Allied Mechanical & Electrical Contractors

National Labor Relations Board - Board Decisions

Nov 30, 2006

348 N.L.R.B. 1189 (N.L.R.B. 2006)

ALLIED MECHANICAL & ELECTRICAL CONTRACTORS
348 NLRB No. 80
1189
State College Electrical & Mechanical, Inc., d/b/a Al-
lied Mechanical & Electrical Contractors, a sub-
sidiary of S&A Custom Built Homes, Inc. and
Berrena’s Mechanical Services, LLC, a Single
Employer and International Brotherhood of
Electrical Workers, Local Union No. 5, AFL–
CIO, CLC. Case 6–CA–34619
November 30, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On July 7, 2006, Administrative Law Judge John T.
Clark issued the attached decision. The Respondent filed
exceptions and a supporting brief, and the General Coun-
sel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions as
modified, and to adopt the recommended Order as modi-
fied below.
For the reasons stated by the judge, we find that the
Respondent violated Section 8(a)(3) and (1) of the Act
by failing and refusing to hire applicants David W.
Good, Bruce J. Cogan, and Scott M. Sweeney. Contrary
to the judge, however, we find that the record does not
establish that the Respondent also unlawfully refused to
consider Good, Cogan, and Sweeney for hire.
Under FES, 331 NLRB 9, 15 (2000), enfd. 301 F.3d 83
(3d Cir. 2002), in order to establish a refusal to consider
violation, the General Counsel has the burden of proving
that: (1) the respondent excluded the applicants from the
hiring process; and (2) antiunion animus contributed to
that decision. Once this is established, the burden shifts
to the respondent to show that it would not have consid-
ered the applicants even in the absence of their union
activity or affiliation. “[I]n determining whether an em-
ployer has excluded applicants from the hiring process,
the Board considers all of the surrounding circum-
stances.” C&K Insulation, Inc., 347 NLRB No. 71, slip
op. at 1 (2006).
Here, we find that the General Counsel failed to satisfy
the initial prong of the FES burden by establishing that

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
Cook, Cogan, and Sweeney were excluded from the hir-
ing process. To the contrary, after each of the three sub-
mitted an application to the Respondent, he was con-
tacted to schedule an interview. Thereafter, each dis-
criminatee was interviewed at length by the Respondent,
and each was administered a test to determine his electri-
cian skills. Considering all of the circumstances, there is
insufficient evidence to conclude that Good, Cogan, and
Sweeney were excluded from the hiring process.2
To the extent that the judge found a refusal-to-consider
violation based on language in the standard rejection
letter that the Respondent mailed the discriminatees, we
disagree. Nonselected applicants, including the dis-
criminatees, were routinely sent letters by the Respon-
dent stating that “I will keep your resume on file for one
year and will contact you if an appropriate career oppor-
tunity becomes available.” There is no record evidence
as to what, if any, consideration such nonselected appli-
cants received, nor evidence that the discriminatees were
treated differently than other applicants sent a rejection
letter.3
Accordingly, we reverse the judge and dismiss the re-
fusal-to-consider allegation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, State
College Electrical & Mechanical, Inc., d/b/a Allied Me-
chanical & Electrical Contractors, a subsidiary of S&A
Custom Built Homes, Inc., and Berrena’s Mechanical
Services, LLC, a single employer, State College, Penn-
sylvania, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).

2 Compare C&K Insulation, Inc., supra, slip op. at 1–2 (finding a re-
fusal-to-consider violation where the respondent accepted applications
from overt union applicants but also stated it was nonunion, provided
conflicting information on the availability of work, failed to interview
the union applicants, made subsequent statements indicating that it had
no intention of considering them and, finally, hired nonunion applicants
after directing them to backdate their applications).
Our finding that the Respondent discriminatorily refused to hire
Good, Cogan, and Sweeney does not require that we also find a refusal-
to-consider violation. The two unfair labor practices are analytically
distinct and lead to different remedies.
3 Chairman Battista agrees with his colleagues’ dismissal of the re-
fusal-to-consider allegation and with the basis therefore. In addition, as
to the judge’s finding of a violation based on language in the rejection
letter sent Good, Cogan, and Sweeney, the Chairman notes that this
theory of violation was not litigated at the hearing and, indeed, was first
argued by the General Counsel in his posthearing brief to the judge. In
these circumstances, the Chairman finds that this theory of violation is
not even properly before the Board.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1190
“(a) Failing and refusing to hire job applicants on the
basis of their union affiliation or other protected activ-
ity.”
2. Substitute the following for paragraph 2(c).
“(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful refusal
to hire David W. Good, Bruce J. Cogan, and Scott M.
Sweeney, and within 3 days thereafter, notify them in
writing that this has been done and that the unlawful re-
fusal to hire will not be used against them in any way.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail or refuse to hire job applicants on the
basis of their union affiliation or other protected activity.
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.
WE WILL, within 14 days from the date of this Order,
offer immediate employment to David W. Good, Bruce
J. Cogan, and Scott M. Sweeney to the positions for
which they applied or, if those positions no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges.
WE WILL make David W. Good, Bruce J. Cogan, and
Scott M. Sweeney whole for any loss of earnings and
other benefits suffered as a result of our unlawful failure
and refusal to hire them, plus interest.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful fail-
ure and refusal to hire David W. Good, Bruce J. Cogan,
and Scott M. Sweeney and, WE WILL, within 3 days there-
after, notify each of them in writing that this has been
done and that the unlawful failure and refusal to hire
them will not be used against them in any way.
STATE COLLEGE ELECTRICAL & MECHANICAL,
INC., D/B/A ALLIED MECHANICAL &
ELECTRICAL CONTRACTORS, A SUBSIDIARY OF
S&A CUSTOM BUILT HOMES, INC. AND
BERRENA’S MECHANICAL SERVICES, LLC, A
SINGLE EMPLOYER
David L. Shepley, Esq., for the General Counsel.
Thomas R. Davies, Esq. (Harmon & Davies, P.C.), of Lancas-
ter, Pennsylvania, for the Respondent.
Joshua M. Bloom, Esq. (Koerner, Colarusso and Bloom, PA),
of Pittsburgh, Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was
tried in State College, Pennsylvania, on February 28 and March
1, 2006. The charge was filed April 11, and amended on May
27, 2005, by the International Brotherhood of Electrical Work-
ers, Local Union No. 5, AFL–CIO, CLC (the Charging Party or
Union). The complaint issued September 14, 2005. The com-
plaint alleges that State College Electrical & Mechanical, Inc.,
d/b/a Allied Mechanical & Electrical Contractors, a subsidiary
of S&A Custom Built Homes, Inc., and Berrena’s Mechanical
Services, LLC, a single employer (collectively called the Re-
spondent), violated Section 8(a)(1) and (3) of the National La-
bor Relations Act (the Act) when it refused to consider for hire
and refused to hire several applicants for employment.
The Respondent admits that the business entities identified
above are a single employer within the meaning of the Act. At
the hearing the Respondent amended its answer to also admit
that Sean Torongeau (his last name is spelled incorrectly in the
complaint) is a supervisor and agent of Respondent Allied
within the meaning of Section 2(11) and (13) of the Act. The
parties stipulated that Respondent Allied’s business is more
accurately described as that of an “electrical and mechanical
contractor,” as set forth in the Respondent’s answer, rather than
the description contained in the complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, my credibility determinations based
on the weight of the respective evidence, established or admit-
ted facts, inherent probabilities, and reasonable inferences
drawn from the record as a whole and, after considering the
briefs filed by the General Counsel and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent Allied, a Pennsylvania
corporation, with an office and place of business in State Col-
lege, Pennsylvania (Respondent Allied’s facility), has been
engaged in the construction business as an electrical and me-
chanical contractor.
At all material times, Respondent Berrena’s, a Pennsylvania
limited liability company, with an office and place of business
in State College, Pennsylvania (Respondent Berrena’s facility),
has been engaged as a mechanical contractor in the nonretail
ALLIED MECHANICAL & ELECTRICAL CONTRACTORS 1191
business of installing and servicing heating and air conditioning
systems.
At all material times, Respondent Allied and Respondent
Berrena’s have been affiliated business enterprises with com-
mon officers, ownership, directors, management and supervi-
sion; have formulated and administered a common labor policy;
have shared common premises and facilities; have provided
services for and sales to each other; have interchanged person-
nel with each other and have held themselves out to the public
as a single-integrated business enterprise.
Based on its operations described above, Respondent Allied
and Respondent Berrena’s have been affiliated business enter-
prises with common officers, ownership, directors, manage-
ment and supervision; have formulated and administered com-
mon labor policy; have shared common premises and facilities;
have provided services for and made sales to each other; have
interchanged personnel with each other; and have held them-
selves out to the public as a single-integrated business enter-
prise.
Based on its operations described above, Respondent Allied
and Respondent Berrena’s constitute a single-integrated busi-
ness enterprise and a single employer within the meaning of the
Act.
During the 12-month period ending March 31, 2005, Re-
spondent Allied in conducting its business operations described
above, purchased and received at its State College, Pennsyl-
vania facility goods and materials valued in excess of $50,000
directly from points located outside the Commonwealth of
Pennsylvania.
During the 12-month period ending March 31, 2005, Re-
spondent Berrena’s in conducting its business operations de-
scribed above, purchased and received at its State College,
Pennsylvania facility goods and materials valued in excess of
$50,000 directly from points located outside the Common-
wealth of Pennsylvania.
The Respondent admits and I find, that Respondent Allied is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that Respondent Berrena’s
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. Introduction
Although the Respondent admits that State College Electrical
& Mechanical, Inc., d/b/a Allied Mechanical & Electrical Con-
tractors, a subsidiary of S&A Custom Built Homes, Inc., and
Berrena’s Mechanical Services, LLC, are a single employer
within the meaning of the Act, the hiring practices and proce-
dures of Berrena’s are not in issue.
State College Electrical & Mechanical, Inc., d/b/a Allied
Mechanical & Electrical Contractors, a subsidiary of S&A Cus-
tom Built Homes, Inc. (the Respondent), is an electrical, me-
chanical, and plumbing contractor with its headquarters in State
College, Pennsylvania. The Respondent performs commercial
and residential work within the Commonwealth of Pennsyl-
vania. A substantial portion of its work is done pursuant to the
prevailing wage laws of the Commonwealth.
Sean Torongeau, has been employed by the Respondent
since about June 2002. From December 2004, through the time
of the hearing, he was the Respondent’s field operations man-
ager. In that capacity he was responsible for conducting the
initial applicant interview. He estimates that he has inter-
viewed between 130 to 150 candidates for employment as elec-
tricians, plumbers, laborers, and pipefitters, during his tenure as
field operations manager. Torongeau has the authority to reject
applicants, which is what he did with David W. Good, Bruce J.
Cogan, and Scott M. Sweeney, the alleged discriminatees.
Although Torongeau is not involved in soliciting employ-
ment applications, after he reviews the applications, he requests
the human resources department to schedule the interviews. At
the outset of the interview Torongeau may administer a written
examination to test the applicant’s job-related knowledge.
Generally, the more experience the applicant claims, the more
likely it is that Torongeau will administer the test. There is no
minimal passing score and the test results, standing alone, do
not determine an applicant’s fate. When conducting the inter-
view Torongeau does not use a written form containing the
same questions for each applicant. Although he jots notes on
the application form he neither records the applicant’s answers,
nor his thoughts and impressions regarding the applicant, in a
narrative form. This interviewing technique may best be de-
scribed as informal and nonstructured. Indeed, it appears that
the Respondent’s entire hiring process is informal. The record
lacks any documentary evidence concerning the policies or
procedures governing the hiring process. At the conclusion of
the interview process Torongeau returns the rejected applica-
tions to the human resources department. Maryrose DeGroot,
the department manager, mails the rejected applicant a pro
forma rejection letter stating that their resume will remain on
file for 1-year and that they will be contacted if an appropriate
career opportunity becomes available.
The Respondent is a nonunion contractor. Neither Toron-
geau, DeGroot, nor Vice President Scott Good (no relation to
alleged discriminatee David W. Good), all of whom testified,
could attest that person associated with the International Broth-
erhood of Electrical Workers Local 5 (the Charging Party), was
ever employed by the Respondent.
The alleged discriminatees are union members, and worked
together at their last job. Discriminatee Good had been unem-
ployed for 6 months in November 2004. Because there were no
jobs available through the union hiring hall Good asked the
union business agent if he could try to get work with nonunion
employers. He received permission and was told the names of
a few electrical contractors, including the Respondent, in the
State College area who might be hiring. In late January 2005,
Good saw Cogan while they were signing the out-of-work re-
ferral book at the hiring hall. Good told Cogan that the Re-
spondent was hiring electricians. Cogan also applied for work
with the Respondent after getting permission from the business
agent. In February 2005, Sweeney had been laid off for almost
a year. He also heard from Cogan that the Respondent was
hiring and went to the Respondent’s office to apply for work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1192
B. The Interviews
1. David W. Good
Good has over 20 years experience as an electrician. He has
been in supervisory positions for a total of approximately 8 of
those years. Good is experienced in commercial, industrial,
and residential electrical work as well as electrical construction
work.
Good mailed a job application and resume to the Respondent
in November 2004. Neither document indicated he was a
member of the Union. An interview with Torongeau was
scheduled for December 14, at the Respondent’s headquarters.
On arrival Torongeau gave Good the electrician’s test. Before
he finished the test Torongeau asked Good to join him in his
office for the interview. Torongeau graded the test in Good’s
presence and told him that he had three incorrect answers that
were not a problem. Torongeau told Good that he was being
interviewed for a permanent position.
Torongeau reviewed Good’s application and resume. To-
rongeau asked Good the distance from his residence to State
College. Good replied that Davidsville was about an hour and
a half drive from State College. Torongeau noted “1.5” on
Good’s application and expressed concern that the distance
might be an impediment to Good’s timely arrival at work.
Good assured Torongeau that he was use to “traveling a lot”
and that he had always been punctual and that, if necessary, he
would relocate, as he had also done in the past for work.
Good asked about wage rates and if the Respondent did pre-
vailing wage work. Torongeau said that it did, but that there
was also a shop wage rate based on qualifications. Torongeau
inquired about the wage rates at Good’s most recent jobs.
Good explained that his most recent previous employers had
paid contractually-negotiated union wage rates. Good indicated
it was “Local 5” (the Charging Party) that had negotiated the
rates. Torongeau noted “Local 5” and “rate Union” on the
application. At that point, Good testified that he was uncertain
exactly what Torongeau said, but that he left the room for ap-
proximately 10 or 15 minutes.
Torongeau returned and said that he could not locate the per-
son he was seeking and asked Good if he had any additional
questions. Good asked about career advancement opportunities
with the Respondent. Torongeau responded that the Respon-
dent promoted from within and he volunteered there were no
foreman jobs available. Good asked one last question about the
tool policy and after answering Torongeau said that he had to
talk to somebody else and that they would get back to him.
Good testified that before Torongeau left the room that they
were having a “pretty good conversation” but that on his return
“it seemed, it appeared that it was—it was over and, you know,
if I had any questions, that was—that would be it for this inter-
view.” (Tr. 118.) The only contact that Good had with the
Respondent thereafter was when he received his rejection letter
dated December 30, 2004.
2. Bruce J. Cogan
Cogan filed a job application at the Respondent’s office on
January 31, 2005, and his interview was on February 22. Co-
gan, who has been a member of the Union since 1987, did not
mention that fact on his application. Immediately on entering
the office Cogan was given the electrician’s test. After Cogan
completed the test, Torongeau began the interview.
Torongeau reviewed Cogan’s work history. Cogan ex-
plained that the reason he worked for a lot of contractors was
because he had been referred to the jobs by the union hiring
hall and the jobs were of a short duration. Torongeau claimed
that he was unaware of how a union hiring hall worked and
Cogan explained the process. Torongeau told Cogan that the
Respondent was a nonunion contractor. Cogan responded that
he had been unemployed for 9 months, his unemployment
benefits were nearly exhausted, his children attended college,
and he was exploring every opportunity. Although the timeline
is unclear, I believe Cogan’s testimony supports a finding that
at this point in the interview Torongeau, without explanation,
leaves the cubical. (Tr. 145–147.)
Torongeau returned in approximately 5 minutes and said that
Cogan’s score on the test was “minus 3,” and with that score he
could possibly be a candidate for prevailing rate work. He
asked Cogan if he was willing to travel. Cogan said that he was
and asked if the Respondent would pay expenses. Torongeau
replied that it would not pay expenses on prevailing wage work.
Torongeau asked if Cogan wanted to be a foreman. Cogan
stated that he would accept any position. At the end of the
interview Torongeau told Cogan that he had five more inter-
views that day and that he would be in touch. Cogan testified
that the interview lasted approximately a half hour. Torongeau,
in response to Cogan’s phone call on March 10, said “they were
getting close to ending their hiring.” On March 31, Cogan
received a rejection letter stating that his resume would be kept
on file for a year, it was the last contact he had with the Re-
spondent.
3. Scott M. Sweeney
Sweeney, an electrician and a member of the Union for 15
years, was unemployed since April 2004. On February 22,
2005, he applied for work at the Respondent’s State College
headquarters. While he was filling out the application Toron-
geau entered and asked if he was applying for an electrician
position. Sweeney replied in the affirmative and Torongeau
asked if he had time for the interview. Sweeney, who had ar-
ranged another interview for that day said he did not, but
agreed to return the next morning.
Sweeney indicated on the application that he had been termi-
nated by a previous employer because he “would not take on
call pager every other week.” Torongeau began the interview
by reviewing Sweeney’s employment history. He asked
Sweeney about the termination. Sweeney indicated that the
termination occurred around 1997 or 1998, and that he had
worked for that employer since 1990 or 1991. The termination
happened after he discovered that the collective-bargaining
agreement did not require him to carry a pager and be on call
every other weekend. When he told the employer that he was
not being paid to be on call every other weekend because it
interfered with his private life, he was terminated.
Torongeau asked Sweeney why his previous employment
contained several jobs of short duration. Sweeney replied that
those jobs were referrals from “Local 5, IBEW.” After asking
Sweeney to confirm that he had obtained jobs through the Un-
ALLIED MECHANICAL & ELECTRICAL CONTRACTORS 1193
ion, he asked some additional questions about the referral sys-
tem. Sweeney testified that after he mentioned the Union To-
rongeau “more or less seemed like he was short, and didn’t
want to proceed with the interview that much at all.” Before
leaving Sweeney asked when he could expect to hear anything
and Torongeau replied that his application would be kept on
file for a year. Sweeney stated that the interview lasted only
about 5 minutes after he mentioned the Union and that the in-
terview lasted a total of about 30 minutes. The only contact
Sweeney had with the Respondent thereafter was when he re-
ceived his rejection letter dated March 31, 2005.
4. Brett Hayes
Torongeau interviewed Hayes for an electrician position on
January 17, 2005, over a month after Good’s interview. There
is no evidence that Hayes was ever affiliated with a labor or-
ganization. Counsel for the General Counsel subpoenaed
Hayes in order to juxtapose his treatment as an applicant with
the treatment received by the union members.
Hayes was also given the electrician’s test before the inter-
view. Before he finished the test, Torongeau summoned him to
his office for the interview. Torongeau graded the incomplete
test and told Hayes that his score was a minus 6. Hayes said
that he was unfamiliar with “a lot of the questions that were on
the test.” Torongeau assured him that his test score was not an
issue.
Torongeau testified that Hayes’ application contained
“$50,000 to $60,000” as the “desired salary rate.” Notwith-
standing this written declaration, Torongeau asked Hayes how
much money he wanted. Hayes said he “would like $20 an
hour.” Torongeau demurred, claiming that the Respondent
would not be able to pay him that amount to start. Hayes re-
plied that “he wouldn’t be able to afford to work for him.”
Torongeau said that the Respondent had “a lot of prevailing
wage jobs, which would offset the cost.” Torongeau then took
him back “to where they had a board, and showed me all of
their jobs that were prevailing wage work.” Torongeau esti-
mated that there was about 2 years of prevailing wage work in
the State College area.
Torongeau asked Hayes how long it took to drive to State
College from his home. Hayes said “an hour and 15 minutes.”
Torongeau asked if that would be a problem. Hayes replied in
the negative, because for years he had been traveling long dis-
tances to work.
Hayes testified that towards the end of the 15–minute inter-
view Torongeau left the room with Hayes’ application and test.
Hayes believes that Torongeau went to his boss “Eric.” When
he returned Torongeau offered Hayes a nonprevailing wage job
at $15 an hour. Hayes refused, claiming that the money would
not be worth the distance he would have to drive. Torongeau
immediately offered him a prevailing wage job starting the next
day. Hayes agreed, and worked as an electrician until he was
discharged by Torongeau on April 14, for not being a “good
fit.” Hayes also testified that at no time during his employment
with the Respondent was he asked to use, or share his expertise
in automated temperature control—a factor that Torongeau
claimed was “relevant” to his employment.
III. DISCUSSION
The test for an unlawful refusal-to-hire violation is articu-
lated in FES, 331 NLRB 9, 12 (2000), enfd. 301 F.3d 83 (3d
Cir. 2002). The General Counsel must prove: (1) the Respon-
dent was hiring or had concrete plans to hire at the time of the
alleged unlawful conduct; (2) the applicants had experience or
training relevant to the announced or generally known require-
ments of the positions for hire or that the requirements were
applied as a pretext for discrimination; and (3) antiunion ani-
mus contributed to the decision not to hire the applicants. Once
this is established, the burden shifts to the Respondent to show
that it would not have hired the applicants even in the absence
of their union affiliation.
The Respondent admits that it was hiring and that the alleged
discriminatees had the experience or training relevant to the
announced or generally known requirements of the positions
for hire. The Respondent argues that there is “not even a hint
of antiunion animus” contained in the record. I disagree and
find that the record supports a finding that counsel for the Gen-
eral Counsel has met his burden of demonstrating that antiunion
animus was a motive for the Respondent’s actions.
“It is well established that a discriminatory motive may be
inferred from circumstantial evidence and the record as a
whole, and that direct evidence of union animus is not re-
quired.” Tubular Corp. of America, 337 NLRB 99 (2001) (cita-
tions omitted). The Board has also found that writing “Union”
on applications for employment supports a finding of union
animus. Americlean, 335 NLRB 1052, 1058 (2001). Toron-
geau wrote on Good’s application, “Local #5,” “Rate union,”
“Rated work,” and “3 year union” (within a circle). Cogan’s
application has “Local 5” above “87,” the year Cogan joined
the Union. Good and Sweeney testified that Torongeau’s inter-
est in their individual interviews waned when he learned that
they were associated with the Union. Torongeau, who was
present during the entire hearing, did not credibly refute their
testimony.
The more favorable treatment accorded Hayes, who was not
affiliated with the Union, compared with the treatment given to
the alleged discriminatees also indicates animus. Although
Hayes was discharged by the Respondent, I found him to be a
credible witness, who did not appear to bear any ill will toward
the Respondent. The Respondent does not challenge or even
address Hayes’ testimony. Hayes’ interview occurred on Janu-
ary 17, 2005, between Good’s interview on December 14,
2004, and Cogan’s on February 22, 2005. Like the alleged
discriminatees Hayes was interviewed for an electrician posi-
tion, unlike the alleged discriminatees, he was hired as an elec-
trician.
Hayes requested a salary between $50,000 and $60,000 a
year on his application. This annual amount is similar to that
which Good requested when he wrote “$25.00 ap[r]ox.” on his
application. Neither Cogan nor Sweeney listed a dollar
amount. Immediately after telling Hayes that he got a “minus
6” on the test (a lower score than any of the alleged discrimina-
tees), Torongeau assured Hayes that his score was not a prob-
lem, and asked him “what type of money [he] was looking for.”
Thus, Torongeau initiated the salary negotiations early in the
interview. Discussing wages, at a point in the interview that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1194
Torongeau determined was premature, was one of the numer-
ous reasons he offered for refusing to hire the alleged discrimi-
natees.
It is also apparent from his interview with Hayes that, when
it suited him, Torongeau was not reluctant to negotiate with an
applicant over wages. There is no explanation why Torongeau
asked Hayes his salary requirements when they were clearly
written on the application. In any case Hayes, in response to
Torongeau’s question, replies, $20 an hour. Torongeau claims
that he cannot pay that much, and Hayes states that he probably
would not be interested because he would not be able to afford
to work for the Respondent. Torongeau replies that he has a lot
of prevailing wage work and that work would “offset that cost.”
Torongeau takes Hayes to a back room and shows him evi-
dence that the Respondent has prevailing wage rate jobs for
years to come. Regarding Good, whose application listed the
same approximate salary as Hayes, Torongeau stated that the
“desired salary,” which he variously described as either the first
or second reason he did not hire Good, was too high, and there-
fore not addressed directly.
Cogan listed “prevailing rate” as his desired salary and To-
rongeau testified that was the reason that he did not make him
an offer. Torongeau explained that he was concerned that Co-
gan would not be happy with a less than prevailing rate job and
that he could not offer him a prevailing rate job when he had
nonprevailing rate work. None of Torongeau’s “thinking” was
ever conveyed to Cogan. Thus, Torongeau’s treatment with
respect to Hayes’ salary is inconsistent with that accorded ap-
plicants who he knew were affiliated with the Union.
I find, based on Hayes’ undisputed credited testimony that
he, and the alleged discriminatees, were similarly situated ap-
plicants. Although this issue is not raised by the Respondent in
brief, there is testimony by Torongeau suggesting that Hayes
was hired at the prevailing wage rate because of his expertise in
automated temperature control work. It is undisputed that
Hayes applied for a basic electrician position, just like the al-
leged discriminatees, received the same test as the alleged dis-
criminatees, but unlike the alleged discriminatees, Hayes was
hired by the Respondent as a basic electrician. Hayes credibly
testified, both on direct and cross–examination, that he was
only asked to perform basic electrical work and was never
asked by the Respondent to apply, or share, his specialized
knowledge.
Torongeau, who did not supervise Hayes, claims that he
“showed up at the job” one day because he wanted to talk to
Hayes for two reasons. The first was to ask Hayes when he
was moving to State College (well after the interview, Hayes
mentioned to Torongeau that he was considering moving to
State College). The second was to tell Hayes that he had in-
formation that Hayes could not do the work he said he could
and that his work was sloppy. Although the irony of Toron-
geau’s alleged priorities, i.e., ensuring that Hayes—who he
claims is incompetent—has a shorter commute, is not lost on
me, I totally discredit Torongeau’s testimony. I also specifi-
cally reject any implication that Hayes was discharged for his
lack of special skills. Hayes testified without refutation that his
termination notice, given to him by Torongeau, merely stated
that he was not a “goof [sic] fit,” and that he was never given a
more specific reason for his discharge. Torongeau’s testimony
was not supported by documentation, or the testimony of other
witnesses, such as Hayes’ supervisor or coworkers. Accord-
ingly, to the extent that the Respondent may be implying that
Hayes’ situation was not similar to that of the discriminatees I
reject that implication. Moreover, I totally discredit Toron-
geau’s testimony that Hayes’ specialized skills were a factor in
his decision to hire Hayes.
Hayes and Good both reside over an hour from State Col-
lege. When Torongeau asked them if the commute would be a
problem they both said “no” and gave the identical reason—
that they were use to driving long distances to work. Good,
unlike Hayes, also offered as how he would be willing to relo-
cate to State College. Hayes was hired and Good was not. In
the Respondent’s position statement Torongeau identifies dis-
tance from State College as the sole reason Good was not hired
(GC Exh. 2).
The Respondent offers no explanation for the different treat-
ment accorded Hayes and the applicants who were known to be
affiliated with the Union. “One indicium of unlawful motiva-
tion is treatment of union supporters differently than has been
the treatment accorded ordinarily to other employees.” Clinton
Electronics Corp., 332 NLRB 479, 491 (2000).
Notwithstanding that the sole reason advanced by the Re-
spondent in its position statement for its failure to hire Good
was the location of his residence, the first reason Torongeau
stated at the hearing was that Good’s previous job was not in a
“fast pace construction environment” where people have to
work “really hard and fast.” When asked directly for the reason
or reasons why he did not offer Good a job, he stated that the
distance was “one of the first reasons.” He saw that as “being a
problem right off the bat,” “something that I kind of watch.”
He then mentioned salary as the second reason. The next rea-
son was, once again, the pace. Torongeau finally concluded
that “the big thing would be the pay.” The second day of the
hearing, after his recollection had been refreshed and he was
testifying on direct examination, he added Good’s interested in
promotional opportunities and that Good was “timid.”
Additionally, I note that none of the reasons offered by To-
rongeau either originally, or as afterthoughts, are memorialized
on the applications. Aside from the “1.5” on Good’s applica-
tion, there are no clear cut, specific, written statements reflect-
ing the reason why Torongeau found these applicants unsuit-
able for employment—except for the notations indicating their
union affiliation.
Torongeau indicated in the position statement that Cogan de-
sired to be paid the “prevailing rate” and that he seemed in a
hurry to end the interview. During the hearing Torongeau
added that because Cogan had previously supervised 70 em-
ployees he would not be a “fast electrician.” At the hearing
Torongeau never mentioned “being in a hurry” with regard to
Cogan. He did attribute that conduct, erroneously, to Sweeney.
On the second day of the hearing, after Torongeau had heard
the alleged discriminatees testify, he provided additional rea-
sons for his decision to reject them. Thus, he claimed that after
hearing Sweeney testify that he (Torongeau) was “in a hurry”
to end the interview, he felt that it was Sweeney who “was in a
hurry to get out of there, with that interview, not me” (Tr. 212).
ALLIED MECHANICAL & ELECTRICAL CONTRACTORS 1195
Sweeney never stated or implied that Torongeau was “in a
hurry.” He testified that after he (Sweeney) made known his
affiliation with “Local 5, IBEW,” Torongeau was “short, and
didn’t want to proceed with the interview that much at all.”
Short, used in this context, means rude or abrupt. Neither
Sweeney nor Cogan said “hurry” in their testimony. Counsel
for the General Counsel opines that Torongeau got the “script”
mixed up and wrongly attributed the reason he gave for not
hiring Cogan in the position statement, to Sweeney. Be that as
it may, at the very least, such testimonial aberrations further
detract from Torongeau’s credibility.
Additionally, Torongeau failed to mention Sweeney’s test
score (minus 5) as a reason for his rejection—the second of
only two reasons that he initially gave for failing to hire
Sweeney (GC Exh. 2 at 2). On day 2 of the hearing Torongeau
explained that the reason he believed that Sweeney was not
interested in the job was because Sweeney immediately began
talking about how much he wanted to be paid. Not only did
Torongeau remember the topic, but he remembered the exact
timeframe—the first couple of minutes—and the reason he
remembered it was because it is “a rare thing.” Although not,
apparently, such a rare occurrence that it was worth noting on
Sweeney’s application, or mentioning in the Respondent’s posi-
tion statement, or offering as a reason when asked by the Gen-
eral Counsel and counsel for the Charging Party. Sweeney did
not testify that anything was said about wages.
Significantly, it was only after the foregoing “detail,” that
Torongeau even made an oblique reference to the pager inci-
dent. He testified that it “wasn’t so much that we are on call”
but that “we hire people that, you know, will go the extra mile,
things like that.” That statement is in marked contrast to the
statement contained in the Respondent’s position statement—
”Sweeney was not further considered because of his previous
termination for refusing to be on call.”
An employer may have more than one reason for its actions.
When, however, it vacillates in offering rational and consistent
accounts for those actions, the contention that its actions were
undertaken for a purely lawful purpose is severely weakened.
Toma Metal Inc., 342 NLRB 787, 799 (2004). Certainly that is
the case here.
Cogan stated that Torongeau spoke with him about working
for the Respondent on projects in Maryland. Torongeau denies
making that statement and claims that he was unaware that the
Respondent had projects in Maryland. Torongeau’s testimony
was corroborated by Scott Good, the Respondent’s vice presi-
dent. I find that Cogan was confused and I credit Torongeau’s
denial, but only because of Scott Good’s corroboration. Re-
garding all other incidents of conflicting testimony I find the
testimony of the alleged discriminatees to be more trustworthy
than that of Torongeau.
Torongeau was a reluctant witness, who was also in the un-
enviable position of trying to justify his actions as the decider,
before both the Respondent’s vice president, and its human
resources manager, who were present for the entire hearing.
Even so, Torongeau lacked the testimonial demeanor of a sin-
cere and truthful person who was attempting to honestly answer
all questions to the best of his ability. In addition to his de-
meanor, much of his testimony was evasive, obfuscatory, disin-
genuous, implausible and riddled with inconsistencies too nu-
merous to mention.
At the very outset of his examination as an adverse witness,
Torongeau refused to admit that the alleged discriminatees
were qualified electricians. Notwithstanding the fact that the
Respondent did not contend otherwise in its position statement,
the substance of which was provided by Torongeau, and admits
their obvious qualifications in its brief.
Torongeau testified that he had “interviewed people for years
and years and years.” When asked to acknowledge that the
information contained in Cogan’s application indicated, he was
a qualified electrician he gave the following nonresponsive
answer: “I wish it was that easy to hire people,” “I can’t say
that that’s the case,” “it isn’t easy to hire people.” He then
talked about comparing 20 applications and selecting the “best
fit overall,” “some that you like more than others,” “I may have
interviewed several other people.” (Tr. 23–24.) Later, the
Respondent presented the application of Daniel Dudurich (R.
Exh. 1). Dudurich was interviewed on the same date as Cogan.
Dudurich worked for another electrical company. Unlike Co-
gan there is no evidence that Dudurich was ever affiliated with
any union. Dudurich, as well as three other employees from the
same employer, began work for the Respondent on March 14.
Torongeau testified that he remembered that each individual
had an excellent interview. To further obfuscate Torongeau’s
actions the Respondent contends: “[w]ith respect to specific
hiring decisions, Torongeau . . . did not necessarily compare
one candidate versus the other; rather, he ultimately decided
which of the number of candidates available at any given time.”
In apparent support of that statement Respondent notes that
“both Cogan and Sweeney confirmed that Torongeau was in-
terviewing five or six people on the same day that they spoke
with him. (R. Br. 15.)
Sweeney testified that he was uncertain whether Torongeau
said five or six people, and if Torongeau had said that he inter-
viewed that number the day before (which would be the day of
Cogan’s interview) or had plans to interview them (Tr. 180).
Cogan testified that Torongeau told him that he had five inter-
views remaining on the day of Cogan’s interview. Torongeau
did not testify regarding any remaining interviews. His com-
ment may have been a meaningless statement, that he made to
all applicants as he showed them the door. Although Toron-
geau stated, without having his recollection refreshed, that the
four individuals who started work on March 14, all had excel-
lent interviews, he apparently was unable to remember the
dates when the interviews occurred. He knew the date of
Dudurich’s interview because it was on his application, which
Torongeau had before him. The applications of the other three
candidates are not in evidence. Thus, the dates of their inter-
views, assuming Torongeau’s memory is correct and they were
interviewed, are not in evidence. Even if Torongeau had other
interviews on the same dates he interviewed Cogan and
Sweeney, there is no evidence that the interviews were with
applicants for electrician positions. Torongeau testified that he
had interviewed between 130 and 150 applicants during the
relevant time period, but those interviews were for plumbers,
laborers, and pipefitters, as well as electricians. Additionally,
the primary reasons advanced by the Torongeau for rejecting
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1196
Cogan—because he desired a wage that Torongeau “could not
match” and Sweeney—because 7 years before, he was termi-
nated for refusing to be on-call, are “absolute” reasons, and
thus are useless for the purpose of comparative analysis.
Torongeau’s testimony that “pay is pretty important” and
that his inability to “pay people what they would need to be
paid, in order to be happy,” “causes a problem” for him, is
laudable—it is also totally incredible. Torongeau testified that
the Respondent’s basic wage rate, the “shop rate” is $15 an
hour. The very highest wage rates, however, are the “prevail-
ing wage rates.” Although the prevailing wage rates vary, the
difference between the shop rate and any prevailing wage rate
is “vast” (Tr. 51–52). When asked what is the highest wage the
Respondent will pay, Torongeau replied, “I don’t know that I
can sum it up that easily.” He then spoke about an individuals’
experience, and such amorphic concepts as attitude and “fit”
with the Company, only to return to the shop rate of $15 an
hour (Tr. 70).
Attempting a different tact counsel for the General Counsel
asked Torongeau if the amount an applicant wrote in the “de-
sired salary range” section of the application “could rule people
out.” Notwithstanding the clarity of the question, Torongeau
answered “Can it rule people out?” Having received an af-
firmative, he then empathically stated that “Not without a con-
versation. I always will talk about it.” He explained that the
need for discussion was necessary to ensure that the applicant
was “adamant” about making that wage. (Tr. 71.) Torongeau’s
salary negotiation with Hayes, which is uncontradicted, is di-
rectly opposite to the discriminatees’ experience. In their inter-
views there was, at most, only minimal discussion of wages and
the record contains absolutely no testimony on which to base a
conclusion that any discriminatee was adamant regarding their
wage request.
Torongeau not only offered Hayes prevailing wage work, he
saw that he got it. Except for one weekend, during the entire 6
months Hayes was employed he was paid a prevailing wage
rate. And Hayes was not the only electrician being paid a pre-
vailing wage rate. Counsel for the General Counsel provides
the names of 18 other electricians who were paid a prevailing
wage rate (GC Br. 21 fn. 15). They were obtained from the
Respondent’s payroll records (CP Exh. 9). The calculation for
the basic hourly rate is set forth in the record (Tr. 234–236).
By way of example, page 28 of Charging Party’s Exhibit 9
(the page number is located in the upper right-hand corner of
the page) slightly below the middle of the page and to the ex-
treme left is “2479,” followed by “Jamie W. Wolfe.” The name
and employee number is verified by matching the payroll re-
cords with the list of employees hired from November 1, 2004
through June 20, 2005. The list was provided by the Respon-
dent pursuant to a subpoena (GC Exh. 3). Directly below the
name is the date of March 20, 2005, next is the figure 1,418.14.
The headings at the very top of the page identify that number as
the employee’s gross pay for the week. Moving left is “40”
under a heading entitled “Units” that is the number of “straight
time” hours worked. The straight time hours worked divided
into the gross pay equals the hourly wage. In this example
$35.45 per hour. In addition to Wolfe I have verified the
hourly rate for employees Keith, Dudurich, and Edmondson
(CP Exhs. 9, 28–35). All earned over double the shop rate of
$15 an hour. It is noted that although Dudurich and Cogan
were interviewed on the same date, Torongeau testified that he
was unable to offer Cogan prevailing wage rate work when he
had nonprevailing wage work and that was the reason Cogan
was not hired. The Respondent’s payroll records show that
Dudurich was earning prevailing rate wages from March 20,
2005, until at least January 1, 2006, the last date of the payroll
records in evidence.
Not surprisingly the Respondent cites Wireways, Inc., 309
NLRB 245 (1992), and its progeny as giving voice to Toron-
geau’s concerns by recognizing that if an employer “offered an
employee a job at less wages than the employee was accus-
tomed to receiving, the employee would either be less produc-
tive or would leave for the first job paying more.” The Re-
spondent does not argue employee turnover as a reason for its
failure to hire the discriminatees. Its primary contention relat-
ing to productivity, is what Torongeau describes, based on his
own experience, as a “human tendency.” This tendency is for
employees who have been promoted to foreman to lose some of
their ability to “just work.” He also contends, without any sup-
porting evidence, that there is an additional problem of taking
orders from other foremen.
The favorable comments regarding supervisory potential un-
der the “Expectations” section of the Respondent’s “Employ-
ment Offer Form,” for Edmondson (CP Exh. 4), and Young
(CP Exh. 5), belie Torongeau’s espoused belief. The favorable
comment on Dudurich’s form “very good foreman” (CP Exh.
6), is especially telling because Dudurich was hired directly
from another electrical company where he had been employed
as a commercial electrician foreman since 1997 (R. Exh. 1 at
3).
The crucial distinction between this case and those relied on
by the Respondent, is my finding that all the reasons advanced
by the Respondent are pretextual.
Christopher A. Walter, employee number 2471 also appears
on the Respondent’s payroll records as earning prevailing wage
rates. Walter scored a minus 11 on the electrical test (GC Exh.
11). Although Sweeney was interviewed after Walter was
hired, I still find it incredulous that the Respondent would offer
as a reason for its failure to hire Sweeney his “low score,”
which was six points higher than Walter’s. My incredulity is
further supported by the fact that Torongeau admitted that the
Respondent has no guidelines for what is, or is not, an accept-
able score. Additionally, employees Rummel and Hayes were
hired with scores lower than Sweeney’s “low score.” And it is
undisputed that Torongeau went out of his way to hire Hayes,
and pay him the prevailing wage rate, notwithstanding his
score.
The Respondent’s answer regarding Walter appears to be
that he was so lacking in electrical knowledge that Torongeau
should not have administered the test to him in the first place.
In support of this argument the Respondent stresses that Wal-
ter’s “Employment Offer Form” lists under “Expectations”
“Electrian [sic] wants to go thru aprentship [sic].” This appears
to be a prudent course for Walter to pursue in view of the in-
herent danger of working with electricity. It does nothing to
establish the validity of Torongeau’s refusal to hire Good,
ALLIED MECHANICAL & ELECTRICAL CONTRACTORS 1197
which he did before hiring Walter. Torongeau admits that he
hires employees with lesser qualifications in training, educa-
tion, and experience because those people “would be happy
with the pay that we would pay them.” As an example he of-
fers “apprentices or, you know, younger guys that can do a lot
of work.” Without passing on their validity, Torongeau’s com-
ments have no application to the Respondent’s failure to hire
Good. Walter was not hired as an apprentice, that was the posi-
tion to which he aspired, he was hired as an electrician, and he
was earning top dollar. A perusal of his earnings for the week
of March 6, 2005, his first 40–hour workweek, shows gross pay
of $1,222.62 or approximately $31 an hour (CP Exh. 9 at 25).
Because Good only desired approximately $25 an hour, the
Respondent could have employed an individual with 21 years
of field experience, and 10 years of electrical schooling (GC
Exh.12 at 2), at a savings of $6 an hour.
The Respondent has maintained since the beginning that
Good was not hired because he lived over an hour away from
State College. Based on DeGroot’s statement, contained in the
Respondent’s position statement, had Good’s application come
to her, it would not have been forwarded to Torongeau for that
reason. She also states that if she is unsure of the distance she
performs a computer map search and obtains the mileage and
the approximate travel time. DeGroot testified at the hearing
that she oversaw the human relations function for the Respon-
dent and its affiliates, a total of about 600 employees spread
throughout the Commonwealth. She did not include herself in
her description of the preinterview process. She testified that
her assistant, Becky Miller, supports the Respondent in that
process and “pushes the papers around and everything.” In that
regard it is the managers who give Miller the resumes or appli-
cations of the people they would like to interview, and she ar-
ranges the interviews based on the managers availability. It
appears from the testimony that DeGroot’s only direct in-
volvement with the overall selection process is that she gets the
rejected applications from the managers and thereafter mails
the applicants her generic rejection letter.
Accordingly, I find that rarely does DeGroot have the oppor-
tunity to apply her draconian application of the Respondent’s
unwritten policy. Although Torongeau generally confirmed the
policy, his language was far less harsh. For example, when
discussing the policy he states: “That’s something that I kind of
watch, you know, trying to get people closer to work” (Tr. 20),
“We usually like to stay within one hour of State College” (Tr.
37). Indeed, Torongeau’s approach to the communing issue
appears to be far less rigid. He admits that part of his job func-
tion is to “screen” the applicants. In performing that function
he reviews the applications before giving them to Miller. He
acknowledges that he does not know the distance of “every
little town,” from State College. He did not know the location
of Davidsville, Good’s residence. He testified that when he is
unaware of a location he typically asks the applicant the dis-
tance, and may confirm the answer by a computer search (Tr.
60). Thus, it appears that if, indeed, the Respondent maintained
an inflexible rule of exclusion based on distance, as DeGroot
indicated, it would be far more practical and efficient for To-
rongeau to use DeGroot’s approach and ascertain the distance
before having Miller schedule the interview.
If the Respondent was adamant that no applicant would be
hired if the applicant lived beyond an hour’s drive from State
College it would be foolish for Torongeau to continue with the
interview once that fact was admitted by the applicant. But that
is exactly what Torongeau did with Good and Hayes. It is un-
disputed that they both admitted living beyond an hour’s dis-
tance from State College. Torongeau, obviously taking them at
their word, proceeded with the interviews. Once again, the
applicant who had no union affiliation was hired and the one
with union affiliation rejected, based on the identical factor and
without any explanation. I again note that Good credibly testi-
fied that he told Torongeau that he would consider relocating to
State College. Hayes credibly testified that it was not until
after he was employed by the Respondent that he decided to
move to the State College area.
As additional evidence of disparate treatment, counsel for the
General Counsel solicited testimony from Torongeau that he
offered an electrician position to Brian Long, an applicant that
lived in Three Springs, Pennsylvania. Torongeau testified that
he thought Three Springs was 30 to 40 minutes from State Col-
lege. After reviewing a map Torongeau readily changed his
estimate to between 1 hour and 20 or 30 minutes. The Respon-
dent suggests that the review of a more complete map of Penn-
sylvania will demonstrate that Davidsville appears more distant
from State College than does Three Springs. The Respondent
misstates the issue. There has been no credible evidence to
support any contention that Good was rejected because he lived
a greater distance away from State College than another appli-
cant or applicants. Indeed, Torongeau admitted that was not
the case (Tr. 62). Long’s offer of employment is another ex-
ample of inconsistent application of an alleged condition of
employment.
On the last day of the hearing Torongeau stated, for the first
time, that Good’s timidity was also a reason for not hiring him.
Timid means lacking in boldness or shrinking from public at-
tention. I see no evidence of those characteristics in Good’s
resume or job application. To the contrary his resume describes
an individual with the opposite characteristics. Good’s previ-
ous positions include that of foreman, supervisor, and proprie-
tor of an electrical business.
Other than claiming that he “couldn’t really picture him in a
fast paced construction site,” Torongeau offered no explanation
why he concluded that Good was timid. Respondent “notes
that the record reflects the fact that Good was soft spoken be-
cause counsel for the General Counsel had to ask Good to re-
peat an answer because ‘I couldn’t hear you.’” (R. Br. 9) The
record does establish that counsel for the General Counsel
asked Good to repeat one answer (Tr. 108). Initially I observe
that counsel for the General Counsel said “I’m sorry, I couldn’t
hear you.” With apologies to the counsel for the General
Counsel that admission alone indicates that the problem is more
with the receiver than the transmitter. The hearing was held in
a large banquet room. Counsel for the General Counsel was
sitting second farthest from Good. Counsel for the Charging
Party was sitting further away, and yet made no objection.
Even absent the foregoing, unlike the Respondent, I would be
reluctant to draw any conclusion from such a singular event.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1198
I am not at all reluctant to conclude, based on the record as a
whole, that counsel for the General Counsel has met his burden.
I also find that all the reasons advanced by Torongeau for his
refusal to hire Good, Cogan, and Sweeney are pretextual. Be-
cause they are pretextual—i.e., they either did not exist or were
not actually relied on—they cannot form the basis for a valid
rebuttal to the General Counsel’s case. Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir.
1982). Accordingly, I find that the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by failing and refusing to hire
Good, Cogan, and Sweeney as electricians.
I also find persuasive counsel for the General Counsel’s con-
tention that because each discriminatee received a letter from
the Respondent stating that their resumes would be kept on file
for 1 year and that the Respondent would contact them “if an
appropriate career opportunity becomes available” the Respon-
dent has also “failed to consider” the discriminatees. There is
no evidence on which to conclude that this commitment was
false, or that the discriminatees had any to believe that it was.
The Respondent does not address the relevance of the letters,
contending only that because the discriminatees were given an
interview, there “can clearly be no refusal to consider viola-
tion.” I disagree and find, based on the Respondent’s rejection
letters that the Respondent has also violated Section 8(a)(1) and
(3) of the Act by refusing to consider the discriminatees for hire
as alleged in the complaint. 331 NLRB at 15.
CONCLUSIONS OF LAW
1. The Respondent, State College Electrical & Mechanical,
Inc., d/b/a Allied Mechanical & Electrical Contractors, a sub-
sidiary of S&A Custom Built Homes, Inc., and Berrena’s Me-
chanical Services, LLC, a single employer is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Respondent violated Section 8(a)(1) and (3) of the
Act by failing and refusing to hire or consider for hire David
W. Good, Bruce J. Cogan, and Scott M. Sweeney for electrician
positions because of their union affiliation.
3. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that the Respondent unlawfully refused to hire
or consider for hire applicants David W. Good, Bruce J. Cogan,
and Scott M. Sweeney, as electricians, the Respondent will be
ordered to offer them positions as electricians and to make
them whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in accordance with New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The Respondent, State College Electrical & Mechanical,
Inc., d/b/a Allied Mechanical & Electrical Contractors, a sub-
sidiary of S&A Custom Built Homes, Inc., and Berrena’s Me-
chanical Services, LLC, a single employer, State College,
Pennsylvania, its officers, agents, successors, and assigns,
jointly and severally shall
1. Cease and desist from
(a) Failing and refusing to hire or consider for hire job appli-
cants on the basis of their union affiliation or other protected
activities.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer imme-
diate employment to David W. Good, Bruce J. Cogan, and
Scott M. Sweeney without prejudice to their seniority or any
other rights or privileges they would have enjoyed had the Re-
spondent hired them when they applied. If the positions for
which these discriminatees should have been hired no longer
exist the Respondent shall offer them immediate employment
in substantially equivalent positions without prejudice to their
seniority or any other rights or privileges they would have en-
joyed had the Respondent hired them when they applied.
(b) Make David W. Good, Bruce J. Cogan, and Scott M.
Sweeney whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in the man-
ner set forth in the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful refusal to hire or to con-
sider for hire David W. Good, Bruce J. Cogan, and Scott M.
Sweeney and within 3 days thereafter, notify them in writing
that this has been done and that the unlawful refusal to hire or
to consider for hire will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in State College, Pennsylvania, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on forms

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ALLIED MECHANICAL & ELECTRICAL CONTRACTORS 1199
provided by the Regional Director for Region 6, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since December 14, 2004.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.