KenMor Electric Co.

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 1024 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 173
1024
KenMor Electric Company, Inc. and H & J Electric
Co. and Louis P. Lee d/b/a L.L. Electric Co. and
Independent Electrical Contractors of Houston,
Inc. and International Brotherhood of Electrical
Workers Local Union No. 716 a/w International
Brotherhood of Electrical Workers, AFL–CIO.
Cases 16–CA–17895, 16–CA–18613, 16–CA–
18595, 16–CA–18302–2, 16–CA–18530–3, 16–
CA–18595–2, 16–CA–18600–3, and 16–CA–
18613–2
August 27, 2010
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
On September 29, 1998, Administrative Law Judge
Howard I. Grossman issued the attached decision1 find-
ing that Respondent Independent Electrical Contractors
of Houston, Inc. (IEC) violated Section 8(a)(3) and (1) of
the Act by maintaining a discriminatory “referral sys-
tem,” and that Respondents KenMor Electric Company,
Inc., H & J Electric Co., and Louis P. Lee d/b/a L.L.
Electric Co. (collectively, the Respondent Employers)
violated Section 8(a)(3) and (1) by refusing to hire the
alleged discriminatees,2 or consider them for hire, based
on their union activity or affiliation.3 The Respondents
each filed exceptions and supporting briefs.4 The Gen-
eral Counsel and the Charging Party each filed answering
briefs.
On June 13, 2000, the Board remanded this proceeding
for further consideration in light of FES, 331 NLRB 9
(2000), supplemented 333 NLRB 66 (2001), enfd. 301
F.3d 83 (3d Cir. 2002).
On March 21, 2001, the judge issued the attached sup-
plemental decision affirming the findings, conclusions,

1 On November 12, 1998, the judge issued an “Erratum” correcting
inadvertent typographical errors.
2 The alleged discriminatees are Ray Rath, Troy Lockwood, and
John Gafford.
3 On February 1, 2007, the Board granted a joint Motion to Sever
and Dismiss the Complaint in Cases 16–CA–18264 and 16–CA–
18264–2 pursuant to a settlement agreement between the Charging
Party Union and Respondent MH Technologies, Inc.
On September 11, 2009, the Board granted the Charging Party’s Mo-
tion to Remand and Sever and Motion to Withdraw Charges in Case
16–CA–17894 involving Respondent Houston Stafford Electric, Inc.,
and in Case 16–CA–18530 involving Respondent Hou-Tex Power, Inc.
The Board further granted Joint Motions of the Charging Party and the
Respondents to dismiss the complaints in those cases.
Accordingly, the complaint allegations regarding MH Technologies,
Houston Stafford Electric, and Hou-Tex Power are no longer before the
Board.
4 Respondent KenMor Electric requested oral argument. The request
is denied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
and recommended Order in the original decision. The
Respondents each filed exceptions and supporting briefs.
The General Counsel filed an answering brief and the
Respondents each filed reply briefs.5
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision, the supplemen-
tal decision, and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,6
findings,7 and conclusions for the reasons set forth below
and to adopt his recommended Order as modified8 and
set forth in full below.

5 On May 24, 2010, the Charging Party filed a Motion to Consoli-
date Cases and Solicit Briefs from Parties and Interested Amici on
Issues raised by the Board’s decisions in Toering Electric, 351 NLRB
225 (2007); Oil Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007); and
Contractor Services, 351 NLRB 33 (2007). Specifically, the Charging
Party requests that this proceeding be consolidated with pending case
Independent Electrical Contractors of Houston, Case 16–CA–18821–2,
et al., and that the solicited briefs address whether Toering Electric, Oil
Capitol, and Contractor Services should be applied in these cases.
Respondent IEC filed a response opposing the Union’s motion, ex-
cept with respect to the common complaint allegations against it in both
cases which, IEC argues, should be consolidated. Accordingly, in a
motion to sever, IEC requests that the complaint allegations against it in
the instant proceeding (Cases 16–CA–18302–2, 16–CA–18530–3, 16–
CA–18595–2, 16–CA–18600–3, and 16–CA–18613–2), be severed
from the allegations against Respondents KenMor Electric, H & J Elec-
tric, and L.L. Electric (Cases 16–CA–17895, 16–CA–18613, and 16–
CA–18595), and consolidated with Independent Electrical Contractors
of Houston, 16–CA–18821–2, et al.
We deny both motions. First, the requests to consolidate are moot.
Second, with respect to the Charging Party’s request to solicit briefs to
address the merits of Toering Electric, Oil Capitol, and Contractor
Services, we have duly considered the request but are not prepared at
this time—particularly in two cases that have been pending for so
long—to deviate from the precedent set forth in those cases.
6 We find no merit in the Respondents’ allegations of bias and preju-
dice on the part of the judge. Thus, we perceive no evidence that the
judge prejudged the case, made prejudicial rulings, or demonstrated
bias against the Respondents in his analysis or discussion of the evi-
dence. Similarly, there is no basis for finding that bias and prejudice
exist merely because the judge resolved important factual conflicts in
favor of the General Counsel’s witnesses. NLRB v. Pittsburgh Steam-
ship Co., 337 U.S. 656, 659 (1949). We also reject the Respondents’
contentions that the judge was biased on the basis of his previous deci-
sions.
7 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
8 We shall modify the recommended Order and Notice to more
closely conform to the violations found and in accord with Ishikawa
Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th
Cir. 2004). We shall issue separate notices and orders for each of the
Respondent employers.
KENMOR ELECTRIC CO. 1025
We find that IEC’s application referral system, which
the Respondent Employers used to recruit electricians,
interfered with the right of job applicants who were un-
ion members and “salts” to be hired on an equal basis
with other nonunion applicants. The application referral
system, in its totality, therefore, violated Section 8(a)(1)
of the Act.9 We also adopt the judge’s findings that the
Respondent Employers refused to hire the alleged indi-
vidual discriminatees in violation of Section 8(a)(3) and
(1).10
I. THE IEC APPLICATION REFERRAL SYSTEM
A. Facts
IEC is the Greater Houston, Texas chapter of a na-
tional trade association of electrical contractors.11 Its
membership consists mostly of local contractors, includ-
ing the three Respondent Employers. None of the elec-
trical contractors who constitute the membership of IEC
was signatory to collective-bargaining agreements with
any union during the period at issue.
In the early 1990s, and continuing through 1996 and
1997, the period relevant to this case, the Charging Party
Union sponsored an ongoing “salting” campaign called
COMET (Construction Organizing Membership Educa-
tion Training), which it directed at nonunion contractors
in the Houston area, including IEC members.12 This case
arises out of that campaign.
IEC provides various services to its members, includ-
ing a centralized employee application referral service
and a “shared man” program, both described below.13

9 As explained below, we find it unnecessary to decide whether
IEC’s application referral system also violated Sec. 8(a)(3) or whether
any of its individual components were unlawful.
10 The judge also concluded that the Respondents violated Sec.
8(a)(3) and (1) by refusing to consider the job applicants in question.
As discussed below, we conclude that, under the FES framework, the
evidence establishes a refusal-to-hire violation. It is therefore unneces-
sary to decide whether the Respondents also violated the Act by unlaw-
fully refusing to consider the applicants because the remedy for such a
violation would be subsumed within the broader remedy for the refusal-
to-hire violation. See FES, 331 NLRB at 15. The judge’s conclusions of
law, recommended Order, and notice are modified accordingly.
11 Although IEC is the name of the national parent association, for
simplicity we use the acronym here to refer to the Houston chapter.
12 The features of a salting campaign are now familiar. Union elec-
tricians would apply to targeted contractors, directly or through the IEC
application referral service, and would indicate on their applications
that they were members of the Union and intended, if hired, to engage
in organizing activities. On other occasions, salting applicants would
apply without revealing their union affiliation. Most salts who were
hired would discuss the Union with other employees and sometimes
engage in other organizing activities.
13 IEC also operates apprenticeship and continuing education pro-
grams for electricians, and lobbies Government agencies on issues of
concern to its members.
All of the Respondent Employers used both services to
some degree.
As part of its application referral service, IEC adver-
tised for electricians, accepted job applications on behalf
of its members, and transmitted applications or made
them available to interested members. IEC sorted appli-
cations according to the experience level of the applicant
(journeyman, apprentice, or inexperienced). An applica-
tion filed with IEC would remain available for review by
IEC’s members for 30 days. Members could request that
applications be faxed or mailed to them, or they could go
to IEC’s office to review and copy applications in per-
son.
To its members, IEC described this service, which be-
gan in 1990, as providing “easy access to employment
for out-of-work electricians and available work force for
contractor members.” IEC member employers could use
the application referral service as an exclusive source of
job applicants or as a supplementary source.
By IEC’s own estimate, the application referral service
cost it from $60,000 to $100,000 a year to operate.
However, IEC kept no records that would indicate which
contractor-members used the application referral service,
how often they did so, which applications were reviewed
by which members, or how often IEC applicants were
hired. In addition, IEC refused to tell applicants which
of its members had reviewed their applications, and it did
not permit applicants to review the applications they had
submitted.
Until September 1997, no limit was imposed on the
number of applications an applicant could file with IEC
over any period of time. Because employers were known
to give preference to the applications most recently filed,
it was common for some applicants to file new applica-
tions with IEC every few days. On September 7, 1997,
however, IEC adopted a new policy of imposing a $50
fee for each additional application that an individual filed
within a 30-day period. The only exception to the new
fee requirement was for applicants who had been laid off
by an IEC member within the previous 30 days. The
number of applications the alleged discriminatees filed
with IEC dropped sharply after the fee was imposed.
In addition to using the application referral service,
IEC members could participate in its “shared man” pro-
gram. Under this program, members who needed addi-
tional help could borrow employees from each other for
up to 60 days. The borrowing employer was required to
pay the borrowed employee the same wages and benefits
as the employee received from the lending employer,
even if those rates were higher than the borrowing em-
ployer paid its own employees. This intermember bor-
rowing system enabled a lending employer to retain an
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1026
employee rather than lay him off during a slow period,
while enabling the borrowing contractor to obtain tempo-
rary help without having to hire a new employee.
IEC also published a periodic newsletter describing the
functions and activities it performed for its Houston
members. Articles in the newsletter conveyed IEC’s and
its national parent association’s perspective on unions
and, during the period at issue here, the Union’s COMET
campaign. The March 1994 IEC newsletter carried a
front-page article by IEC National First Vice President
(and former IEC Houston president) Jon Pollock, enti-
tled, “IEC members can defeat COMET,” and (on a con-
tinuing page) “IEC membership is key to success.” In
this article, Pollock warned members that advertising
directly for their own job applicants in the newspapers
“is equivalent to waving a red flag to the union” and
would result in their hiring union members. He then
emphasized that “[m]any IEC chapters advertise for elec-
trician applications on behalf of [their] members,” and
that by use of this service “contractors can avoid some of
the problems of hiring off the street.” In addition, Pol-
lock stated, “The Shared Man Program also allows
members to loan employees to each other and minimize
their exposure to risk.” Pollock went on to observe:

Contractors are beginning to adopt hiring policies that
favor previous employees or those referred by either
the IEC or other chapter members. When a stranger
shows up looking for work, we are not allowed to ask
“are you here to work or are you here to destroy us?”
Unknown workers may come with hidden motivations
and questionable agendas.

Pollock also observed that “[a]nother unexpected result of
COMET is the tremendous demand for IEC services.”
Similarly, an article in the IEC newsletter of March
1996, entitled “Coping with Labor’s COMET Cam-
paign,” opened by observing that nonunion contractors
were “scrambling for strategies to counter new and ac-
celerated union organizing attacks.” The article went on
to describe “a few developments designed to take some
of the sting out of IBEW’s potent anti-open shop bites.
The most promising is a program started by the Greater
Houston Chapter, IEC.” (Emphasis added.) The article
then quoted Bob Wilkinson, IEC Houston executive di-
rector, on “how his program deals with [the salting]
problem.” Wilkinson, like Pollock, noted that “IBEW
locals in this area and many others monitor all ads and
then send union members to apply.” The article contin-
ued with a subheading emphasizing, “Chapter runs ‘hir-
ing hall’ to help contractors avoid ‘salting’ risk,” and
stated:

To counter labor’s attack on the open shop’s skills’
sources, the Houston Chapter and some other IEC af-
filiates have developed referral procedures. They ad-
vertise on behalf of their members and sign up appli-
cants at various offices. [Emphasis added.]

Wilkinson then described the application referral ser-
vice as follows:

Contractors who are short-handed can obtain a fax list
of potential applications. They then select those who
have the best credentials. Aside from helping to avoid
potential “salting” problems, this process eliminates
duplication of effort among member firms. [Emphasis
added.]14

Wilkinson also noted that IEC had established the
shared man program in Houston several years before
IBEW opened its COMET campaign, but that
“[a]lthough it was created for other reasons, this ar-
rangement minimizes our members’ exposure to the cur-
rent ‘salting’ risk.” The article concluded by repeating
that “[c]urrently, the best bet for some anti-‘salting’ relief
[absent greater relief through desired federal anti-salting
legislation] is the program . . . run by IEC’s Greater
Houston Chapter.” (Emphasis in original.)
Significantly, the record, including IEC’s own news-
letter, also shows that the nonunion employment market
for electricians in the Houston area was extremely tight
during the period at issue. The cover article of the IEC
newsletter for March 1996, entitled “Struggling with
Skills Shortages,” stated in a subheading: “Open shop
sector is hardest pinched; craft in shortest supply is elec-
tricians.” The article, describing the findings of an in-
dustry study, went on to confirm that construction “non-
signatories [nonunion employers] in the economically
robust western states are suffering the most,” and that
“[i]n Texas, electricians, pipe fitters and welders were in
shortest supply.” Similarly, L.L. Electric confirms in its
brief that “it is typical in the electrical business for work-
ers to find jobs quickly after placing an application” with
IEC. This justifies an inference that during the period at
issue a qualified journeyman electrician actively seeking
work in the Houston area could normally expect to be
hired by a contractor within a short time.
B. Analysis
Section 8(a)(1) of the Act makes it unlawful for an
employer to “interfere with, restrain, or coerce employ-

14 Similarly, Wilkinson stated that “[t]he bottom line, at least for us,
is that IBEW’s COMET campaign has created new opportunities for
association growth. We’re getting calls from open shop electricials
[sic] all over the state who want us to expand our hiring referral and
other programs.”
KENMOR ELECTRIC CO. 1027
ees in the exercise” of their Section 7 rights. For the
purpose of Section 8(a)(1), the motive for the employer’s
action is irrelevant; if the action, or sequence of actions,
reasonably tends to interfere with the free exercise of
rights under the Act, it is unlawful. Naomi Knitting
Plant, 328 NLRB 1279, 1280 (1999).
It is also well established that salts are employees pro-
tected under the Act, NLRB v. Town & Country Electric,
516 U.S. 85 (1995), and that actions taken by an em-
ployer to avoid hiring job applicants affiliated with un-
ions are unlawful. Phelps Dodge Corp. v. NLRB, 313
U.S. 177, 182–187 (1941); Tim Foley Plumbing Service,
332 NLRB 1432, 1438 (2000); Tualatin Electric, 319
NLRB 1237 (1995). Salting itself is protected, concerted
activity, even if it is intended in part to provoke an em-
ployer to commit unfair labor practices. See, e.g., M. J.
Mechanical Services, 324 NLRB 812, 813–814 (1997),
enfd. mem. 172 F.3d 920 (D.C. Cir. 1998); see also Pro-
gressive Electric, Inc. v. NLRB, 453 F.3d 538, 546 (D.C.
Cir. 2006); Casino Ready Mix, Inc. v. NLRB, 321 F.3d
1190, 1197 (D.C. Cir. 2003).
The judge found that IEC’s “referral system” and two
of the system’s individual component features—the $50
fee-per-additional-application imposed on new applicants
but not on recently laid off employees of IEC members,
and the shared man program—each violated Section
8(a)(3) and (1) by discriminating against union members.
He also found that the application referral system’s pol-
icy of refusing to tell applicants which employers had
reviewed their applications was unlawful. For the fol-
lowing reasons, we find that the application referral sys-
tem in its totality reasonably tended to interfere with the
alleged discriminatees’ exercise of their Section 7 rights
and therefore violated Section 8(a)(1).15
First, the application referral system’s tendency to in-
terfere with the exercise of Section 7 rights is directly
confirmed by IEC’s admissions in its own newsletter.
These statements explicitly advertised the application
referral system as an effective means to avoid hiring un-
ion members.16 The IEC newsletters proudly cited the

15 Because we find the IEC application referral system unlawful un-
der Sec. 8(a)(1), we need not reach the issue of whether IEC, which
was not itself an employer of electricians, also violated Sec. 8(a)(3), or
whether individual components of the application referral system were
inherently discriminatory or independently unlawful, as the judge
found. We therefore do not adopt those findings.
16 In Pollock Electric, 349 NLRB 708 (2007), the General Counsel
introduced one of the same newsletters and other publications as evi-
dence of unlawful animus under Sec. 8(a)(3). However, because the
judge in that case specifically chose not to rely on those publications
for any of his findings, the Board did not reach the issue of their rele-
vance. 349 NLRB at 710 fn. 13. In Pollock, moreover, neither IEC’s
application referral system nor the relevance of the publications to the
system’s legality was at issue.
“[IEC] program” in Houston as “currently the best bet”
for achieving that goal, and noted that the Union’s salting
campaign had generated a “tremendous demand for IEC
services.” One subheading announced, “Chapter runs
‘hiring hall’ to help contractors avoid ‘salting’ risk.”
The Houston chapter was described as having “devel-
oped” its “referral procedures” in order to “counter la-
bor’s attack on the open shop’s skills’ sources.” All of
those statements support the conclusion that the referral
system had the intended effect of hindering union mem-
bers’ and salts’ attempts to be hired by IEC members.17
IEC contends that the statements in the newsletters ex-
pressed only IEC’s and its members’ protected 8(c) opin-
ions, and cannot be cited as evidence of unlawful con-
duct. However, the above statements were not mere ex-
pressions of opinion. They identify actions the IEC had
already taken and the effects of those actions, and they
express a clear intent to continue engaging in the same
conduct.18 They therefore do not fall under the protec-
tion of Section 8(c) but constitute admissible evidence of
wrongdoing.19
Second, the material components of IEC’s application
referral system, considered as a whole, tended to inter-
fere with Section 7 activity by disadvantaging salts and
union applicants. As reviewed above, those components
included: (1) the failure to keep records concerning the
application referral service20; (2) the policy of not reveal-
ing to applicants which IEC members had received or
reviewed their applications; (3) the related policy of not

17 We agree with the judge that the statements and articles in the IEC
newsletters to its own members, quoted above, accurately reflected
IEC’s views, intentions, and knowledge of the material facts.
18 For this reason, our dissenting colleague’s sweeping assertion that
“it is undisputed that IEC did not screen the applications” is not sup-
ported by the record. While the evidence does not indicate that IEC
literally “screened” union members’ applications from being reviewed
by its employer members, IEC’s newsletter statements confirm that the
referral service had the specific effect of avoiding the hiring of union
members, and that this was a distinctive benefit of the service.
19 See, e.g., Smith’s Transfer Corp., 162 NLRB 143, 162 (1966),
quoting Senator Taft in 2 Taft-Hartley Leg. Hist. 1541 (Sec. 8(c) “is
limited to ‘views, argument, or opinions’ and does not cover . . . other
statements which might be deemed admissions under ordinary rules of
evidence”). IEC was free, of course, to express its negative view of the
Union’s salting campaign. That view, however, did not entitle IEC to
take actions which would reasonably tend to interfere with the exercise
of Sec. 7 rights.
20 We reject IEC’s contention that its application referral service op-
erated merely as a “depository” or conduit of applications to its mem-
bers and should not even be described as a “referral.” This contention
is inconsistent with the statements in IEC’s newsletters. In its newslet-
ters, IEC itself refers to the service variously as a “reliable labor pool,”
“hiring hall,” “referral procedure,” and “hiring and referral program.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1028
permitting applicants to review their filed applications21;
(4) the $50 fee per application that IEC imposed in Sep-
tember 1997 on all applicants who filed more than one
application within a 30-day period, with the exception of
former employees of IEC members who had recently
been laid off; and (5) in that connection, IEC employers’
practice of reviewing only those applications that had
been filed with IEC within the last few days.
Each of those components of the referral service facili-
tated the avoidance of hiring salts or union members and
reasonably tended to interfere with union applicants’
attempts to gain employment with IEC members. To the
extent that applicants were required to apply for work
through IEC in order to be considered for employment
by IEC members but were unable to learn which em-
ployers reviewed their applications, it was impossible for
applicants and the Union to determine how IEC and its
members processed their applications or whether they
had been victims of discrimination. Correspondingly,
the policy of complete processing secrecy, along with
IEC’s failure to keep and retain any documentary record
of its treatment of applications, allowed IEC employers
to hire from a pool of applicants without creating any
record of whom they considered and rejected. This gave
each IEC employer member a defense against any allega-
tion of unlawful discrimination to the extent that the em-
ployer relied on the referral service.22 The no-review/no-
information policy also made it more difficult for union
applicants to elaborate on their qualifications or even to
answer qualification-related questions. This limited ac-
cess to prospective employers clearly operated to the
detriment of union applicants, the large majority of
whom had not previously worked for IEC employers and
were therefore unknown to them.23

21 We do not rely on the Union’s analogy of IEC’s policy of not re-
vealing which employers reviewed an application, to a union’s refusal
to divulge such information to its members in the hiring-hall context.
22 Employers’ ongoing documentation of the hiring process and re-
tention of those documents for inspection are basic requirements in the
enforcement of Federal antidiscrimination law. Title VII of the 1964
Civil Rights Act, for example, requires employers and employment
agencies to keep and retain employment records for 1 year after their
creation. 42 U.S.C. § 2000e-8(c); 29 CFR § 1602.14. The Office of
Federal Contract Compliance Programs similarly requires Federal
contractors employing fewer than 150 employees to keep and retain
hiring and employment records for 1 year (and employers of more than
150 for 2 years). 41 CFR § 60-1.12. Federal contractors employing 50
or more employees are also required to file “Employment Information
Reports” to further preclude discrimination against protected classes.
23 IEC and our dissenting colleague emphasize that some of its
members had, on occasion, employed union members. However, those
occasions were atypical, and in many cases the employee’s union af-
filiation was in the distant past. On other occasions—as in the case of
Neil Howland at KenMor Electric, discussed below—the employee had
concealed his union affiliation. We therefore give no weight to the
In addition, IEC’s imposition of the $50 fee for filing
each followup application, excepting only recently laid-
off IEC members’ employees, inevitably reduced salts’
and union applicants’ chances of being hired. Given IEC
members’ preference for recently filed applications, the
inability to file a new application every few days except
at great cost virtually eliminated an applicant’s chance of
being considered for all but a few days during any 30-
day period. At the same time, the fee exception for em-
ployees recently laid off by an IEC employer tended to
ensure that those applicants, and only those, would have
an application on file whenever an IEC employer wanted
to hire. The timing of the fee—imposed after the salting
campaign began—further indicates that it was aimed at
reducing the number of union-affiliated applications.
Third, IEC’s shared man program, by its operation in
tandem with the application referral service tended fur-
ther to ensure that union applicants would not be hired by
IEC members. As noted above, the shared man program
permitted members to borrow employees from other IEC
members rather than hire new employees from outside.
Inasmuch as all IEC employers were nonunion, the
shared man program made it all the less likely that new
union applicants would be hired.24
Fourth, the coercive impact of the application referral
service is further confirmed by an additional critical cir-
cumstance: there was considerable demand for skilled
electricians in the Houston construction market at the
time, which would have made it reasonable to expect that
any competent electrician seeking work with employers
in that industry would be hired quickly. And yet, as the
judge observed, “[o]ne of the most startling facts in the
evidence is that over 200 applications were filed by the
alleged discriminatees—individuals with good creden-
tials—over a period of about a year and three–quarters
when numerous employees were being hired—and yet
not one alleged discriminatee was hired.” The Respon-
dent employers’ sustained refusal to hire any of the
named discriminatees during the period at issue (or even
to call them for interviews) while hiring less qualified
applicants, further discussed below, supports the finding
that the IEC referral system—which they all used to
some extent—tended to deter the hiring of union mem-
bers.25

occasional exceptions to the rule that the Respondent Employers’ em-
ployees were not union members.
24 We do not find the shared man program, in itself, to be unlawful.
However, in this case, the program had the predictable effect of in-
creasing the tendency of the application referral service to deter the
hiring of union applicants.
25 Although we do not view the failure of the three-named discrimi-
natees to be hired during the period at issue as dispositive in determin-
ing that the IEC application referral service was unlawfully coercive,
KENMOR ELECTRIC CO. 1029
For all of these reasons, we find that IEC’s application
referral system, in its totality, hindered the efforts of ap-
plicants who were salts and union members to be hired
by IEC employer members, and reasonably tended to
interfere with those applicants’ right to seek employment
on equal terms with other applicants. The application
referral system therefore violated Section 8(a)(1).26
In addition, we agree with the judge, for the reasons he
relied on, that IEC was an agent of the Respondent Em-
ployers and that its actions with respect to referrals can
be attributed to them. Furthermore, as noted above, all
of the Respondent Employers made direct use of the ap-
plication referral system to some extent. Accordingly,
we conclude that all of the Respondents violated Section
8(a)(1) through their maintenance, support, and use of
IEC’s application referral system.
C. Response to Dissent
Our dissenting colleague advances two principal ar-
guments that IEC’s referral system cannot be found to
violate Section 8(a)(1). First, he argues that the com-
plaint alleged only an 8(a)(3) violation, and that by find-
ing an 8(a)(1) violation, which was neither pled nor liti-
gated, we have denied IEC the right to due process. Sec-
ond, he argues that even assuming a properly pled and
litigated 8(a)(1) allegation, the evidence fails to establish
such a violation.
1. The procedural argument
Due process requires that a respondent have notice of
the allegations against it so that it may present an appro-
priate defense. Although such notice is usually furnished
by the allegations set forth in the complaint, the Board
has long held, with court approval, that it “may find and
remedy a violation even in the absence of a specified
allegation in the complaint if the issue is closely con-
nected to the subject matter of the complaint and has
been fully litigated.” Pergament United Sales, 296
NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir.

their experience clearly provides evidentiary support for that conclu-
sion.
26 This case differs from Centex Independent Electrical Contractors
Assn., 344 NLRB 1393 (2005), cited in the dissent. That case involved
a different IBEW local and addressed a later time period. Moreover, in
contrast to this case, the findings in Centex were based almost entirely
on the judge’s refusal to credit union witnesses’ testimony on two cen-
tral fact allegations: (1) that IEC’s executive director (not Wilkinson)
made particular oral statements to them expressing unlawful animus;
and (2) that IEC operated as the “exclusive” hiring agent for the core-
spondent employer. 344 NLRB at 1394, 1397, 1404. Neither fact issue
is present in this case. And here, unlike in Centex, objective evidence
including IEC’s own newsletters linked its referral service to unlawful
interference with Sec. 7 activity, confirming that the referral service
operated to disadvantage salts and union applicants in their efforts to
obtain employment with IEC’s members.
1990). The dual requirements of Pergament are easily
satisfied here, as the 8(a)(1) violation that we have found
is closely connected to the 8(a)(3) complaint allegation,
and it was litigated fully and fairly.
First, the “closely connected” element of the Perga-
ment test requires both a close congruence between the
complaint allegation and the unalleged violation found
by the Board, and that the respondent had sufficient no-
tice of the conduct found unlawful. Contrary to the dis-
sent, notice does not mean that a respondent must be
advised of the “legal theory upon which the General
Counsel” relies. Pergament United Sales v. NLRB, su-
pra, 920 F.2d at 135. Rather, as the Second Circuit ex-
plained, “notice must inform the respondent of the acts
forming the basis” of the violation ultimately found, so
that it can “prepare a defense . . . and fashion[] an expla-
nation of events that refutes the charge of unlawful be-
havior.” Id.
The close connection here between the 8(a)(3) com-
plaint and the 8(a)(1) violation found is demonstrated by
the fact that “both plainly focus on the same set of facts”
—the methods and means by which IEC operated its
application referral system. Cardinal Home Products,
338 NLRB 1004, 1007 (2003).27 Further, the ultimate
issue is the same in both instances—whether the IEC
maintained and applied its application referral system in
an unlawful manner. Id; Pergament United Sales, 296
NLRB at 335. IEC was clearly on notice from the outset
of this proceeding that the legality of its referral system
was the ultimate issue in the case, and, thus, was af-
forded an adequate opportunity to prepare a defense.
This leads to the second element of the Pergament test,
i.e., whether the legality of the application referral sys-
tem was fully litigated. The record shows that all the key
issues surrounding the 8(a)(1) violation that we have
found were fully litigated, as demonstrated by the docu-
mentary and testimonial evidence introduced at the hear-
ing by IEC on its referral system, on which our 8(a)(1)
finding is based. Desert Aggregates, 340 NLRB 289,
293 (2003) (noting, among other factors, that the “Board
has concluded that where the respondent’s witnesses
testified to facts giving rise to the unalleged violation,
. . . the ‘fully litigated’ requirement is met”).
In sum, because the dual requirements of the Perga-
ment test have been met, our finding that the IEC referral
system violates 8(a)(1) does not deprive the IEC of its

27 In Champion International Corp., 339 NLRB 672 (2003), cited by
our dissenting colleague, the Board specifically distinguished Cardinal
Home Products, supra, on the ground that there the Board permissibly
found an independent but unpled 8(a)(1) violation, noting that that
violation “was based on the very same facts as the 8(a)(3) violation.”
339 NLRB at 673. Such is the case here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1030
due process rights. Accordingly, we reject our col-
league’s argument that our finding cannot be sustained
on procedural grounds.
2. The argument on the merits
As to the merits, the dissent never comes to terms with
the theory of liability on which our decision rests or with
the facts that are material to finding a violation of Sec-
tion 8(a)(1) here. Instead, our dissenting colleague
chooses to examine each element of IEC’s referral ser-
vice in isolation, while putting aside its demonstrable
interference with Section 7 rights and mischaracterizing
our rationale as an “unprecedented version of disparate
impact liability.” It is telling that the dissent only grudg-
ingly acknowledges that salting is statutorily protected
activity and that unlawful interference with such activity
does not require a showing of discrimination.
As we have explained, the record here demonstrates
that IEC created what amounted to a closed and opaque
referral system, frustrating the ability of union salts to be
considered for employment and to be hired by individual,
identifiable employers and to test whether those employ-
ers were, in fact, discriminating against union members
(as, indeed, some were). The evidence is plain that this
is what IEC intended—as discussed, the IEC touted the
fact that it “runs [its] ‘hiring hall’ to help contractors
avoid ‘salting’ risk”28—and that the system operated in
just this way. To conclude that the referral service vio-
lated Section 8(a)(1)—that it “interfere[d] with . . . em-
ployees in the exercise of the rights guaranteed in section
7,” in the words of the Act—we need not find that it con-
stituted “discrimination in regard to hire,” as prohibited
by Section 8(a)(3). Contrary to the dissent, then, the
theory of violation here has nothing to do with “disparate
impact,” a concept developed in employment discrimina-
tion law to address facially neutral hiring criteria that
have the effect of disqualifying a disproportionate num-
ber of persons based on their protected status.29 The vio-
lation we find involves action that operates as a direct
restraint on Section 7 protected conduct, namely salting.
It is, thus, no answer for the dissent to say that the com-
ponents of the referral service applied to “all applicants

28 The dissent unconvincingly describes this statement, and others
like it, as “mere ‘puffery,’” demonstrating no more than a desire to
avoid exposure to meritless unfair labor practice charges.
29 As the Board has explained, under a “disparate impact” theory,
“facially neutral employment policies that are ‘fair in form,’ i.e., they
apply equally to blacks and whites or to women and men, nonetheless
may be deemed unlawful if they are “discriminatory in operation.”
Aztech Electric Co., 335 NLRB 260, 263 (2001), citing Griggs v. Duke
Power Co., 401 U.S. 424, 431 (1971), and Dothard v. Rawlinson, 433
U.S. 321 (1977) (disparate impact on women of uniformly applied
height and weight restrictions established a prima facie case of dis-
crimination).
regardless of their union affiliation.” The relevant ques-
tion, rather, is whether the referral system interfered with
the Section 7 activity of those union applicants who par-
ticipated in the salting campaign, and whether IEC prop-
erly may be ordered to abandon the system.30 We are not
finding that IEC itself refused to hire anyone in violation
of Section 8(a)(3), nor, as explained below, are we order-
ing instatement or backpay for individual applicants as a
remedy for the violation of Section 8(a)(1) that we do
find.
Our colleague insists that IEC had legitimate and sub-
stantial business justifications for the referral service it
created, which were not outweighed by the “supposed
impact on Section 7 rights” that we have detailed. His
arguments, however, fail to address the referral service as
an integrated whole, instead treating its components as
separate policies independently adopted by individual
employers. We are dealing here, of course, with a refer-
ral system touted as a means of defeating a statutorily-
protected salting campaign and used by a group of em-
ployers. Business justifications that might suffice if of-
fered by an individual employer for an individual hiring
policy, and if weighed against individual 8(a)(3) dis-
crimination claims, do not tip the balance in the factual
circumstances of this case.31
II. REFUSAL TO HIRE
The complaint alleged that Ray Rath, Troy Lockwood
and John Gafford, three job applicants who were self-
identified members of the Union, were passed over for
consideration or for hire by the Respondent Employers
because of their union affiliation. At the time of the

30 Contractors’ Labor Pool, Inc. v. NLRB, 323 F.3d 1051, 1058–
1060 (D.C. Cir. 2003), cited by the dissent, merely held that an unlaw-
ful motive must be proved to establish a violation of Sec. 8(a)(3), and
that disparate impact cannot be relied upon alone to establish such a
violation, at least where the Board had separately found that the re-
spondent was not motivated by unlawful animus.
31 Bill’s Electric, Inc., 350 NLRB 292 (2007), and Heiliger Electric
Corp., 325 NLRB 966 (1998), cited by our colleague with respect to
employer rights, are entirely consistent with our decision. In those
cases, the Board held that the employers could lawfully prohibit salts
from videotaping their application process because the videotaping was
“disruptive” and “raise[d] concerns for office security.” Bill’s Electric,
350 NLRB at 295. The union salts’ request for referral information by
the salts in this case raised no such concerns, and IEC did not withhold
the information on those grounds.
Our decision is also consistent with Zurn/N.E.P.C.O., 345 NLRB 12
(2005), cited by the dissent. In that case, the Board found that an em-
ployer’s facially neutral hiring criteria favoring former employees and
employee-recommended applicants were lawful, even though appli-
cants hired under those criteria “would tend not to be union support-
ers.” 345 NLRB at 15. We do not find or imply otherwise here with
respect to any of the Respondent Employers’ own written hiring priori-
ties.
KENMOR ELECTRIC CO. 1031
events at issue, all three were paid organizers participat-
ing in the Union’s COMET campaign.
A. The Alleged Discriminatees
Rath, a journeyman electrician since 1986, became a
paid union organizer in 1995. Thereafter, he continued
to work as an electrician on an occasional basis. During
the period at issue, he held a current license from the city
of Houston. In 1997, he completed a city of Houston
update course for electricians.
Lockwood worked as a journeyman electrician for 10
years prior to becoming a paid union organizer in 1994.
Thereafter, he continued to work as an electrician on an
occasional basis. During the period at issue, Lockwood
held a current license from the city of Houston and was a
member of the National Electrical Inspectors Associa-
tion. In 1997, Lockwood completed the Houston update
course.
Gafford, a journeyman electrician for 21 years, worked
continuously at his trade for 19 years before becoming a
paid organizer. Thereafter, he continued to work as an
electrician on an occasional basis. During the period at
issue, he held a current city of Houston license and he
also took the Houston update course in 1997.
Between early 1996 and September 1997, each of the
discriminatees filed more than 70 job applications with
IEC. Aware that IEC’s contractor-members sought re-
cent applicants, the discriminatees usually filed several
applications each month. They stopped this practice
when IEC imposed the $50 fee discussed above. All
three indicated on all of their applications that they were
union organizers. None was hired by the Respondent
Employers.
B. Analysis
1. Applicable law and findings in common
In FES, 331 NLRB 9 (2000), the Board set forth its
analytical framework for determining whether an em-
ployer violates Section 8(a)(3) by failing or refusing to
consider or hire job applicants because of their union
activities or affiliation. With respect to discriminatory
refusals to hire, the Board held:

[T]he General Counsel must, under the allocation of
burdens set forth in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), first show the following at the
hearing on the merits: (1) that the respondent was hir-
ing, or had concrete plans to hire, at the time of the al-
leged unlawful conduct; (2) that the applicants had ex-
perience or training relevant to the announced or gener-
ally known requirements of the positions for hire, or in
the alternative, that the employer has not adhered uni-
formly to such requirements, or that the requirements
were themselves pretextual or were applied as a pretext
for discrimination; and (3) that antiunion animus con-
tributed to the decision not to hire the applicants. Once
this is established, the burden will shift to the respon-
dent to show that it would not have hired the applicants
even in the absence of their union activity or affilia-
tion. . . .
If the General Counsel meets his burden and the
respondent fails to show that it would have made the
same hiring decisions even in the absence of union
activity or affiliation, then a violation of Section
8(a)(3) has been established. . . . [331 NLRB at 12
(footnotes omitted).]32

Applying the FES framework in his supplemental de-
cision, the judge affirmed his initial findings that Ken-
Mor Electric, H & J Electric, and L.L. Electric each vio-
lated Section 8(a)(3) and (1) by failing to hire or consider
Rath, Lockwood, and Gafford. We agree with the
judge’s refusal to hire findings.33 Although we will ap-
ply the FES analysis to the facts pertaining to each dis-
criminatee and Respondent Employer separately, in order
to minimize repetition we will first identify the material
evidentiary factors that are present in all of the alleged
violations.
First, as we have already found, IEC was an agent of
the Respondent Employers, and its actions with respect
to application referrals and hiring can therefore be attrib-
uted to them. Moreover, as noted above, all of the Re-
spondent Employers used IEC’s application referral sys-
tem (including its application referral service and shared
man program), which we have found to violate Section
8(a)(1). As a consequence, the Respondent employers’
use of those services supports the judge’s finding that
each of them made its hiring decisions with antiunion
animus.
Second, we find that the IEC newsletters reviewed
above, in addition to supporting our conclusion that
IEC’s application referral system was unlawfully coer-
cive under Section 8(a)(1), strongly support the judge’s
findings that the Respondent Employers’ hiring actions
were unlawfully motivated. IEC’s candid claims that

32 Regarding discriminatory refusals to consider for hire, the Board
stated: “[T]he General Counsel bears the burden of showing the follow-
ing at the hearing on the merits: (1) that the respondent excluded appli-
cants from a hiring process; and (2) that antiunion animus contributed
to the decision not to consider the applicants for employment. Once
this is established, the burden will shift to the respondent to show that it
would not have considered the applicants even in the absence of their
union activity or affiliation. If the respondent fails to meet its burden,
then a violation of Sec. 8(a)(3) is established.” Id. at 15.
33 As set forth above, we find it unnecessary to pass on the judge’s
refusal to consider findings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1032
“IEC members can defeat COMET” by using its applica-
tion referral service and shared man program and that
those programs were “[c]urrently, the best bet for some
anti-‘salting’ relief,” express an antiunion animus which
is directly attributable to the Respondent Employers.
Third, as the judge found from the credited evidence,
each of the Respondents gave pretextual reasons for not
hiring the discriminatees. The proffer of a pretextual
reason for a respondent’s action—i.e., a false reason or
one not in fact relied upon—supports an inference of
antiunion animus.34 Further, a respondent “cannot rebut
the General Counsel’s initial showing of discriminatory
motivation with a pretextual explanation.”35
Fourth, the March 1996 IEC newsletter’s confirmation
that the “Open shop sector is hardest pinched,” and that
the “craft in shortest supply is electricians,” along with
L.L. Electric’s confirmation that it was “typical” for
qualified applicants to “find jobs quickly after placing an
application” with IEC, establish that skilled electricians
were in great demand in Houston during the period at
issue. This evidence strongly indicates that a qualified
journeyman electrician would have been hired soon after
submitting an application to a common, unbiased source
of referrals. That inference, in turn, supports the conclu-
sion that the discriminatees—all highly qualified and
experienced electricians—would each have been hired on
at least an occasional basis during a 21-month period
when they were continuously applying—directly to em-
ployers and through IEC—in the absence of antiunion
animus on the part of the Respondent Employers.
Having cited this evidence, relevant to the allegations
against all three Respondent Employers, we review the
additional, case-specific evidence pertaining to each.
Although we cite the most significant evidence, except
where indicated we also rely on the other evidence cited
by the judge.
2. KenMor Electric
KenMor used IEC as its exclusive source for job appli-
cants.
Rath and Lockwood filed applications for employment
with IEC on January 8 and 9, 1996, respectively, indicat-
ing that they were union organizers.36 Gafford filed an

34 Leading Edge Aviation Services, 345 NLRB 977, 977–978 (2005),
enfd. 212 Fed. Appx. 193 (4th Cir. 2007).
35 Jesco, Inc., 347 NLRB 903, 907 (2006). Accord: Leading Edge
Aviation Services, 345 NLRB at 978 (“Because the Respondent’s rea-
sons for not hiring Host for the second shift QC inspector position have
been found to be pretextual—i.e., they either did not exist or were not
actually relied on—they cannot form the basis for a valid rebuttal to the
General Counsel’s case.”).
36 Lockwood had worked for KenMor in the late 1980s. When he
was hired at that time, Lockwood had been made to sign a written
promise that he would not engage in union activity.
application for employment with IEC on February 13,
1996, indicating that he was an electrician/organizer.37
All three continued to file applications with IEC on a
monthly basis for the rest of the year, and more fre-
quently the next year, until IEC instituted the $50 fee
discussed above.
From January 9, onward, IEC forwarded applications
to KenMor. KenMor hired journeymen on January 9 and
22, and it hired several more journeymen the following
month, including one on February 17.
The judge found that KenMor violated Section 8(a)(3)
and (1) by failing and refusing to hire or consider Rath
and Lockwood on January 9, and continuing thereafter,
and by failing and refusing to hire or consider Gafford on
February 17, and continuing thereafter.
KenMor defends its failure to hire Rath and Lockwood
on January 9, and its failure to hire Gafford on February
17, on the ground that it did not receive applications
from them on or before those dates.38 The judge found
that KenMor received Rath’s and Lockwood’s January
applications, dated January 8 and 9, respectively, on
January 9, and it received Gafford’s February 13 applica-
tion on or before February 17. We find no basis for re-
versing this finding.
According to KenMor, the discriminatees were even-
tually considered, but they were not hired because their
work histories rendered them unqualified or, even if they
were qualified, the individuals hired by the Company
were more qualified. Specifically, KenMor argues that it
did not hire Lockwood—first considered by the company
sometime in the “first quarter” of 1996—because he
lacked recent electrical experience; it did not hire Rath—
first considered by the Company “around the first part of
July” 1996—because he lacked recent electrical experi-
ence and had a poor work history; and it did not hire Gaf-
ford—first considered by the Company in September
1996—because he lacked recent electrical experience.
In agreement with the judge, we conclude that Ken-
Mor’s hiring record belies its assertions that it required
recent electrical experience39 or a “solid, consistent work

37 Hereafter, unless otherwise indicated, all dates pertaining to Ken-
Mor are in 1996.
38 Although KenMor acknowledges that it received an application
from Lockwood sometime during the “first quarter” of 1996, the Com-
pany’s equivocation as to the date of receipt is tantamount to a denial
that it received and considered Lockwood’s application on January 9,
the first date of discrimination found by the judge.
39 For instance, KenMor hired Roy Langerhaus as a journeyman in
March 1997, even though he had not worked in approximately 7
months, and it hired Neal Howland as a journeyman in March 1998,
even though his employment application indicated that in the previous
year he had been working in sales at Amway. KenMor attempts to
explain away these and other deviations from its alleged hiring pol-
icy—Langerhaus had been out of work due to a personal tragedy and
KENMOR ELECTRIC CO. 1033
history.”40 Even assuming that KenMor required recent
electrical experience or that the discriminatees were not
as qualified as others hired instead, this defense fails be-
cause it was not the reason relied upon by KenMor when
it rejected the discriminatees in January and February
1996. Jesco, supra, 347 NLRB at 907.
We find, based on the foregoing, that the General
Counsel established a prima facie case of discrimination
under FES, supra, which KenMor has not rebutted. First,
KenMor was hiring when, in January and February 1996,
Rath, Lockwood, and Gafford applied for positions with
KenMor through its hiring agent, IEC. Second, the dis-
criminatees had qualifications relevant to the positions
for which KenMor was hiring. Finally, the General
Counsel demonstrated that antiunion animus contributed
to KenMor’s decision not to hire Rath, Lockwood, and
Gafford. KenMor’s proffering of pretextual reasons for
failing to hire union-affiliated applicants supports an
inference that the failure was based on antiunion consid-
erations. See Leading Edge Aviation Services, supra,
345 NLRB at 978.41
As the General Counsel has met his initial burden un-
der FES regarding KenMor’s refusal to hire the union
applicants, the burden shifted to KenMor to show that it
would not have hired them even in the absence of their
union activity or affiliation. FES, supra at 12. Because
KenMor’s reasons for not hiring the discriminatees have
been found to be pretextual, they cannot form the basis
for a valid rebuttal to the General Counsel’s case.42 Ac-
cordingly, we adopt the judge’s finding that KenMor
violated Section 8(a)(3) and (1) by failing to hire Rath
and Lockwood on and after January 9, and by failing to
hire Gafford on or after February 17.43

Howland’s hiring, although admittedly a “glaring exception to Ken-
Mor’s hiring policy,” was a mistake—but the fact remains that those
and other applicants were hired as journeymen even though they lacked
recent electrical experience.
40 For instance, KenMor rehired Shane Scallan in September 1997,
notwithstanding that he had been suspended more than a year earlier for
failing a drug screen following an accident.
41 With respect to motive, we again rely on IEC’s unlawful referral
system, the IEC newsletters, and the local demand for skilled electri-
cians, described above. We also rely on KenMor’s failure to credit
Lockwood and Gafford for traffic signal work even though KenMor
was engaged in a traffic light project, and on KenMor’s hiring of appli-
cants with similar or lesser qualifications and experience. In addition,
we give some weight (though not dispositive, given the distance in
time) to KenMor’s earlier having required Lockwood to agree in writ-
ing not to engage in union activity.
42 Jesco, Inc., supra, 347 NLRB at 907. Leading Edge Aviation Ser-
vices, supra, 345 NLRB at 978.
43 Our decision in Pollock Electric, Inc., supra, 349 NLRB 708, is
distinguishable. In that case, we held that the respondent employer did
not violate the Act by refusing to consider or hire Rath, Lockwood,
Gafford, and other union salts, where the employer considered them “in
the same way that other applicants were considered,” but declined to
3. H & J Electric
H & J Electric hired employees directly and gave pref-
erence to former employees, but has also sometimes re-
quired applicants to file applications with IEC.
Rath, Lockwood, and Gafford filed applications for
employment at IEC on March 17, 1997.44 That same
day, H & J Electric received about eight applications
from IEC, including the applications of the discrimina-
tees,45 and it hired one of the individuals whose applica-
tion was included in that group (Todd Hebert). Jones
attempted to contact three other electricians whose appli-
cations were included in the March 17 group, but he was
unsuccessful. Jones did not attempt to contact the dis-
criminatees. Unable to meet its manpower needs through
IEC, H & J Electric turned to a temporary staffing ser-
vice, Link Staffing, which sent it two journeymen per
day, beginning on March 25, and continuing until May 4.
The Link Staffing referrals cost H & J Electric more than
it would have had to pay if it had used its own employ-
ees.
The judge found that H & J Electric discriminatorily
refused to hire Rath, Lockwood, and Gafford, or consider
them for employment, on March 25, and continuing
thereafter.
H & J Electric defends its failure to hire the discrimi-
natees on the ground that they did not indicate on their
applications that they had experience with cable tray or
rigid pipe wiring methods, an ostensible requirement
during the period at issue. In agreement with the judge,
we find that this defense is pretextual. First, H & J Elec-
tric did not establish that all four of the March 17 appli-
cants that it attempted to contact—i.e., nearly everyone
but the discriminatees—listed cable tray or rigid pipe
experience on their applications. Second, H & J Electric
accepted referrals from Link Staffing without reviewing
the referrals’ applications. Third, H & J Electric’s de-
termination that two Link Staffing referrals were un-
qualified—one could not hang cable tray and the other
was dismissed for “general incompetence”—belies the

hire them because of their lack of recent experience with their tools, as
required by the company’s hiring policy. Id. at 711. As determined by
the judge, KenMor did not require recent experience and, in any event,
it did not consider Rath, Lockwood, and Gafford in the same way that
other applicants were considered. Indeed, Rath and Gafford were not
considered at all during the first half of 1996, even though the Com-
pany received applications from them during that timeframe, at times
when it was hiring.
44 Hereafter, unless otherwise indicated, all dates pertaining to H & J
Electric are in 1997.
45 Lance Jones, a project manager for H & J Electric, acknowledged
that Rath’s application was in the group of applications received on
March 17. We agree with the judge that Lockwood’s and Gafford’s
applications, filed the same day, were also received by H & J Electric
on March 17.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1034
notion that Link Staffing screened applicants in any
meaningful way (i.e., for cable tray or rigid pipe
skills/experience). Finally, the judge credited the dis-
criminatees’ testimony that, as experienced journeymen,
they were qualified to work with cable tray and rigid
pipe.
We find, based on the foregoing, that the General
Counsel established a prima facie case of discrimination
under FES. First, H & J Electric was hiring when, on
March 17, Rath, Lockwood, and Gafford applied for po-
sitions with H & J Electric through its hiring agent, IEC.
Second, all three individuals had qualifications relevant
to the positions for which H & J Electric was hiring.
H & J Electric’s proffering of a pretextual reason for
failing to hire union-affiliated applicants supports an
inference that the failure was based on antiunion consid-
erations. See Leading Edge Aviation Services, supra,
345 NLRB at 978.46
As the General Counsel has met his initial burden un-
der FES regarding H & J Electric’s refusal to hire the
union applicants, the burden shifted to H & J Electric to
show that it would not have hired them even in the ab-
sence of their union activity or affiliation. FES, supra at
12, 15. Because H & J Electric’s reason for not hiring
Rath, Lockwood, and Gafford has been found to be pre-
textual, it cannot form the basis for a valid rebuttal to the
General Counsel’s case.47 Accordingly, we find that
H & J Electric unlawfully refused to hire Rath, Lock-
wood, and Gafford on or after March 25, 1997.
4. L.L. Electric
L.L. Electric both accepted applications directly and
reviewed applications at IEC.
Rath, Lockwood, and Gafford filed applications with
IEC on February 13, 1997.48 Rath, Lockwood, and Gaf-
ford filed applications for employment with IEC again on
March 18, 19, 20, and 31, 1997.49
L.L. Electric hired journeymen on February 7 (Roy
Rodriguez) and March 31 (John Rogers), and it hired

46 The judge’s finding of unlawful animus is further supported by
H & J Electric’s partial reliance on IEC’s unlawful referral system, the
IEC newsletters, and the local demand for skilled electricians, as well
as H & J Electric’s hiring of temporary journeymen from an outside
agency without even knowing their qualifications, at higher cost than it
would have incurred by hiring its own employees. Fluor Daniel, 333
NLRB 427, 439 fn. 71 (2001) (hiring nonunion applicants at a higher
cost than available union applicants is evidence of unlawful motive),
enfd. in relevant part 332 F.3d 961 (6th Cir. 2003), cert. denied 543
U.S. 1089 (2005); KRI Constructors, 290 NLRB 802, 808 (1988)
(same).
47 Jesco, Inc., supra, 347 NLRB at 907; Leading Edge Aviation Ser-
vices, supra, 345 NLRB at 978.
48 Gafford also filed applications with IEC on February 12 and 14.
49 Hereafter, unless otherwise indicated, all dates pertaining to L.L.
Electric are in 1997.
several apprentices between February 14 and the end of
March. At least two of the “apprentices” hired during
this timeframe—Mike Walling and Jeff Walt—were ac-
tually journeymen. The Company hired Walling on Feb-
ruary 14, at $13.75 per hour, and it hired Walt on March
20, at $13 per hour.50 Those starting rates surpassed the
starting rates of acknowledged journeymen Rodriguez
($12 per hour) and Rogers ($12.50 per hour) and indicate
that, in fact, Walling and Walt were hired as journeymen.
The judge found that L.L. Electric discriminatorily re-
fused to hire Rath, Lockwood, and Gafford, or consider
them for employment, on February 14, and continuing
thereafter.
Although L.L. Electric’s president, Louis Lee, denied
seeing Lockwood’s, Rath’s or Gafford’s applications, the
judge discredited that testimony, and, thus, concluded
that Lee reviewed those applications when he looked
through the applications at IEC’s office. We find no
basis for reversing that credibility finding.
Based on the foregoing, we find that the General
Counsel has established a prima facie case of discrimina-
tion under FES. First, it is clear that L.L. Electric was
hiring when, in February and March 1997, Rath, Lock-
wood, and Gafford applied for positions with L.L. Elec-
tric through its hiring agent, IEC. Second, it is equally
plain that Rath, Lockwood, and Gafford were qualified
for the positions for which L.L. Electric was hiring. Fi-
nally, the General Counsel demonstrated that antiunion
animus contributed to L.L. Electric’s decision not to hire
these three applicants. L.L. Electric’s proffering of a
pretextual reason for failing to hire union-affiliated ap-
plicants supports an inference that the failure was based
on antiunion considerations. See Leading Edge Aviation
Services, supra, 345 NLRB at 978.51
As the General Counsel has met his initial burden un-
der FES regarding L.L. Electric’s refusal to hire the un-
ion applicants, the burden shifted to L.L. Electric to show
that it would not have hired them even in the absence of
their union activity or affiliation. FES, supra at 12, 15.
Because L.L. Electric’s reason for not hiring Rath,
Lockwood, and Gafford has been found to be pretextual,
it cannot form the basis for a valid rebuttal to the General
Counsel’s case.52 Accordingly, we agree with the
judge’s finding that L.L. Electric unlawfully refused to

50 L.L. Electric claims that Walt was borrowed from another contrac-
tor, not hired, on March 20, and hired sometime later. We find no merit
in this exception because the judge’s finding is consistent with L.L.
Electric’s records, which identify Walt as a new hire as of March 20.
51 With respect to motive, L.L. Electric’s use of IEC’s unlawful re-
ferral system, the IEC newsletters, and the local demand for skilled
electricians further support the judge’s finding of antiunion animus.
52 Jesco, Inc., supra, 347 NLRB at 907; Leading Edge Aviation Ser-
vices, supra, 345 NLRB at 978.
KENMOR ELECTRIC CO. 1035
hire Rath, Lockwood, and Gafford on or after February
14, 1997.
AMENDED REMEDY
In view of the Respondents’ extensive and ongoing
violations of Section 8(a)(1) and (3), which affected a
large number of job applicants in addition to the named
discriminatees in a regional industry over at least a 2-
year period, we agree with the judge that a broad cease-
and-desist order is warranted, enjoining the Respondents
not only from committing the kinds of violations found
in this case but from violating the Act “in any other
manner.” See Hickmott Foods, 242 NLRB 1357 (1979).
Further, in light of our findings that the Respondents
violated Section 8(a)(1) by maintaining, supporting,
and/or using an unlawful application referral system, and
that the Respondent Employers made discriminatory use
of that system to avoid hiring union members, we will
require IEC to maintain written records of its referral
operations for 2 years, and to make those records avail-
able upon request to the Regional Director. We will
similarly require all of the Respondent Employers to
maintain written records of their respective hiring of
journeyman electricians for the same period, and to make
those records available upon request to the Regional Di-
rector. Each of the Respondents will also be required to
submit quarterly reports to the Regional Director con-
cerning (in the case of IEC) all processing and referral
activities in connection with applications from self-
identified union applicants, and (in the case of each Re-
spondent Employer) all hiring. These affirmative docu-
mentation requirements are similar to the remedies the
Board has imposed on union hiring halls that have been
found to violate the Act in connection with the referral of
job applicants.53
Having found that each of the Respondent Employers
discriminatorily refused to hire the discriminatees, the
Respondent Employers must offer them instatement and
make them whole for their unlawful conduct against
them. The duration of the backpay period shall be de-
termined in accordance with Oil Capitol Sheet Metal,
Inc., 349 NLRB 1348 (2007). Backpay shall be com-
puted in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), and interest shall be computed in ac-
cordance with New Horizons for the Retarded, 283
NLRB 1173 (1987).54

53 See Tri-County Roofing, 311 NLRB 1368, 1370 (1993), enfd.
mem. 148 LRRM 2640 (3d Cir. 1995), cert. denied sub nom. Roofers
Local 30 v. NLRB, 516 U.S. 818 (1995); Boilermakers Local 154
(Western Pennsylvania Service Contractors), 253 NLRB 747, 766
(1980), enfd. mem. 676 F.2d 687 (3d Cir. 1982).
54 Although our order herein provides for instatement, the instate-
ment award is subject to defeasance if, at the compliance stage, the
ORDER
The National Labor Relations Board orders
A. The Respondent, Independent Electrical Contrac-
tors of Houston, Inc., Houston, Texas, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining an application referral system for its
member contractors that interferes with or coerces em-
ployees in the exercise of the right to engage in union
activity.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their Section 7
rights.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Maintain, for a 2-year period from the date of this
Order, written records of the operation of its application
referral system, including applications, hiring records,
and information sufficient to disclose how employment
applications are processed, marked, or segregated, and
the basis for each referral or failure to refer an applica-
tion to an employer seeking applications and, upon the
request of the Regional Director for Region 16 or his
agents, make available for inspection, at all reasonable
times, any records relating in any way to the application
referral system.
(b) For a 2-year period from the date of this Order,
submit quarterly reports to the Regional Director, due 10
days after the close of each calendar quarter, concerning
the processing and referral of the applications of union
applicants Ray Rath, Troy Lockwood, and John Gafford,
and other self-identified union applicants. Such reports
shall include the number of job applications submitted by
such applicants, the date of each application, the number
of times in which they were referred to member employ-
ers, and the names of the member employers to which
the applications were referred.
(c) Within 14 days after service by the Region, post at
its Houston, Texas facility, copies of the attached notice
marked “Appendix A.”55 Copies of the notice, on forms
provided by the Regional Director for Region 16, after
being signed by Respondent IEC’s authorized representa-
tive, shall be posted by Respondent IEC and maintained
for 60 consecutive days in conspicuous places, including

General Counsel fails to carry his burden of going forward with evi-
dence that the discriminatees would still be employed if they had not
been victims of discrimination. Oil Capitol Sheet Metal, 349 NLRB at
1354.
55 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1036
all places where notices to the public, including appli-
cants for employment with IEC’s members, are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent IEC to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all job applicants who have submitted applications to
it at any time since January 11, 1996.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official, on a form provided by the Region,
attesting to the steps that Respondent IEC has taken to
comply.
B. The Respondent, KenMor Electric Company, Inc.,
Houston, Texas, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Maintaining, supporting, and using the unlawful
application referral system operated by the Independent
Electrical Contractors of Houston, Inc. (IEC).
(b) Refusing to hire employees because of their union
affiliation or activity.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their Section 7
rights.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Within 14 days from the date of this Order, offer
employment as journeymen to Ray Rath, Troy Lock-
wood, and John Gafford or, if such jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges to which
they would have been entitled if they had not been dis-
criminated against.
(b) Make Ray Rath, Troy Lockwood, and John Gaf-
ford whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in
the manner set forth in the remedy section of this Sup-
plemental Decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to hire
Ray Rath, Troy Lockwood, and John Gafford, and within
3 days thereafter, notify them in writing that this has
been done and that the unlawful conduct of the Respon-
dent will not be used against them in any way.
(d) Maintain, for a 2-year period from the date of this
Order, written records of its hiring of employees, includ-
ing applications, hiring records, and information suffi-
cient to disclose the source of each hire, and upon the
request of the Regional Director for Region 16 or his
agents, make available for inspection, at all reasonable
times, any records relating in any way to its use of IEC’s
application referral system.
(e) For a 2-year period from the date of this Order,
submit quarterly reports to the Regional Director, due 10
days after the close of each calendar quarter, concerning
the hiring of applicants. Such reports shall include the
date and number of job applicants, the names and dates
of actual hires, and as to each actual hire, whether the
individual was a self-identified union applicant.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, time cards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its Houston, Texas facility, copies of the attached notice
marked “Appendix B.”56 Copies of the notice, on forms
provided by the Regional Director for Region 16, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all em-
ployees employed by the Respondent on or at any time
since January 9, 1996.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official, on a form provided by the Region,
attesting to the steps that the Respondent has taken to
comply.
C. The Respondent, H & J Electric Co., Houston,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining, supporting, and using the unlawful
application referral system operated by the Independent
Electrical Contractors of Houston, Inc. (IEC).
(b) Refusing to hire employees because of their union
affiliation or activities.

56 See fn. 55, supra.
KENMOR ELECTRIC CO. 1037
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their Section 7
rights.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Within 14 days from the date of this Order, offer
employment as journeymen to Ray Rath, Troy Lock-
wood, and John Gafford or, if such jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges to which
they would have been entitled if they had not been dis-
criminated against.
(b) Make Ray Rath, Troy Lockwood, and John Gaf-
ford whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in
the manner set forth in the remedy section of this Sup-
plemental Decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to hire
Ray Rath, Troy Lockwood, and John Gafford, and within
3 days thereafter, notify them in writing that this has
been done and that the unlawful conduct of the Respon-
dent will not be used against them in any way.
(d) Maintain, for a 2-year period from the date of this
Order, written records of its hiring of employees, includ-
ing applications, hiring records, and information suffi-
cient to disclose the source of each hire, and upon the
request of the Regional Director for Region 16 or his
agents, make available for inspection, at all reasonable
times, any records relating in any way to its use of IEC’s
application referral system.
(e) For a 2-year period from the date of this Order
submit quarterly reports to the Regional Director, due 10
days after the close of each calendar quarter, concerning
the hiring of applicants. Such reports shall include the
date and number of job applicants, the names and dates
of actual hires, and as to each actual hire, whether the
individual was a self-identified union applicant.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, time cards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its Houston, Texas facility, copies of the attached notice
marked “Appendix C.”57 Copies of the notice, on forms

57 See fn. 55, supra.
provided by the Regional Director for Region 16, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all em-
ployees employed by the Respondent on or at any time
since March 25, 1997.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official, on a form provided by the Region,
attesting to the steps that the Respondent has taken to
comply.
D. The Respondent, Louis P. Lee d/b/a L.L. Electric
Co., Houston, Texas, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Maintaining, supporting, and using the unlawful
application referral system operated by the Independent
Electrical Contractors of Houston, Inc. (IEC).
(b) Refusing to hire employees because of their union
affiliation or activities.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their Section 7
rights.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Within 14 days from the date of this Order, offer
employment as journeymen to Ray Rath, Troy Lock-
wood, and John Gafford or, if such jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges to which
they would have been entitled if they had not been dis-
criminated against.
(b) Make Ray Rath, Troy Lockwood, and John Gaf-
ford whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in
the manner set forth in the remedy section of this Sup-
plemental Decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to hire
Ray Rath, Troy Lockwood, and John Gafford, and within
3 days thereafter, notify them in writing that this has
been done and that the unlawful conduct of the Respon-
dent will not be used against them in any way.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1038
(d) Maintain, for a 2-year period from the date of this
Order, written records of its hiring of employees, includ-
ing applications, hiring records, and information suffi-
cient to disclose the source of each hire, and upon the
request of the Regional Director for Region 16 or his
agents, make available for inspection, at all reasonable
times, any records relating in any way to its use of IEC’s
application referral system.
(e) For a 2-year period from the date of this Order
submit quarterly reports to the Regional Director, due 10
days after the close of each calendar quarter, concerning
the hiring of applicants. Such reports shall include the
date and number of job applicants, the names and dates
of actual hires, and as to each actual hire, whether the
individual was a self-identified union applicant.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, time cards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(g) Within 14 days after service by the Region, post at
its Houston, Texas facility, copies of the attached notice
marked “Appendix D.”58 Copies of the notice, on forms
provided by the Regional Director for Region 16, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all em-
ployees employed by the Respondent on or at any time
since February 14, 1997.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official, on a form provided by the Region,
attesting to the steps that the Respondent has taken to
comply.

MEMBER SCHAUMBER, dissenting in part.
Respondent Independent Electrical Contractors of
Houston (IEC) has collected job applications and for-
warded them to its members for many years. Although

58 See fn. 55, supra.
this process was put in place before any union organizing
and applied to all applicants regardless of union affilia-
tion, the majority nevertheless determines that it was “a
means to avoid hiring union members.” Largely because
the process allegedly reduced the number of successful
union applicants, my colleagues find the process “in its
totality” is unlawful. This finding goes well beyond any-
thing alleged in the complaint, and thus denies IEC due
process of law. This theory also goes well beyond any-
thing the Act permits. While other employment statutes
may impose liability for employment practices with a
disparate impact on a protected class, the Act does not.
The majority has substituted its judgment for that of
Congress, and its broadly worded decision unjustifiably
calls into question legitimate and widely used employ-
ment practices. I dissent from this finding of violation.1
Facts
IEC is an association of over 100 Houston-area electri-
cal contractors. Beginning in 1990, it has acted as a point
of contact for job applicants by accepting applications
and forwarding them to member employers who request
them. Some member employers use this system as their
sole source for applicants, while others use it only as an
adjunct to other employment procedures. IEC sorts the
applications into three categories: journeymen, appren-
tices, and inexperienced applicants, but does not screen
them in any way. Instead, at the end of each day IEC
faxes all of the applications received that day to the em-
ployers who request them. Alternatively, some employ-
ers choose to review applications in IEC’s office. After
30 days, the applications are filed for a year.

1 For the reasons stated herein, I find that Respondent IEC violated
Sec. 8(a)(3) and (1) by imposing a $50 fee on repeated “outside” appli-
cations in September 1997.
I also concur in finding that individual Respondent Employers vio-
lated Sec. 8(a)(3) and (1) by failing to hire applicants Ray Rath, Troy
Lockwood, and John Gafford. In making these findings, I do not rely
on these employers’ use of the IEC application service nor on the
statements made by IEC officials allegedly showing animus on the part
of IEC and its members. The imposition of the $50-application fee
does evidence animus, and I agree that this animus can be imputed to
the Respondent Employers in the circumstances of this case. Under all
the circumstances, I agree that a discriminatory refusal to hire has been
established. Because the discriminatees are salts, their entitlement to
instatement or backpay is subject to the principles set forth in Oil Capi-
tol Sheet Metal, Inc., 349 NLRB 1348 (2007), petition for review dis-
missed 561 F.3d 497 (D.C. Cir. 2009), and Contractor Services, 351
NLRB 33 (2007). In this regard, I note that the discriminatees submit-
ted applications to the individual Respondent Employers at about the
same time. Allegations that they were discriminatorily denied hire by
other employers, based on still more applications filed at about the
same time, were settled in 2009. At compliance, it will be appropriate
to determine whether the discriminatees could have worked for all of
these Employers at the same time and to adjust any remedy provided
them accordingly.
KENMOR ELECTRIC CO. 1039
Under longstanding procedures, IEC does not disclose
to applicants which employers received their applica-
tions, allow them to review their own applications, or
keep records showing referrals. These policies were im-
plemented long before the onset of the union salting
campaign in the mid-1990s and were applied in a non-
discriminatory fashion to all applicants regardless of un-
ion affiliation.
Some, but not all, IEC members also participate in a
“shared man” program under which members with extra
workers loan them to other members who need workers.
Under this program, the borrowing employer pays the
employee the same wage rate and fringe benefits as the
lending employer pays even if they are different from the
wages and benefits paid by the borrower to its own em-
ployees.2
In 1997, after the onset of the salting campaign, IEC
imposed a $50-application fee for each application filed
within a 30-day period of a prior application. Thus, all
applicants could file one application every 30 days free
of charge. Employees laid off from an IEC member
could file additional applications within the ensuing 30
days free of charge, while other applicants had to pay a
$50 fee for each such application.
The complaint alleges that IEC, by these practices, has
maintained a discriminatory referral system to discourage
employees from forming, joining, or assisting the Union
and thereby discriminated against employee applicants in
violation of Section 8(a)(3) and (1). There is no com-
plaint allegation that these practices independently vio-
lated Section 8(a)(1).
The Judge’s Opinion
The judge found, in relevant part, that the shared man
program was “inherently discriminatory” because, in his
view, the supposed adverse effect on employment oppor-
tunities for union applicants outweighed the Respon-
dents’ business justification of maintaining a pool of
qualified workers and avoiding the expenses associated
with layoffs and rehiring. He found, with no supporting
analysis, that the limits on disclosure of application in-
formation was “unlawful” because it prevented appli-
cants from learning whether their application had been
considered. In both respects, the judge found that the
policies were discriminatory under Section 8(a)(3) and
(1).

2 The judge found that the borrower does not pay the employee’s
medical insurance or pay them for holidays or vacation time. However,
the employee must agree not to take vacations or holidays during the
loan period.
The Majority Opinion
The majority abandons the judge’s theory of violation,
but reaches the same result under a newly-fashioned
standard that was neither pled nor litigated. They find
that IEC’s “referral system in its totality” violated Sec-
tion 8(a)(1) because it purportedly interfered with the
ability of the alleged discriminatees to exercise their Sec-
tion 7 rights. Although they say that IEC’s motive is
irrelevant, my colleagues find that the “referral system”
was intended to hinder union members’ and salts’ at-
tempts to be hired by IEC members. While acknowledg-
ing that some union members were hired under IEC’s
policies, the majority gives this evidence “no weight”
because “those occasions were atypical, and in many
cases the employee’s union affiliation was in the distant
past.”
My colleagues further conclude that its components
taken as a whole disadvantaged salts and union appli-
cants by hindering their ability to “determine how IEC
and its members processed their applications or whether
they had been victims of discrimination” and by giving
the IEC members “a defense against any allegation of
unlawful discrimination.” According to the majority, the
shared man system further contributed to this supposed
illegality because this use of borrowed employees from
nonunion IEC members made it less likely that “new
union applicants would be hired.” And they find support
for their finding of a violation of the Act in the alleged
impact of the challenged policies on the hiring prospects
of the alleged discriminatees. As shown below, none of
these justifications for the outcome the majority reaches
today has any merit.
Analysis
A. The Disputed Employment Practices
were not Discriminatory
The Board has previously determined that the shared
man program does not discriminate against union sup-
porters in violation of Section 8(a)(3) and (1). Pollock
Electric, 349 NLRB 708, 710 (2007). The respondent
employer in Pollock Electric was a member of IEC and
used the same shared man program at issue in this case
as part of a hiring policy that gave preference to former
employees and those recommended by IEC members,
among other categories. The complaint in the case al-
leged, and the judge found, that the entire hiring policy
unlawfully discriminated against union members. The
judge opined that the shared man policy unlawfully ex-
cluded union members from employment because “the
other IEC members would not have any union members
to share.” Id. at 719.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1040
The Board squarely rejected this finding of violation,
noting that “[t]he Board has repeatedly found that hiring
policies that give priority to former employees and rec-
ommended employees are not unlawful, even if the effect
of such policies is to limit or exclude union applicants.”
Id. at 710. This ruling was based on well-settled princi-
ples respecting an employer’s right to establish reason-
able, nondiscriminatory hiring practices. The shared
man program is just such a practice, reflecting IEC
member employers’ understandable and legitimate inter-
est in preferring a “known quantity” over an unknown,
offering steady work to their employees, minimizing
periods of unemployment and consequent liability for
unemployment benefits, and thereby allowing them “to
attract a qualified, dependable work force.”
Zurn/N.E.P.C.O., 345 NLRB 12, 15 (2005), petition for
review denied 243 Fed. Appx. 898 (6th Cir. 2007). See
also Centex Independent Electrical Contractors Assn.,
344 NLRB 1393, 1398–1399 (2005) (preference for
known candidates over unknown legitimate); Kanawha
Stone Co., 334 NLRB 235 (2001) (same); Belfance Elec-
tric, 319 NLRB 945, 946 (1995) (same).3
The limits on disclosure of application information
IEC has established also are reasonable, nondiscrimina-
tory hiring practices. Like the shared man program,
these policies also predate any union organizing activity
and have been uniformly applied to all applicants regard-
less of union affiliation. There is no evidence that IEC
ever provided information to nonunion applicants that
was denied to the alleged discriminatees. Like the shared
man program, they served a legitimate business pur-
pose—in this case limiting the already-considerable time
and expense of operating the application clearinghouse.
See Tradesmen International, Inc., 351 NLRB 399, 401
(2007) (employer policy against walk-in applications
lawful basis for reusing to hire walk-in union applicants;
policy in place prior to salting campaign and consistently
enforced); Dilling Mechanical Contractors, 348 NLRB
98, 101–102 (2006) (preference for referrals and policy
of discarding applications from nonreferred applicants
after 7 days all lawful); Custom Topsoil, Inc., 328 NLRB
446, 447 (1999) (rules limiting number of applicants
allowed in its office at one time and affording interviews
to “familiar” applicants before they completed applica-
tions but not “stranger” applicants all lawful); Dalton
Roofing Service, 344 NLRB 870, 872–873 (2005) (policy
requiring applicants to complete applications on premises
lawful). Moreover, they have no impact on any appli-
cant’s opportunity to be considered for employment or

3 The majority provides no support for the view that IEC’s individual
member employers could lawfully adopt such preferences but IEC itself
could not.
hired by any IEC member. Indeed, it is undisputed that
IEC did not screen the applications it received but in-
stead transmitted all of them to participating employers.
Consistent with this well-settled precedent, the com-
plaint allegation that IEC unlawfully maintained a dis-
criminatory referral system must be dismissed.
B. The Disputed Employment Practices also
did not Independently Violate Section 8(a)(1)
Apparently recognizing that application of existing
precedent would compel dismissal of the complaint alle-
gations as pled by the General Counsel, the majority
reaches out to find the policies unlawful as independent
violations of Section 8(a)(1). This approach is flawed for
many reasons. First, the complaint was not pled nor was
the case litigated on this basis. My colleagues’ use of
this theory in these circumstances therefore violates the
Respondents’ due process rights. Second, no cognizable
Section 7 right was impaired by these rules. Finally, by
adopting this analysis the majority seeks to impose a
form of disparate impact liability on employers covered
by the Act. The Act does not permit the imposition of
liability on that basis, however, and even if it did, the
majority’s unprecedented version of disparate impact
liability goes well beyond anything recognized under the
Act or any other employment discrimination law. There
is no warrant for this radical departure from settled prin-
ciples.
1. By finding a violation of the Act under a new
and unpled theory, the majority has denied the
Respondents due process of law
The Board has indicated that “[t]o satisfy the require-
ments of due process, an administrative agency must
give the party charged a clear statement of the theory on
which the agency will proceed with the case. Addition-
ally, an agency may not change theories in midstream
without giving respondents reasonable notice of the
change.” Lamar Advertising of Hartford, 343 NLRB
261, 265 (2004) (citations and internal quotation marks
omitted). In determining whether a respondent’s due
process rights were violated, the Board has considered
the scope of the complaint, and any representations by
the General Counsel concerning the theory of violation,
as well as the differences between the theory litigated
and the theory ultimately applied. See generally Sierra
Bullets, LLC, 340 NLRB 242, 242–243 (2003) (violation
based on broader theory improper and violates due proc-
ess when the General Counsel expressly litigated case on
narrow theory).
KENMOR ELECTRIC CO. 1041
In the present case, the General Counsel’s complaint
and representations reasonably led the Respondents to
believe that they were defending against an allegation
that the disputed employment practices discriminated
against union supporters in violation of Section 8(a)(3)
and (1). The complaint alleged a violation on this basis
alone; it contains no allegation that the practices inde-
pendently violated Section 8(a)(1). Likewise, the Gen-
eral Counsel’s opening statement included the represen-
tation that “[t]he General Counsel will show that the Re-
spondent, and I.E.C.’s hiring system, is discriminatory,
and that it violates the Act, because it discriminates
against union members.”
This was the theory under which the judge found
IEC’s employment practices unlawful, as noted above.
The majority’s theory is quite different. They assert that
the disputed hiring practices interfere with employees’
Section 7 rights without regard to whether they are dis-
criminatory or the employer’s motive—facts that are
essential elements of a violation under Section 8(a)(3) of
the Act. Instead, the majority finds the practices unlaw-
ful because they interfered with employees’ Section 7
rights to engage in “salting”—by allegedly limiting the
ability of union applicants to determine whether they had
been victims of discrimination, giving member employ-
ers a defense to any allegation of unlawful discrimina-
tion, and generally reducing employment opportunities
for union applicants. These alleged effects were irrele-
vant to the theory of violation advanced by the General
Counsel, and the Respondents had no notice that they
were at issue in this case. See Champion International
Corp., 339 NLRB 672, 673 (2003) (“It is axiomatic that
a respondent cannot fully and fairly litigate a matter
unless it knows what the accusation is.”). By finding a
violation of the Act under a theory neither pled nor liti-
gated, the majority has denied the Respondents due proc-
ess of law. Paul Mueller Co., 332 NLRB 1350 (2000).4
2. Even if the issue were before us, the disputed
employment practices do not independently
violate Section 8(a)(1)
The 8(a)(1) standard begins with an examination of
whether the employer’s conduct reasonably tends to in-
terfere with, restrain, or coerce employees in the exercise

4 In Cardinal Home Products, 338 NLRB 1004, 1006–1007 (2003),
the Board found that the promotion of five employees from temporary
to permanent status could be found to independently violate Sec.
8(a)(1) even though the complaint alleged it as a violation of Sec.
8(a)(3). There, the theory of the 8(a)(1) violation—that the employees
were promoted in order to convince them to vote against the union and
to remind employees of its power over their benefits—was consistent
with the complaint allegation of discrimination to discourage support
for the union. In this case, the theories do not align in this manner as
explained above.
of their Section 7 rights.5 ANG Newspapers, 343 NLRB
564, 565 (2004). If that showing is made, “the burden is
on the employer to demonstrate a legitimate and substan-
tial business justification for its conduct. It is the respon-
sibility of the Board to strike the proper balance between
the asserted business justifications and the invasion of
employee rights in light of the Act and its policy.” Id.
(internal quotation and citation omitted). Here, the dis-
puted IEC policies did not limit any employee’s ability to
fully exercise their Section 7 rights. And IEC has dem-
onstrated legitimate and substantial business justifica-
tions for these policies, as discussed above. Tellingly,
the majority does not even consider those justifications,
as longstanding precedent requires, much less show that
they are outweighed by the policies’ supposed impact on
Section 7 rights.6
Instead, the majority condemns the policies because
they allegedly disadvantaged salts and other union appli-
cants in their efforts to obtain employment with the Re-
spondents. This contention is both factually and legally
wrong. The limits on disclosure of application informa-
tion did not disadvantage union applicants because they
applied equally to all applicants regardless of union af-
filiation.7 Moreover, the policies had no effect on their
employment opportunities because IEC did not screen
applications but instead forwarded them on request to its
members. Any subsequent hiring discrimination that
may have occurred was the result of the independent
hiring decisions of the member employers—not these
policies. Even if IEC’s policies did give an advantage to
former employees over “unknowns,” such a preference is
lawful for the reasons stated above.
In a vain effort to bolster their case, the majority as-
serts that the limits on disclosure of application informa-
tion prevented applicants from learning how their appli-
cations were processed. Even if that is true, there is no
Section 7 right to receive such information. Obviously,
the rules did not prevent the alleged discriminatees from
learning whether they had been victims of discrimina-
tion. This case itself is proof of that. Nor has the Board

5 Sec. 7, in turn, guarantees employees the right to form, join, or as-
sist a labor organization, bargain collectively through representatives of
their own choosing, and to engage in other concerted activity for mu-
tual aid or protection—or to refrain from any of these activities.
6 Instead, the majority asserts that even if these business justifica-
tions “might suffice” for an individual employer, they cannot be relied
upon by IEC. I perceive no valid justification for this implausible
distinction.
7 In addition, it is undisputed that some union applicants were hired
consistent with these policies. Board law clearly holds that this fact
supports a finding that the policies were lawful. Pollock Electric, su-
pra, 349 NLRB at 710 fn. 16; Kanawha Stone, supra, 334 NLRB at 237
(same). The majority’s view that this fact is entitled to “no weight”
cannot be reconciled with this precedent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1042
ever recognized a Section 7 right to detect discrimina-
tion. To the contrary, the Board has repeatedly recog-
nized “an employer’s unilateral right to establish the
manner and mode of its application process.” Bill’s Elec-
tric, Inc., 350 NLRB 292, 305 (2007). Accord: Heiliger
Electric Corp., 325 NLRB 966, 968 (1998). In Bill’s
Electric, the Board held that the employer lawfully re-
fused to hire union applicants who disregarded the em-
ployer’s direction to stop videotaping the application
process. Such tactics obviously enhance the applicants’
ability to detect and establish discrimination in the hiring
process, but an employer may lawfully prohibit them all
the same. Indeed, the Act does not create “a right by a
job applicant to videotape an employer’s application-
interview process” simply because the videotape would
be useful in supporting a later charge of discrimination.
Heiliger Electric Corp., supra. Today’s decision cannot
be squared with these principles.
The majority goes even further, and faults the policies
because they “gave each IEC employer member a de-
fense against any allegation of unlawful discrimination.”
Again, the results of this case disprove the majority’s
claim. Even if it were true, my colleagues identify no
reason why Section 8(a)(1) prohibits nondiscriminatory
employer policies simply because they might give the
employer a valid defense to an unfair labor practice
charge. Employers often adopt lawful policies aimed at
minimizing their exposure to hiring discrimination alle-
gations. These include limits on the active date of an
application and limits on volunteering information that
would disclose an applicants’ protected status. Dilling
Mechanical Contractors, Inc., supra (valid policy of dis-
carding applications from nonreferred applicants after 7
days); Jesco, Inc., 347 NLRB 903, 908 (2006) (policy
that applications at Federal project covered by affirma-
tive action recordkeeping rules only valid for 30 days
and only valid at that site had valid business justification
of reducing paperwork and reporting); Boilermakers v.
NLRB, 127 F.3d 1300, 1309–1311 (11th Cir. 1997) (no
Section 7 right to volunteer union affiliation on applica-
tion form “in direct contravention of the employer’s neu-
tral, nondiscriminatory policy prohibiting extraneous
information of any kind”).8 Today’s decision, if allowed

8 I recognize that the court in Boilermakers v. NLRB, denied en-
forcement to the Board’s decision finding the nonresponsive informa-
tion policy inherently destructive of Sec. 7 rights. See H. B. Zachry
Co., 319 NLRB 967 (1995), enf. denied in pertinent part sub nom.
Boilermakers v. NLRB, supra. The Board’s theory of violation was that
writing “voluntary union organizer” on the application form was Sec. 7
activity much like the wearing of union insignia, and that the em-
ployer’s policy prohibiting it was therefore unlawful. While I find the
court’s critique of the Board’s position to be persuasive, I need not
resolve that issue for the purpose of this decision. Even if Sec. 7 pro-
to stand, will strip employers of lawful and legitimate
means of protecting themselves from legal liability.
At bottom, the majority appears to fault IEC’s policies
because they interfere with “Section 7 protected conduct,
namely salting.” Of course, there is no Section 7 right to
engage in all activities that could be labeled “salting” and
Board law is clear that many salting tactics are not pro-
tected. Toering Electric Co., 351 NLRB 225, 230–231,
233 (2007). See, e.g., Bill’s Electric, supra (videotaping
application process); Heiliger Electric Corp., supra
(same); Exterior Systems, 338 NLRB 677 (2002) (mock-
ing hiring official’s Asian accent while soliciting work-
ers to quit their jobs and work for a union contractor);
Tann Electric, 331 NLRB 1014, 1018–1019 (2000) (en-
tering an employer’s office en masse to apply while
videotaping the proceedings). The majority fails to iden-
tify a single specific instance in which IEC’s policies
restrained anyone in the exercise of rights the Act does
protect. Instead, they argue that when combined the
policies created a “closed” hiring system. I am unper-
suaded by my colleagues’ apparent belief in a sort of
reverse alchemy, through which lawful policies, when
combined, are transmuted into a violation of the Act.
C. The Majority’s Newly-Fashioned Standard
is a Radical Departure from any Previously
Recognized Theory of Liability
In finding a violation despite the absence of any evi-
dence that these policies were discriminatory on their
face or as applied, the majority appears to be reaching
towards a disparate impact theory of liability. No such
theory exists under the Act. Even if it did, a violation
could not be found without considering the employer’s
business justification for the disputed employment prac-
tice. The majority, however, instead imposes strict li-
ability for policies that—in their view—disadvantage
union applicants. This is not the law under any other em-
ployment statute, and it is certainly not the law under the
Act.
The Supreme Court has recognized a disparate impact
theory of liability under Title VII of the Civil Rights Act
of 1964. Griggs v. Duke Power Co., 401 U.S. 424
(1971). Under this standard, employment practices and
procedures, even if neutral on their face, violate Title VII
despite the absence of discriminatory intent if they oper-
ate to exclude a protected class and cannot be justified by
business necessity. This standard is consistent with the
text of Title VII, which prohibits discrimination in hiring

tects an applicant’s disclosure of his or her own union affiliation, on the
employer’s own application form and contrary to the employer’s non-
discriminatory instructions, there is no basis for arguing that applicants
have any Sec. 7 right to either receive or request information about
their own applications such as that at issue here.
KENMOR ELECTRIC CO. 1043
and also makes it unlawful for an employer to “limit,
segregate, or classify his employees or applicants for
employment” because of race, color, religion, sex, or
national origin. See 42 U.S.C. § 2000e-2(a)(2).
The Act contains no such prohibition. Therefore, it
does not allow a disparate impact theory of liability.
Contractors’ Labor Pool v. NLRB, 323 F.3d 1051 (D.C.
Cir. 2003), denying enf. to sub nom. Aztech Electric Co.,
335 NLRB 260 (2001) (“the Board may not draw support
for its decision from the [Title VII] disparate impact line
of cases”). A violation of the Act, thus, cannot be predi-
cated solely on the basis that a disputed employer policy
has a disparate impact on the employment of union
members.
Even if the Title VII disparate impact theory was cog-
nizable under the Act, and it clearly is not, liability still
would not attach until employer business justification
had been considered. Griggs v. Duke Power Co., supra.
The Act likewise requires that legitimate employer inter-
ests be considered, regardless of whether the case is de-
cided under Section 8(a)(1) or (3). See NLRB v. Babcock
& Wilcox Co., 351 U.S. 105 (1956) (the Act represents
an accommodation between the legitimate interests of
employees and employers, and the Board must accom-
modate these often competing interests with as little in-
terference with one as is consistent with the maintenance
of the other); NLRB v. Jones & Laughlin Steel Corp., 301
U.S. 1, 45 (1937) (Act does not limit the normal exercise
of the right of the employer to select its employees or to
discharge them); ANG Newspapers, supra (legitimate
employer interests must be considered). The majority
fails even to pay lip service to this requirement. Despite
their protestations to the contrary, by focusing solely on
the purported impact on Section 7 rights of IEC’s poli-
cies, the majority effectively creates a strict liability
standard that goes far beyond anything Congress has
authorized under Title VII, the Act, or any other law.
D. The Respondents’ Statements about
these Policies do not Establish that they
are Unlawful
In a further effort to support their unprecedented strict
liability standard, the majority relies on certain state-
ments made by IEC officials indicating that use of the
IEC application service may provide a defense against
salting campaigns. Significantly, IEC’s comments about
its services stress that “it was created for other reasons.”
The majority cites no instance in which any IEC official
stated that the system would prevent the hiring of union
supporters as such, and the evidence clearly shows that it
did not. Instead, IEC touted the service as a means of
avoiding “potential ‘salting’ problems” and minimizing
“our members’ exposure to the current ‘salting’ risk.”
Contrary to the majority, these statements do not sup-
port a finding that the disputed employment practices
were unlawful.9 First, they confirm the fact that the poli-
cies were implemented for lawful and legitimate business
reasons—and not as a response to the salting campaign.
The majority erroneously gives no weight to this fact.
Second, the statements do not state that the purpose or
effect of the disputed practices is to prevent union hires;
instead they tout them as a means to reduce the risk of
salting-related unfair labor practice charges. The major-
ity erroneously equates these statements with opposition
to the employment of union members and adherents gen-
erally. Board law is to the contrary, as the Board has
recognized that salting campaigns may involve activity
protected by Section 7, but also may involve the unpro-
tected submission of “applications with no intention of
seeking work but rather to generate meritless unfair labor
practice charges.” Toering Electric Co., 351 NLRB at
230–231. IEC’s stated goal of defeating such tactics
does not show that the disputed policies had an unlawful
intent or effect. In any event, taken as a whole the state-
ments can fairly be characterized as self-serving claims
by a voluntary association about the benefits of member-
ship. In my view, they are as likely to be mere “puffery”
as any other form of advertising. For all of these reasons,
these statements have little probative weight as to the
actual effect of the IEC policies and do not establish that
they were unlawfully motivated.
E. The $50-Application Fee was Unlawful
In contrast to the other employment policies discussed
above, the $50-application fee was imposed in response
to the Union’s salting campaign. On its face, the policy
was discriminatory, in that it only applied to outside ap-
plicants, which included all of the union applicants. Its
obvious effect was to discourage outside applicants from
applying more often than once a month. Indeed, the un-
ion applicants in this case, including the discriminatees,
drastically reduced the number of applications they filed
after the fee was imposed. This disadvantaged the out-
side applicants because member employers gave prefer-
ence to the most recently filed applications in their hiring
decisions.

9 I am puzzled by the majority’s reliance on IEC’s supposed intent
inasmuch as they elsewhere disclaim any reliance on a motivational
analysis. By its own terms, the majority’s analysis appears to depend
on the claimed effect of the disputed policies rather than the Respon-
dents’ motive for adopting them.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1044
IEC has failed to establish any legitimate business jus-
tification for the rule, much less one that would justify its
obvious impact on employee Section 7 rights. According
to IEC, its member employers were concerned about the
cost of the referral program, which was somewhere be-
tween $60,000 and $100,000 at the time the fee was im-
plemented. Significantly, however, IEC has neither as-
serted nor shown that the cost of the referral program
increased at that time either due to the salting campaign
or for any other reason. Nor has IEC established a valid
justification for imposing the fee only on multiple appli-
cations from outside applicants. According to IEC’s
brief, it excused laid-off former employees of member
contractors from the fee because those contractors sup-
ported the application program with their dues. No wit-
ness, however, testified to this post hoc rationalization.
Moreover, it is belied by IEC’s admitted denial of the
benefit to former employees who were discharged for
cause—member employers’ dues paid the fee for these
individuals as much as they did for those who were laid
off. The pretextual nature of this belated justification
further supports a finding that the fee was unlawful. Un-
der all of these circumstances, I would find that the $50
application fee violated Section 8(a)(3) and (1) as alleged
in the complaint.10
Conclusion
Congress crafted the Act to, inter alia, establish and
protect the right of employees to freely choose or reject
union representation. In determining whether an em-
ployer has infringed that right, however, the Board must
in all cases weigh not only the Section 7 right at stake but
also any legitimate business justification for its actions
established by the employer. Unfortunately, my col-
leagues fail in that task in today’s decision. Instead, the
majority would eviscerate lawful, nondiscriminatory hir-
ing practices simply because they allegedly disadvantage
union applicants with no consideration whatsoever of the
legitimate business purpose for those practices. Though
my colleagues fail to acknowledge it, this one-sided rule
discards decades of established precedent and cannot be
squared with the Act’s foundational principles. Accord-
ingly, I respectfully dissent.

10 See generally Fluor Daniel, Inc., 333 NLRB 427, 439–440 (2001),
enfd. in part 332 F.3d 961 (6th Cir. 2003), cert. denied 543 U.S. 1089
(2005) (hiring policies violated the Act where they were adopted in
response to applications by union members and disparately applied);
Norman King Electric, 334 NLRB 154 (2001) (policy of not accepting
applications unlawful where it was implemented in response to union
applications and disparately applied); Masiongale Electrical-Mechani-
cal, Inc., 331 NLRB 534, 538–539 (2000), enfd. in pertinent part 323
F.3d 546 (7th Cir. 2003) (employer unlawfully implemented require-
ment that private investigator interview applicants in response to union
applications where policy disparately applied).
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain an application referral system
for our member contractors that interferes with employ-
ees’ right to engage in union activity.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of their Sec-
tion 7 rights.
WE WILL maintain, for a 2-year period from the date of
the Board’s Order, written records of the operation of our
application referral system, including applications, hiring
records, and information sufficient to disclose how em-
ployment applications are processed, marked, or segre-
gated, and the basis for each referral or failure to refer an
application to an employer seeking applications, and
upon request of the Regional Director for Region 16 or
his agents, make available for inspection, at all reason-
able times, any records relating in any way to the appli-
cation referral system.
WE WILL, for a 2-year period from the date of the
Board’s Order, submit quarterly reports to the Regional
Director, due 10 days after the close of each calendar
quarter, concerning the processing and referral of union
applicants Ray Rath, Troy Lockwood, and John Gafford,
and other self-identified union applicants. Such reports
shall include the number of job applications submitted by
such applicants, the date of each application, the number
of times in which they were referred to member employ-
ers, and the names of the member employers to which
the applications were referred.

INDEPENDENT ELECTRICAL CONTRACTORS OF
HOUSTON, INC.
KENMOR ELECTRIC CO. 1045
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain, support, or use the unlawful
application referral system operated by Independent
Electrical Contractors of Houston, Inc. (IEC) to hire em-
ployees.
WE WILL NOT refuse to hire employees because of their
union affiliation or activities.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of their Sec-
tion 7 rights.
WE WILL, within 14 days from the date of this Order,
offer employment as journeymen to Ray Rath, Troy
Lockwood, and John Gafford or, if such jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges to which they would have been entitled if they had
not been discriminated against.
WE WILL make Ray Rath, Troy Lockwood, and John
Gafford whole for any loss of earnings and other benefits
that they have suffered as a result of our unlawful refusal
to hire them, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any and all references to the
unlawful refusal to hire Ray Rath, Troy Lockwood, and
John Gafford, and WE WILL, within 3 days thereafter,
notify them in writing that this has been done and that
our unlawful conduct will not be used against them in
any way.
WE WILL maintain, for a 2-year period from the date of
the Board’s Order, written records of our hiring of em-
ployees, including applications, hiring records, and in-
formation sufficient to disclose the source of each hire,
and upon the request of the Regional Director for Region
16 or his agents, WE WILL make available for inspection,
at all reasonable times, any records relating in any way to
our use of IEC’s application referral system.
WE WILL, for a 2-year period from the date of the
Board’s Order, submit quarterly reports to the Regional
Director, due 10 days after the close of each calendar
quarter, concerning the hiring of applicants. Such reports
shall include the date and number of job applicants, the
names and dates of actual hires, and as to each actual
hire, whether the individual was a self-identified union
applicant.

KENMOR ELECTRIC COMPANY, INC.
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain, support, or use the unlawful
application referral system operated by Independent
Electrical Contractors of Houston, Inc. (IEC) to hire em-
ployees.
WE WILL NOT refuse to hire employees because of their
union affiliation or activities.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of their Sec-
tion 7 rights.
WE WILL, within 14 days from the date of the Board’s
Order, offer employment as journeymen to Ray Rath,
Troy Lockwood, and John Gafford or, if such jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges to which they would have been entitled if they
had not been discriminated against.
WE WILL make Ray Rath, Troy Lockwood, and John
Gafford whole for any loss of earnings and other benefits
that they have suffered as a result of our unlawful refusal
to hire them, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any and all references to the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1046
unlawful refusal to hire Ray Rath, Troy Lockwood, and
John Gafford, and WE WILL, within 3 days thereafter,
notify them in writing that this has been done and that
our unlawful conduct will not be used against them in
any way.
WE WILL maintain, for a 2-year period from the date of
the Board’s Order, written records of our hiring of em-
ployees, including applications, hiring records, and in-
formation sufficient to disclose the source of each hire,
and upon the request of the Regional Director for Region
16 or his agents, WE WILL make available for inspection,
at all reasonable times, any records relating in any way to
our use of IEC’s application referral system.
WE WILL, for a 2-year period from the date of the
Board’s Order, submit quarterly reports to the Regional
Director, due 10 days after the close of each calendar
quarter, concerning the hiring of applicants. Such reports
shall include the date and number of job applicants, the
names and dates of actual hires, and as to each actual
hire, whether the individual was a self-identified union
applicant.

H & J ELECTRIC CO.
APPENDIX D
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT maintain, support, or use the unlawful
application referral system operated by Independent
Electrical Contractors of Houston, Inc. (IEC) to hire em-
ployees.
WE WILL NOT refuse to hire employees because of their
union affiliation or activities.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of their Sec-
tion 7 rights.
WE WILL, within 14 days from the date of the Board’s
Order, offer employment as journeymen to Ray Rath,
Troy Lockwood, and John Gafford or, if such jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges to which they would have been entitled if they
had not been discriminated against.
WE WILL make Ray Rath, Troy Lockwood, and John
Gafford whole for any loss of earnings and other benefits
that they have suffered as a result of our unlawful refusal
to hire them, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any and all references to the
unlawful refusal to hire Ray Rath, Troy Lockwood, and
John Gafford, and WE WILL, within 3 days thereafter,
notify them in writing that this has been done and that
our unlawful conduct will not be used against them in
any way.
WE WILL maintain, for a 2-year period from the date of
the Board’s Order, written records of our hiring of em-
ployees, including applications, hiring records, and in-
formation sufficient to disclose the source of each hire,
and upon the request of the Regional Director for Region
16 or his agents, WE WILL make available for inspection,
at all reasonable times, any records relating in any way to
our use of IEC’s application referral system.
WE WILL, for a 2-year period from the date of the
Board’s Order, submit quarterly reports to the Regional
Director, due 10 days after the close of each calendar
quarter, concerning the hiring of applicants. Such reports
shall include the date and number of job applicants, the
names and dates of actual hires, and as to each actual
hire, whether the individual was a self-identified union
applicant.

LOUIS P. LEE D/B/A L.L. ELECTRIC CO.

Olivia Garcia Boullt, Esq. and Nadine Littles, Esq., for the
General Counsel.
Frank L. Carrabba, Esq., of Houston, Texas, for Respondents
Houston Stafford Electric, Inc., Hou-Tex Power, Inc., Louis
F. Lee d/b/a L.L. Electric Co., MH Technologies, Inc., H &
J Electric Co., and Independent Electrical Contractors of
Houston, Inc.
Tom M. Davis Jr., Esq. (Davis & Shank, P.C.), of Houston,
Texas, for Respondent KenMor Electric Company, Inc.
Patrick M. Flynn, Esq., of Houston, Texas, for the Charging
Party.
DECISION*
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. Charges
against the Respondents captioned above were filed by Interna-

* Corrections have been made according to an errata issued on No-
vember 12, 1998.
KENMOR ELECTRIC CO. 1047
tional Brotherhood of Electrical Workers, Local Union No.
716, a/w International Brotherhood of Electrical Workers,
AFL–CIO (the Union) at various times in 1996 and 1997.1
After issuance of a complaint and amended complaint, a sec-
ond amended consolidated complaint issued on October 3,
1997. It alleges that, beginning on various dates and continuing
to date, Respondents refused to hire or consider hiring various
alleged discriminatees because they assisted the Union and
engaged in protected activities. Thus, Respondent MH Tech-
nologies allegedly refused to hire Troy Lockwood, Ray Rath,
Jack Smith, John Gafford, and Doug Niemeyer. Respondents
KenMor Electric, Hou-Tex Power, L.L. Electric, and H & J
Electric allegedly refused to hire Troy Lockwood, Ray Rath,
and John Gafford, while Respondent Houston Stafford alleg-
edly refused to hire Troy Lockwood and Ray Rath.
In addition, the complaint alleges that Respondent I.E.C. has
maintained a discriminatory referral system since January 1996
and thereafter, for the purpose of discouraging employees from
assisting the Union and engaging in protected activities.
These matters were heard before me in Houston, Texas, on
23 trial days beginning October 20, 1997, and ending April 15,
1998. Thereafter, the General Counsel, Respondents, and the
Charging Party filed briefs. Based upon my observation of the
demeanor of the witnesses and the entire record, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The pleadings establish that each Respondent except I.E.C. is
engaged in business as a commercial electrical contractor, and
is a Texas corporation, with a place of business in Houston,
Texas. Respondent KenMor Electric, during the 12 months
preceding issuance of the complaint, purchased and received at
its Houston, Texas facility goods valued in excess of $50,000 in
states other than the State of Texas. During the same time pe-
riod, Respondent Houston Stafford performed services valued
in excess of $50,000 in States other than the State of Texas.
Respondent MH Technologies during the same time period
purchased and received at its Houston, Texas facility products
valued in excess of $50,000 from other enterprises directly
engaged in interstate commerce. Respondents Hou-Tex Power,
L.L. Electric, and H & J Electric each received goods and mate-
rials valued in excess of $50,000 from enterprises located
within the State of Texas, which enterprises had received the
goods directly from points outside the State of Texas. The
foregoing Respondents admit and I find that each is an em-

1 Houston Stafford Electric, Inc. (Houston Stafford), Case 16–CA–
17894; 3-15-1996; KenMor Electric Company, Inc. (KenMor Electric),
Case 16–CA–17895, 3-15-1996; MH Technologies, Inc. (MH Tech-
nologies), Case 16–CA–18264, 9-30-1996, amended charge (Case 16–
CA–18264–2, 11-13-1996; Independent Electrical Contractors of Hous-
ton, Inc. (I.E.C.), Case 16–CA–18302–2, 2-13-97; Louis P. Lee d/b/a
L.L. Electric Co. (L.L. Electric), Case 16–CA–18595, 4-10-1997; H &
J Electric Co. (H & J Electric), Case 16–CA–18613, 4-17-1997; I.E.C.,
Case 16–CA–18530, 3-7-1997; I.E.C., Case 16–CA–18595–2, 6-6-
1997; I.E.C., Case 16–CA–18613–2, 6-6-1997; and Hou-Tex Power,
Inc. (Hou-Tex Power), Case 16–CA–18530, 3-6-1997.
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the National Labor Relations Act (the Act).
Respondent I.E.C. is a Texas corporation, which functions as
a trade association and provides services to about 122 open-
shop electrical contractors as its members. None of them has a
contract with the Union, including the foregoing Respondent
contractors. Respondent I.E.C. is the Houston chapter of a
national trade association of the same name. Officers of Re-
spondent contractors serve on boards and committees of I.E.C.
I.E.C. had revenues of $716,000, comprised of dues from con-
tractor members and fees from an apprenticeship-training pro-
gram, during the 12 months preceding issuance of the com-
plaint.
One of the services provided to members by I.E.C. is the ap-
plication-referral service. Applicants for employment by Re-
spondent contractors are directed by some of them to submit
their applications to I.E.C. Other contractors use I.E.C.’s refer-
ral service as an adjunct to other employment procedures.
Another service is the “shared man” program, whereby an
I.E.C. member who is temporarily overstaffed loans an em-
ployee to another I.E.C. member for a specified period of time.
Other services provided by the I.E.C. are the apprenticeship
program, lobbying, and a continuing education program for
electricians. I.E.C. also conducts trade shows, barbecues, and
fishing tournaments.
The facts establish that I.E.C. is an agent of its contractor
members. Applicants for employment at respondent contrac-
tors are specifically directed by some of them to I.E.C. for the
purpose of filing applications. This manifests to the applicants
that I.E.C. is authorized to receive applications on the em-
ployer’s behalf. I.E.C. is an agent of the contractors under the
common-law principles of agency, accepted by the National
Labor Relations Board (the Board).2 Further, the shared man
program is operated under the auspices of the I.E.C.
Section 2(2) of the Act provides that “/t/he term ‘employer’
includes any person acting as an agent of an employer, directly
or indirectly. . . .” Since the I.E.C. is an agent of its contractor
members, it follows from the statutory language that the I.E.C.
is an employer within the meaning of the Act. The Board has
asserted jurisdiction over a trade association, as an employer,
where its employer-members met the appropriate jurisdictional
standards. Associated General Contractors of California, 242
NLRB 891 (1979). Since Respondent Employers herein meet
the Board’s jurisdictional standards, the Board may appropri-
ately assert jurisdiction over the I.E.C.
II. SUMMARY OF THE EVIDENCE
A. The I.E.C.’s Referral System
The I.E.C. is governed by its board of directors, who are its
members. The executive director is Robert Wilkinson and the
director of member services is Robert Jones. There are two
clerical employees, although there was some change in the
persons so employed.

2 Bayou-Medical Applications of Puerto Rico, Inc., 269 NLRB 827
(1984); Allegany Aggregates, Inc., 311 NLRB 1165 (1993); Service
Employees Local 87 (West Bay Building Maintenance), 291 NLRB 82
(1988). Sec. 2(13) of the Act is consistent with these principles.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1048
As indicated, applicants for employment are directed by em-
ployers to the I.E.C. There they submit their applications, five
pages in length, which are checked for omissions by the clerical
personnel. The applications are divided into three categories,
for journeymen, apprentices, and inexperienced applicants.
They are then placed in three racks near the fax machine ac-
cording to category. Near the end of the day, the applications
are sent by fax to the employers who had requested them.
About 10 to 15 applications are filed daily. Some members
come to the office and examine the applications. They are kept
in the racks for 30 days, and are then transferred to a file cabi-
net for 1 year. Wilkinson testified that they did not have suffi-
cient time or help to keep a record of the employers to whom
applications were sent.
The employers do not have identical criteria for hiring.
However, all of them stressed recency of application. For this
reason, and because of the transfer of the applications to the
cabinet after 30 days, the alleged discriminatees, and others,
filed numerous applications as appears hereinafter.
There was initially no restriction on the number of applica-
tions which could be filed. On September 7, 1997, however,
I.E.C. began charging applicants $50 for each additional appli-
cation filed during a 30-day period. One application could be
filed without charge for each such period, but the $50 charge
was made for each additional application. The I.E.C. cited cost
of the application program as a reason. However, there is an
exception to the charge. If the applicant has been laid off by an
I.E.C. member during the 30-day period, there is no charge for
additional applications.3
The alleged discriminatees repeatedly asked Wilkinson and
Jones for the names of the employers to whom their applica-
tions had been sent. These requests were routinely denied.
Wilkinson testified that he did not have the answers to these
questions, and would not respond even if he did have the an-
swers. Further, if an applicant wanted to review his current
application, this request was also denied.
B. The Shared Man Program
The shared man program is one which I.E.C. offers to its
members. An agreement must be signed. Wilkinson stated that
it “minimizes our members’ exposure to the current ‘salting’
risk.” A majority of the I.E.C. members, including all of the
Respondent Employers herein, have signed agreements to par-
ticipate in this program. These agreements last for 60 days, and
set out the relationship between the “Home Firm” and the
“Host Firm.” One of the requirements is that the “Host” (bor-
rowing firm) must pay the employee the same current wage rate
and “all legal fringes” as those at the “Home” (lending) firm.
These benefits do not include medical insurance, and paid holi-
days and vacations. However, the employee must agree not to
take a holiday or vacation during the loan period.4 Under this
program, employers needing employees simply borrow them
from other I.E.C. members. As indicated, all I.E.C. members
are nonunion. MH Technologies President Joseph Heiman
testified that it was a “great program” for both employers and

3 GC Exh. 36.
4 GC Exh. 31.
employees. H & J President Lynn Jones stated that “trading”
employees was a matter of “convenience,” and avoided the risk
of losing employees.
The record shows that the Respondent contractors in this
proceeding have utilized the shared man program. MH Tech-
nologies President Joseph Heiman testified that an employee
available through this program had priority over any other ap-
plicant, and the evidence shows that MH Technologies used the
program extensively. It hired 98 employees from June 20,
1996, to March 20, 1997, 54 of whom were borrowed under the
shared man program.5
C. I.E.C. Newsletters
I.E.C. published various newsletters describing its functions
and position. In March 1994, it published an article entitled
“I.E.C. members can defeat COMET.” This article states that
employers can develop a “reliable labor pool that members
draw from and return to as the work load cycles.” Members
have developed programs to “defend against this union attack.”
In March 1996, the I.E.C. newsletter was entitled “Coping with
Labor’s COMET Campaign . . . develop strategies to combat
salting.” This article states that “Chapter runs ‘hiring hall’ to
help contractors avoid ‘salting’ risks. To counter labor’s attack
on the open shops’ skills sources, the Houston chapter and
some other I.E.C. affiliates have developed referral procedures.
They advertise on behalf of their members and sign up appli-
cants at various offices.”6
I.E.C. Executive Director Wilkinson testified that these
views were those of Jon Pollock, past president of the Local
I.E.C. and the national I.E.C., and that they are not necessarily
the views of the I.E.C.
D. Alleged Discrimination by MH Technologies
The complaint alleges that MH Technologies, commencing
September 20, 1996, refused to hire or consider hiring Troy
Lockwood, Ray Rath, Doug Niemeyer, Jack Smith, and John
Gafford.
MH Technologies had four or five projects in 1996, includ-
ing one called the Tinseltown 24 Theatre project. On about
September 18 or 19, 1996, the general contractor of the Tinsel-
town project informed MH Technologies that the latter had to
schedule a weekend of work to make room for another subcon-
tractor. MH Technologies then ordered additional employees
from Magnum Staffing, a temporary staffing company, and, on
September 20, John Gafford, Jack Smith, and Doug Niemeyer
reported to the MH Technologies on referral from Magnum
Staffing. They worked from September 20 through 23. Before
work and during their lunch hours, they picketed the Company.
MH Technologies Foreman Steve Hobbs and a representative
of the general contractor asked them the reason, and they re-
plied that the Company did not have a contract with the Union.
The employees also handed out literature. Hobbs gave them
the Company’s no-solicitation rule, to which they replied that
they were Magnum Staffing employees. Hobbs disagreed—
they worked for MH Technologies. On September 23, Fore-
man Hobbs told them that they would have to leave the job,

5 GC Exh. 100.
6 GC Exhs. 33, 35.
KENMOR ELECTRIC CO. 1049
because a city ordinance barred referral of journeymen by a
temporary staffing agency.7
Lockwood and Rath went to the Company on September 20,
the day that the other three employees began working on refer-
ral from Magnum Staffing, and spoke with the Company
Owner Joe Heiman. They stated that they were from the Un-
ion, and handed him their business cards. Lockwood and Rath
asked Heiman whether he was doing any hiring. Heiman re-
plied that he had done some hiring 2 or 3 weeks before, but was
not doing any at that time.8 Lockwood and Rath told Heiman
that they had applications on file with the I.E.C.
After Hobbs told Gafford, Smith, and Niemeyer on Septem-
ber 23 that they had to leave the job, they went to the Com-
pany’s office together with union organizers Troy Lockwood
and Ray Rath and spoke to Superintendent John Burch. Gaf-
ford told Burch that they had been asked to leave the job be-
cause of a city ordinance, and asked whether they could file
applications and go back to work. Burch told them that they
were not “former employees”—one of the Company’s priority
classifications when hiring. Gafford replied that Hobbs had
said they were company employees, but Burch repeated his
position. He also said that he did not have any jobs available at
the time, and that the best way to get hired was to file an appli-
cation with the I.E.C. Lockwood replied that they put in appli-
cations at the I.E.C. all the time.9 They asked Burch to call
I.E.C. and ask for their applications. He replied that this was
not part of the hiring policy.
The applicants then went to I.E.C., asked whether they had
current applications, and whether these had been faxed to MH
Technologies. A lady replied that this had been done. The
applicants spoke with Magnum Staffing, which told them that it
was not going to charge MH Technologies for the referrals.

7 Union organizer Rath initiated this by calling the city electrical in-
spector, for the purpose of changing the three employees from tempo-
rary to permanent status.
8 In addition to hiring Gafford, Smith, and Niemeyer on September
20, the Company had hired or borrowed a journeyman on September 4,
another on September 11, and borrowed an additional journeyman on
October 1, and others on October 9, 15, and 16. As indicated MH
Technologies hired 98 employees from June 20, 1996, to March 20,
1997, 54 of whom were through the shared man program GC Exh. 100.
9 Lockwood filed seven applications prior to October 2, 1996, one on
that date, one each in November and December, and numerous applica-
tions in 1997. In these applications, Lockwood states that he is an
“electrician/organizer,” and was formerly employed by an I.E.C. mem-
ber, that his duties include organizing during nonworktime, and that his
status is protected by the Supreme Court. GC Exh. 181(a).
Rath filed seven applications prior to October 4, 1996, one on that
date, two later in the year, and numerous applications in 1997. In these
applications, Rath lists himself as a union organizer, and had formerly
been employed by an I.E.C. member. GC Exh. 183(a).
Gafford filed five applications prior to October 3, 1996, one on that
date, two thereafter in 1996, and numerous applications in 1997. GC
Exhs. 21–23, 161, 163–167. On these applications, Gafford states that
he is an “electrician organizer.”
Jack Smith filed three applications prior to October 15, 1996, one on
that date, and numerous applications thereafter. He cited union organ-
izers as his references, and listed several former employers where he
had been discharged for “organizing and union activities.” GC Exhs.
143, 144.
Gafford called Burch again on the same day, and told him that
he did not have to pay Magnum Staffing. That was all right
with Burch. Gafford also told him that I.E.C. claimed it had
faxed the applications. Burch asserted that he was not aware of
this.
None of these individuals was hired. Lockwood had been a
journeyman for 10 years, had a current license, and completed a
city of Houston update course in 1997. He is a member of the
National Electrical Inspectors Association, and worked with the
tools of the trade continuously until 1994, when he became a
paid organizer. He continued to do some work thereafter.
Lockwood testified that he had not been hired by any of the
Respondent Employers or any I.E.C. member.
Gafford had been a journeyman for 21 years, and worked
continuously at his trade for 19 years until he became a paid
organizer. He has a current license, and has taken the 1997
update course. As indicated, Gafford worked for MH Tech-
nologies for 3 days in 1996, and had been working as a jour-
neyman for another employer for 5 weeks at the time of the
hearing. He testified that he had not been hired nor had he
received an interview from I.E.C. members on or near the dates
of his applications.
Rath started in 1981 as an apprentice electrician, and became
a journeyman in 1986. He has a current license, and has com-
pleted the update course. He worked regularly at his trade until
September 1995, when he became a union organizer, and has
worked for employers for about 45 days since then. He did not
receive any job offers as a result of his applications filed with
the I.E.C.
Niemeyer has been a journeyman since 1977. During most
of that time he worked for one electrical contractor. Later, he
became a traffic signal electrician for the city of Houston.
Jack Smith is a licensed journeyman, has worked in the elec-
trical trade for more than 20 years, and has completed the up-
date requirement. Smith has not received a call from MH
Technologies or any other I.E.C. member.
MH Technologies has a hiring policy which lists categories
of individuals who are considered in a prescribed sequence.
First consideration is given to a qualified individual available
through the shared man program. Next, the Company considers
current and former employees with good records. The next
category includes friends and acquaintances of current employ-
ees who have good records. Last are applications through the
I.E.C., but preference is given to those who have a favorable
reference from another I.E.C. member.10
As indicated, MH Technologies had four or five projects in
September 1996, including the Tinseltown project. From June
20, 1996, until March 29, 1997, it hired, or borrowed under the
shared man program, 98 employees.11 Of these, 21 were jour-
neymen hired or borrowed after September 20, 1996—13 in
October alone.12 Alleged discriminatees Lockwood, Rath,

10 GC Exh. 98.
11 GC Exh. 100.
12 Ibid. The employee’s classification as journeyman is indicated by
the letter “J” on the application.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1050
Gafford, Niemeyer, and Smith filed I.E.C. applications less
than 30 days prior to these hirings.13
There are departures from MH Technologies’ asserted hiring
policy. Terry Barfield was hired as a journeyman on October
16, 1996, allegedly as a former employee—one of the hiring
priorities. However, his personnel records contain no evidence
that he was a former employee,14 and he is not on Respondent’s
list of rehires.15
As indicated, the hiring policy required applicants to have
“good records.” Shane Scallan was previously employed and
discharged on January 11, 1992, for no-shows and arguing with
a supervisor, and was marked “not eligible for rehire.” None-
theless, he was rehired on July 3, 1996, and discharged on July
11 because he failed a drug test, lied about his journeyman’s
license, and talked too much on the phone. At some point he
was demoted from $12.50, the journeyman’s scale, to $11.50,
the apprentice scale.16
Doug Rosbrough was previously discharged for no-shows,
and marked “not eligible for rehire.” Nonetheless, he was re-
hired.17 Bradley Ethridge was hired on October 1, 1996, fired
on March 18, 1997, for attendance and tardiness problems,
rehired on April 1, 1997, fired again on May 9, 1997, for the
same reasons as before, rehired again on July 7, 1997, and quit
on August 12, 1998.18 Pete Vasquez was fired on October 24,
1994, for absenteeism and leaving the job without permission.
He was rehired as a journeyman on October 15, 1996, with 3
years of experience, less than a month after the alleged dis-
criminatees’ visit to the Tinseltown project.19 Reynaldo Garza
was discharged on April 8, 1987, for testing positive for co-
caine, was discharged and marked “not eligible for rehire,” and
was rehired on October 9, 1996,20 about 2 weeks after the at-
tempts of the alleged discriminatees to obtain employment.
E. Alleged Discrimination by Houston Stafford
1. Houston Stafford’s hiring
The complaint alleges that Houston Stafford, on and after
January 20, 1996, unlawfully failed to hire or consider hiring
Troy Lockwood and Ray Rath.
On January 16, 1996, Houston Stafford’s superintendent,
Jack Beasley, directed I.E.C. to submit applications, and the
latter did so. From January 1 through February 23, 1996,
Houston Stafford hired 16 journeymen and 67 apprentices.21
Raymond Bonifacini was hired as a journeyman during the
payroll period ending January 24, 1996.22 Beasley testified that
he hired Bonifacini because of the latter’s experience in heavy
equipment and motors. Bonafacini’s I.E.C. application does

13 GC Exhs. 181(h), (i), and (j); 183(h), (i), and (j); 163, 164, 165;
143, and 144.
14 GC Exhs. 105(d) and 100.
15 GC Exh. 121(a).
16 GC Exh. 121(b).
17 GC Exh. 121(i).
18 GC Exh. 121(c).
19 GC Exh. 121(e).
20 GC Exh. 121(f).
21 GC Exhs. 151–158.
22 GC Exh. 155.
not show such experience, or that he was currently employed.23
Beasley testified that he worked as an ordinary electrician.
Hector Bethancourt was hired as a journeyman during the
payroll period ending January 31, 1996.24 Beasley testified that
Bethancourt did not have a license, and his application shows
that his experience was basically in apartment maintenance.25
Rick Stephens was hired according to the testimony of Beasley.
His application shows that he worked as a journeyman for 1
month in early 1991, as an electrician for a few months in 1995,
and for 3 years as an installer of signs. It is unclear whether he
has a journeyman’s license.26 Renwick Skelton was hired as a
journeyman according to Beasley. His application shows that
he worked as an apprentice from December 1994 to May 1995,
and as a purchasing agent thereafter to January 1996. It does
not show that he had a journeyman’s license.27
Lance Sain was hired as a journeyman during the pay period
expiring January 31, 1996.28 He worked as a journeyman from
1986 to 1992, and thereafter was the owner of an electric ser-
vice company, running residential and commercial service
trucks. His Houston license had expired.29 Raymond Mendiola
was hired as a journeyman during the pay period expiring Janu-
ary 24, 1996.30 His application shows prior experience as an
apprentice, but none as a journeyman.31 The applications of
Steven Gardner32 and Jesse Anderson,33 both of whom were
hired as journeymen, do not show that they are licensed jour-
neymen.
Robert Hale was hired as a journeyman on February 9,34 on
the basis of a Houston Stafford application. Beasley asserted
that the reason was that Hale was experienced in motor con-
trols. Rath and Lockwood, however, testified that experience
with motor controls is a routine element of a journeyman’s
expertise. Hale had been a union member for about 5 years, but
did not reveal this to the Employer.
2. The applications of Troy Lockwood and Ray Rath
Lockwood and Rath applied at the I.E.C. almost every month
in 1996.35 As indicated, the applications showed that they were
union organizers. As previously indicated, both had current
licenses. Rath had about 10 years experience as journeyman.
In addition, he had worked about 3 months for Houston Staf-
ford in 1994, on referral from a temporary agency.

23 GC Exh. 160.
24 GC Exh. 156. Although Bethancourt was hired at an hourly rate
of $10, his application was in a group identified by Houston Stafford as
journeymen (GC Exh. 90(h).
25 GC Exh. 90(h).
26 GC Exh. 90(j).
27 GC Exh. 90(n).
28 GC Exhs. 151–159.
29 GC Exh. 90A.
30 GC Exhs. 151–159.
31 GC Exh. 90G.
32 GC Exh. 90M.
33 GC Exh. 90P.
34 GC Exhs. 132, 151–159.
35 Rath’s applications were dated January 8, February 13, March 12,
April 3, June 10, July 10, September 3, October 4 and 30, and Decem-
ber 4, all in 1996. GC Exh. 183.
KENMOR ELECTRIC CO. 1051
Houston Stafford Superintendent Beasley denied that the
Company received I.E.C. applications from Lockwood or Rath
in January, but admitted that it received one from Lockwood on
February 8 and one from Rath on February 14. They were not
hired. The reason, Superintendent Beasley testified, was the
asserted fact that Houston Stafford was not hiring at the time.
From January 10, 1996, to June 13, Houston Stafford hired
17 journeymen, including 4 in January.36 The Company also
hired numerous apprentices.37
3. Factual analysis
Lockwood’s and Rath’s I.E.C. applications in early January
were filed less than 2 weeks prior to Beasley’s January 16,
1996 direction to I.E.C. to submit applications. Houston Staf-
ford received such applications, and hired employees pursuant
to them in January. Beasley admitted receiving Lockwood’s
and Rath’s February applications, but denied receiving their
January applications. Lockwood’s and Rath’s January applica-
tions were within the 30-day period prior to Beasley’s request,
which I.E.C. considers as current, and Respondent has not
shown any reason why they would not have been submitted
together with the other applications. I do not credit Beasley’s
testimony, and find that Houston Stafford received Lockwood’s
and Rath’s applications filed in January.
Beasley’s testimony that the reason it did not hire Lockwood
and Rath was the asserted fact that it was not hiring at the time
is contradicted by the documentary evidence of Houston Staf-
ford’s hiring. Respondent’s asserted policy requiring the hiring
of applicants with “good records” was not followed, consider-
ing the records of the applicants whom it did hire. Finally, it is
obvious that Lockwood’s and Rath’s applications demonstrated
qualifications superior to many of the applicants whom the
Company did hire.
F. Alleged Discrimination by KenMor Electric
1. KenMor Electric’s hiring policy
The complaint alleges that KenMor Electric unlawfully re-
fused to hire or consider hiring Troy Lockwood, Ray Rath, and
John Gafford on and after January 9, 1996.
KenMor President Karl Kennard testified that the Company
uses the I.E.C. as its exclusive source for applicants. Kennard
averred that KenMor is signatory to the shared man program,
but never uses it. However, General Superintendent Gene
Kuhn testified that the Company did use the program in 1996
and 1997.
Superintendent Kuhn requests from time to time that I.E.C.
send him all the applications it has on file. He assumes that
they send him everything that is current. I.E.C. keeps sending
applications until it gets an order from Kuhn to stop. Kuhn
keeps no record of his start or stop orders. He keeps applica-
tions active for 30 days, and reviews these whenever he is hir-
ing. KenMor hired 43 journeymen from January 9, 1996, to
January 5, 1998, 15 from January 9 to March 12, 1996.38

36 GC Exhs. 90(a–q).
37 GC Exhs. 151, 152, 154–158.
38 GC Exhs. 53, 54, and 124; KenMor Exhs 23B(1)–12C(23). The
hiring dates in 1996 were 1-9 and 22; 2-6, 8, 12, 17, 20, 23, and 26(2);
2. The alleged discriminatees’ applications
Supplementing the listing given above,39 Troy Lockwood
filed a total of 72 applications between January 9, 1996, and
September 8, 1997, when I.E.C. started its $50 charge for more
than one application in 30 days.40
Supplementing the listings given above,41 Ray Rath filed 80
applications between January 8, 1996, and September 8, 1997,
when I.E.C. started charging $50 for extra applications.42
Supplementing the lists given above,43 John Gafford filed 85
applications from February 13, 1966, until September 8, 1997,
when the $50 charges began.44
3. KenMor’s response to the discriminatees’ applications
a. Troy Lockwood
Lockwood worked for KenMor in the late 1980s. He did not
have a journeyman’s license when he began, but acquired one
shortly thereafter. Lockwood replied to a newspaper ad by
KenMor, and was interviewed by Kuhn. “Well, you’re that
union guy,” Kuhn said to Lockwood. The latter replied that he
needed the job, and was hired after being required to sign a
warning that he would not engage in union activities, according
to his credible testimony.
As indicated, Lockwood’s first I.E.C. application was filed
on January 9, 1996.45 Superintendent Kuhn acknowledged
receiving an I.E.C. application from Lockwood early in 1996.
The I.E.C. did not send applications more than 30 days old.
Kuhn noted that Lockwood’s application stated that he was an
“organizer,” and that the reason for his leaving his last em-
ployer was to organize nonunion workers. Kuhn asserted that
he took the application to Company President Kennard. He
would not have done so if Lockwood’s application had not
stated that he was a union organizer. This was the first time
that he had taken an application to Kennard. The latter replied
that Kuhn should treat Lockwood the same way that he would
treat any other applicant. KenMor received further applications
from Lockwood.46

3-1, 4, 7, 11, and 12; 8-5(2), 9-6, 24, and 30, 10-21, and 12-16. The
hiring dates in 1997 were 1-1, 13, 14, and 16, 2-26, 3-12, 4-14, and 23;
6-5and 19; 7-30, 8-1 and 7(2); 9-2 and 16, 10-19, 11-5, 12-22; and 1-5
in 1998.
39 Supra, fn. 9.
40 The application for dates for 1996 were 1-9, 2-8, 3-12, 4-30, 6-10,
7-10, 10-2, 11-4, and 12-4. The applications for 1997 were one on
January 3, 12 in February, 15 in March, 10 in April, 9 in July, 9 in
August, and 5 in September, GC Exhs. 3–10.
41 Supra, fn. 9.
42 The applications for 1996 were dated 1–8, 2–13, 3–12, 4–3, 6–10,
7–10, 9–3, 10–4, 10–30, and 12–4. The applications for 1997 were one
on January 3, 11 in February, 14 in March, 9 in April, 6 in June, 14 in
July, 11 in August, and 5 in September. GC Exhs. 183, 20(a), 21–28.
43 Supra, fn. 9.
44 The applications for 1996 were dated 2–13, 3–12, 4–3, 5–8, 6–10,
10–3 and 30, and 12–6. There was one application on January 6, 1997,
10 in February, 15 in March, 12 in April, 4 in June, 16 in July, 15 in
August, and 4 in September. GC Exhs. 11(a), 12, 14(c)–(1); 13(d)–(k),
14(a)–(s); 15(a)–(o), 16(a)–(u), 17(a)–(p), 18(a)–(o), 19(a)–(d).
45 Supra, fn. 40.
46 GC Exh. 125; testimony of Kennard.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1052
KenMor did not hire Lockwood. Kennard wrote a letter to
the Board on March 26, 1996, stating that it was not hiring
Lockwood because he did not have any recent electrical experi-
ence.47 At the hearing, Kennard stated that he did not hire
Lockwood because he had a poor work record, other applicants
were more qualified, and Lockwood had not worked at the
electrical trade for over 2-1/2 years. Lockwood’s qualifications
are stated above in section D. His record shows that he did
traffic signal work for the city of Houston, but Kuhn gave him
no credit for this.
The General Counsel points to the fact that Lockwood com-
pleted a city of Houston update course in 1997, and that I.E.C.
Director Robert Wilkinson testified in a prior case that any
journeyman taking this course could renew his license and
work without further training. Pollock Electric, Inc., JD(ATL)-
50-98, ALJD slip op. 7. The I.E.C. was not a respondent in that
proceeding, but Wilkinson testified on behalf of respondent
therein, Pollock Electric. I take judicial notice of Wilkinson’s
testimony in that proceeding.48
b. John Gafford
Gafford’s first application was filed on February 13, 1996,
and was followed by many applications thereafter.49 Superin-
tendent Kuhn testified that he had seen numerous applications
from Gafford, but he could not recall the date of the first appli-
cation. Respondent contended that it did not have any copies of
applications prior to July 1996. The first one indicated by its
records is dated October 30, 1996.50 There are company re-
cords of many applications from Gafford thereafter.51 Superin-
tendent Kuhn stated that KenMor did not hire Gafford because
his application showed “very little work experience.” Kuhn
noted that Gafford’s work from about 1993 to 1995 consisted
of traffic signal work for the city of Houston, but that was not
what he “was hiring for.” Gafford’s more recent applications
showed some work with commercial contractors, but “once
again, at IBEW, it’s electrician/organizer.” Gafford’s qualifica-
tions are shown above in section D.
c. Ray Rath
Rath’s first application was filed on January 8, 1996, with
many applications thereafter.52 Superintendent Kuhn could not
recall whether he saw an application from Rath early in 1996,
but acknowledged that he did see numerous applications.
Rath’s application was also referred by Kuhn to KenMor Presi-
dent Kennard. The latter testified that he would have had no
reason to review this application if it had not stated that Rath
was a union organizer.

47 GC Exh. 55.
48 Bluebonnet Express, 271 NLRB 433, 440 (1984); Laborers Local
13 (California Cartage Co.), 215 NLRB 541, 542 (1974); Teamsters
Local 901 (Hotel La Concha), 193 NLRB 591 fn. 1 (1971); Jones on
Evidence, 6th Ed. (1972), vol. 2, § 9:23, et seq.; Wigmore on Evidence,
Chadbourn Ed., vol. 4, § 1325, et seq.
49 Supra, fn. 44.
50 GC Exh. 38(d).
51 GC Exhs. 39(0), 43(a) and (q); 44 (13 applications); 45 (19 appli-
cations); and 50 (18 applications).
52 Supra, fn. 42.
KenMor did not hire Rath. Kennard testified that the reason
was that Rath had a “very spotty work record,” had been termi-
nated on his last three jobs, and had no recent education.
4. Qualifications of employees hired by KenMor
Shane Scallan had worked for KenMor prior to 1996, but had
been suspended after an accident and failing a drug test. He
filed an application on February 5, 1996. In it he denied having
worked previously for KenMor.53 Nonetheless, he was rehired
on February 8, 1996, and Superintendent Kuhn explained that
the Company extended support to employees who underwent
company rehabilitation programs, despite Scallan’s denial that
he had ever worked for the Company. Kuhn further averred
that “the rehab didn’t take,” and that Scallan “lasted” until
about December 1997.
Neil Howland, a union member, filed two applications, with
the I.E.C., the first on February 6, 1998, and the second on
March 2.54 He did not reveal his union membership. In his
second application, at Troy Lockwood’s suggestion, he stated
that his current employer was Amway, and that he was doing
sales work. In fact, Howland had never worked for Amway.
He credibly testified that he was interviewed for KenMor by
Tim Dunlap, who discussed his supposed Amway job with him.
Thereafter, a few days later, Howland was hired. He testified
that Amway does not employ electricians. He asked for any
hourly rate of $16. Dunlap thought it was a little high, but said
he was worth it.
KenMor’s asserted requirement of “recency” of experience
was not rigorously followed. Malcolm Gilbert was hired on
February 23, 1996.55 His application and Kuhn’s testimony
show that he had not worked as an electrician since October
1995.56 He was not a prior KenMor employee.57 Roy Langer-
haus had previously worked for KenMor, and his most recent
employer was Brown & Root. This employment ended in Au-
gust 1996, and he was hired by KenMor on February 26, 1997,
without any intervening work.58 David Herrod was hired on
September 2, 1997.59 His application shows that he had not
worked as an electrician for about 6 months.60 He was not a
prior KenMor employee.61
As shown above, Lockwood, Rath, and Gafford had been
journeymen for 10, 11, and 21 years, respectively, and com-
pleted their updated education. KenMor hired five employees
as journeymen with not more than 3 years experience in that
position.62
As noted above, KenMor gave no credit to Lockwood or
Gafford for traffic signal work, since it was “not hiring for
that.” However, a KenMor newsletter in the fall of 1995 states

53 KenMor Exh. 23(c)(19).
54 KenMor Exh. 23D(4).
55 GC Exhs 53, 54, 124.
56 KenMor Exh. 23B(6).
57 GC Exh. 124.
58 GC Exhs. 53, 54, 124.
59 GC Exhs. 53, 54, 124.
60 KenMor Exh. 23C(17).
61 GC Exh. 124.
62 Robert Crabb, Joe McCune, Keith Hay, Rockford Bass, and David
Vercher, GC Exhs. 53, 43, 124. KenMor Exhs. 23B(2), B(3), B(4),
B(5), and B(7).
KENMOR ELECTRIC CO. 1053
that a crew of KenMor employees was getting started for a
Metro Traffic Signal project, and a later newsletter states that
the Company had traffic signal projects at 57 intersections plus
17 miles of inner duct and fiber optic cable to install. This was
the second highest dollar volume job in the firm’s history.63
KenMor asserted a preference for applicants with “commer-
cial” rather than “industrial” experience, and faulted Gafford’s
application because it did not list any “commercial” experience.
However, Kuhn agreed that an experienced electrician would
have both commercial and industrial experience, and that the
latter was more physically demanding work. KenMor hired
several employees whose experience, Kuhn agreed, was mostly
industrial.64
5. Examination of KenMor’s OSHA logs
KenMor employee Mark Brown signed a letter to KenMor
requesting that it allow Lockwood to look at the Company’s
OSHA logs for a job on which Brown was working. Lockwood
and Rath went to KenMor in late 1996 or early 1997 with the
letter, but Kennard, Kuhn, and another executive ordered him
to leave and threatened to call the police. Lockwood left the
letter on the counter. He returned a week or two later, and
Kennard said that he had written Brown telling him to write
another KenMor executive and set up an interview to examine
the logs. He again ordered Lockwood to leave.
Kennard returned Brown’s letter to Lockwood on January 6,
1997, saying that he had not read it because he wanted no
communication with Lockwood. Kennard later wrote Brown
saying that he could see the logs. Lockwood made an appoint-
ment with a KenMor executive and saw the logs. He saw noth-
ing of significance.
6. The barbecue
I.E.C. conducted a barbecue in April 1997 which was open
to I.E.C. members, employees of members, and their guests.
John Rogers was then an employee of Pollock Electric, an
I.E.C. member. He invited Lockwood to come with him as his
guest. Robert Jones, an I.E.C. official, confronted Lockwood
and demanded to know who had brought him to the barbecue.
Lockwood took Jones to Rogers, whereupon Jones became
angry. During the barbecue, KenMor President Kennard made
a gesture with his finger toward Lockwood, which the General
Counsel characterizes as obscene.
7. Factual analysis
It is obvious that KenMor hired numerous journeymen at
times when it had applications on hand from Lockwood, Rath,
and Gafford. From the fact that KenMor uses I.E.C. as its ex-
clusive source for applications, and hired numerous journey-
men beginning in January 1996, I conclude that it received
Rath’s, Lockwood’s, and Gafford’s applications, dated January
8 and 9, and February 13, 1996, respectively.
Respondent’s witnesses gave various reasons for not hiring
these applicants. Company President Kennard stated that
Lockwood did not have recent electrical experience, and that

63 KenMor Exh. 27.
64 Neil Howland, John McCune, Nicholas Alvarenga, and Robert
Crabb, KenMor Exhs. 23D(4), B(3), C(14), and B(2).
Rath had a “very spotty work record,” while supervisor Kuhn
averred that Gafford had “very little work experience.” He
gave no credit for Gafford’s traffic signal experience, despite
the fact that the Company’s newsletter shows that it had exten-
sive work of that nature. Kuhn faulted Gafford for having in-
dustrial rather than commercial experience, despite the fact that
the Company hired numerous journeymen with predominately
industrial experience.
Kennard claimed that the applicants whom the Company did
hire had qualifications superior to those of the alleged discrimi-
natees. A review of Scallan’s work history does not support
this contention. KenMor hired Malcolm Gilbert, Roy Langer-
haus, and David Herrod, despite significant lapses in employ-
ment prior to the time KenMor hired them. The case of Neil
Howland is ironic. He was a union member who concealed his
union membership, and said that his current employer was
Amway, who had no electricians, for whom he did sales work.
Nonetheless, he was hired by KenMor as a journeyman electri-
cian.
I conclude that these discrepancies nullify KenMor’s claim
that alleged lack of “recency” of employment was the reason it
did not hire Lockwood, Rath, and Gafford.65
I also conclude that KenMor’s requirement that Lockwood
had to sign a warning in the late 1980s that he would not en-
gage in union activity as a condition of being hired then, the
Company’s reluctance to let Lockwood examine its OSHA
logs, and the incidents at the 1997 barbecue constitute evidence
of antiunion animus.
G. Alleged Discrimination by Hou-Tex Power
1. The evidence
The complaint alleges that Hou-Tex Power on February 25,
1997, unlawfully refused to hire or consider hiring Troy Lock-
wood, Ray Rath, and John Gafford. Lockwood and Rath had
previously applied at Hou-Tex in 1995 when they were inter-
viewed by Hou-Tex Supervisor Fred Cataldo. According to
Rath, they filed applications and discussed the Union with
Cataldo. The discussion was friendly, according to Rath. He
left the interview believing that Hou-Tex might even sign an
agreement with the Union. However, Hou-Tex Owner James
Cochran testified that Rath was rejected because he was “ex-
tremely rude and obnoxious” during the interview, and that
Lockwood was turned down because one of his references did
not know him. Cataldo did not testify.
Hou-Tex’s hiring policy did not require an I.E.C. applica-
tion—the latter was merely one source of its employees. Ap-
plicants were required to file applications at the Hou-Tex of-
fice. Hou-Tex considered past employment, references, abili-
ties, and job experience. Its written policy does not mention the
I.E.C. as a source of applications.66

65 Although I have taken judicial notice of the testimony of Wilkin-
son concerning the qualifying effect of the alleged discriminatees’
updated education in 1997, I need not rely upon Wilkinson’s testimony,
because of the contradictions in KenMor’s evidence.
66 GC Exh. 91.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1054
On February 24, 1997, Lockwood, Rath, and Gafford sub-
mitted applications at the I.E.C.67 As always, their applications
indicated that they were union organizers. They had previously
applied on 7 other days in February.
On February 24, Cochran called the I.E.C. and requested
their “most recent” applications. He received about 15 applica-
tions by fax on the same day. One of these was from John
Rogers, a union member who did not reveal his affiliation. He
was hired as a journeyman on February 26.68 Cochran also
hired Alfredo Elizondo. He is listed on Hou-Tex payroll re-
cords as an apprentice.69 However, his application shows that
he was a journeyman,70 and the General Counsel so argues.
Rudy Kirchner was hired in March, and Cochran asserted that
he was rehired as an apprentice. However, Hou-Tex records
list Kirchner as a journeyman.71 In addition, according to
Cochran, he borrowed employees in 1997 under the shared man
program and paid them the higher wages they earned at the
lending employer.
Cochran testified that he did not recall receiving the Febru-
ary 24 applications of Lockwood, Rath, and Gafford. About 10
days later, the three applicants visited Cochran in his office,
said that they were referred by current employee John Rogers,
and asked for employment. Cochran replied that they would
have to call for an appointment. Lockwood asked for an ap-
pointment at that time, but Cochran replied that they had to
leave and file applications at the I.E.C.
The three applicants then went to I.E.C. and filled out new
applications.72 Lockwood called Cochran and asked for an
appointment. Cochran replied that Lockwood had applied ear-
lier, and that one of his references, Larry Stevenson, assertedly
said that he did not know Lockwood—according to Fred
Cataldo. Lockwood disputed this, and asked whether Cochran
had called his other references. Cochran replied that he had not
done so. As indicated, Cataldo did not testify.
Rath then spoke with Cochran. The latter told him that
Cataldo had related to Cochran in 1995, at the time of Rath’s
prior application, that Rath was not the type of person the Com-
pany should have to represent it.
Gafford also spoke with Cochran after applying at the I.E.C.,
and obtained an appointment with him for the following morn-
ing. He met with Cochran and filled out an application.73 He
listed work for Amtech in December 1995, H & J Electric in
March 1996, and MH Technologies in September 1996 (Mag-
num Staffing). Cochran told him that he would check his refer-
ences and call him later. Gafford called several times thereaf-
ter, but Cochran replied that he had a job cancellation and had
to lay people off. He did not hire Gafford.
After the March 4 interview, Cochran called Cataldo, who
assertedly produced the 1995 applications, despite Cochran’s
practice of throwing away the applications of rejected appli-

67 GC Exhs. 3(h), 21(i), 168.
68 GC Exhs. 92, 129(6).
69 GC Exhs. 127(i), 129(ff).
70 GC Exh. 94.
71 GC Exh. 127(p–u).
72 GC Exhs. 169, 4B, 187B.
73 GC Exh. 96. Gafford mistakenly put the date of April 4, 1997, on
the application.
cants. These applications were not produced in evidence and,
as indicated, Cataldo did not testify. Cochran declared that it
was not until March 1997 that Cataldo told him that he had
interviewed Lockwood and Rath in 1995 or that any union
organizer had been rude. After the March 4 interview, with
Cochran, the three applicants walked through a job manned by
Hou-Tex and passed out authorization cards.
Within a week after the March 4 visit, Cochran went to the
I.E.C. office, and looked over the applications of the three ap-
plicants. He continued to reject them on the previously asserted
ground that Lockwood had falsified his application in 1995,
and that Rath had been rude and obnoxious. Gafford’s records
showed gaps in his employment, and he had worked for only
three electrical contractors between December 1995 and Sep-
tember 1996.
With respect to the qualifications of the employees Hou-Tex
did hire John Rogers’ application asserts 7 years of experience,
but his application does not list a current employer. He claimed
that he had worked for one employer as a journeyman, and for
two others as an apprentice, but gave no dates of this work.
There is no evidence as to whether his work was commercial or
industrial.74 Alfredo Elizondo’s application asserts that he had
14 years of experience. Only one employer is listed, where
Elizondo worked as “journeyman, help, service maintenance,
construction,” for about 11 years prior to December 1996.
How much of this was journeyman work is not indicated, and
there is no evidence whether it was commercial or industrial.75
2. Factual analysis
Cochran’s asserted reasons for rejecting the applicants’ ap-
plications are based almost entirely on alleged assertions by a
missing witness, Fred Cataldo. He was available for Cochran
after the March 4 interview, but was not available for cross-
examination at the hearing. I infer that, if called as a witness,
Cataldo’s testimony would have been adverse to the position
asserted by Hou-Tex. Ready-Mix Concrete Co. v. NLRB, 81
F.3d, 1546 (10th Cir. 1996.) Rath was a believable witness,
and I credit his description of the 1995 interview with Cataldo,
i.e., that it was friendly.
There is no doubt that the alleged discriminatees filed nu-
merous applications with the I.E.C., including those on Febru-
ary 24. Since Cochran on that day called for recent applica-
tions, and received 15 of them, I infer that Lockwood’s, Rath’s,
and Gafford’s were also received. In any event, about 10 days
later, they went to Cochran’s office and requested employment.
Cochran’s response, that they had to file new applications at
I.E.C., was contrary to his policy of receiving applications on
occasion directly at his office. Nonetheless, the applicants
complied, but Cochran refused the requests of Lockwood and
Rath based upon his hearsay testimony about statements by
Cataldo. Although he granted an interview with Gafford, he
did not hire him. His asserted reason—Gafford’s lack of quali-
fications—is not credible. The applications of Rogers and
Elizondo, whom Cochran hired, do not demonstrate qualifica-
tions equal to those of the Gafford.

74 GC Exh. 92.
75 GC Exh. 94.
KENMOR ELECTRIC CO. 1055
H. Alleged Discrimination by H & J Electric
1. The evidence
The complaint alleges that H & J Electric on March 25,
1997, unlawfully refused to hire or consider hiring Troy Lock-
wood, John Gafford, and Ray Rath.
H & J Electric’s hiring policy depends on referrals from
other employees, relatives, close friends, customers, and news-
paper ads, according to Company President Lynn Jones. Some-
times the Company requires referrals to file applications with
the I.E.C., according to service Superintendent Andy Majors.
One of the Company’s projects was the Quala construction
project, which ended up with 20 to 25 employees. On March
17, Project Manager Lance Jones determined that he was in
need of journeymen, and called I.E.C. for applications going
back 2 or 3 days. Jones testified that he received applications
from I.E.C., including one from Rath, and, he believed, John
Gafford, although he did not recall receiving one from Lock-
wood.
Lockwood filed an I.E.C. application on March 17, showing
10 years’ experience as a journeyman, 2 years as a foreman,
electrical work putting in a computer circuit for a school, work
on a lighting and retrofit job, and IBEW apprenticeship train-
ing. He listed his current employer as the IBEW, and his job as
electrician/organizer.76 Lockwood filed numerous applications
before and after this date.
Gafford filed an application on March 17 for a job as jour-
neyman, foreman, or estimator. He listed apprenticeship train-
ing and work at MH Technologies as an electrician leadman
working from prints and gathering material for employees. He
also listed work for H & J Electric as an electrician/foreman
outlining work for employees, and Amtech as a recent em-
ployer for whom he did retrofit work and made sure that the
men understood the work.77 Gafford filed numerous applica-
tions before and after this date.
Ray Rath filed an application on March 17 for apprentice,
journeyman, foreman, or leadman positions. He listed 15 years
of experience, with B&L Tech and H & J Electric itself as prior
employers. He had previously worked with Lance Jones at H
& J in 1982 as an apprentice.78 Rath filed numerous applica-
tions before and after this date.
Lance Jones asserted that he wanted journeymen with cable
tray and rigid pipe experience. The only journeyman he se-
lected from the I.E.C. applications was Todd Hebert, whose
application showed this experience.79 Jones contended that it
would take a journeyman 2 weeks to become skilled in cable
tray, and 2 years for rigid pipe. However, Lockwood, Gafford,
and Rath testified that any experienced journeyman can do this
work.
Jones needed more journeymen for the Quala job, and turned
to a temporary employment agency, Link Staffing. He told
Link Staffing what he wanted, but did not interview the em-
ployees until they were already on the job. He received no

76 GC Exh. 4(j).
77 GC Exh. 174.
78 GC Exh. 187(h).
79 GC Exh. 118.
preliminary statement of their qualifications from the agency.
Jones did not compare their skills with those manifested on the
applications of Lockwood, Rath, and Gafford. He simply or-
dered two journeymen a day from Link Staffing, but did not
always receive the same employees. He sent two of them back
as unqualified. Jones’ testimony, H & J’s records, and Link
Staffing’s billings show that from March 30 to May 4, 1997, H
& J hired eight temporary journeymen from Link Staffing.80
Link Staffing’s charge was $22.50 per hour for journeyman,
whereas H & J’s scale was $14 to $15. Although Link Staff-
ing’s rate included payment of benefits, and H & J had to pay
these to its own employees, H & J Project Manager Scott Jones
agreed that it would have been cheaper for H & J to use its own
employees.
2. Factual analysis
Lance Jones’ testimony shows that H & J received Rath’s
applications, and since Lockwood’s and Gafford’s were filed
on the same date it is highly probable that the latter two were
included in the batch sent over by I.E.C. Jones partially admit-
ted receiving Gafford’s. I conclude that all three were sent to
Jones. The evidence also shows that H & J hired temporary
employees from Link Staffing without knowing their qualifica-
tions, including expertise in cable tray and rigid pipe.
I. Alleged Discrimination by L. L. Electric
1. The evidence
The complaint alleges that beginning January 1, 1997, L.L.
Electric unlawfully refused to hire or consider hiring Troy
Lockwood, John Gafford, and Ray Rath.
L.L. Electric’s president, Louis Lee, does most of the hiring.
He looks first for rehires, then referrals, next the shared man
program, and finally the I.E.C. He does not rely entirely on
I.E.C. application being faxed, but normally goes to I.E.C. and
examines them himself. After “job meetings” on Tuesday, Lee
and his staff determine whether they need any more employees.
If needed, Lee goes to the I.E.C., and looks for applications,
preferably those not more than two or 3 days old.
L.L. Electric records show that, utilizing I.E.C. applications
it hired as journeymen Mike Walling on February 14, 1997, and
John Rogers on March 31, 1997.81 In addition, it hired Roy
Rodriguez as a journeyman on February 7, 1997.82
Respondent also hired Shane Scallan on February 10. It con-
tends that he was hired as an apprentice. However, his applica-
tions show that he had been working as a journeyman,83 and he
was hired at an hourly rate of $13, higher than that paid to jour-
neymen Roy Rodriguez and equal to that of John Rogers.
Respondent hired Mike Walling on February 14, and argues
that he was hired as an apprentice, because he was unlicensed
as a journeyman. However, Respondent paid Walling $13.75
hourly, the highest rate of any employee hired for the 6 months

80 Randy Trevino, Javier Guevata, Joe Perez, Katherine Moore,
Danny Gregory, Thomas Caver, and Eric Cole. The Link Staffing
invoices show the project name or number for these individuals. GC
Exhs. 120(b)–(q).
81 GC Exhs. 135(a), 137, 138, 139, 141.
82 GC Exh. 135(a).
83 GC Exh. 139; L.L. Exh. 4.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1056
following December 27, 1996.84 In addition, L.L. Electric
hired numerous apprentices through the I.E.C. in 1997.85
The evidence shows that the alleged discriminatees filed ap-
plications on or a few days prior to the date that Lee hired jour-
neymen—presumably after examining I.E.C.’s rack of jour-
neyman applications. Thus, Mike Walling was hired on Febru-
ary 14, and was paid at the highest hourly rate.86 On the prior
date, February 13, Troy Lockwood and Ray Rath filed applica-
tions,87 while Gafford filed applications on the February 12, 13,
and 14.88
Respondent hired Jeff Walt on March 20. Although he is
listed as an apprentice, his pay rate was $13, equal to that of
journeyman Shane Scallan, and higher than that of journeyman
Roy Rodriguez.89 Lockwood, Rath, and Gafford filed applica-
tions on March 18, 19, and 20.90 John Roger’s was hired as a
journeyman on March 31. On the same date Lockwood, Rath,
and Gafford filed applications.91
L.L. Electric President Lee agreed that he needed apprentices
in March, but denied that he needed journeymen or that he
hired any. However, he agreed that he went to the I.E.C., ex-
amined John Rogers’ application, and hired him as a journey-
man on March 31. Lee denied seeing the applications of
Lockwood, Rath, or Gafford at this time although he recol-
lected seeing applications from them “sometime” in the past,
faxed over by I.E.C. Lee averred that he “borrowed” a jour-
neyman from another company, but “didn’t need him.” Lee
also contended that he did not need John Rogers.
2. Factual analysis
The documentary evidence is undisputed that Lockwood,
Rath, and Gafford filed I.E.C. application a few days before
Lee visited the I.E.C., examined the applications, and hired
Rogers. The same is true concerning the hiring of Mike Wall-
ing and Jeff Walt—the alleged discriminatees filed applications
a few days before these events. In fact, they filed a plethora of
applications in 1997, and did not stop until I.E.C. imposed its
$50 charge in September.
I do not credit Respondent’s position that Walling and Walt
were hired as apprentices—their pay scales show that they were
journeymen. It is highly unlikely that Lee, who went to the
I.E.C. when he needed journeymen and examined their applica-
tions, did not see the applications of the alleged discriminatees.
I conclude that Lee in fact did see Lockwood’s, Rath’s, and
Gafford’s applications.

84 GC Exh. 135(a).
85 Steve Carraway, January 31; Markeith Holland, February 10; Hec-
tor Cardona, February 14; Robert Brian, March 10; Gregory Jones,
March 10; Gerald Franz, March 10; Jose Morales, March 29; Murga
Carlos, March 29; and Carlos Aguiluz (helper). GC Exh. 135(a).
86 GC Exh. 139; L.L. Electric Exh. 4.
87 GC Exhs 3(c), 21(c).
88 GC Exhs. 12(b), (c), (d).
89 GC Exh. 135(a).
90 GC Exhs. 4(k), (l), and (m); 22(i), (j), and (k); 13(j) and (k), 171.
91 GC Exhs. 4(p), 22(n), 13(o).
III. LEGAL CONCLUSIONS
A. Respondent I.E.C.’s Alleged Discriminator
Hiring System
1. Background
The evidence shows that the activities of I.E.C. and its mem-
bers are closely integrated, at least as far as the hiring of em-
ployees is concerned. However, the complaint separately al-
leges that I.E.C. maintains a discriminatory hiring system. It is
clear that I.E.C., as the agent of its members, receives applica-
tions from applicants, and transmits them to its members. In
one of its publications, I.E.C. stated that it had developed “re-
ferral procedures.” Although it is the employer, not I.E.C., that
makes the ultimate hiring decision, this is influenced signifi-
cantly by the manner in which I.E.C. transmits the referrals. As
argued by the General Counsel, several of I.E.C.’s practices
tend to exclude union members from consideration for em-
ployment, and are therefore unlawful.
2. The shared man program
The evidence shows that all I.E.C. members are nonunion.
Although this fact does not necessarily exclude the possibility
that one employee of an I.E.C. employer might secretly be a
union member, it is highly unlikely that employees loaned from
one employer to another fall into this category. Employees of
union firms, who are not I.E.C. members, obviously cannot
participate. I.E.C. Director Wilkinson advertised the program
as “minimizing” members’ exposure to the “salting risk.” Ac-
cordingly, the shared man program effectively excludes union
members from being hired under that program.
It has long been held that hiring programs which exclude ap-
plicants because of their union membership are unlawful.92
Such programs are “inherently discriminatory” without proof of
antiunion animus, because the employer “must be held to in-
tend the very consequences which forseeably and inescapably
flow from his actions.” NLRB v. Erie Resistor Corp., 373 U.S.
221, 228 (1963).93
Respondent’s witnesses argued that the program was “con-
venient” to them, and made it possible to maintain a hiring pool
without losing employees when a particular employer had no
need for them. However, under the program, the borrowing
employer was required to pay the wages earned by the em-
ployee at the lending employer. If they were higher than the
borrowing employer’s wage rate, the latter would necessarily
be paying a premium for hiring through the shared man pro-
gram. The borrowing employer also had to pay “all legal
fringes.” He did not have to pay medical expenses, or holiday
and vacation expertness. However, the employee had to agree
to waive holidays and vacations during the loan period. Ac-
cordingly, the only expense born by the lending employer was
medical expenses—an uncertain expense compared to the
known necessity of paying higher wages.

92 Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941); Howard
Johnson Co. v. Hotel & Restaurant Employees, 417 U.S. 249 (1974).
93 See also NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 33
(1967); Honeywell, Inc. 318 NLRB 637 (1995).
KENMOR ELECTRIC CO. 1057
The Supreme Court has stated that in determining whether an
employer’s conduct is inherently discriminatory, the employer
must come forward with a legitimate explanation for its con-
duct, and this conduct must be weighed against the conse-
quences to the employees’ rights.94 In this case, the disadvan-
tage of the shared man program to union applicants was the
certain loss of an opportunity to be hired. The advantage to the
employers was, at best, avoidance of the “inconvenience” of
laying off and rehiring employees, and, at worst, the possibility
of paying a higher price for a borrowed rather than a hired em-
ployee. In cases such as the latter, the employer’s willingness
to pay a higher price for avoiding a “salting risk” would consti-
tute evidence of animus. KRI Constructors, Inc., 290 NLRB
802, 811 (1988).
I conclude that the certain loss of employment possibilities
by union members under the shared man program is more sig-
nificant than the uncertain advantages, or possibly greater ex-
penses, of the employers, and that the program is unlawful, for
the reasons given above.
3. The $50 charge for additional applications
The evidence shows that the employers stressed recency of
applications. The alleged discriminatees filed numerous appli-
cations for this reason. However, in September 1997, I.E.C.
began charging $50 for additional applications within 30 days
after the first one. However, this did not apply to an employee
who had been laid off by an I.E.C. employer. Since no I.E.C.
employer had a contract with a Union, it is highly probable that
such laid-off employees would be themselves nonunion. Ac-
cordingly, they could file frequent applications without having
to pay the extra fee. This gave them an inherent advantage over
union applicants, considering the importance of recency of
applications adopted by many employers. The effect of the
new charge upon union applicants is shown by the abrupt dimi-
nution of applications by the alleged discriminatees after impo-
sition of the fee.
Respondent’s witnesses argued at hearing that the new
charge was necessary because of the cost of the referral system.
If this was true, then the cost should have been born equally by
all applicants, union and nonunion alike. By allocating the
alleged cost to union applicants only, and by allowing unlim-
ited filing rights to nonunion employees, I.E.C. discriminated
against the former.
I conclude that this procedure was also inherently discrimi-
natory, since the I.E.C. must have intended the foreseeable
consequences of its action. It has not given any reason what-
ever for the imposition of the new costs exclusively on union
members.
4. I.E.C.’s refusal to supply information to the
alleged discriminatees
The evidence shows that the I.E.C. refused to tell the appli-
cants whether or to whom their applications had been transmit-
ted. The first explanation proffered by I.E.C. director Wilkin-
son was that he did not know, and that I.E.C. did not keep re-
cords of this. What actually happens is that, at the end of each
day, the records of 10 to 15 five-page applications are faxed to

94 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 700 (1983).
employers who have requested them. I.E.C. has presented no
evidence as to the cost of maintaining a copy of these transmit-
tals for a few days, or the expense involved. Because of the
elementary methods of duplicating copies in today’s technol-
ogy, the time spent in making a copy of each transmittal, per-
haps simultaneously with the transmittal, would not appear to
be inordinate. I do not accept Wilkinson’s undocumented ex-
planation as valid. Even if he had this information, according
to Wilkinson, he would not have given it to the applicants.
Accordingly, I conclude, the refusal to give them this informa-
tion is deliberate.
The Charging Party likens I.E.C.’s refusal to give the appli-
cants this information to a union’s obligation to give referral
information to its members, and to cases which find a violation
of Section 8(b)(1)(A) for failure to abide by this obligation.
Since the restrictions of Section 8(a)(1) are greater than those
of Section 8(b)(1)(A), the Charging Party argues, I.E.C.’s re-
fusal to give the applicants this information must be considered
a violation of Section 8(a)(1).95
I.E.C.’s actions must be viewed together with the require-
ment of many of the Respondent employers that the applicant
file an application with the I.E.C. The combination of these
two policies meant that the applicant was trapped in a system
where he could not find out whether his application had even
been considered. One of the most startling facts in the evidence
is that over 200 applications were filed by the alleged discrimi-
natees—individuals with good credentials—over a period of
about a year and three-quarters when numerous employees
were being hired—and yet not one alleged discriminatee was
hired.
I conclude that I.E.C.’s refusal to supply the requested in-
formation was unlawful.
5. The I.E.C.’s publications
I.E.C. publications, authorized by former Chapter and Na-
tional I.E.C. President Jon Pollack, presented “strategies to
combat salting,” with references to I.E.C. running a hiring hall
to avoid salting risks. Wilkinson stated that these were Pol-
lock’s opinions, not necessarily endorsed by the I.E.C. Other
than this testimony, there were no disclaimers of the opinions
by I.E.C. Considering their publication by I.E.C., and Pol-
lock’s status in the organization, I conclude that I.E.C. adopted
these opinions.
Respondents argue that these statements by Pollack are pro-
tected by Section 8(c) of the Act. However, the Board has held
with judicial approval that such statements may be considered
as background evidence of animus where there is other evi-
dence to support an unfair labor practice finding.96 There is
such evidence, as described above.
6. Conclusion
As set forth above, the I.E.C.’s referral program is closely in-
tegrated with the hiring by the Respondent employers. I.E.C.’s
antiunion animus is shown by its exclusion of union applicants

95 C.P. Br. 28–33, citing numerous cases to this effect.
96 NLRB v. Colonial Lincoln Mercury Sales, 485 F.2d 455, 456 (5th
Cir. 1973); NLRB v. Builders Supply Co. of Houston, 410 F.2d 606, 608
(5th Cir. 1969).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1058
under the shared man program, the exemption of nonunion
applicants from filing fees, the refusal to give applicants infor-
mation about distribution of their applications, and its published
statements in effect telling its members that it had methods to
avoid hiring union applicants.
I conclude that I.E.C., as alleged in the complaint, main-
tained a discriminatory hiring system.
IV. THE ALLEGED UNLAWFUL REFUSALS TO HIRE
A. Applicable Principles
In order to establish an unlawful refusal to hire or consider
hiring an individual, the General Counsel must show an em-
ployment application by the individual, a refusal to hire or con-
sider hiring him, a showing that the applicant was or might be
expected to be a union supporter or sympathizer, that the em-
ployer knew this, that he maintained animus against such mem-
bership or sympathy, and refused to hire the applicant because
of such animus. Big E’s Foodland, Inc., 242 NLRB 963, 968
(1979).
B. MH Technologies
The complaint alleges that MH Technologies refused to hire
or consider hiring Lockwood, Rath, Niemeyer, Smith, and Gaf-
ford, on September 20, 1996. On that date, Gafford, Smith, and
Niemeyer started working for MH Technologies on referral
from a temporary staffing company. On the same date, Lock-
wood and Rath went to the Company, presented their business
cards showing that they were union organizers and asked for
employment. Company Owner Joe Heiman told them that he
was not doing any hiring at that time. In fact, he hired Gafford,
Smith, and Niemeyer the same day. He also “borrowed” jour-
neymen on October 1, 9, 15, and 16.
Gafford, Smith, and Niemeyer, who were hired on Septem-
ber 20, engaged in picketing and other protected activities on
their own time. They were discharged on September 23, be-
cause of a city ordinance barring referral of journeymen by
temporary agencies. They asked the employer for direct em-
ployment at the time, but were told to file applications at the
I.E.C. They did so, and were informed by a clerical that their
applications had been faxed to MH Technologies. Company
Foreman John Burch said he was not aware of this. I do not
credit Burch’s statements.
I conclude that Lockwood and Rath applied for employment
on September 20, 1996, and that their applications were denied.
Gafford, Smith, and Niemeyer applied for direct employment
on September 23, after being discharged as temporary employ-
ees, together with Lockwood and Rath. They complied with
the MH Technologies’ direction to file I.E.C. applications.
Heiman’s statement to Lockwood and Rath on September 20
that he was not hiring was obviously false—he hired the other
alleged discriminatees the same day. A week after the five
applicants came to the office on September 23, MH Technolo-
gies borrowed a journeyman under the shared man program on
October 1, and borrowed three more within the next 2 weeks. I
have found above that the shared man program is unlawful. It
is the first category in MH Technologies’ hiring system of con-
sidering applicants for employment. Following this are current
and former employees with good records, friends of current
employees with good records, and, finally, I.E.C. applicants
with preference given to those having a favorable reference
from another I.E.C. member. MH Technologies is itself nonun-
ion, and it is unlikely that there would be any union members or
sympathizers in any of these categories. Accordingly, such
priority systems of hiring unlawfully exclude union members
and sympathizers.97 As indicated, MH Technologies’ asserted
hiring policy stresses the importance of a “good record” before
hiring an individual. In fact, as shown above, the Company
hired and rehired individuals with poor records, including sub-
stance abuse. In contrast, the records of the alleged discrimina-
tees show long histories of competent work without any unfa-
vorable references.
In sum, the alleged discriminatees filed applications at a time
when Respondent was hiring, and demonstrated their union
membership or preference. The Company gave pretextual rea-
sons for not hiring them, thus manifesting its animus toward the
union sympathies of the applicants. Pontiac Osteopathic Hos-
pital, 284 NLRB 442 fn. 4 (1987). It unlawfully refused to hire
or consider hiring the applicants on the dates given above.
C. Houston Stafford
The complaint alleges that, on and after January 20, 1996,
Houston Stafford unlawfully refused to hire or consider hiring
Troy Lockwood and Ray Rath. Rath filed an I.E.C. application
on January 8, 1996, while Lockwood filed one on January 9.
As was customary, both applications showed that the applicants
were union organizers. On January 16, 1996, Houston Staf-
ford’s superintendent, Beasley, told I.E.C. to submit applica-
tions, and it did so. Beasley admitted receiving February appli-
cations from Lockwood and Rath, but denied receiving January
applications. I have found above that the January applications
were received by Houston Stafford.
The Company hired 16 journeymen from January 1, 1996,
beginning with the payroll period ending January 24 through
February 23. It did not hire Lockwood or Rath. The reason
advanced by Beasley is that it was not hiring at the time. This
is obviously false in light of the uncontroverted hiring records.
The evidence listed above shows that Houston Stafford hired
individuals as journeymen when they showed limited to no
experience in that work. The qualifications of Lockwood and
Rath were superior to those of every one of the hired applicants
listed above. The Company’s preference for less-qualified
employees, and its false reasons given to the applicants for its
failure to hire them, demonstrate its animus against their known
union sympathies. Pontiac Osteopathic Hospital, supra. I

97 D.S.E. Concrete Forms, 303 NLRB 890 (1991), enfd. 21 F.3d
1109 (5th Cir. 1994); Eldeco, Inc., 321 NLRB 857 (1996), denied in
part but enfd. in relevant part 132 F.3d 1007 (4th Circ. 1997); M&M
Electric Co., 323 NLRB 361, 370 (1997).
At the hearing, Respondent argued that I should recuse myself, since
my decisions in D.S.E. Concrete Forms and Eldeco showed that I had
“prejudged” the case at bar. I pointed out that no case can be judged
before the facts are known. Respondent repeats the same argument in
its brief, and urges me not to write a decision in the instant case. My
prior decisions, as modified, have become those of the Board and the
respective courts of appeal. It would be inappropriate for me to recuse
myself in these circumstances.
KENMOR ELECTRIC CO. 1059
conclude that Houston Stafford discriminatorily refused to hire
or consider hiring Rath and Lockwood during the payroll pe-
riod ending January 24, 1996.
D. KenMor Electric
The complaint alleges that KenMor unlawfully refused to
hire or consider hiring Troy Lockwood, Ray Rath, and John
Gafford on and after January 9, 1996. Rath’s first application
in 1996 was filed on January 8, and Lockwood’s on January 9.
However, Gafford’s first application was filed on February 13.
I conclude above that these were received by KenMor in due
course.
KenMor hired a journeyman on January 9, another on Janu-
ary 22, and 15 through March 12, including one each on Febru-
ary 6, 8, 12, and 17.
KenMor’s animus against the applicants because of their un-
ion affiliation is shown by Kuhn’s requirement that Lockwood
sign an agreement in the 1980s that he would not engage in
union activity as a condition for then obtaining employment, by
his taking Lockwood’s and Rath’s applications to Company
President Kennard in 1996, the first time he had done so, by his
failure to give Gafford credit for traffic signal experience when
the Company had the second highest dollar project in its history
involving work of that nature, and by his disparaging Gafford’s
industrial experience when he hired other applicants with simi-
lar experience.
The reasons given by KenMor for failing to hire the appli-
cants are pretextual, and manifest antiunion animus. Pontiac
Osteopathic Hospital, supra. The asserted lack of “recency of
experience is belied by the fact that numerous applicants were
hired without recent experience, as shown above. KenMor’s
argument that the alleged discriminatees did not have qualifica-
tions equal to those of the individuals whom it did hire is con-
tradicted by Shane Scallan’s record of reemployment and later
termination, by the hiring of numerous journeymen with sig-
nificantly less experience that Lockwood, Rath, and Gafford,
and by the inexplicable hiring of Howland, who asserted prior
sales experience with Amway.
I conclude that KenMor unlawfully failed to hire Rath and
Lockwood on January 9, 1996, as alleged in the complaint, and
unlawfully failed to hire or consider hiring Gafford on February
17, 1996, the Company’s first hiring of a journeyman after
Gafford’s February 13 application.
E. Hou-Tex Power
The complaint alleges that Hou-Tex Power on February 25,
1997, unlawfully failed to hire or consider hiring, Troy Lock-
wood, Ray Rath, and John Gafford. Lockwood and Rath had
previously applied at Hou-Tex in 1995, when they had a
friendly conversation with supervisor Fred Cataldo, which did
not result in employment. On February 24, 1997, they filed
applications at the I.E.C. On the same date, Hou-Tex owner
James Cochran asked I.E.C. for its “most recent” applications,
and received 15 by fax the same day. He testified that he did
not recall receiving applications from Lockwood, Rath, or Gaf-
ford. They called on him 10 days later, asked for employment,
and were told to file I.E.C. applications. Although they had
previously done so, they did so again, and again called Cochran
for an appointment. He refused to see Lockwood and Rath,
granted an interview to Gafford, but refused to hire him. I con-
clude that Hou-Tex did receive the applicants’ February 24
applications, and, that, in any event, they personally applied 10
days later.
Cochran contended that Lockwood was not hired because he
had “falsified” his 1995 application by giving a reference who,
allegedly, did not know him. Lockwood disputed this. Ken-
Mor did not call any of his other references. Cochran asserted
that Rath had not been hired because he was “rude and obnox-
ious.” This testimony was based upon the alleged assertions of
Fred Cataldo. As indicated, I infer that Cataldo, if called by
Respondent, would have testified adversely to Respondent’s
case.
Cochran also contended that the qualifications of Lockwood,
Rath, and Gafford were not as good as those of the journeymen
he did hire. This is not true in the case of John Rogers, who
was hired as a journeyman, and Alfredo Elizondo, who was
hired as an apprentice but was arguably a journeyman.
Cochran also borrowed journeymen under the shared man
program, and paid them the wage they had earned at the lend-
ing employer, which were higher than Hou-Tex Power’s wages,
thus, demonstrating animus against the applicants’ union af-
filiation.
Cochran’s principle reason for not hiring the applicants was
based on assertions of a missing witness, and is obviously false.
His additional reasons are pretextual, as shown by the qualifica-
tions of the individuals whom he did hire, and manifest anti-
union animus. Pontiac Osteopathic Hospital, supra.
I conclude, as alleged in the complaint, that Hou-Tex unlaw-
fully refused to hire or consider hiring Lockwood, Rath, and
Gafford on February 25, 1997.
F. H & J Electric
The complaint alleges that H & J Electric on March 25,
1997, unlawfully refused to hire or consider hiring Troy Lock-
wood, John Gafford, and Ray Rath.
On March 17, 1997, H & J called I.E.C. for applications go-
ing back 2 or 3 days. Lockwood, Rath, and Gafford filed appli-
cations the same date. Project Manager Lance Jones testified
that he received 7 or 8 applications from the I.E.C., including
one from Rath, and, he believed, one from Gafford, although he
did not recall receiving one from Lockwood. I have found
above that he received all three applications with the batch sent
over by I.E.C.
Lance Jones testified that he wanted journeymen with cable
tray and rigid pipe experience. I credit the testimony of Lock-
wood, Gafford and Rath that an experienced journeyman would
have these qualifications. After hiring one of the I.E.C. appli-
cants (Hebert), Jones turned to a temporary staffing service, and
hired eight temporary journeymen without knowing their cre-
dentials. Two of them he had to send back as unqualified. It
would have been cheaper for H & J to have hired its own em-
ployees.
Rath had previously worked for H & J in 1982 as an appren-
tice. Accordingly, he was a former employee, and fell into one
of the Company’s hiring categories. In fact, he worked with
Lance Jones as an apprentice. It is odd that Jones did not at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1060
least interview Rath, and inquire further about his expertise.
Instead, Jones hired temporary journeymen without knowing
their credentials, at a higher cost than the Company’s wage
rate. These facts invalidate Jones’ asserted requirement that the
applicants list rigid pipe and cable tray experience. I reject that
explanation as pretextual, and a manifestation of antiunion
animus. H & J took into account the fact that the applications
of Lockwood, Rath, and Gafford showed that they were union
organizers, and the Company refused to hire or consider hiring
them on March 25, 1997, for this reason.
G. L.L. Electric
The complaint alleges that beginning January 1, 1997, L.L.
Electric unlawfully refused to hire or consider hiring Troy
Lockwood, John Gafford, and Ray Rath. Gafford filed I.E.C.
applications on February 12, 13, and 14, 1997, while Lockwood
and Rath filed on February 13. L.L. Electric’s president Louis
Lee hires by going to the I.E.C. and examining the applications.
L.L. Electric hired Mike Walling on February 14, as an appren-
tice, but paid him a journeyman’s wage, the highest paid by the
Company. L.L. Electric hired Jeff Walt on March 20, and paid
him a journeyman’s wage rate. Lockwood, Rath, and Gafford
filed applications on March 18, 19, and 20. L.L. Electric hired
John Rogers as a journeyman on March 31, the same date that
Lockwood, Rath, and Gafford filed applications. Lee also hired
numerous apprentices on February 14, March 10 and 29. It is
highly unlikely that Lee did not see the applications of Lock-
wood, Rath and Gafford. He vocally admitted seeing some-
thing from them and I find above that Lee in fact did see the
applications of the alleged discriminatees.
L.L. Electric’s only defense, thus, comes down to a partial
denial that it saw the alleged discriminatees’ applications.
Since this explanation is untrue, it must be concluded that it is
pretextual, and manifests anti union animus. Inasmuch as the
applications showed that the applicants were union organizers,
and the Company has given a pretextual reason for not hiring
them, I conclude that it unlawfully refused to hire or consider
hiring them on February 14, 1997, when the Company hired
Mike Walling.
In accordance with my findings above, I make the following.
CONCLUSIONS OF LAW
1. Houston Stafford Electric, Inc., KenMor Electric Com-
pany, Inc., Hou-Tex Power, Inc., MH Technologies, Inc., H & J
Electric Co., Louis P. Lee d/b/a L.L. Electric Co., and Inde-
pendent Electrical Contractors of Houston, Inc. (I.E.C.) are
employers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Brotherhood of Electrical Workers Local
Union No. 716 a/w International Brotherhood of Electrical
Workers, AFL–CIO is a labor organization within the meaning
of Section 2(5) of the Act.
3. Since January 1996, Independent Electrical Contractors
of Houston, Inc., has maintained a discriminatory referral sys-
tem in that its referral of employment applications to its mem-
ber employers includes refusal to tell applicants the employers
to whom their applications have been referred, maintenance of
a shared man program which effects transfers of employees
among members, but precludes employment of union members
or sympathizers, a charge of $50 for filing additional applica-
tions within 30 days, but exempting from the charge employees
laid off by I.E.C.’s nonunion members, all in violation of Sec-
tion 8(a)(3) and (1) of the Act.
4. On the dates set forth below, and continuing thereafter,
the designated Respondent refused to hire or consider hiring the
indicated applicants for employment because of their union
membership or sympathies, or other protected activities, in
violation of Section 8a(3) and (1) of the Act:

(a) KenMor Electric Company:
January 9, 1996 Troy Lockwood
Ray Rath
February 17, 1996 John Gafford
(b) Houston Stafford Electric, Inc.:
January 24, 1996 Troy Lockwood
Ray Rath
(c) MH Technologies, Inc.:
September 20, 1996 Troy Lockwood
Ray Rath
September 23, 1996 Doug Niemeyer
Jack Smith
John Gafford
(d) Hou-Tex Power, Inc.:
February 25, 1997 Troy Lockwood
Ray Rath
John Gafford
(e) Louis P. Lee d/b/a L.L. Electric Co.:
February 14, 1997 Troy Lockwood
Ray Rath
John Gafford
(f) H & J Electric Co.:
March 25, 1997 Troy Lockwood
Ray Rath
John Gafford

5. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondents have committed un-
fair labor practices, I shall recommend that they be ordered to
cease and desist therefrom, and engage in certain affirmative
action necessary to effectuate the policies of the Act.
The typical remedies provided by the Board include offers of
reinstatement or employment to the discriminatees, and make–
whole remedies. Because of the multiplicity of respondents,
and the different dates on which they committed unfair labor
practices, this case requires a departure from the Board’s nor-
mal remedial measures. I shall recommend that all respondents
who unlawfully refused to hire a discriminatee be required to
offer employment to him, and make him whole taking into
account the wage rate at that time of the employer, deducting,
as usual, net interim earnings. If that employer makes an offer
of employment which meets the Board’s standards, and it is not
accepted, that employer’s liability will cease except for accrued
backpay.
KENMOR ELECTRIC CO. 1061
Each employer shall be responsible for backpay in an
amount which is proportionate to the number of employers then
obligated to pay backpay. Thus, the second employer will be
responsible to make an offer of employment, and bear the pro-
portionate amount of backpay obligations—in this case 50 per-
cent. If the wage rate of the second employer exceeds that of
the first employer, he shall pay the entirety of the additional
backpay caused by such excess, plus his proportional share of
the original amount. If the second employer’s wage rate is less
than that of the first employer, resulting in a smaller backpay
amount, the difference between this lesser amount and the
original amount shall be deducted from the amount due from
the second employer, and added to the amount due from the
first employer, so that the backpay amount remains the same.
The same principles will apply with each succeeding em-
ployer. Thus, the proportional amount when a third employer
is involved will be one-third, and so on.
If any employer makes an offer of employment at a time
when the backpay and salary due from another employer would
be greater, the discriminatee may reject said offer without sacri-
ficing his right to backpay, although the employer making the
offer will be released from liability except for accrued backpay
then due.
The net amount due the discriminatee shall be paid in the
manner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the Re-
tarded.98
I shall further recommend a broad order, as Respondents’
egregious misconduct demonstrates a general disregard for
employees’ statutory rights. Hickmott Foods, 242 NLRB 1357
(1979).
[Recommended Order omitted from publication.]

98 Under New Horizons, interest is computed at the “short term Fed-
eral rate” for the underpayment of taxes as set out in the 1985 amend-
ment to 26 U.S.C. §6621. Interest accrued before January 1, 1987, (the
effective date of the amendment) shall be computed as in Florida Steel
Corp., 281 NLRB 651.