondent to inquire about possible employment. He spoke to M. Sanders who informed him that the Respondent was interested in hiring two mechanics, two laborers, and one carpenter.2 Cosenza arranged to meet M. Sanders at one of the Respondent’s jobsites—the Children’s Hospital in Van Voorhees, New Jersey. Cosenza enlisted a number of other persons he knew as union organizers to accompany him to the jobsite and also apply for work.

On August 16, 2000, Cosenza and six other applicants arrived together at the Children’s Hospital jobsite. The other applicants were James Kilkenny (organizer and funds collector for the Union), John Simoncini (organizer for the sheet metal workers union), Charles Burkert (organizer for the sheet metal workers union), Robert DiOrio (organizer for the sheet metal workers union), John Kane (organizer for the plumbers union), and Jim Cunningham (organizer for the asbestos workers union).3 The applicants did not initially identify themselves as persons affiliated with unions, and there is no evidence that they were wearing or displaying any union insignias, emblems, or slogans.

Cosenza spoke briefly to Tom Wilsey—one of the two individuals working for the Respondent at the site. Cosenza told Wilsey “we’ll probably take your job—they’ll get rid of you.” Burkert added “[i]f you’re lucky, right?” Cosenza located M. Sanders and introduced himself. S. Sanders was also present. During most of the ensuing conversation, Cosenza was the primary spokesperson for the applicants, although Kilkenny, Burkert, and others also spoke. M. Sanders indicated that he was surprised to see “all” of them, and Cosenza stated that he had the whole crew ready to go. Cosenza stated that he heard that the Respondent had a lot of work and asked “where” the Respondent wanted them “to start.” Cosenza said that the applicants were ready to work and S. Sanders responded “but I’m not [ready],” and then said “I can’t hire all these.”4 Cosenza stated that the applicants would do “whatever [type of work] you want” and would “work as hard as anybody you got.” Cosenza interrupted the discussion to tell M. Sanders that the Respondent was using a mechanical lift that was too big for the work being performed.

S. Sanders asked if any of the applicants knew how to “stucco” and Kilkenny responded that he did. S. Sanders asked Kilkenny how long he had worked with stucco, and Kilkenny answered 10 or 11 years, and identified several companies for which he had worked. Kilkenny stated that he was certified to work with various types of exterior insulation systems. S. Sanders responded, somewhat skeptically, that “[e]verybody talks good when they come here.” Cosenza urged Kilkenny to “get up on that wall,” apparently meaning that Kilkenny should immediately begin working to demonstrate his skill as a plasterer. Kilkenny offered to go get his tools, but stated “I ain’t gonna rasp.” Rasping is one of the less desirable, but necessary, tasks associated with applying exterior insulation finish systems.5

Although S. Sanders had already stated that the Respondent was not ready to hire the applicants and could not hire all of them, Cosenza asked “[w]hen do we start . . . and what are we getting paid?” S. Sanders stated “I can’t hire everyone now.” Cosenza said: “Who you gonna hire? Why don’t you go with Jimmy [Kilkenny] first.” S. Sanders replied “I will let you know.” Cosenza persisted, “[p]ut him[, Kilkenny,] on the wall now.” Burkert and Kilkenny both said they thought they were going to start work “today,” but S. Sanders informed them that they would not be starting that day. Cosenza asked “what are you paying,” apparently directing the comment to M. Sanders, and S. Sanders replied that she was the boss and that she was not prepared to discuss pay rates. Cosenza interrupted the conversation to state that the employees on the mechanical lift “don’t know what they’re doing.” He then shouted steering directions to the workers on the lift. Burkert indicated that he was a laborer and S. Sanders replied “I don’t need a laborer.”

M. Sanders began to get a business card for Cosenza and at this point the applicant-organizers first broached the subject of their union affiliations. Cosenza stated, somewhat obliquely, that “before we start work and during lunch time and after work we’ll be the best organizers you ever saw.” S. Sanders replied “I’m sure you are very good—we’ll see what happens.” Then Cosenza made the union affiliation explicit, stating, “[o]kay, because we’re union organizers, you know that.” Sun responded that “everybody talks good as long as you can work.” At this point, Cosenza again urged Kilkenny to get his tools and go up on the wall and demonstrate his skills.

Cosenza and Burkert reiterated their intention of engaging in organizational activities, but M. Sanders apparently did not fully comprehend, and asked “[w]hat do you mean organize?” Later S. Sanders stated “I am organized alright.” Cosenza explained that “[e]veryone here is a union organizer.” S. Sanders stated that “[w]e are not union,”6 to which Burkert responded “we’ll still come here to work,” and Cosenza stated that they would “work hard and at lunch and before work . . . try to organize all your men.” Cosenza asked, “[y]ou don’t have a problem with that?” Explaining his intentions further, Cosenza stated “we’ll have an election with your company, whatever” and “[w]e’ll take all the men.” M. Sanders asked if the applicants were working somewhere now, and Cosenza replied, “[n]o, we’re not—I’m here for the ad.” M. Sanders asked “[a]re you here to work?” and Cosenza replied “[w]e’re here to work and organize.” S. Sanders said: “I let you know . . . . You give me your number. You know how to do it, I’ll call you.” The Sanders did not dispense application forms to the applicants, however, M. Sanders provided a pad of paper to Cosenza so that the applicants could write down their names and contact information. S. Sanders indicated that the Respondent had already hired new workers and did not need “this many people.”

At about this point, some of the applicants tried to engage the Respondent’s employees, who were on duty, in a conversation about their terms and conditions of employment, and about the prospect of joining a union. Cosenza shouted up to the employees on the mechanical lift, “[y]ou guys . . . ever think about getting in the union?” He asked if the Respondent “pay[s] good.” Kilkenny asked the same employees if they had health benefits, pension, and annuity. S. Sanders tried to prevent this conversation, but Kilkenny went on to shout to the employees that the union rate was $24.35 an hour with $7 in pension and annuity. Kilkenny also urged the workers to “[g]ive the Local a call” so that he could arrange a job with a union contractor. These activities by the applicants interrupted the work of the two employees during worktime.7

The interactions between the Respondent and the applicants now became less polite. S. Sanders stated that she planned to talk to her lawyer. When Cosenza asked how the Respondent would get in touch with him, S. Sanders replied “I don’t want to get in touch with you.” M. Sanders said that the applicants could write down their names and numbers. All seven eventually wrote down their names and phone numbers on a pad, which Cosenza returned to M. Sanders. However, when Cosenza asked if the Respondent wanted to hire them, S. Sanders replied “I don’t think so.” She explained that they were “too smart acting.”

Cosenza again stated that “we want to work for you” and that the applicant-organizers were “answering the ad in the paper.” At this point, S. Sanders shouted: “I don’t need people, alright. Get out of . . . my place.” The applicant-organizers did not leave, rather Cosenza stated again that he was answering the advertisement, and S. Sanders again shouted, “[g]et out of here now.” The applicants still did not leave, but remained and insisted that they were all present to work in response to the advertisement. S. Sanders scolded Kilkenny for asking the Respondent’s employee about wages and for offering to arrange a job for him with another company. According to the transcript that Kilkenny himself prepared, he and S. Sanders had the following exchange:

S. Sanders: It’s none of your business how much he pay—you know how much you paying.

Kilkenny: How much do I paint? . . . I don’t paint, I’m a plasterer.

# # #

S. Sanders: You have no manners.

Kilkenny: I have very well manners.

M. Sanders believed that Kilkenny was “patronizing [his] wife because he knows what she’s saying” and was “making her look like a dummy.” S. Sanders felt that Kilkenny and other of the applicants were laughing at her and treating her like she was a “very stupid . . . woman.” I find that Kilkenny, by intentionally misunderstanding S. Sanders’ statement regarding “pay” as a statement regarding “paint”8 and by mangling his own syntax (“I have very well manners”), was mocking S. Sanders, who is of Asian descent and speaks with an accent.

After S. Sanders told the applicants to leave repeatedly, they still did not depart, but again stated that they were answering the advertisement. S. Sanders shouted “Union piece of shit” and “[g]et the Hell work other place.” Cosenza persisted, stating “I want to work for you,” and S. Sanders warned him “don’t threaten,” but no threat was made against her or the Respondent.9 S. Sanders said: “Life is short. Everybody allowed to work.” Cosenza responded “[i]t sounds like you’re threatening me.”

Cosenza then stated that he came in response to the advertisement to talk about a job, but “as soon as I brought up the union everything changed, why?” S. Sanders said “I don’t want to talk about it,” and told Cosenza to “talk to my lawyer.” Cosenza asked if the Respondent’s “lawyer hire[d] everybody,” and S. Sanders, no longer shouting, said “[w]e’ll let you know.” Kilkenny stated that “we’re very qualified,” and Cosenza said “[w]e’re willing to get up on the wall and start.” S. Sanders said “I’m sure you guys very good,” and that she would “let them know.” M. Sanders stated that the Respondent was going to hire one person at a time. S. Sanders added that the Respondent was planning to open a “big . . . panel shop,” and would hire “lotta people” and “[m]ight go for union so you never know.” Kilkenny asked if the Respondent would call to inform him whether or not he was hired, and M. Sanders agreed to do so. The conversation ended.

During the exchange between the applicants and the Sanders, Thomas Wilsey, a plasterer working for the Respondent at the jobsite, became concerned that the applicant-organizers were causing a disturbance and notified the police using a cell phone that the Respondent kept at the jobsite.10 After the conversation between the applicants and the Sanders ended, but before the applicants left the jobsite, a number of officers of the Voorhees Township Police Department arrived. Officer Thomas Lynch spoke with M. Sanders who told him that Cosenza had acted in a threatening manner. Officer Lynch was concerned about his own safety, in part because he believes that labor disputes are prone to become violent. As a precaution, Officer Lynch told Cosenza to empty his pockets and place his hands on a car, and then Officer Lynch performed a “pat down” search of Cosenza’s person. No weapon was found. Officer Lynch did not make any arrests, but encouraged the applicants to leave the jobsite, which they did.

The Respondent did not contact any of the applicants to offer them jobs or to tell them that they were not being offered jobs.

Employment of Edward Feeley

Later on August 16, Kilkenny spoke to Edward Feeley, an out-of-work plasterer who was an apprentice in the Union.11 Kilkenny told Feeley that the Respondent was hiring and that he should apply. That same day, Feeley contacted the Respondent by telephone and met in person with S. Sanders and M. Sanders. Feeley completed an application and discussed his qualifications. Neither S. Sanders nor M. Sanders asked Feeley anything about unions; however, during the interview Feeley volunteered that he had worked for the union, but that the union had been unable to provide him with steady work. The Respondent hired Feeley, and he started work the next day at the Children’s Hospital jobsite. After the Respondent hired Feeley, Kilkenny told Feeley to let him know when the Respondent was seeking new employees. Within 30 days after August 16, the Respondent also hired Les Throckmorton as a laborer. During that same 30-day period the Respondent also hired Dave Zelvis, who worked for the Respondent for 1 day and did not return.

After S. Sanders and M. Sanders observed Feeley at work, they set his pay at $18 per hour. They informed Feeley that his rate of pay was higher than that of other employees and told him not to discuss his wage rate with anyone else. Feeley did not discuss his wages with any of the other workers during the period of his employment with the Respondent.

One or 2 weeks after Feeley started working for the Respondent, S. Sanders approached Feeley during lunch and asked if he still had a union card, and Feeley said that he did and kept it current. Then Sun asked Feeley if he was going to “stay” with the Respondent. Feeley told her that he “would stay as long as . . . they had work.”

Feeley Refers Kilkenny

Feeley worked for the Respondent for approximately 7 weeks and by all accounts the Respondent was satisfied with his work and had a good working relationship with him. During the time he was employed by the Respondent, Feeley never tried to engage the Respondent’s other employees in organizational activities.

In mid-September, S. Sanders told Feeley that the Respondent needed to hire one or more new employees. Subsequently, Feeley informed S. Sanders and M. Sanders that he knew someone who was interested in a position. They asked about the individual’s skills and Feeley answered that the person he had in mind possessed skills that were equal, or superior, to Feeley’s own. The applicant Feeley had in mind was James Kilkenny, who was one of the applicant-organizers who met with the Sanders on August 16, and the person who had informed Feeley that the Respondent was hiring plasterers.

On the morning of October 3, 2000, Feeley and Kilkenny arrived together at the Respondent’s jobsite i