Casey Electric

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 774 (N.L.R.B. 1994)

774
313 NLRB No. 132
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
2 However, we do not agree with the judge that Wright Line, 251
NLRB 1083 (1980), ‘‘does not apply’’ to pretext cases. See Taylor
& Gaskin, 277 NLRB 563 fn. 2 (1985). Rather, in adopting the
judge’s finding that the Respondent unlawfully discharged Metz, we
rely on the judge’s alternative rationale that the General Counsel
made a prima facie showing sufficient to support the inference that
protected conduct was a motivating factor in the discharge decision
and that the Respondent has not met its burden of showing that it
would have discharged Metz even in the absence of his union activ-
ity.
3 We agree with the judge’s finding that the Respondent interro-
gated two of the applicants concerning their union membership, in
violation of Sec. 8(a)(1) of the Act.
Casey Electric, Inc. and International Brotherhood
of Electrical Workers, Local 26, AFL–CIO.
Case 5–CA–22404
February 28, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On December 31, 1992, Administrative Law Judge
John H. West issued the attached decision. The Re-
spondent and the General Counsel filed exceptions and
supporting briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs, and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions and to adopt the rec-
ommended Order as modified.
The judge found, and we agree, that the Respondent
violated Section 8(a)(1) and (3) of the Act by discharg-
ing employee Zane Metz because of his union activi-
ties,2 and by refusing to consider and refusing to em-
ploy the 23 applicants for employment named in the
complaint because of their suspected union sympathies.
In his remedy, the judge recommended that Metz be
made whole for any loss of earnings he may have suf-
fered from the date of his discharge until the date of
the completion of the Respondent’s project 377 at
Winchester, Virginia. In addition, he recommended
that the 23 applicants be made whole for any loss of
earnings they may have suffered from the date they ap-
plied for employment. The General Counsel has ex-
cepted to this remedy, arguing that both Metz and the
23 applicants should be granted the traditional make-
whole remedy of offer of employment and backpay.
We find merit in these exceptions.
A. Employee Metz
The remedy for the unlawful discharge of Metz is
governed by Dean General Contractors, 285 NLRB
573 (1987). There, the Board declined to apply a
precompliance presumption against reinstatement in the
construction industry, holding that, as in other indus-
tries, reinstatement and backpay issues ordinarily will
be resolved by a factual inquiry at the compliance
stage of the proceeding. Consistent with Dean General
Contractors, supra, we give a conditional order of re-
instatement, entitling the Respondent to avoid the rein-
statement obligation and terminate the backpay obliga-
tion at the completion date of the project in question
if the Respondent shows in compliance that, under its
established policies, an employee hired into a position
like the one unlawfully denied the discriminatee would
not have been transferred or reassigned to another job
after the project at issue ended. Here, the issue whether
Metz would have been retained or laid off at the con-
clusion of the Respondent’s projects was not litigated
in the hearing. Accordingly, we are modifying the
Order to provide for both a make-whole remedy and
reinstatement, but the Respondent will have the oppor-
tunity at compliance to limit its remedial obligations
by showing that Metz would not have been transferred
to other projects.
B. The 23 Applicants
In finding violations on the basis of the Respond-
ent’s treatment of the 23 union-referred applicants, the
judge used the terms ‘‘refused to consider’’ and ‘‘re-
fused to employ’’ apparently interchangeably. Given
the findings summarized below, we conclude that the
Respondent engaged in hiring discrimination, and that
the make-whole remedy, subject to the Dean General
conditions noted above, is therefore appropriate. See
Sunland Construction Co., 309 NLRB 1224 (1992)
(giving traditional offer of employment and backpay
remedy, subject to Dean General conditions, for con-
struction industry employer’s discriminatory refusal to
hire); Fluor Daniel, Inc., 304 NLRB 970, 981 (1991)
(same).
In brief, the evidence credited by the judge shows
the following: that the Respondent knew of the union
affiliation of all of these applicants; that the Respond-
ent manifested animus towards such an affiliation;3
that the Respondent had appropriate openings for the
applicants at the times they filed applications; that after
individuals with identifiable union affiliations began
applying at the jobsite in person, the Respondent de-
parted from its past method of advertising and hiring
so as to draw applicants from areas distant from the
jobsite; that the 23 applicants were all experienced
electricians, not shown to be unqualified for the posi-
tions for which they applied; and that only two were
hired.
775CASEY ELECTRIC
4 A joint exhibit admitted into evidence shows that 23 employees
were hired in July, 8 in August, 10 in September, 40 in October,
and 15 in November.
5 All dates hereafter are in 1991 unless otherwise stated.
6 Kenneth Darr was hired on October 21 and laid off on November
22. Robert Truslow was hired on September 11 and laid off on No-
vember 27. Both had begun applying in July, and Darr had made
four unsuccessful trips to the jobsite in July. We agree with the
judge that the hiring of these two does not outweigh the evidence
supporting the finding that the hiring process was discriminatory.
7 During the initial investigation of the unfair labor charges, the
Respondent’s superintendent, Charles Farmer, stated in his affidavit
that the hiring change was made only because the Respondent had
received a ‘‘flood’’ of applications for project 375, and he did not
have the time to deal with so many applicants at the jobsite. At the
trial, the Respondent’s witnesses claimed that the reason was that the
applicants in Winchester had been largely unqualified. The judge
found no substantiation for this allegation. It is also noteworthy that,
despite testimony from the Respondent’s witnesses that ‘‘instrumen-
tation experience’’ was essential for electricians on project 377, the
advertisements placed in newspapers outside Virginia simply speci-
fied ‘‘electricians’’ and made no mention of any specific qualifica-
tion requirements.
8 This disparate treatment of the Winchester jobsite applicants,
who had come to be associated with the Union, distinguishes this
case from J. E. Merit Constructors, 302 NLRB 301 (1991), in
which the Board dismissed refusal-to-hire allegations where the
judge found no evidence that the employer was aware of the union
affiliations of those alleged as discriminatees and where there was
no evidence of either a sudden change in hiring procedure or efforts
to avoid certain areas in advertising the jobs.
The hiring discrimination took place with respect to
the electrical work for two projects at the Kraft Gen-
eral Electric plant in Winchester, Virginia. Project 375
began in July 1991 and was completed in January
1992; and project 377 began in September 1991 and
was completed in March 1992. During this period, the
Respondent hired a total of 96 employees for the 2
projects.4 Between July 1 and November 12, 1991,5 at
the suggestion of the Union’s business agent, Sonnie
Myers, 23 applicants, all of them openly displaying
some manifestation of union affiliation, reported to the
Winchester jobsite seeking employment, and many of
the 23 followed up with subsequent visits. With two
exceptions, none were hired for either project.6
Prior to July 1, the Respondent had placed advertise-
ments in newspapers in the Winchester, Virginia area
for both electricians and helpers. The union electricians
began applying at the jobsite on July 1. Thereafter,
when the Respondent obtained a contract for a separate
project at Winchester (project 377), it shifted the hiring
from the jobsite to its headquarters in Jackson, Ten-
nessee. Advertisements for electricians to work at that
site were placed in newspapers in North and South
Carolina, Tennessee, and two cities in Virginia away
from the Winchester area; advertisements in the Win-
chester paper described only helper positions. The ad-
vertisements for electricians instructed applicants to
reply to a post office box address or telephone number
in Jackson. In the meantime, the union electricians
who were coming to the Winchester site in person
were not advised about the new locus of hiring.
The judge discredited the testimony of the Respond-
ent’s witnesses concerning the reasons for the changed
hiring policy and the pattern of advertising. He did so
in part because the Respondent’s story shifted between
the time one of its witnesses gave a pretrial affidavit
and the time when its witnesses testified at trial.7 The
Respondent also supplied no explanations for not ad-
vising the Winchester site applicants that they should
send their applications to Jackson or for the Win-
chester superintendent’s failure to forward applications
to Jackson after the locus of hiring shifted. As the
judge correctly reasoned, through the combination of
the shift in hiring, the pattern of advertisements, and
the failure to advise the Winchester applicants about
the new hiring policy for project 377, the Respondent
effectively denied ‘‘the applicants at Winchester even
the possibility of being hired for the 377 job.’’8 In
short, the applicants did not lose out on jobs to better
qualified employees in the course of either a random
or entirely merit based hiring process. A preponder-
ance of the evidence supports a finding that the proc-
ess itself had been modified, because of their union af-
filiation, to screen them out. We, therefore, find that
the Respondent’s conduct amounted to a discrimina-
tory refusal to hire in violation of Section 8(a)(3) and
(1) of the Act.
AMENDED REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(1) and (3) of the Act, we shall order the Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative actions designed to effectuate the poli-
cies of the Act.
Having found that the Respondent has violated Sec-
tion 8(a)(1) and (3) of the Act, we shall order the Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative actions designed to effectuate the poli-
cies of the Act.
Having found that the Respondent unlawfully dis-
charged Zane Metz, and unlawfully discriminated
against the 23 named job applicants, we will order it
to offer them reinstatement or employment to the same
or substantially equivalent positions at other projects as
close as possible to Winchester, Virginia. In addition,
we shall order the Respondent to make them whole for
any loss of earnings and other benefits they may have
suffered as a result of the Respondent’s unlawful dis-
crimination against them, from the date of the dis-
charge, in the case of Metz, or, in the case of the ap-
plicants, from the date they applied for employment, to
the date that the Respondent makes them a valid offer
of reinstatement or employment. Such amounts shall
be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), and shall be reduced
by net interim earnings, with interest computed in ac-
776 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cordance with New Horizons for the Retarded, 283
NLRB 1173 (1987). This Order is subject to resolution
at the compliance proceeding of the issues outlined in
Dean General Contractors, supra. Consistent with that
decision the Respondent will have the opportunity in
compliance to show that, under its customary proce-
dures, an employee in Metz’ or the 23 applicants’ po-
sition would not have been transferred to another
project after the one for which he was hired was com-
pleted, and that thus no backpay and reinstatement ob-
ligation exists beyond the time when the project as to
which discrimination occurred was completed.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Casey
Electric, Inc., Winchester, Virginia, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraphs 2(a) and
(b).
‘‘(a) Offer Steve T. Albert, Theodore L. Banks,
Wayne P. Bennett, Lamont Bowden, David Bowers,
Joseph Brehon, Kenneth L. Darr, David L. Dooley,
James Franklin, Gerald Hildenbrand, Gregory Jones,
Forrest Mathias, William Perrero, Ramiro G. Ramos,
George C. Riggs, Michael A. Ross, Craig L. Salisbury,
Edward R. Sargent, Linwood K. Sherman, Robert E.
Truslow, Clark E. Villers, Robert F. Whitson, and
Wade Woodell employment in positions for which
they applied or, if such positions no longer exist, to
substantially equivalent positions, and make them
whole for any loss of earnings and other benefits that
they may have suffered as a result of the discrimina-
tion against them, as set forth the in the amended rem-
edy section of this decision.
‘‘(b) Offer Zane Metz immediate and full reinstate-
ment to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges pre-
viously enjoyed, and make him whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, in the manner set forth in
the amended remedy section of this decision.’’
2. Substitute the following for paragraph 2(c).
‘‘(c) Remove from its files any and all references to
the unlawful discharge of Zane Metz on October 11,
1991, and of the unlawful refusal to consider for em-
ployment and to employ the 23 discriminatees named
above, and notify them that this action has been taken
and will not be used against them in the future.’’
3. Substitute the attached notice for that of the ad-
ministrative 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to consider for employment,
and refuse to employ Steve T. Albert, Theodore L.
Banks, Wayne P. Bennett, Lamont Bowden, David
Bowers, Joseph Brehon, Kenneth L. Darr, David L.
Dooley, James Franklin, Gerald Hildenbrand, Gregory
Jones, Forrest Mathias, William Perrero, Ramiro G.
Ramos, George C. Riggs, Michael A. Ross, Craig L.
Salisbury, Edward R. Sargent, Linwood K. Sherman,
Robert E. Truslow, Clark E. Villers, Robert F.
Whitson, and Wade Woodell.
WE WILL NOT discharge Zane Metz Jr. or any other
employee because he engaged in union activity and
concerted protected activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL offer Steve T. Albert, Theodore L. Banks,
Wayne P. Bennett, Lamont Bowden, David Bowers,
Joseph Brehon, Kenneth L. Darr, David L. Dooley,
James Franklin, Gerald Hildenbrand, Gregory Jones,
Forrest Mathias, William Perrero, Ramiro G. Ramos,
George C. Riggs, Michael A. Ross, Craig L. Salisbury,
Edward R. Sargent, Linwood K. Sherman, Robert E.
Truslow, Clark E. Villers, Robert F. Whitson, and
Wade Woodell employment in positions for which
they applied or, if such positions no longer exist, to
substantially equivalent positions, and WE WILL make
them whole for any loss of earnings and other benefits
that they may have suffered as a result of the discrimi-
nation against them.
WE WILL offer Zane Metz immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and WE WILL make him whole for
any loss of earnings and other benefits that he may
have suffered as a result of the discrimination against
him.
WE WILL remove from our files any and all ref-
erences to the unlawful discharge of Zane Metz on Oc-
tober 11, 1991, and of the unlawful refusal to consider
for employment and to employ the 23 applicants
named above, and will notify them that this action has
777CASEY ELECTRIC
1 All dates are in 1991 unless indicated otherwise.
2 Although the complaint contains the names of 25 individuals, at
the hearing here counsel for the General Counsel withdrew the alle-
gations with respect to 2 of the named individuals.
3 Although Respondent requested and was granted an extension of
time for filing briefs, it did not file a brief here.
4 Donald Slagle, Ken Conley, Curtis Palmore, James Palmore,
Hebb Jeffery, Timothy Abbitt, Joe Phillips, Roy Mullinax, and Gary
May.
5 It is noted that G.C. Exh. 117 is an application dated ‘‘7–3–91’’
and, according to Abbitt’s testimony and Jt. Exh. 1, the applicant
was hired October 1.
6 Abbitt also testified that he would have no idea which contractors
operate with a union agreement.
7 Steve Stump, an IBEW International representative, testified that
in the involved industry it is common knowledge who is and who
is not a union contractor because the pay differs.
been taken and will not be used against them in the
future.
CASEY ELECTRIC, INC.
Paula S. Sawyer, Esq., for the General Counsel.
Terry M. Brooks, Esq., of Nashville, Tennessee, for the Re-
spondent.
Ward A. Myers III, of Front Royal, Virginia, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. On a charge
filed November 29, 1991,1 as amended on December 18 by
the International Brotherhood of Electrical Workers, Local
26, AFL–CIO (the Union) against Casey Electric, Inc., Re-
spondent, a complaint was issued March 31, 1992, alleging
that Respondent violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act (the Act), collectively, by (1) in-
terrogating job applicants regarding their union membership,
activities, and sympathies, (2) refusing to consider for em-
ployment and/or refusing to employ 23 named applicants2 for
employment, and (3) by discharging its employee Zane Metz
Jr. on October 11. Respondent denies violating the Act.
A hearing was held in Winchester, Virginia, on July 21–
24, 1992. On the entire record in this case, including my ob-
servation of the demeanor of the witnesses and consideration
of the brief filed by General Counsel,3 I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Tennessee corporation, maintained an office
and place of business at a worksite in Winchester where it
was engaged as an electrical contractor in the building and
construction industry. The complaint alleges, the Respondent
admits, and I find that at all times material it has been en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and that the Union is now, and has been
at all times material, a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
Respondent started onsite setup in the beginning of July
for the lighting and power distribution work, project 375, at
the new Kraft General Foods plant in Winchester. Super-
intendent Joseph Abbitt and Assistant Superintendent Charles
Farmer were Respondent’s onsite supervisors. The latter was
in charge of the night shift. Abbitt testified that because he
had not worked a project in the Winchester area before, he
did not know what type of help he would receive and so to
be sure that he would have help at the outset he contacted
some individuals who had previously worked on other Casey
jobs.4
On July 1, before it even had its trailer on site, Respond-
ent began receiving applications for employment. It had
placed an ad in the Winchester Star and Northern Virginia
Daily for electricians and helpers for the Winchester job.
Farmer testified that he conducted some of the job interviews
and his hiring criteria in selecting journeymen electricians
was their experience and years in the trade; that about 30
percent of the hiring decisions were made on the spot; that
the applications, which were not kept in any special order,
were kept for 30 days;5 that he seldom had time to review
the application at the time it was given to him; that he tried
to get helpers with 2 years of experience in the electrical
trade; and that he was not able to distinguish those contrac-
tors which work union from those contractors which work
nonunion.6 Abbitt testified that when he needed additional
employees he did not go through all the applications, which
were not filed in any particular order, but rather he went
through the applications only until he found someone who
was qualified. Farmer testified that he followed the same ap-
proach. Joint Exhibit 1 summarizes the staffing on project
375.
On July 1 Craig Salisbury went to the involved jobsite in
Winchester seeking employment. He had been an electrician
for 6 years and was a member of Local 26. Sonnie Myers,
who is the business agent for Local 26, suggested that he and
a couple of other members should go to the Casey jobsite
and fill out applications. Salisbury, who went with Forrest
Mathias, filled out an application, indicating that he received
4 years of training in Local 26’s apprenticeship program, that
his personal reference was Business Agent Myers, that in the
past he worked for John Miller, Chewning and Wilmer,
Mona Electric, and Truland Electric,7 and that he held a jour-
neyman’s card through the Local and had a Virginia state li-
cense. Salisbury testified as follows about his subsequent
conversation with Farmer:
He [Farmer] looked the application over. And when
he got to the personal reference part, I remember he
asked what BA was—what exactly all that was about.
And I told him that was my Union representative
through the Local.
He, in turn, asked me if I was a Union member, and
I said, ‘‘Yes.’’
And at the time, work was so bad that we were seek-
ing employment wherever we could find work. That’s
just about all that was said.
Before he went to the Casey jobsite, Salisbury signed a salt-
ing agreement at the Local, which agreement permitted him
778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 As indicated by his notes, R. Exh. 8, Sargent went to the in-
volved jobsite four times in June before Casey arrived on the scene.
9 Sargent did not believe that Local 26 had a 2-year program.
10 Dooley testified that Myers asked him to be part of an organiz-
ing committee at the Winchester jobsite and he agreed.
11 According to Dooley’s testimony, the first two named compa-
nies are well-known union contractors. Albeit he was not sure
whether he indicated it in his application, Dooley testified that he
held journeyman’s licenses from Washington, D.C. and the State of
Virginia and he has been an electrician for about 9 years.
12 Dooley testified that he could not recall if the trailer was identi-
fied in any way as being Casey’s; that the trailer was there during
the last week of June; and that someone from the general contrac-
tor’s trailer pointed out Casey’s trailer.
13 Abbitt went on to testify that he did not care if a man belongs
to a union so long as he produces in a journeyman-like manner; and
that he offered a position to a union member but he could not re-
member his name. Additionally, Abbitt testified that he never asked
any applicant if he was a union member, about any union appren-
ticeship program, or about union activities. Finally, Abbitt testified
that he never saw Myers’ business card; that none of the applicants
he talked to was wearing a union jacket, a union T-shirt, or a union
baseball cap; and that he never looks at what a person is wearing
when they come in to apply for a job.
to work nonunion and avoid being brought up on charges,
with the understanding that he would help with an organizing
drive if one occurred. (R. Exh. 10.) Mathias testified that he
had 9 years’ experience as an electrician and is a member
of the Union; that he drove his car, with union stickers, Gen-
eral Counsel’s Exhibit 7, on the back window, to the in-
volved jobsite accompanied by Salisbury; that he parked his
car right next to the Casey truck nearby the two men from
Casey; that Myers told him that he should go to the Casey
jobsite if he needed a job and that the Union was going to
try to organize Casey; that he signed a salting agreement be-
fore going to the jobsite; that in the work history portion of
the application he listed E.C. Ernst, Chewning and Wilmer,
and Lord Electric; that he saw Salisbury listing the Union’s
apprenticeship and putting Myers as a reference on his appli-
cation; and that they spoke with Farmer at the jobsite.
Farmer testified that he did not interrogate any job appli-
cants about their union membership, activities, or sym-
pathies; and that he did not remember anyone wearing union
jackets or union T-shirts but he did remember one applicant
wearing a baseball cap with a union insignia on it.
Also on July 1 Kenneth Darr went to the involved jobsite
of Casey looking for a job. Darr had been a journeyman
electrician for about 4 years and was a member of the Union.
Myers told him about the job and asked him if he would like
to apply. Myers also asked him to try to organize the job if
he was hired. Darr signed a salting agreement. At the jobsite,
Abbitt told him that he was out of applications and to come
back tomorrow. Darr testified that he had two union insignia,
General Counsel’s Exhibits 12 and 7, on the back window
of his car which he intentionally parked so that the union
stickers would be facing Casey’s trailer.
And finally on July 1 Edward Sargent went alone to the
involved jobsite looking for a job.8 He had been an elec-
trician for about 19 years and was a member of the Union.
Sargent graduated from Local 26’s 4-year apprenticeship pro-
gram.9 According to Sargent’s notes, Casey was on the job-
site but it did not have a trailer or phone set up yet. Myers
told Sargent that if he got a job at Casey he would be ex-
pected to help organize.
On July 2 David Dooley went to the Winchester jobsite
to apply for a job. He is a member of the Union and Myers
had shown him a local newspaper ad and asked him if he
wanted to apply for a job with Casey.10 Dooley filled out an
application at the Winchester jobsite, indicating therein,
among other things, that he spent 4 years in the IBEW Na-
tional Joint Apprenticeship program, and that he worked for
E.C. Ernst, Dynalectric, Haugh Enterprises, and Heller Elec-
tric.11 Dooley testified that Farmer, after looking at the appli-
cation, asked him if he was still a union member, if he un-
derstood that it was not a union job and if he had ever
worked outside the union; that at the time he was wearing
a hat which had IBEW on it; that the truck he drove to the
involved jobsite had an IBEW sticker, General Counsel’s Ex-
hibit 3, on the rear window behind the driver’s seat; that the
truck was parked near Casey’s trailer and the IBEW sticker
could be seen from inside the trailer;12 and that Farmer said
that in the next few days they would be calling the people
they were interested in hiring.
Farmer testified that he did not ask any applicant if he
knew that this was a nonunion job.
Also on July 2 Darr returned to the Casey jobsite. He
drove the same car and parked in about the same place as
before. Abbitt told him that Casey had run out of applica-
tions again and he should stop back in a couple of days.
And on July 2 Wayne Bennett went to the Casey jobsite
looking for a job. He has been a journeyman electrician for
23 years and is a member of the Union. Myers asked Bennett
if he would be interested in going over to the Casey jobsite
for employment as part of an organizing committee to try to
get Casey to work union in the involved area. Bennett signed
a salting agreement. He filled out an application and spoke
with Abbitt who said that Casey was going to start work the
next week and it probably would have a second shift. Ben-
nett testified that Casey did not have a trailer on the site yet
and Abbitt was sitting in a pickup truck. Bennett included his
4-year apprenticeship program on the application. He wore a
belt buckle with a union insignia, and he had union stickers,
General Counsel’s Exhibits 7 and 12, on his car which he
parked about 50 feet from Abbitt’s truck. Bennett, who has
an answering machine, did not hear from Casey. When asked
by counsel for Respondent whether he recalled seeing an
IBEW buckle on Bennett’s belt, Abbitt testified ‘‘I’ve never
seen any IBEW buttons or stickers.’’13 Subsequently, Abbitt
testified that he did see a union sticker on employee Robert
Truslow’s lunchbox.
On July 3 Salisbury returned to the Casey jobsite accom-
panied by Eddie Sargent, Dave Bowers, and Gregory Jones.
Salisbury testified that at that time there was a trailer there
occupied by Casey; that Abbitt told him that he had already
filled out an application; and that it was indicated that Casey
did not have much materials on the job but they would be
hiring. Bowers, who has worked for about 30 years as an
electrician, has a master’s license from Virginia and is in the
union, testified that on or about July 3 he went with Salis-
bury, Sargent, and Jones to the Casey jobsite; that they filled
out the applications and left them on the front seat of a
Casey truck because Abbitt went to lunch; and that in the
past work history portion of the application he listed a num-
ber of specified employers who were well-known union con-
779CASEY ELECTRIC
14 He testified that he had a union sticker, G.C. Exh. 11, laying
on the dashboard of his car with the front of the car facing Casey’s
trailer.
tractors. Bowers signed a salting agreement before he went
to the Casey jobsite. Jones, who finished his apprenticeship
in 1977 and who is in the Union, testified that on July 3 he
went to the Winchester jobsite with Salisbury, Sargent, and
Bowers; that he and the others, except Salisbury, filled out
applications; that he believed that he indicated in the applica-
tion that he served his apprenticeship with Local 672; that
all the contractors he listed on his application were union
contractors; that he signed a salting agreement before going
to the Casey jobsite; and that he never heard from Casey.
Sargent testified that he went to the involved jobsite twice
that day; that the first time he went by himself and drove
his own car;14 that the second time he went to the jobsite
that day he went with Jones, Bowers, and Salisbury in Jones’
car; that the four contractors he listed on his application were
union contractors; that he left the application in Casey’s trail-
er; that he requested a wage rate of $12 or $13; that he has
done control work but he has not done any instrumentation
work; that no one from Casey asked him if he could do in-
strumentation work on this day or later; and that he never
heard from Casey.
Abbitt testified that the Casey trailer arrived at the jobsite
on July 3; that there was no window in the Casey trailer fac-
ing the parking lot but rather there was a heating and cooling
unit at that end of the trailer; that the door into the trailer
was a third of the way down the length of the trailer and
to enter the trailer one had to walk down an alleyway be-
tween trailers; and that there were windows on the sides of
the trailer but no one could not see the parking lot out of
the windows of the trailer because there were trailers on both
sides of the Casey trailer after an unspecified date. Farmer
testified that you could see some of the parking area from
inside Casey’s trailer ‘‘but because of the trailers around us
it was very much obstructed.’’ In an affidavit he gave to the
Board dated February 28, 1992, Farmer stated ‘‘[a]pplicants
who come to the site generally parked in a gravel area next
to the trailer within view from the office window of the trail-
er, or along the road.’’ Farmer subsequently testified that at
that time there were no obstructions; and that he did not tell
the Board agent anything about obstructions from the win-
dow of the office trailer.
On July 5 Darr returned to the Casey jobsite. Abbitt told
him that he had run out of applications. Darr drove the same
car as before and parked in approximately the same place.
On July 8 Darr returned to the Casey jobsite. Farmer told
him that Casey was not hiring anymore because they were
full but Abbitt gave him an application to fill out. Darr testi-
fied that while he was filling out the application he over-
heard Farmer talking about not hiring any blacks or any
women on the Winchester job, except for one black man
who had worked for Abbitt before. Darr was told that the job
was shut down temporarily because of a building permit
question but that Casey would be hiring later on. Darr parked
his car in the same area with the back facing Casey’s trailer.
On July 9 Dooley returned to the Winchester jobsite and
spoke with Farmer who said that he had not had a chance
yet to go over any of the applications and he, Farmer, would
call Dooley if he wanted him. Dooley testified that he drove
the same truck with the IBEW sticker and parked in the
same area at the jobsite.
On July 10 Ted Banks went to the Casey jobsite. He had
been an electrician for 9 years, had a journeyman’s card in
Virginia, and was a member of the Union. Myers told him
that Casey was hiring and Myers told him to wear something
showing that he was a union member. Before going to the
Casey jobsite, Banks signed a salting agreement. Banks,
wearing his union button, asked Farmer if he was hiring and
Farmer asked him what kind of experience he had. Banks
told Farmer that he, Banks, worked on union jobs and he
was a member of the Local. Farmer then said that he did not
have any applications and Banks should try back in a couple
of weeks.
On July 11 Dooley returned to the Winchester jobsite.
Again he spoke with Farmer who repeated basically what he
said on July 9 and again Dooley drove the same truck and
parked in the same area.
On July 15 Dooley returned to the Winchester jobsite.
Again he spoke with Farmer who said that they were not fin-
ished reviewing the applications yet and he would be con-
tacted if Casey wanted to hire him.
Farmer testified that Respondent had sufficient manpower
for project 375 very early in July.
On July 17 Banks returned to the Casey jobsite. Mrs.
Farmer, who worked as a secretary in the Casey trailer, gave
Banks an application to fill out. All of the contractors he list-
ed on the application were union. Farmer, who entered the
trailer just as Banks was finishing the application, first said
that Casey was not accepting any more applications and then
he accepted the application.
On July 22 Banks returned to the Casey jobsite. Farmer
told him that he was just hiring helpers at the time and to
check back in a couple of weeks.
On July 30 Robert Truslow went to the involved Casey
jobsite looking for work. He has been a journeyman elec-
trician and a member of the Union since 1985. Myers told
him about the job and Truslow signed a salting agreement
before going. A number of people were filling out applica-
tions in Casey’s trailer. After looking at Truslow’s applica-
tion, Farmer told him that he could not pay the $15 an hour
requested. Truslow then said that it was negotiable and
Farmer said that he could not pay that amount.
Abbitt testified that by late July the general contractor on
the job had indicated that if Casey did a good job it had a
good chance to get the process work, which involved instru-
mentation, control, and calibration work; and that about this
time he told Casey’s Jackson office that there might be a
problem manning the 377 job, which would involve control
work, because of the type of job it was going to be and the
fact that the applications he saw for the 375 job dem-
onstrated that the applicants were not qualified to do control
work or instrumentation and calibration work. Assertedly,
most of the applications were from people unskilled in elec-
trical work.
On August 1 Banks returned to the Casey jobsite. Farmer
told him that he was not hiring and to check back in a cou-
ple of months.
In September Farmer became superintendent of project
377 when it began. He testified that the verbal commitment
was made on job 377 in late September and that the hiring
for job 377 was handled differently than job 375 in that
780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Examples supplied, R. Exhs. 3 and 4, refer to a job in 1989 in
West Virginia when Casey advertised in newspapers in the Caroli-
nas.
16 R. Exh. 7, which is an ad which ran in the Raleigh, North Caro-
lina Observer reads as follows: ‘‘ELECTRICIAN Wanted Journey-
man with industrial experience for project in northern Va. Working
6–10’s. Reply to: PO Box 1508, Jackson, TN.’’ Ads run by Casey
in Winchester were for helpers only. R. Exh. 6. It was explained that
helpers would not normally travel and pay for their lodging when
they make $6 or $7 an hour. It was stipulated that from early Octo-
ber to October 27 Casey ran ads for the Winchester job, collectively,
in the Greenville, South Carolina News; the Jackson, Tennessee Sun;
the Memphis, Tennessee Commercial Appeal; a Roanoke, Virginia
newspaper; and the Richmond Times Dispatch. Some of the ads had
Casey’s Jackson post office box address and some had Casey’s Jack-
son telephone number.
17 The General Counsel also introduced the absentee calendar of
Cris Hoeltke, G.C. Exh. 19.
while Respondent ran newspaper ads in the Winchester area
for journeymen electricians for project 375, newspaper ads
for journeymen for project 377 were run in South Carolina
and Tennessee. Five lead people who had been with Re-
spondent for a number of years were brought to Winchester.
They received a per diem allowance of $100 a week. Larry
Casey, Respondent’s president, testified that since job 377
involved equipment hookup, with all the instrumentation and
the control work, it was decided that some of Casey’s perma-
nent employees would be sent to the jobsite; that he heard
complaints that ‘‘they’’ were having a hard time getting
qualified men for the 375 job or more specifically, that
Farmer told him that ‘‘the big majority of people who came
by applying for jobs . . . didn’t even have any electrical ex-
perience’’ and ‘‘[a] lot of the other electricians were house
wiremen’’; that Casey had to have 30 employees on short
notice for the 377 job which was to start on about October
19; that he was told that the supervisors in Winchester did
not have the time to try to staff the 377 job; that when Casey
gets into the technical side of a job it looks for employees
in the Carolinas where there is a lot of industry and, there-
fore, people experienced in this type of work;15 that ads were
run in the newspapers in that area for electricians;16 that
Casey’s Jackson office received about 50 applications; that
he spent a week screening the applications, asking the appli-
cants if they had ever done any control work, interconnecting
electronic wiring or programmable logic controls (PLC) and
where they had worked; that he is aware of some of the
companies which are either union or nonunion; that he hired
a number of employees and he faxed the information to
Farmer regarding their wages and when they were supposed
to report in Winchester; that in the past Casey has paid for
permanent employees to stay in the area of a jobsite, Re-
spondent’s Exhibit 5; that about 10 of the men on the 375
job were transferred to the 377 job; that not a lot of the elec-
tricians in the country can hook up instrumentation and do
control work; that Casey is a member of the Associated
Builders and Contractors (ABC) which is a group of contrac-
tors which will work union people but will not sign agree-
ments; and that one of the members of ABC is a union con-
tractor. Joint Exhibit 2 summarizes the staffing on project
377.
Abbitt testified that one reason that electricians were hired
by the headquarters office in Jackson, Tennessee, for the 377
project was that there were so many applications filled out
for the 375 project by people who were unqualified in that
they had never done any electrical work. Also he and Farm-
er, with only one secretary in Winchester to handle all the
paperwork for the two projects, did not have the time to
check references. According to Abbitt, in the past Casey had
advertised and hired out of its Jackson office for jobs in the
field and there is nothing unusual in the electrical industry
about journeymen traveling long distances to work on con-
struction sites.
Farmer testified that some of the journeymen working on
job 375 were not qualified to work on job 377; that about
70 percent of the journeymen on 375 were transferred to job
377; that the main reason that the hiring was done out of
Jackson for job 377 was the flood of applicants Casey had
on job 375 and that another reason was the quality of appli-
cants. In his February 28, 1992 affidavit to the Board, Farm-
er stated ‘‘[i]t was only the unmanageable flood of applicants
we experienced on job number 375 that caused the company
to begin hiring through Jackson on job 377.’’ Farmer testi-
fied that he did not know why an ad for journeymen for the
377 job was not placed in the Winchester paper giving the
Jackson telephone number and address as was done all over
the rest of the East Coast. Also he testified that he did not
recall telling any of the applicant’s who came to the Casey
trailer looking to work on the 377 job that they should con-
tact the home office in Jackson. While Farmer testified that
the need for instrumentation experience was very important
for job 377, he also testified that not all industrial jobs would
need instrumentation experience and certain ads placed for
job 377 read only ‘‘Electricians/journeymen needed imme-
diately,’’ ‘‘Help wanted, electricians. Wanted journeymen
electricians, industrial experience,’’ ‘‘Electrician wanted.
Journeyman with industrial experience,’’ General Counsel’s
Exhibits 121, 122, and 123, respectively. On redirect Farmer
testified that the employees who were hired after they were
screened by Jackson were qualified in pneumatic instrumen-
tation work; and that while the majority of the employees on
job 377 were journeymen, the majority of employees on job
375 were helpers.
The week of September 1 Billy Wayne Church, who had
been employed by Casey as a helper on the involved job
since July, spent a week in jail for assault and battery on a
man who was involved when Church divorced his wife.
Church testified that there were times when he was also late
in arriving at work because of his marital problems. Farmer
spoke to him about it, warning Church that he would be fired
if his attendance did not improve, but Farmer took no action
when Church explained the reason. Abbitt told Church, how-
ever, that if Church worked for him, he would fire him in
a heartbeat. Church’s absentee calendars were received as
General Counsel’s Exhibits 17 and 18.17 During the time he
worked for Casey, Church received two raises and he was
complimented for his work. According to Joint Exhibit 2,
Church was transferred to job 377 on October 10. Church
worked for Casey until the end of December when he accept-
ed a better offer elsewhere. Farmer testified that Church
missed a lot more work than he should have.
On September 10 Truslow returned to the Casey jobsite.
Abbitt told him that he would have to fill out another appli-
cation since they were not kept beyond 30 days. Three or
four other people were filling out applications in the Casey
781CASEY ELECTRIC
18 Except for the rate of pay, he gave the same information on
both of the applications. One of the contractors listed on his applica-
tions, Truland Electric, is a union contractor.
19 According to Jt. Exh. 2, it appears that the transfers began on
September 18.
trailer. On the application, General Counsel’s Exhibit 14,
Truslow asked for $13 an hour.18 Abbitt offered $12 an hour,
indicating that Casey would be hiring in 3 or 4 days when
the instrumentation contract was awarded, if it was awarded.
As Truslow was leaving in his car, Abbitt approached and
told him that he could start work the next day.
On September 11 Truslow began working for Casey. He
had an IBEW sticker on his lunchbox. About 4 days later he
began wearing a union sticker on his hard hat. No Casey su-
pervisor ever said anything to him about having the union
stickers.
Abbitt testified that job 375 started winding down around
the middle or late September; that he told Farmer that he
could pick the men he wanted to have transferred to the 377
job;19 and that about a week later Casey received change or-
ders which resulted in more work and Abbitt had to hire men
to finish 375.
On September 19 Bowers returned to the Casey jobsite
with Wade Woodell after being told that Casey was hiring
again. Farmer told Bowers that applications were kept for 30
days and he would have to fill out another one; and that
Casey would probably be hiring some people in the next
week but it would be mainly helpers. Bowers told Farmer
that he, Bowers, was a diabetic and he did not want to climb
real high. Farmer testified that he would not hire Bowers be-
cause of his problem with heights. Woodell testified that
Myers told him to go to the jobsite, get a job, and organize;
that he signed a salting agreement; that he filled out an appli-
cation listing a number of union contractors; that Farmer
asked him to get the telephone numbers of the contractors;
and that Farmer said that Casey had a lot of rigid pipe to
run and he was going to hire a few journeymen and a couple
of helpers. The car that Woodell drove that day had a union
sticker in the back window which was facing the Casey trail-
er across the parking lot.
Also on September 19 Sargent returned to the Casey job-
site. Abbitt told him that Casey might be hiring some help-
ers. Sargent filled out another application updating his prior
work history. He never heard from Casey and he was never
told by anyone at Casey that hiring was being done out of
the Tennessee home office.
On September 20 Woodell returned to the jobsite with the
telephone numbers. He testified that he drove the same car
as the day before and he parked it in the same place.
On September 23 George Riggs went to the Casey jobsite.
He had been an electrician for 15 years and was a member
of the Union. Myers told him that Casey was hiring. Riggs
signed a salting agreement. Abbitt took Riggs’ application
and allegedly told Riggs to come to the site on September
25 ‘‘prepared to go to work; bring . . . [your] hack saw,
hand tools and be prepared too buy a hard hat from . . .
[Casey].’’ Riggs also testified that Abbitt told him that he
would be paid $12.50 an hour. The car that Riggs drove that
day to the site had two union stickers, General Counsel’s Ex-
hibits 7 and 9, on the bumper. Farmer, who had also been
speaking to Riggs, at one point left the trailer. Riggs’ wife
and daughter were present during a part of the interview.
Riggs’ wife testified that when she entered the trailer her
husband had already filled out the application; that Abbitt
told her husband that he should come to work with his tools
and be prepared to buy a hardhat; and that Abbitt said some-
thing about going to Alaska after the Winchester job was fin-
ished. Abbitt testified that he told Riggs that he did not need
any journeymen or helpers; and that he never had any plans
to go to Alaska. Abbitt also testified that employees of Casey
are required to pay for their hardhat.
Also on September 23 Steve Albert went to the Casey job-
site. He had been an electrician for 6 years and was a mem-
ber of the Union. Myers had told him that he could possibly
get a job and help organize Casey. Albert spoke with Farmer
at the jobsite. He testified that he filled out an application;
that of the four contractors he listed on his application two
were union contractors; that he had a union insignia, General
Counsel’s Exhibit 10, on his car, which he parked about 75
yards from Casey’s trailer; and that he has journeyman li-
censes from Virginia and West Virginia.
Abbitt testified that when Riggs came to the jobsite the
next day, September 24, with his tools, he, Abbitt, told him
that he did not need any help.
On September 25 Riggs, according to his testimony, re-
ported for work at 6:45 a.m. Allegedly, Farmer and Abbitt
told him that things, possibly the contract, fell through and
he should come back tomorrow. Riggs testified that he con-
tinued to show up every day at 6:45 a.m. for work until ei-
ther October 4 or 6. On each occasion allegedly he was told
that things were not working out and he should just keep
coming back and trying. Farmer testified that he spoke with
Riggs once over the telephone and once when Riggs was in
the parking lot and both times he told Riggs that they did
not need him.
On September 30 Dooley returned to the Winchester job-
site after Myers told him that Casey had another newspaper
ad. Farmer gave him another application to fill out. Also
Farmer asked him what types of work he had done and how
much money he wanted. Again Dooley drove the same truck
with the union insignia and parked in the same area at the
jobsite. Dooley testified that his wife was home through the
end of August and in September and October she was home
in the afternoon.
Also, on September 30 Robert Whitson went to the Casey
jobsite looking for a job. He has been an electrician since
1984 and was a member of the Union. Myers asked him to
file an application with Casey and Whitson signed a salt
agreement. While in the Casey trailer, Whitson carried a
briefcase which had a union sticker on it. Also, he indicated
on his Casey application that he went through IBEW Local
26’s 2-year residential wireman apprenticeship program. In-
stead of filling out the prior work history section of the ap-
plication, he attached a resume, General Counsel’s Exhibit
15. Farmer told him that he would keep him in mind.
Farmer testified that sometime in the last week of Septem-
ber or the first week in October a contract was signed for
job 377.
On October 2 James Franklin went to the Casey jobsite in
Winchester. He had completed his electrician apprenticeship
in 1982 and he was a member of the Union. Myers had told
him about the job. At the jobsite he filled out an application
and spoke with a man who fits the description of Abbitt. The
man told him that his job was finishing up and there would
782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 Metz had not been a union member since 1985. But he did indi-
cate in his application to work on the aforementioned 1990 Casey
job, R. Exh. 9, that he graduated from the Union’s apprenticeship
program, and he also indicated that he obtained work through Local
466 of the IBEW from 1970 to 1976. Before going to work for
Casey at Winchester, Metz had discussed with Myers the possibility
of getting a new union ticket. On October 7 Metz spoke with Myers,
with a Bob Trustlove present, about the requirements for an election
and about the guidelines regarding what could be said. Myers told
Metz that if he could get cards signed and get an election, it would
be a feather in his cap and probably help Metz in getting a new
union ticket.
21 Metz believed that this occurred sometime in September.
22 Abbitt testified that he discussed Metz’ production with Conley
before Metz was terminated and that he, Abbitt, did not believe that
Metz told Conley in advance that he might be out a few days after
Labor Day.
23 Abbitt testified that, on one job he worked during his last week
with Casey, Metz, who earned $13 an hour, did one-half as much
as a helper, Tom Sager, who was doing a similar task and who
earned $7 an hour.
be a new foreman who would be hiring. Franklin listed union
contractors on the application. And the truck he drove to the
jobsite and parked 30 feet from the Casey trailer had three
union stickers on it, General Counsel’s Exhibits 9, 3 and 11.
Franklin did not hear from Casey. At some point in time
Franklin signed a salting agreement.
On either October 4 or 6, according to his testimony,
Riggs showed up for work at the Casey jobsite for the last
time. Assertedly, Abbitt told him that Casey was pretty much
done, it did not need help and he should apply for work with
a company from Missouri which was doing the control wir-
ing work, which company was located on the other side of
the involved plant. Riggs testified that he looked for that
company but he was unable to locate it.
On October 7 Whitson returned to the Casey jobsite with
his briefcase which had the union sticker. According to
Whitson’s testimony, Farmer told him that he reviewed the
application and that he, Whitson, was in the running for a
job.
On October 8 Dooley returned to the Winchester jobsite.
Farmer told him that Casey intended to hire some people in
the next few days, his application would be considered and
he would be contacted if Casey wanted to hire him.
On Friday October 11 Abbitt fired Zane Metz Jr., who had
been working for Casey at the involved jobsite since July.
Metz testified that he had worked as an electrician since
1970; that he worked for Farmer in 1990 on a Casey job in
West Virginia; that on October 8 he spoke to 10 or 12 em-
ployees, asking them if they would be interested in signing
a union authorization card;20 that one of the helpers that he
spoke to regarding the Union left the jobsite at the end of
the day with Roy Mullinax, who had come to the job with
Casey; that he was sick on October 10 but he did not call
in; that when he called in on October 11 Abbitt said that he
was not happy with Metz’ work, the main office told him
that the hourly rates were too high, he could not afford to
pay Metz $13 an hour and he was going to have to let him
go; that while he had never been warned that his attendance
was unsatisfactory, Farmer did speak to him about missing
2 days after Labor Day because Foreman Ken Conley ne-
glected to tell Farmer that Metz told him the Friday before
Labor Day that he might be out for a couple of days after
Labor Day; that sometime after he had been on the job for
6 weeks and switched to day shift, Abbitt told him that he
would have a job until April or May 1992;21 that once while
he worked on the night shift Farmer had to help him bend
a saddle in a conduit but that was only because the Casey
equipment was old and the bending degree marks were paint-
ed over; that Farmer himself was not able to bend the con-
duit correctly the first time; and that Farmer was his super-
visor when he worked on the night shift and subsequently on
the day shift after the night shift ceased.
Abbitt testified that on October 11 he made the final deci-
sion22 to discharge Metz; that Metz did not produce as a
journeyman and his absenteeism was bad; that he told Metz
this when he fired him and Metz said that he was not sur-
prised because he knew that he was being watched; that ini-
tially Metz produced but his production dropped; that he ver-
bally warned Metz twice within the last couple of weeks that
he worked that he had to increase his production;23 that he
never gave Metz a written warning; that Metz was the only
employee that he recalled firing for absenteeism; that he did
give another employee, Jim Madigan, a written warning after
two verbal warnings for talking on the job instead of doing
his work; and that he never told Metz that he would have
a job until April or May 1992. General Counsel’s Exhibit
120 is an undated memorandum of Respondent’s regarding
Metz’ termination which, as here pertinent, is signed by
Abbitt. It specifies a termination date of October 10. Abbitt
could not explain why the termination date on the memoran-
dum was October 10 and not October 11 and he did not
know exactly when he signed the undated memorandum.
Farmer testified that in 1990 on the Martinsburg, West
Virginia Casey job Metz told him that he, Metz, had dropped
his union membership; and that there was nothing discussed
with Abbitt about Metz’ termination.
Metz’ employee evaluation, General Counsel’s Exhibit 21,
dated ‘‘9–3–91’’ and signed by Farmer, indicates that Metz’
work attendance was good and that Farmer would like to
have Metz’ work on a future job.
On October 15 Farmer discharged Harold Hammons, who
was working on job 377 at the involved jobsite. The notifica-
tion of termination, Respondent’s Exhibit 11, indicates that
Hammons was discharged after verbal warnings for excessive
absenteeism. The General Counsel introduced Hammons’ ab-
sentee calendar (G.C. Exh. 20).
On October 21 Darr returned to the Casey jobsite. Darr
was told that another member of the Union, Lester
Wisecarver, had been hired. According to Darr, other union
members hired by Casey included ‘‘Jim something . . . an-
other guy that actually left the Union on that job’’ and Rob-
ert Truslow. Darr drove the same car as before. After filling
out a new application, General Counsel’s Exhibit 13, on
which he indicated, among other things, that he attended a
union apprentice trade school for 4 years, Darr was hired. He
began work on October 22 and worked for 1 month until he
was laid off.
On October 23 Dooley returned to the Winchester jobsite.
Farmer told him basically the same thing he said on October
8. Dooley never heard from Casey.
Also on October 23 Gerald Hildenbrand went to the in-
volved Casey jobsite. He had 25 years’ experience, with a
master’s license from Virginia, and was a member of the
783CASEY ELECTRIC
24 Farmer asked him if he considered himself a commercial elec-
trician and he answered ‘‘yes.’’ Hildenbrand also considered himself
an industrial electrician and he pointed out that he had 4 years’ ex-
perience as an industrial electrician doing maintenance and new
equipment work.
25 Farmer testified that commitments were made to hire certain in-
dividuals, namely, Jerry Norton, Forrest Ward, and David Harrison,
weeks before they began work in November.
26 NECA is a national association of electrical contractors and, ac-
cording to Stump, between 95 and 98 percent of the people who be-
long to it have union agreements. Myers suggested that all three
wear the hats.
27 Bowers was not sure if it was November 4 or 11.
28 The jacket had Local 672 on it. That Local merged with Local
26 about 4 years ago.
29 Breehon, who was a full-time business representative for the
Union in 1989, was elected to the Union’s executive board 1 month
before the hearing in this case.
Union. Myers told him about the job. After he filled out an
application, Farmer asked him a number of questions and
told him that he, Farmer, was hiring a crew for nights and
that he would contact him.24 Hildenbrand had a union sticker
on the rear bumper of his car. He parked his car at the job-
site with the rear facing the Casey trailer. He did not hear
from Casey.
On October 24 Lamont Bowden went to the Casey jobsite
looking for a job. He had worked as an electrician for 22
years and was a member of the Union. Bowden saw Casey’s
ad for helpers in one of the Winchester newspapers. He had
been working for a janitorial service company and he wanted
to get back into the electrical field. Bowden testified that he
did not inform the Union that he was going to apply for a
job with Casey before he did. He was told in the Casey trail-
er that Casey was hiring for a night shift that was supposed
to start on October 29. He took an application to fill out and
bring back the next day.
On October 25 Bowden returned to the Casey jobsite with
the completed application. Farmer told him that he would
place his name in a hat. Bowden, who has an answering ma-
chine, never heard from Casey.
On October 29 Franklin went back to the Casey jobsite.
He asked Farmer if Casey was hiring. After the man sitting
next to Farmer whispered in Farmer’s ear, Farmer said that
his field crew was full and he stopped hiring 2 days ago.
Franklin drove his truck with the union stickers on it to the
jobsite. No one in the Casey trailer told him that he had to
contact the home office in Tennessee to inquire about a job.
He never heard from Casey.
Also on October 29 Hildenbrand went back to the Casey
jobsite. Farmer told him that the positions were filled and if
there were any more positions opened he would put his name
in a hat.
Also on October 29 Whitson returned to the Casey jobsite
with his briefcase with the union sticker on it. Abbitt told
him that all of the positions had been filled. They discussed
Whitson’s qualifications, including the fact that Whitson had
worked with controls, and Whitson handed Abbitt Myer’s
business card, General Counsel’s Exhibit 16, saying that
Abbitt should contact Myers for any further information.
Whitson was wearing a jacket with union lettering on it at
the time.
Farmer testified that he thought an ad was placed in the
Winchester Star and Northern Virginia Daily in the latter part
of October; that in the last week in October he began telling
individuals who came to the Casey trailer in Winchester that
there was no need for additional employees; that he stopped
hiring journeymen for job 377 in early November;25 and that
he started laying employees off in November.
On November 4 Salisbury returned to the Casey jobsite
with Bowers and Jones. All three men were wearing hats
with IBEW and NECA (National Electrical Contractors As-
sociation) union insignia.26 Salisbury asked Abbitt if Casey
was taking applications and Abbitt replied he was not and
Casey was ‘‘all filled up.’’ Salisbury went because he had
just been laid off from another job. He testified that no one
from Casey told him to call the home office in Tennessee
for hiring and he never heard from Casey. Bowers corrobo-
rated Salisbury regarding what was said on November 4.27
Bowers never heard from Casey. Jones testified that he was
wearing a hat with an NECA insignia on it.
Also on November 4 Romero Ramos went to the involved
Casey jobsite. He has been an electrician for 20 years, with
a master’s license from Frederick County, Virginia, and he
is a member of the Union. Myers had told him that Casey
had a job in Winchester and he could go over and apply for
a job. At the jobsite, Ramos told Abbitt about his, Ramos’,
master’s license and Abbitt told him that Casey was not ac-
cepting any applications at that time. Ramos was wearing a
jacket with a 12-inch union seal on the back with a local’s
number.28 Ramos obtained Abbitt’s business card for unem-
ployment purposes. He did not recall Abbitt telling him that
the hiring was being done at the home office in Tennessee.
On November 5 William Perrero went to Casey’s jobsite
in Winchester. He has been an electrician for 6 years and is
a member of Local 26. Myers told him that Casey had an
ad in the newspaper and was hiring; that if he obtained a job
with Casey he would have to sign a salting agreement and
that it would be a good idea to wear a union cap and a union
pin when he applied for the job. Perrero was looking for a
helper’s job. Abbitt told him that Casey was not hiring at
that time. Abbitt did not tell him that Casey was hiring from
the home office in Tennessee. Perrero testified that he was
wearing an IBEW baseball cap and a union button on his
shirt, General Counsel’s Exhibit 5; that he also had a union
sticker, General Counsel’s Exhibit 7, on the back window of
his truck, which he parked near the Casey trailer; and that
he did not look from the inside of Casey’s trailer to deter-
mine if he could see his truck from inside the trailer.
On November 6, Banks returned to the Casey jobsite.
Farmer told him that the job was just about finished and
Casey would not be hiring anybody. Banks testified that
Farmer never told him that the hiring was done from the
home office in Tennessee.
Also, on November 6 Joseph Breehon went to the in-
volved Casey jobsite looking for a job. He has been an elec-
trician for about 22 years, holds a journeyman’s license from
Virginia, and is a member of the Union.29 At the time,
Breehon was out of work and Myers told him about the
Casey job. Breehon went to the site with Lynwood Sherman
and Michael Ross. He had signed a salting agreement before
going. Farmer gave them applications to fill out. Breehon
testified that he overheard Farmer and another unidentified
man make comments to the effect that some of the workman-
784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 Ross testified that a Randolph Scott also went to the jobsite with
the above-named union members that day.
ship that was being done and the amount of time that it took
to get the work done made it seem like it had been done by
union people. Breehon listed his union apprenticeship on the
application, he was wearing a sweater with IBEW on it and
he wore a cap with LU 26 on it. Ross, who has been a jour-
neyman electrician for 8 years and is a member of the
Union, testified that he did not sign a salting agreement be-
fore going to the Casey jobsite with the above-named indi-
viduals on November 6;30 that he overheard someone in the
Casey trailer, other than Farmer, commenting about the infe-
rior quality of union work and he saw Farmer smirking; that
he indicated on his application that he went through the
IBEW apprenticeship program and all of the contractors he
listed in the work history section of the application were
union; that he wore a union T-shirt and jacket to the jobsite
that day; that Farmer said that he had all the help that he
needed and the job was only going to last for 2 or 3 months;
and that he never heard from Casey. Sherman, who has been
an electrician for 20 years and is a member of the Union,
testified that he went to the Casey jobsite with Breehon,
Ross, and Scott on November 6; that Myers had told him
about the job and Myers told him that if his group was hired,
the Union might think about organizing; that he asked Farm-
er if Casey was hiring and Farmer said it was not; that he
asked Farmer if he could fill out an application and Farmer
said ‘‘No’’; that he asked Farmer how long the job was
going to last and how many men Casey had on the job to
which Farmer replied, respectively, a couple of months and
about 50; that when he told Farmer that he needed to fill out
the application for unemployment purposes, Farmer told the
secretary to give out the applications; that while he was fill-
ing out the application he overheard someone say ‘‘That’s
just like the Union’’; that he wore an IBEW cap to the Casey
jobsite, listed the IBEW apprentice program on his applica-
tion, and listed union contractors in the prior work history
section of the application; that no one told him that he
should contact Casey’s Tennessee office to be hired; and that
he never heard from Casey even though he placed his tele-
phone number on the application and he has an answering
machine.
On November 12 Clark Villers, who has been an elec-
trician for about 7 years, has a journeyman’s license from
West Virginia and is a member of the Union, went to
Casey’s jobsite. Myers had told him about the job. Villers
testified that he spoke with Farmer who said that he was not
taking any applications, the job was filled up, and Casey was
not planning on hiring anybody; that he gave Farmer a re-
sume, General Counsel’s Exhibit 4; that at the time he wore
a shirt which indicated ‘‘America works best when we say
Union yes,’’ ‘‘The IBEW, Local 26’’ and ‘‘Organizing Com-
mittee’’; that he also had his IBEW, Local 26 baseball cap
on; and that he never heard from Casey.
On November 17 Whitson returned to the Casey jobsite.
Farmer told him that all positions were filled. Whitson never
heard from Casey. He has an answering machine and his
wife is home everyday. Whitson testified that he has worked
with PLCs.
On November 18 Darr did not go to work at the Casey
jobsite because he thought that he was going to be working
on a job in York, Pennsylvania, for more money than he was
earning at Casey.
On November 22 Darr was laid off by Casey. During the
1 month that he worked for Casey, Darr wore union stickers
on his hardhat and on his tool boxes. No one from manage-
ment said anything to him about the union stickers. Darr tes-
tified that he worked on the core part of the job which was
being finished but none of the controls had been done yet.
On November 27 Truslow and 11 other employees were
laid off. Truslow testified that IBEW members who worked
for Casey included Chris Williams, Lester Wisecarver, and
Jim Hass.
On January 23, 1992, project 375 was completed.
The contract on job 377 ended in March 1992.
In June 1992 Respondent’s job in Winchester was fin-
ished.
Contentions
On brief, the General Counsel argues that Farmer unlaw-
fully interrogated applicants Salisbury and Dooley about their
union membership; that Respondent unlawfully refused to
consider for employment and/or has refused to employ the
23 applicants listed in paragraph 6 of the complaint because
the applicants named joined, supported, or assisted the
Union; that a policy of screening out applicants for this rea-
son is unlawful; that it is reasonable to infer that it was not
just coincidental that those applicants displaying union affili-
ation were refused employment while those who were hired
did not display union affiliation; that if the employer offers
no credible reasons to explain why union applicants were not
considered for employment in the same manner as other ap-
plicants, it is reasonable to infer that some factor, other than
merit, caused the employer to discount the union applicants;
that even a determination to not consider for hire which is
based on past employment with unionized employers is un-
lawful; that as the Board noted in Fluor Daniel, Inc., 304
NLRB 970 (1991), ‘‘when a respondent’s stated motives for
its actions are found to be false, the circumstances may war-
rant an inference that the motive is an unlawful one that the
respondent desires to conceal’’; that in that case the Board
went on to note that ‘‘[t]he motive may be inferred from the
total circumstances proved. Under certain circumstances the
Board will infer union animus in the absence of direct evi-
dence. That finding may be inferred from the record as a
whole [footnotes omitted]’’; that of the 57 journeymen hired
to work at the involved jobsite, only two showed possible
union affiliation on their applications; that the fact that Re-
spondent eventually hired Darr and Truslow neither excuses
Respondent’s earlier failure to hire them nor does it detract
from Respondent’s failure to hire other union applicants; that
Respondent’s defense at the trial shifted from the position
that Respondent took during the investigation of the charge
in that while Farmer’s affidavit stated that the only reason
that the hiring for job 377 was done from Jackson was be-
cause of the flood of applicants, at the trial Respondent took
the position that the hiring was done from Jackson because
of the poor quality of the applicants at the jobsite; that the
inconsistencies and contradictions lead to only one possible
conclusion, namely, that the term qualified applicant is a
smokescreen for avoiding hiring applicants with union affili-
ation; that the only explanation for the fact that Respondent
did not set aside applications of people who were qualified
785CASEY ELECTRIC
31 Dooley’s reference to trailers being there the last week in June
apparently referred to a group of trailers and not specifically to
Casey’s individual trailer since Dooley also testified that he was in-
side those trailers speaking with people during the last week in June;
and that he was under the impression that July 2 was the first day
Casey was at the jobsite.
for job 377 once it realized that it was going to have the job
was that it had determined not to hire union applicants; that
Respondent avoided hiring local union applicants for the first
round of hiring by bringing in known entities, namely,
former Casey employees; that for job 377 Respondent again
avoided hiring local union applicants by advertising in dis-
tant places; that no explanation was proferred by Respondent
for why an advertisement for journeymen was not placed in
the Winchester area newspapers; that the smokescreen did
not stop there but rather it continued on a daily basis in that
none of those who applied in Winchester for job 377 were
told that they should contact the Jackson office; that there is
just one inescapable conclusion which is that Respondent
schemed to avoid the local union applicants; that Larry
Casey, who asked applicants for job 377 what company they
worked for in the past, admitted knowing the major nonunion
contractors; that the majority of journeymen hired for job
377 had previously worked for open-shop employers, which
are employers who are not signatory to any contract with any
union; that an inference is warranted that Respondent’s true
motives in failing to hire applicants with union affiliation is
an unlawful one and animus should be inferred from the to-
tality of the circumstances starting with the interrogation of
applicants on the first and second day Respondent is on the
job and finishing up with its hiring practices for job 377; that
under Board law, one who seeks a job in order to organize
the employer’s work force is entitled to the protection of the
Act; that job availability is relevant only with respect to the
employer’s backpay obligation; that Respondent unlawfully
discharged Metz and improper motive may be established
through circumstantial evidence such as the employer’s
knowledge of the employee’s union affiliation, the timing of
the dismissal in relation to the employee’s protected activity,
and the employer’s failure to warn the employee prior to dis-
charge; that although Abbitt attempted to create a scenario
where it was a serious transgression for Metz to be out sick
because it would leave helpers without any guidance, that sit-
uation did not apply to Metz since at the time of his dis-
charge he was working alone without any helpers; that Metz’
termination form contradicts Abbitt’s testimony; that Re-
spondent treated Metz disparately; that according to Metz’
September 3 evaluation, his attendance up to that point was
good; that his attendance after this evaluation did not change
substantially; that he was not warned about his attendance;
that he was discharged within 48 hours of the beginning of
his protected activity of talking to employees about the
Union; and that since the stated motive for the discharge is
false, it can be inferred that there was another motive, the
unlawful motive to discourage union activity.
As noted above, although counsel for Respondent re-
quested and was granted an extension of time for filing a
brief, Respondent did not file a brief.
Analysis
Paragraph 5 of the complaint alleges that on or about July
1 and 2, 1991, Respondent acting through Farmer, at Re-
spondent’s worksite trailer, interrogated job applicants re-
garding their union membership, activities, and sympathies.
The General Counsel, on brief, contends that both Salisbury
and Dooley were interrogated by Farmer about their union
membership and that such questions violate the Act. As
noted above, the alleged interrogation violations, according
to the complaint, occurred at Respondent’s worksite trailer.
Although the complaint alleges that the violations occurred
on July 1 and 2, Abbitt, as noted above, testified that the
trailer did not arrive at the jobsite until July 3. Some of the
General Counsel’s own witnesses, Sargent, Salisbury, and
Mathis, specifically or in effect testified that the Casey trailer
was not at the jobsite on July 1. Darr, on the other hand, tes-
tifies that Casey had a trailer at the jobsite on July 1. Salis-
bury does not testify that his conversation with Farmer about
being in the Union occurred in the Casey trailer, however.
Salisbury is credited; Farmer did ask Salisbury if he was a
union member. It does not matter that the complaint mistak-
enly alleges that the violation occurred at Casey’s trailer.
Farmer’s general denial is not credited. More than once the
General Counsel was able to demonstrate that testimony
Farmer gave at the hearing was not consistent with the affi-
davit he gave to the Board during the investigation of this
case. It was obvious that Farmer was changing his position
at the trial in an attempt to strengthen Respondent’s case. As
pointed out by the Board in Gilberton Coal Co., 291 NLRB
344 (1988), ‘‘[i]t is well established that questions concern-
ing union preference, in the context of job application inter-
views, are inherently coercive and unlawful.’’ Dooley’s testi-
mony about Farmer asking him if he was still a union mem-
ber, if he understood that it was not a union job and if he
ever worked outside the Union is also credited notwithstand-
ing the apparent conflict of the testimony of several of the
witnesses regarding whether Casey had a trailer on the job-
site on July 2. As noted above, the General Counsel dem-
onstrated more than once that Farmer’s testimony was not
consistent with his prior affidavit to the Board. Sargent’s
notes indicate that early on the morning of July 3 Casey had
a trailer on the jobsite and he testified that when he entered
the trailer, they were setting it up. Dooley testified that when
he was in the Casey trailer on July 2 ‘‘[t]hey were moving
things in.’’ Another of the General Counsel’s witnesses, Ben-
nett, testified that on July 2 all Casey had at the jobsite was
a pickup truck. Bennett’s testimony would not be inconsist-
ent with Dooley’s if Bennett was at the jobsite some time
before Dooley on July 2 and in the interim Casey started set-
ting its trailer up and was still in the process early on the
morning of July 3 when Sargent arrived at the jobsite.31
Only Abbitt testified that the Casey trailer arrived at the job-
site on July 3. For the reasons given below, I do not find
Abbitt to be a credible witness. Respondent violated the Act
in interrogating Salisbury and Dooley as set forth above.
The Act prohibits an employer from refusing to hire job
applicants because they are members of, support, or assist a
union. Respondent’s involved onsite superintendents, Abbitt
and Farmer, take the absurd position that, except for one
union hat and a sticker on an employee’s lunchbox, they did
not notice any union insignia. Apparently they realized that
if they admit what they saw, they will be also admitting that
they knew that certain of the applicants were union members
or union supporters. Respondent knew. It knew from certain
of the attire some of the applicants wore, it knew from cer-
786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 Abbitt made a similar assertion, including in this category appli-
cations from those with no prior electrical experience. He conceded
that he did not set aside applications which looked like the applicant
might have the credentials needed for job 377.
33 Interestingly, on the day the trial in this case began, July 21,
1992, in Willmar Electrical Service v. NLRB, 968 F.2d 1327 (D.C.
Cir. 1992), the court agreed with the Board and held that the word
‘‘employee’’ in the Act encompasses a job applicant who is em-
ployed by a union at the time of application, seeks the job for the
purpose of organizing the work force, plans to retain some kind of
employment affiliation with the union, and has at least a substantial
prospect of later returning to full-time employment by the union.
34 The General Counsel correctly argues that the fact that Respond-
ent eventually hired Darr and Truslow neither excuses Respondent’s
failure to hire them when they originally sought employment nor
does it detract from Respondent’s failure to hire other union appli-
cants.
tain of the applications, and it is reasonable to conclude that
it knew from union stickers on certain of the vehicles parked
at the jobsite. As found above, Farmer unlawfully interro-
gated certain of the applicants about their union membership.
This was not only an indication of its awareness, but it is
also a manifestation of the Respondent’s union animus. The
application process for job 377, as far as journeymen appli-
cants from the Winchester area were concerned, was a sham.
Unexplainably, Respondent did not even advertise for jour-
neymen for job 377 in the Winchester area. And un-
explainably those who turned their applications in at Win-
chester for journeymen positions on job 377 were not even
told that they should contact Jackson. Farmer’s affidavit to
the Board indicated that Respondent decided to handle the
staffing of journeymen for job 377 out of the Jackson office
because of the flood of applications Respondent originally
received at Winchester. Those applications indicating that the
applicant had prior journeyman electrical experience could
have been sent to Jackson and Respondent’s personnel at
Jackson could have conducted interviews over the telephone
just as was done for applicants from North and South Caro-
lina and from Tennessee. At the trial, Farmer shifted his de-
fense apparently now taking the position that a lot of the ap-
plicants at Winchester were not qualified.32 Because Re-
spondent did not keep the applications of those not hired,
there is no documentary way to test this shift in the defense.
Moreover, by not really considering those applications and
treating them the same way it did the applications from areas
other than Winchester, Respondent was not really in a posi-
tion to make a reasonable determination as to whether the
applicants were indeed qualified to do the work involved on
job 377. By its conduct, Respondent was denying the appli-
cants at Winchester even the possibility of being hired for
the 377 job.
As stated by the Board in Fluor Daniel, Inc., supra,
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982)
[and approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983)], the Board set forth its
causation test for cases alleging violations of the Act
turning on employer motivation. First, the General
Counsel must make a prima facie showing sufficient to
support the inference that protected conduct was a
‘‘motivating factor’’ in the employer’s decision. Once
accomplished, the burden then shifts to the employer to
demonstrate that the same action would have taken
place notwithstanding the protected conduct. It is also
well settled, however. that when a respondent’s stated
motives for its actions are found to be false, the cir-
cumstances may warrant an inference that the true mo-
tive is an unlawful one that the respondent desires to
conceal. The motive may be inferred from the total cir-
cumstances proved. Under certain circumstances the
Board will infer animus in the absence of direct evi-
dence. That finding may be inferred from the record as
a whole. [Footnotes omitted.]
In my opinion, it is reasonable to conclude that Respondent
realized that it was receiving a number of applications from
union members. All of the alleged discriminatees revealed
some indicia of union ties. Respondent’s assertion that it did
not, with few exceptions, see the indicia is, as noted above,
absurd. Such assertion demonstrates, in my opinion, the fact
that Respondent’s witnesses believed that it was in the Re-
spondent’s best interest to disclaim knowledge of the fact
that the applicant’s were union members. But was it? When
a person disclaims seeing that which would be obvious to a
reasonable man, one has to wonder why the party making the
unreasonable disclaimer believes it is necessary to do so.
As demonstrated by the applications introduced by the
General Counsel, with few exceptions, the journeymen hired
to work the Winchester job had work histories with well-
known nonunion employers. This, considered in conjunction
with Farmer’s above-described unlawful interrogation, is suf-
ficient, in my opinion, to support a prima facie case of dis-
crimination both with respect to jobs 375 and 377.
Notwithstanding Respondent’s attempts to prove the con-
trary, the involved applicants were bona fide. In H. B.
Zachry Co. v. NLRB, 886 F.2d 70 (4th Cir. 1989), the court
held that a paid full-time union organizer was not a bona fide
‘‘applicant’’ for employment and, therefore, was not covered
by the Act. While it was demonstrated that many of the
discriminatees signed salting agreements, this, obviously, is
not the same as being a paid full-time union organizer. Con-
sequently, this case can be distinguished from H. B. Zachry
Co., supra.33 Here the applicants needed work. Clearly they
would have accepted employment. They were not seeking
employment solely to attempt to organize Respondent’s em-
ployees. As one of the discriminatees noted, he has a mort-
gage to pay. Undoubtedly, for some of the discriminatees it
was a matter of ‘‘putting food on the table’’ or at least at-
tempting to make more than they were receiving on unem-
ployment. Many signed an agreement to help the Union or-
ganize Respondent’s employees if they were hired. This, in
and of itself, does not mean that the alleged discriminatees
were not bona fide applicants protected by the Act.
Respondent’s stated reasons for refusing to consider for
employment and/or employ the discriminatees are false and
its true reason was to discriminate against them because of
their union affiliation. The General Counsel made a prima
facie showing of unlawful motivation on the part of the Re-
spondent for its refusal to hire the specified discriminatees as
required under Wright Line.34 Respondent’s proffered jus-
tifications are pretextual. Respondent has failed to meet its
Wright Line burden of demonstrating it would have taken the
787CASEY ELECTRIC
35 Regarding the conduit saddle incident, Farmer testified that it
was pretty much the way Metz told it.
36 The undated memorandum, G.C. Exh. 120, which Abbitt signed
at some point after Metz’ termination contains the following:
Reason For Termination—Mr. Metz was verbally warned, on
several occasions that he was not performing at journeyman
standards and that he needed to start doing journeyman work.
He was also warned about missing too much work, and not call-
ing to let us know he was not going to be at work.
As noted above, the memorandum gives October 10 as the date of
termination. Abbitt could not explain this. Although apparently his
wife typed the memorandum, Farmer testified that he had not seen
it before the hearing. While the memorandum contains what purports
to be the signature of Ken Conley, Conley did not testify. It is noted
that Conley’s signature does not appear on his application, G.C. Exh.
37.
same action absent the union activities of the specified
discriminatees.
Paragraphs 7 and 8 of the complaint allege that Respond-
ent discharged Metz because of his union activity and his
concerted protected activity. Abbitt testified that he made the
decision to terminate Metz, and he asserts that the allegation
in the complaint that it was because of union activity is un-
true. Abbitt was not a credible witness. His testimony that
he did not see any of the union insignia other than that on
Truslow’s lunchbox is, as noted above, absurd. Metz, without
contradiction, testified that Farmer was his supervisor both
while he worked on the night shift and subsequently on the
day shift. Farmer hired Metz for the Winchester job because
Metz had worked for him previously. As indicated by Abbitt,
Metz, on the word of Farmer, was paid top dollar. Abbitt
claims that there was a drop in Metz’ production and that he
verbally warned Metz twice about it. There was no written
warning. Farmer, who hired Metz and apparently was his su-
pervisor, does not testify about any drop in production.
Farmer testified that nothing was discussed with Abbitt about
Metz’ termination. Metz’ testimony that he was told that he
would have a job with Casey until April or May 1992 is
credited. Consequently, it appears that Metz was going to be
transferred from job 375 to job 377. Church worked on job
375 until October 10. In other words, he was transferred 1
day before Metz was fired. Those journeymen electricians on
job 375 who were transferred were transferred between Sep-
tember 18 and October 14. The week Church spent in jail
occurred while he was working on 375. Also, according to
General Counsel’s Exhibit 17, Church had other absences
while he worked on job 375. Church reported to Farmer after
getting out of jail. Yet, Abbitt had ultimate responsibility for
job 375. Church, despite his poor attendance record, was
transferred. Metz, who would have been considered for trans-
fer at about that time, was fired. This firing occurred 3 days
after Metz spoke to 10 or 12 of Respondent’s employees and
1 of the employees he spoke to was seen in the company of
1 of the Casey employees Casey brought to this job from out
of State. Metz admits that he did not come to work on Octo-
ber 10 and he did not call in. But the only other time there
was a question of him being absent and not calling in was
over the Labor Day weekend and Farmer, who questioned
him about this absence, did not dispute Metz’ testimony that
Foreman Conley admitted that he neglected to tell Farmer
that Metz told him about the possible absence before he left
for the Labor Day weekend.35 Conley did not testify. Abbitt,
who at the time it occurred, was not involved in the Labor
Day weekend absence question, testified that he did not be-
lieve that Metz told Conley before he left for the weekend.
Metz impressed me as being a credible witness. Only Abbitt
attempted to contradict Metz’ testimony. He did not succeed.
As found above, Abbitt was not a credible witness. There
was no written warning to Metz.36 Abbitt’s testimony about
Metz’ alleged poor production is not corroborated. As evi-
denced by the treatment of Church, Respondent was willing
to give some leeway on absences. Metz testified that he had
never been warned about absences. He is credited. On the
other hand, Hammons’ termination form signed by Farmer,
Respondent’s Exhibit 11, states ‘‘AFTER VERBAL WARN-
INGS FOR EXCESSIVE ABSENTEE.’’
In my opinion the reasons given by Respondent for Metz’
discharge are pretextual, and Wright Line, supra, therefore,
does not apply. In the event it did apply, the General Coun-
sel has made a prima facie showing sufficient to support the
inference that protected conduct was a ‘‘motivating factor’’
in the Employer’s decision. The Respondent has not met its
burden of showing that it would have fired Metz even in the
absence of his union activity. In unlawfully discharging
Metz, Respondent violated the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
interrogating job applicants regarding their union member-
ship.
4. The Respondent violated Section 8(a)(1) and (3) of the
Act by refusing to consider for employment, and/or refusing
to employ on specified dates, Steve T. Albert, Theodore L.
Banks, Wayne P. Bennett, Lamont Bowden, David Bowers,
Joseph Brehon, Kenneth L. Darr, David L. Dooley, James
Franklin, Gerald Hildenbrand, Gregory Jones, Forrest Ma-
thias, William Perrero, Ramiro G. Ramos, George C. Riggs,
Michael A. Ross, Craig L. Salisbury, Edward R. Sargent,
Linwood K. Sherman, Robert E. Truslow, Clark E. Villers,
Robert F. Whitson, and Wade Woodell.
5. The Respondent violated Section 8(a)(1) and (3) of the
Act by discharging Zane Metz Jr. because he engaged in
union activity and concerted protected activity.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that Respondent unlawfully discrimi-
nated against specified job applicants based on their sus-
pected union sympathies, it will be recommended that Re-
spondent make such employees whole for any loss of earn-
ings they may have suffered by reason of the failure to give
them nondiscriminatory consideration for employment from
the date they applied for employment. And it having been
found that Respondent unlawfully discharged Zane Metz Jr.,
788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
38 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
it will be recommended that he be made whole for any loss
of earnings he may have suffered as a result of the discrimi-
nation against him by payment to him of a sum of money
equal to that which he would have earned as wages during
the period from the date of his discharge to the date of com-
pletion of Casey’s project 377 at Winchester, Virginia. Back-
pay shall be computed on a quarterly basis, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), and shall be
reduced by net interim earnings, with interest computed in
conformance with New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended37
ORDER
The Respondent, Casey Electric, Inc., Winchester, Vir-
ginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating job applicants regarding their union mem-
bership.
(b) Refusing to consider for employment, and/or refusing
to employ Steve T. Albert, Theodore L. Banks, Wayne P.
Bennett, Lamont Bowden, David Bowers, Joseph Brehon,
Kenneth L. Darr, David L. Dooley, James Franklin, Gerald
Hildenbrand, Gregory Jones, Forrest Mathias, William
Perrero, Ramiro G. Ramos, George C. Riggs, Michael A.
Ross, Craig L. Salisbury, Edward R. Sargent, Linwood K.
Sherman, Robert E. Truslow, Clark E. Villers, Robert F.
Whitson, and Wade Woodell.
(c) Discharging Zane Metz Jr. because he engaged in
union activity and concerted protected activity.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Steve T. Albert, Theodore L. Banks, Wayne P.
Bennett, Lamont Bowden, David Bowers, Joseph Brehon,
Kenneth L. Darr, David L. Dooley, James Franklin, Gerald
Hildenbrand, Gregory Jones, Forrest Mathias, William
Perrero, Ramiro G. Ramos, George C. Riggs, Michael A.
Ross, Craig L. Salisbury, Edward R. Sargent, Linwood K.
Sherman, Robert E. Truslow, Clark E. Villers, Robert F.
Whitson, and Wade Woodell whole for any loss of earnings
and benefits they may have suffered by reason of Respond-
ent’s discrimination against them in the manner and to the
extent set forth in the remedy section of this decision.
(b) Make Zane Metz Jr. whole for any loss of earnings
and benefits he may have suffered by reason of Respondent’s
discrimination against him in the manner and to the extent
set forth in the remedy section.
(c) Expunge all records kept of Zane Metz Jr.’s discharge
on October 11, 1991.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Mail a copy of the attached notice marked ‘‘Appen-
dix’’38 the last known address of Steve T. Albert, Theodore
L. Banks, Wayne P. Bennett, Lamont Bowden, David Bow-
ers, Joseph Brehon, Kenneth L. Darr, David L. Dooley,
James Franklin, Gerald Hildenbrand, Gregory Jones, Forrest
Mathias, William Perrero, Ramiro G. Ramos, George C.
Riggs, Michael A. Ross, Craig L. Salisbury, Edward R. Sar-
gent, Linwood K. Sherman, Robert E. Truslow, Clark E.
Villers, Robert F. Whitson, Wade Woodell, and Zane Metz
Jr. Copies of the notice on forms provided by the Regional
Director for Region 5, after having been signed by an author-
ized representative of Respondent, shall be mailed by Re-
spondent immediately upon receipt.
(f) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by the Union, if it is willing at
its office and meeting halls, including all places where no-
tices are customarily posted.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.