Cobb Mechanical Contractors, Inc.

National Labor Relations Board - Board Decisions

May 26, 2004

341 N.L.R.B. 1028 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1028
Cobb Mechanical Contractors, Inc. and United Asso-
ciation of Plumbers and Pipefitters, Local Union
No. 196, AFL–CIO. Case 16–CA–16483
May 26, 2004
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
I. THE ISSUES
This case is before the Board on remand from the
United States Court of Appeals for the District of Co-
lumbia Circuit. Cobb Mechanical Contractors, Inc. v.
NLRB, 295 F.3d 1370 (D.C. Cir. 2002). Specifically, the
court remanded the case to the Board for consideration of
the following two issues: First, has Cobb Mechanical
Contractors, Inc. (the Respondent or Cobb) established
that it had a longstanding policy of not hiring a journey-
man plumber for a plumber’s helper position? Second,
has the Respondent satisfied its burden of showing that
only two union applicants would have transferred to a
new Cobb project after the completion of the projects in
issue? For the reasons set forth below, we answer the
first question in the affirmative and the second question
in the negative.
II. PROCEDURAL HISTORY
On April 26, 1995, Administrative Law Judge Freder-
ick C. Herzog issued a decision in which he found that
the Respondent violated Section 8(a)(3) and (1) of the
National Labor Relations Act (the Act) by failing since
November 1, 1993, to hire union applicants for jobs as
plumbers, plumbers’ helpers, and pipefitters at jobsites in
Amarillo and Dalhart, Texas.1 The Respondent failed to
file timely exceptions. On June 23, 1995, the Board en-
tered an Order adopting Judge Herzog’s decision and
recommended Order. On June 6, 1996, the United States
Court of Appeals for the Fifth Circuit entered a judgment
enforcing the Board’s Order.2
The General Counsel and Respondent were unable to
agree on the amount of backpay due under the Board’s
Order. On June 20, 1997, the Regional Director for Re-
gion 16 issued a compliance specification and notice of
hearing setting forth a formula to determine the amount
of backpay that each discriminatee was entitled to re-
ceive.
On May 13, 1998, Administrative Law Judge Keltner
W. Locke issued a supplemental decision finding, inter
alia, that 19 discriminatees were entitled to backpay. On

1 Cobb Mechanical Contractors, Inc., JD(SF)–45–95.
2 NLRB v. Cobb Mechanical Contractors, Inc., 91 F.3d 139 (5th
Cir.1996).
April 30, 2001, the Board issued a Decision and Order in
which it affirmed Judge Locke’s rulings, findings, and
conclusions and adopted his recommended Order in all
material respects. 333 NLRB 1168.
Thereafter, the Respondent filed a petition for review
with the Court of Appeals for the District of Columbia
Circuit, and the Board filed a cross-petition for enforce-
ment of its Order. On July 23, 2002, the court granted
the Board’s cross-application for enforcement, except for
the two issues listed above which the court remanded to
the Board for reconsideration consistent with the court’s
opinion. 295 F.3d at 1378–1379.
On November 22, 2002, the Board advised the parties
that it had accepted the court’s remand and invited them
to file statements of position with respect to the issues
raised by the remand. The General Counsel, the Charg-
ing Party, and the Respondent all filed position state-
ments.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
III. DISCUSSION OF THE TWO ISSUES REMANDED BY
THE COURT
A. Cobb has Shown an Established Policy of
Not Hiring Journeymen Plumbers for Plumbers’
Helpers Positions
The General Counsel’s backpay formula is based on
the assumption that, absent the unlawful refusal to hire,
Cobb would have hired persons qualified as plumbers to
fill positions as plumbers’ helpers. See Cobb Mechani-
cal, 333 NLRB at 1175–1176. In other words, in deter-
mining when the backpay period began for any given
plumber discriminatee, the compliance specification as-
sumes that the discriminatee would have been hired
whenever Cobb hired either a plumber or a plumber’s
helper.
Before Judge Locke, Cobb argued that this assumption
was unwarranted. Cobb supported its position with the
uncontradicted testimony of two Cobb officials that
Cobb had a longstanding policy of not hiring plumbers as
plumbers’ helpers in order to prevent overqualified
plumbers from leaving helper positions as soon as they
were offered higher paying plumber positions elsewhere.
333 NLRB at 1176. Judge Locke concluded, however,
that Cobb’s argument seemed “disingenuous” because, in
light of Cobb’s antiunion animus, it would welcome the
turnover of union employees. 333 NLRB at 1176–1177.
The court was not satisfied with Judge Locke’s reason
for discounting Cobb’s evidence. The court stated that,
in computing the backpay due, Judge Locke “had to de-
termine when the union applicants would have been
hired had Cobb no antiunion animus. We remand this
341 NLRB No. 136
COBB MECHANICAL CONTRACTORS 1029
issue to the Board to reconsider Cobb’s argument.” 295
F.3d at 1378–1379.
Having accepted the court’s remand, we also accept its
opinion as the law of the case. We, therefore, recognize
that, guided by the court’s analysis, we must carefully
scrutinize the record to determine whether Cobb had an
established policy against hiring plumbers as plumbers’
helpers.
Initially, we note that the court specifically character-
ized Cobb’s argument that the plumber discriminatees
would not have been hired for helper jobs as one that
“has merit.” 295 F.3d at 1378. The court stated that
there was testimony in the record of “[s]everal Cobb of-
ficials” supporting Cobb’s position that the hiring policy
was “long standing” and legitimately designed to prevent
high turnover on jobs. Id.
Contrary to our dissenting colleague, we find, based on
the uncontradicted testimony of two high-level manage-
ment officials, Controller Paula McKinney and Vice
President for Operations Jerry Bitner, that Cobb did have
a policy of not hiring plumbers as plumbers’ helpers.
McKinney testified that she reviewed all the personnel
records for persons hired as plumbers’ helpers by Cobb
at the Amarillo and Dalhart jobsites where the unfair
labor practices occurred and she found no instances
where Cobb hired a qualified journeyman plumber to
work as a plumber’s helper.
Bitner’s testimony is fully consistent with McKin-
ney’s. Bitner testified that Cobb has a strict policy
against hiring journeymen for plumbers’ helpers posi-
tions. The reason for the policy, Bitner explained, was
that an overqualified journeyman hired into a helper po-
sition would leave the Company in the lurch as soon as
he was offered a higher paying journeyman job else-
where.3
The testimony of McKinney and Bitner was not con-
troverted or discredited, and we concur with the court in
its ruling that Judge Locke erred in discounting it. We
add that common experience tells us that such a policy—
not hiring a person overqualified for the position—is not
unusual.
Our dissenting colleague, like Judge Locke, discounts
McKinney and Bitner’s testimony as entitled to “little
weight.” His reasoning is unpersuasive. The fact that
McKinney was hired after the Amarillo and Dalhart pro-

3 The dissent faults the Respondent for not putting its hiring policy
in writing. However, Board law does not require that a company’s
hiring policies be in writing. See, e.g., Hartman Bros. Heating & Air
Conditioning, 332 NLRB 1343, 1344 fn. 9 (2000) (complaint allegation
that respondent unlawfully refused to hire union applicant with 26
years’ experience dismissed based on judge’s crediting of respondent’s
testimony that it preferred inexperienced applicants who were easier to
train), enfd. 280 F.3d 1110 (7th Cir. 2002).
jects does not detract from the accuracy of her review of
the Respondent’s employment records. Similarly, the
fact that Bitner is not routinely involved in hiring and
that the policy of not hiring plumbers as plumber helpers
was not in writing are red herrings. Bitner was vice
president of operations called for his knowledge of com-
pany employment policy. The existence of a policy not
to hire any experienced tradesmen to fill the position of
helpers is not made less likely because it was not reduced
to writing.
Accordingly, having carefully reconsidered the record,
we find, consistent with the terms of the court’s remand
and in accord with it, that the McKinney and Bitner tes-
timony establishes that the plumber discriminatees would
not have been hired on the dates that plumbers’ helpers
were hired because of Cobb’s policy of not hiring
plumbers to be plumbers’ helpers.4
In reaching the opposite conclusion, our dissenting
colleague relies on the language in a form letter Cobb
sent to some of the discriminatees in response to Judge
Herzog’s decision as it was enforced by the Fifth Circuit.
Consideration of the form in this context reveals that the
dissent’s reliance on the letter is very much misplaced.
The letter in question, dated August 15, 1996, stated as
follows:
By this letter, Cobb Mechanical Contractors offers you
reinstatement to either the position of Plumber or
Plumber helper, depending on availability, to a Cobb
jobsite in the state of Colorado. Please fill out the en-
closed form and return it as soon as possible in the en-
closed postage paid envelope.
At the top of a form enclosed with the letter were boxes
labeled “Accept” and “Decline.” At the bottom of the form
were lines for signature and date. The body of the form
stated as follows:
4 Given the complete failure of the General Counsel to controvert the
testimony of the Respondent’s witnesses, there is no merit in the dis-
sent’s contention that the Respondent should have called yet another
high-level official to corroborate McKinney and Bitner.
Equally specious is the dissent’s thesis that the McKinney and Bitt-
ner testimony is entitled to “little weight.” If the court of appeals were
of that view, it would have never remanded the case to the Board.
The contention that we have misapplied the burdens of proof and
Board precedent also rings hollow. The Respondent’s burden is only to
prove its defense by “the usual standard in civil cases—a preponder-
ance of the evidence. A ‘preponderance’ of evidence means evidence
sufficient to permit the conclusion that the proposed finding is more
probable than not.” Diamond Walnut Growers, Inc., 340 NLRB No.
135, slip op. at 4 (2003). We believe that the testimony of McKinney
and Bitner, which the court cited favorably in its opinion, 295 F.3d at
1378, shows that it is more likely than not that Cobb maintained a
policy of not hiring plumbers to be plumbers’ helpers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1030
I, _____________________ [accept/decline] Rein-
statement to the position of Plumber or Plumber helper,
depending on availability, at a Cobb Mechanical Con-
tractor’s jobsite in the state of Colorado. I am available
to report to work on ___________________________.
I can be reached to discuss job assignments at
__________________. My current mailing address is
___________________________________.
Our dissenting colleague argues that this letter under-
mines or undercuts the existence of a Cobb policy of not
hiring plumbers as plumbers’ helpers. Concededly, the
letter does appear, on its face, to be making an offer in-
consistent with Cobb’s policy because it offers the dis-
criminatees, who were plumbers, employment as either
plumbers or plumbers’ helpers.
However, the letter cannot be considered divorced
from the reason for which it was sent. Most signifi-
cantly, the letter is dated after the Respondent failed to
file timely exceptions to Judge Herzog’s decision and the
Board issued an Order adopting Judge Herzog’s decision
and recommended Order, and after the Fifth Circuit en-
forced the Board’s Order.
The relevant chronology is as follows. On April 26,
1995, Judge Herzog issued his decision, finding that the
Respondent discriminated against the union applicants
with respect to both plumber positions and plumbers’
helpers positions. As a remedy, Judge Herzog ordered
the Respondent to offer the discriminatees “employment
in positions for which they applied.” On June 23, 1995,
the Board issued an Order adopting Judge Herzog’s deci-
sion and recommended Order. On June 6, 1996, the
Fifth Circuit enforced the Board Order.
Thus, as of June 6, 1996, the Respondent had no realis-
tic avenue for appeal, and its backpay liability continued
to run. Given its loss in the Fifth Circuit, the Respondent
had no choice but to comply with Judge Herzog’s rec-
ommended Order. And Judge Herzog’s recommended
Order can reasonably be read as requiring the Respon-
dent to offer the union applicants employment in both
plumber and plumbers’ helpers positions because, as
stated above, Judge Herzog found that the Respondent
discriminated against the union applicants with respect to
both positions.
When the Respondent’s August 15, 1996 form letter is
viewed in this context, it is readily understandable why
Respondent offered the discriminatees “reinstatement to
either the position of Plumber or Plumber helper”: it was
responding to a court-enforced Board order. That is, the
court had enforced the Board order to offer the discrimi-
natees employment “in positions for which they applied.”
The judge, whose decision was upheld by the Board and
court, found that the Respondent had discriminated
against the applicants with respect to both positions.
Thus, the Respondent, on pain of possible contempt, had
no choice but to offer employment in both positions.
Consequently, this letter has no bearing on the question
before us of whether years earlier, when the Respondent
was hiring for the Amarillo and Dalhart projects, it had a
policy of not hiring plumbers to be plumbers’ helpers.
In sum, the letters were responsive to the court decree.
They were not an admission that there was no policy
against hiring plumbers for helper positions.
Our dissenting colleague argues that the foregoing
point has not been made by the Respondent and is there-
fore not properly before the Board. Assuming arguendo
that the Respondent has not made the precise contention,
we nonetheless believe that we, as a responsible Agency
and as officers of the court, must be responsive to the
court’s remand order. The court has required us to de-
termine whether the Respondent had a policy of not hir-
ing plumbers for plumber helper positions. An argument
against this policy is based on the Respondent’s letters of
August 15. Thus, in order to properly respond to the
remand, we must deal with that issue. We have done
so.5
To summarize, Judge Locke found that Cobb did not
have a policy against hiring plumbers as plumbers’ help-
ers, and he concluded that 19 union applicants were enti-
tled to backpay as plumbers or plumbers’ helpers. After
carefully reconsidering the record on remand from the
D.C. Circuit, however, we conclude that Cobb estab-
lished by uncontradicted testimony that it maintained a
policy against hiring plumbers as plumbers’ helpers.
Therefore, the only positions the union plumber appli-
cants would have been hired for were plumber positions.
The General Counsel’s formula for computing backpay,
adopted by the Board in its 2001 decision, results in
compensating the discriminatees for employment for
which they were not eligible (the plumbers’ helpers posi-
tions).
In the underlying proceeding, Judge Herzog found that
since November 8, 1993, Cobb hired 13 plumbers for the

5 Citing Avne Systems, 331 NLRB 1352, 1354 (2000), the dissent
claims that we have erred by relying on an argument not made by the
Respondent itself. However, Avne Systems is inapposite. In that case,
the Board majority refused to consider arguments made by a dissenting
Board Member that were not made by the respondent in the exceptions
it filed to the judge’s decision. Here, by contrast, we are not consider-
ing exceptions to a judge’s decision, but a remand by a United States
court of appeals. The court remanded the case precisely because of the
failure of the Board’s initial decision to consider all the Respondent’s
contentions and evaluate all the record evidence. Under these unusual
circumstances, we are unwilling to close our eyes to the undisputed
facts in the record that plainly reveal the true purpose of the August 15,
1996 letters.
COBB MECHANICAL CONTRACTORS 1031
Amarillo and Dalhart projects.6 Thus, there were only
13 positions available for the discriminatees, and only 13
discriminatees are entitled to a remedy. The Board’s
prior backpay award must be modified accordingly. This
modification necessarily entails determining which 13
discriminatees are entitled to backpay and possibly re-
computing the individual amounts they are due. We
therefore shall remand the case to the Regional Director
to prepare an amended compliance specification.
B. Cobb has not Shown that Only Two Discriminatees
would have Transferred to New Projects
In determining the correct end date of the backpay pe-
riods, Judge Locke applied the Dean General Contrac-
tors7 rebuttable presumption that an unlawfully dis-
charged employee in the construction industry would
have been transferred to a new project on the termination
of the project for which he had been employed initially.
Applying that presumption, he determined that Cobb had
“not met its burden of proving that the discriminatees
would not have been transferred to its other jobs.” 333
NLRB at 1174.
Citing Tualatin Electric, Inc. v. NLRB,8 the court of
appeals also “recognized that the employer has the bur-
den to rebut the presumption that an employee will be
transferred to another project.” 295 F.3d at 1379. How-
ever, the court faulted Judge Locke for “failing to con-
sider [Cobb’s] evidence that only two newly-hired jour-
neymen plumbers and pipefitters at the Amarillo and
Dalhart sites transferred to other projects.” Id. The court
concluded that Judge Locke’s failure to address Cobb’s
evidence “merits remand for the Board to reconsider
which, if any, of the union applicants would have trans-
ferred to a new Cobb project.” Id.
Under the terms of the court’s remand, the Dean Gen-
eral rebuttable presumption is the law of the case.9
Therefore, we must find that the discriminatees would
have transferred to other Cobb jobs on the completion of
the Amarillo and Dalhart projects unless Cobb has rebut-
ted the presumption.
At the hearing before Judge Locke, Cobb produced
evidence establishing that only two newly-hired employ-
ees were, in fact, transferred to new jobs on completion
of the Amarillo and Dalhart projects. The record also
shows that seven of Cobb’s newly-hired employees on

6 JD(SF)–45–95, slip op. at p. 4 fn. 6 and p. 14, L. 35.
7 285 NLRB 573 (1987).
8 253 F.3d 714, 718 (D.C. Cir. 2001).
9 Chairman Battista and Member Schaumber recognize that the Dean
General presumption is the law of the case. However, they have sub-
stantial reservations as to whether the Dean General presumption
should apply in “salting” situations. See dissenting opinion in Fergu-
son Electric Co., 330 NLRB 514, 519 (2000).
the Amarillo and Dalhart jobsites were discharged for
cause and another five voluntarily quit. In compliance
with the court’s remand, we will now address the ques-
tion of whether that evidence is sufficient to rebut the
presumption.
Cobb asserts that “each individual discriminatee
[should be] compared to the corresponding newly hired
journeyman plumber.” Cobb thus argues essentially that
the Board should infer that the discriminatees would
have followed the same employment patterns as the new
hires and that only two of them would have transferred.
Cobb’s argument is unconvincing in that it would require
the Board to infer that seven discriminatees would have
been discharged for cause (because seven new hires were
discharged for cause) and that five discriminatees would
have quit (because five new hires quit). Without more
evidence of employment patterns at Cobb, we are unable
to do so. In addition, the Board does not draw “negative
inferences” against discriminatees in these kinds of situa-
tions. See Fugazy Continental Corp., 276 NLRB 1334,
1343 (1985). Thus, if presented with a choice between
an inference that a discriminatee would have been dis-
charged for cause or an inference that the discriminatee
would have successfully performed his job, the Board
chooses the latter inference. See Minette Mills, Inc., 316
NLRB 1009, 1011 (1995) (“any ambiguities, doubts, or
uncertainties are resolved against . . . the wrongdoer,
because an offending respondent is not allowed to profit
from any uncertainty caused by its discrimination”).
Because under Fugazy Continental and Minette Mills we
will not infer that the discriminatees would have fol-
lowed the largely unsuccessful employment patterns of
the new hires, Cobb’s evidence that only two new hires
were transferred is insufficient to rebut the Dean General
presumption.
There is an additional reason why Cobb’s evidence
concerning the two transferees falls short of meeting
Cobb’s burden to rebut the Dean General presumption:
other evidence in the record reinforces the presumption.
Specifically, Vice President Bitner testified that in staff-
ing a new project, Cobb would give preference to a cur-
rent employee rather than hire locally. He explained:
“Well, obviously, they would already be on my payroll,
so I wouldn’t have to incur the hiring costs. If he’s still
employed with us, that means he’s—knows what he’s
doing and has a decent track record and is reliable and
dependable.” 333 NLRB at 1174.
Although Bittner’s testimony linked Cobb’s transfer
policy to employee performance (i.e., having “a decent
track record”), by unlawfully discriminating against the
union applicants, Cobb deprived them of the opportunity
to develop a “track record” with Cobb. Thus, under ex-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1032
isting Board precedent, we must presume that if Cobb
had hired the 13 union applicants, all 13 would have suc-
cessfully performed their jobs, established positive “track
records,” and transferred to subsequent Cobb projects in
accordance with Company policy on the completion of
the Amarillo and Dalhart jobs.
IV. CONCLUSION
For the foregoing reasons, we reverse the Board’s
original finding that Cobb did not have a policy of refus-
ing to hire plumbers as plumbers’ helpers. However, we
reaffirm the Board’s prior finding that, absent the unlaw-
ful refusal to hire, the union applicants who would have
been hired would have transferred to subsequent Cobb
jobsites on the completion of the Amarillo and Dalhart
projects.
ORDER
IT IS ORDERED that the proceeding is remanded to the
Regional Director for Region 16 to prepare an amended
compliance specification as indicated above.

MEMBER WALSH, concurring in part and dissenting in part.
I join my colleagues in reaffirming the Board’s prior
finding that the Respondent failed to rebut the Dean
General presumption that the discriminatees would have
transferred to new projects on termination of the projects
for which they were unlawfully denied hire. Dean Gen-
eral Contractors, 285 NLRB 573 (1987), approved in
Tualatin Electric, Inc. v. NLRB, 253 F.3d 714, 718 (D.C.
Cir. 2001); McKenzie Engineering Co. v. NLRB, 182
F.3d 622, 629 (8th Cir. 1999); and Kentucky General,
Inc. v. NLRB, 177 F.3d 430, 439 (6th Cir. 1999).
However, I must dissent from my colleagues’ opinion
insofar as they reverse the Board’s prior decision and
find that the Respondent established the existence of a
longstanding policy of not hiring plumbers to be plumb-
ers’ helpers. As discussed below, this finding rests on a
misapplication of the relevant burdens of proof and es-
tablished Board precedent.
DISCUSSION
It is well established that respondents in compliance
proceedings before the Board bear the burden of estab-
lishing facts that would reduce the amount of backpay
due. United States Can Co., 328 NLRB 334, 337 (1999);
Minette Mills, Inc., 316 NLRB 1009, 1010 (1995). Thus,
for the Respondent to prevail, it must show, “through a
preponderance of [the] evidence” (United States Can,
328 NLRB at 337), that it had a policy against hiring
plumbers as plumbers’ helpers and that the policy would
have resulted in the plumbers being hired only as plumb-
ers and not as helpers. If any ambiguities or uncertain-
ties exist in the record, they must be resolved against the
Respondent and in favor of the discriminatees. Minette
Mills, 316 NLRB at 1011.
The only evidence that the Respondent introduced to
support its assertion that it had a longstanding policy was
the testimony of its controller, Paula McKinney and its
vice president of operations, Jerry Bitner. Their testi-
mony, however, is entitled to little weight and therefore
falls far short of establishing by a preponderance of evi-
dence that such a policy, in fact, existed.
McKinney, who was not hired until well after the un-
fair labor practices had been committed, testified that she
reviewed the personnel records of the Amarillo and Dal-
hart jobs and did not find any instance of a plumber be-
ing hired as a plumber’s helper. McKinney did not tes-
tify that she reviewed any other records to ascertain
whether the Respondent had maintained such a policy on
other jobsites, nor did she testify to any specific knowl-
edge of the plumbing trade that would allow her to dif-
ferentiate between the duties of a plumber and a
plumber’s helper. She admitted that she was not in-
volved in the hiring of plumbers or plumbers’ helpers.
She also admitted that she had not seen a written policy
prohibiting the hiring of plumbers as plumbers’ helpers.
Bitner testified that “to his knowledge” the Respondent
did not hire plumbers as plumbers’ helpers. Bitner ad-
mitted the policy was not in writing. Bitner also testified
that he was rarely involved in hiring and that he was not
involved in hiring for the Amarillo and Dalhart jobsites.
Project superintendent David Sandlin was the individ-
ual in charge of hiring plumbers and plumbers’ helpers at
the Amarillo and Dalhart jobsites. Yet the Respondent
did not call Sandlin as a witness. Thus, we do not know
if Sandlin was aware of or honored the alleged policy
against hiring plumbers as plumbers’ helpers.
In sum, the Respondent seeks to establish the existence
of an unwritten hiring policy. It attempted to do so by
the testimony of two witnesses who had no responsibility
for hiring in general and had no responsibility for hiring
for the Amarillo and Dalhart projects in particular. The
one individual responsible for the hiring on the projects
in question was not called to testify. Under these cir-
cumstances, the Respondent has plainly failed to satisfy
its burden of proof because the evidence it adduced is not
probative of the fact it is attempting to establish. At best,
the existence of the alleged policy is uncertain and, under
well-established Board precedent, that uncertainty must
be resolved against the Respondent as the wrongdoer.
Minnette Mills, 316 NLRB at 1011.
Furthermore, there is compelling evidence “straight
from the Respondent’s mouth” that no such hiring policy
existed. Specifically, the Respondent sent letters, dated
COBB MECHANICAL CONTRACTORS 1033
August 15, 1996, to certain discriminatees, which read as
follows:
By this letter, Cobb Mechanical Contractors offers you
reinstatement to either the position of Plumber or
Plumber helper, depending on availability, to a Cobb
jobsite in the state of Colorado. Please fill out the en-
closed form and return it as soon as possible in the en-
closed postage paid envelope.
The enclosed form stated:
I, _____________________ [accept/decline] Rein-
statement to the position of Plumber or Plumber helper,
depending on availability, at a Cobb Mechanical Con-
tractor’s jobsite in the state of Colorado. I am available
to report to work on ___________________________.
I can be reached to discuss job assignments at
__________________. My current mailing address is
___________________________________.
If the Respondent truly had a long-established policy
of not hiring plumbers as plumbers’ helpers, then one
would reasonably expect this policy to be reflected in its
offers of reinstatement and the forms provided for ac-
cepting or declining the offers. Instead, in clear violation
of its alleged policy, the Respondent sent the discrimina-
tees, who were plumbers, offers of “reinstatement to ei-
ther the position of Plumber or Plumber helper.” (Em-
phasis added.) How can these offers be reconciled with a
“strict” and “longstanding” “policy” against hiring
plumbers as plumbers’ helpers?
The Respondent offers no answer whatsoever to this
obvious question. My colleagues endeavor to fill the
void: They state that the Respondent acted in derogation
of its own “policy” because it was attempting to toll its
backpay liability. This assertion suffers from a fatal
flaw: It was never made by the Respondent itself, and
arguments not made by the parties are not properly be-
fore the Board for consideration. See, e.g., Avne Sys-
tems, Inc., 331 NLRB 1352, 1354 (2000) (argument not
made by excepting party itself is not procedurally before
the Board). And in any event, at the very least, if this
was in fact the reason the Respondent sent these offers
which were so obviously in derogation of its alleged
longstanding policy, one would expect that the Respon-
dent would have made this argument. Its silence on this
point speaks volumes.
CONCLUSION
After carefully considering the record evidence as a
whole in light of the arguments actually made by the
parties themselves, the conclusion is inescapable that the
Respondent did not have a policy against hiring plumbers
for plumbers’ helpers position. At the very least, the
Respondent has failed to satisfy its burden of establish-
ing, by a preponderance of the evidence, that it had such
a policy.