Little Rock Electrical Contractors

National Labor Relations Board - Board Decisions

Mar 22, 1999

327 N.L.R.B. 932 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 932
Little Rock Electrical Contractors, Inc. and Interna-
tional Brotherhood of Electrical Workers, Local
Union No. 480, AFL–CIO. Case 26–CA–17230
March 22, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On August 29, 1997, Administrative Law Judge Rich-
ard J. Linton issued the attached decision. The General
Counsel, the Charging Party, and the Respondent filed
exceptions and supporting briefs, and the Respondent
filed an answering brief to the General Counsel’s and the
Charging Party’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt his recommended Order as modified below.3
We agree with the judge that the Respondent did not
violate the Act by not hiring Union Business Agents
Wayne Alan Divine and Sammy Yelverton. We assume
arguendo that the General Counsel established a prima
facie case for an 8(a)(3) violation. However, the Respon-
dent has shown that its nonhiring of these two applicants
was for legitimate nondiscriminatory reasons.
At all relevant times, the Respondent operated under a
written rule which prohibited employees at the project
from working simultaneously for the Respondent and
another employer. There is no allegation that the rule is
unlawful. The record shows that Divine and Yelverton
were full-time employees of the Union when they ap-
plied. The General Counsel does not contend that they
intended to give up their union employment upon being
hired by the Respondent.4 Thus, the employment of these
two applicants would have violated the Respondent’s
rule.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1051). We have carefully examined the record and find no
basis for reversing the findings.
2 It is unnecessary to find that the Respondent, through Elton Smith,
violated the Act by insisting that Stephen Hilton remove his union
button because such a finding would be cumulative and would not
affect the remedy. We therefore do not pass on the judge’s finding that
Elton Smith is the Respondent’s agent.
In finding that the Respondent violated the Act, the judge relied on
two incidents in which Smith assaulted employees and on Foreman
George Parlet’s “acquiescence” in and “adoption” of the assaults as
evidence of union animus. We do not rely on the judge’s discussion.
The record contains ample other evidence of what the judge correctly
termed the Respondent’s antiunion animus.
Member Hurtgen does not rely on the judge’s statement that an in-
quiry into a job applicant’s union membership, made in the context of a
job interview, is inherently coercive. Further, he rejects the Charging
Party’s attempt, through its exceptions, to broaden the scope of the
complaint to include allegations the General Counsel did not allege.
3 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Container, Inc., 325 NLRB 17 (1997).
The judge found, as a fact, that the Respondent’s pol-
icy was the reason for its nonhiring of Divine and
Yelverton. In light of the parties’ stipulation that the pol-
icy applied to the project for which the Respondent was
hiring, the judge’s fact finding is clearly reasonable. Ac-
cordingly, we would adopt it. The fact that the Respon-
dent did not tell Divine and Yelverton of this reason for
not hiring them does not mean that it was not the reason.
There is no obligation in the law to tell applicants of the
reason for rejecting them.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Little
Rock Electrical Contractors, Inc., Little Rock, Arkansas,
its officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(e).
“(e) Within 14 days after service by the Region, post
at its Little Rock, Arkansas, facility copies of the at-
tached noticed marked “Appendix.”10 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 26, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since November 27, 1995.”

MEMBER LIEBMAN, concurring in part and dissent-
ing in part.
I agree with my colleagues that the Respondent vio-
lated the Act as the judge found.1
Contrary to my colleagues, I would grant the General
Counsel’s exception to the judge’s conclusion that the
Respondent did not unlawfully refuse to hire Union
Business Agents Wayne Alan Divine and Sammy Yel-
verton. In agreement with the General Counsel, I would
4 Yelverton testified that he intended to continue to work for and be
paid by, the Union. There is no suggestion that Divine was different in
this respect.
1 The General Counsel has also excepted to the judge’s failure to
find that Superintendent Art Parlet unlawfully interrogated employee
David Gibson. I would find it unnecessary to pass on this issue, be-
cause the finding of such an additional interrogation would be cumula-
tive and would not affect the remedy.
327 NLRB No. 166
LITTLE ROCK ELECTRICAL CONTRACTORS 933
would find that the Respondent did not in fact invoke its
rule which prohibits simultaneous employment as a rea-
son for failing to hire Divine and Yelverton.2 The Re-
spondent’s rule states that full-time employees of the
Respondent “must state that they will not be employed
by any other employer while they work for Little Rock
Electrical Contractors, Inc.” The Respondent does not
contend, and there is no record evidence, that the Re-
spondent ever asked Divine or Yelverton whether they
intended to work for another employer if they were hired
by the Respondent, and there is no evidence that either
one of them informed the Respondent that they so in-
tended. Thus, there is no evidence that the Respondent,
in refusing to hire them, had any basis for believing that
either one would not comply with its rule. Accordingly,
there is no basis for the judge’s conclusion that the Re-
spondent relied on the rule as a basis for refusing to hire
them.3 I therefore conclude that the Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to hire Di-
vine and Yelverton.

Michael W. Jeannette, Esq., for the General Counsel.
George E. Smith, Pres., and (brief only) Charles F. Mills, Esq.,
of (Little Rock, Arkansas), for Respondent, LRE.
Wayne A. Divine, Asst. Bus. Mgr., of Jackson, Mississippi, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
“salting” case in which, the Government alleges, Little Rock
Electrical Contractors (LRE), among related allegations, re-
fused to hire eight job applicants on November 27, 1995, and
one applicant on January 16, 1996, because of their support of
the Union.1 Denying the allegation, LRE defends on several
grounds, including the contention that the applicants were not
good-faith applicants and therefore not statutory employees.
Rejecting LRE’s defenses and finding in favor of the Govern-
ment (except as to three of the nine), I order LRE to offer six of
the nine reinstatement and to make them whole, with interest.
I presided at this 3-day trial, January 21 through 23, 1997, in
Jackson, Mississippi. Trial was pursuant to the July 18, 1996,
complaint and notice of hearing (complaint) issued by the Gen-
eral Counsel of the National Labor Relations Board (the Board)
through the Acting Regional Director for Region 26 of the
Board.
The complaint is based on a charge filed March 3, 1995, by
International Brotherhood of Electrical Workers, Local Union
No. 480, AFL–CIO (the Union, Local 480, or the Charging
Party) against Little Rock Electrical Contractors, Inc. (LRE or
Respondent).

2 See Willmar Electric Service, 303 NLRB 246 fn. 2 (1991). In so
finding, I do not pass on the validity of such a rule as expressed in
Willmar.
3 Contrary to the implication of my colleagues in the majority, I am
not relying on the fact that the Respondent did not inform Divine and
Yelverton that they were not being hired because of its rule. Rather,
there is simply no basis for a finding that the Respondent relied on the
rule at all.
1All dates are for 1995 unless otherwise indicated.
In the Government’s complaint, the General Counsel alleges
that LRE violated Section 8(a)(1) of the Act when, among other
conduct from about December 4, 1995, to about January 16,
1996, Superintendent Art Parlet interrogated employees. Al-
leged Supervisor Elton Smith allegedly insisted that an em-
ployee remove his union button about December 8. The com-
plaint also alleges that LRE’s refusal to hire the nine job appli-
cants violated 29 USC § 158(a)(3). LRE denies violating the
Act.
The pleadings and stipulation (Tr. 1:7–8)2 establish that the
Board has both statutory and discretionary jurisdiction over
LRE, that LRE is a statutory employer, and that IBEW Local
480 is a statutory labor organization.
For witnesses the General Counsel called assistant business
manager and organizer, Wayne Alan Divine (who, before leav-
ing the stand, was called, out of order, as LRE’s first witness),
union members/electricians Ralph Brown, Marby R. Penton Jr.,
Thomas G. McCallum, Michael V. Pickett, James T. Horn,
Hewitt P. Barton Sr., Hewitt P. Barton II, William P. Barton,
Superintendent George Arthur Parlet II, other mem-
bers/electricians David Gibson, Johnnie H. Smith Jr., Stephen
C. Hilton, and assistant business managers, and organizers,
Sammy Yelverton and, again, Wayne A. Divine. The General
Counsel then rested, as did the Charging Party. (Tr. 3:445.)
Other than calling Divine out of order for a few questions early
in the trial, LRE called no additional witnesses and rested im-
mediately after the General Counsel and the Union did. (Tr.
3:446.) The General Counsel had a brief rebuttal stage while
Divine, as the last witness, was on the stand. (Tr. 3:439, 442.)
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel (who attached a proposed order
and notice) and LRE, I make these
FINDINGS OF FACT
A. Procedural Matters
When LRE rested, the General Counsel moved to conform
the pleadings to match the evidence respecting any variation in
dates, or a “last name unknown.” The motion was only to clar-
ify existing allegations, and not to add any new allegations or to
obtain unfair labor practice findings for anything not alleged. I
granted the motion merely to correct variations in names, dates,
and place—but “not granted to any substantive correction or
modification or addition to the complaint, only for variations on
dates and names, places.” (Tr. 3:446–447.) The nature of the
Government’s motion—the basis for my granting that motion—
has become an issue.
On brief, the Government (Br. at 4 fn. 9) moves to withdraw
the first part of complaint paragraph 7(e). Paragraph 7(e) al-
leges that, about January 16, 1996, Superintendent Art Parlet
“solicited an employee to act as an agent of Respondent and
interrogate an applicant concerning his union membership and
activities.” The General Counsel’s motion reads (fn. 9):

Counsel for the General Counsel maintains that Complaint
Paragraph 7(e) constitutes two allegations in that soliciting an
employee to be an agent is one allegation and interrogation is
the other. The basis for this contention is that the allegation is
separated by a coordinating conjunction—and. The word
2 References to the three-volume transcript of testimony are by vol-
ume and page. Exhibits are designated G.C. Exh. for the General
Counsel’s and R. Exh. for Respondent LRE’s.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 934
“and” is defined as meaning “also” or “plus” and thus two
separate acts. While the record is void of evidence that Parlet
solicited an employee to act as an agent, it is undisputed that
in January Parlet interrogated [David] Gibson regarding his
Union membership. [Cites omitted.] Thus, the first part of
the allegation is withdrawn.

Although the General Counsel states that the solicitation al-
legation “is withdrawn,” such action is not procedurally possi-
ble. Once evidence has begun to be adduced at an unfair labor
practice trial, as here, the stage of the proceeding passes from
the Government’s absolute prosecutorial control to the adjudi-
catory stage, and the prosecutor (the General Counsel3) must
address the subject of amending the complaint by motion.
Sheet Metal Workers Local 162 (Dwight Lang’s Enterprises),
314 NLRB 923, 923 fn. 2 (1994). Construing the General
Counsel’s expression as a motion to withdraw the solicitation
allegation, I grant the motion.
Turning now to the second portion, the interrogation allega-
tion, I find no merit to the General Counsel’s contention that it
is an independent allegation—an allegation that Parlet interro-
gated [and the past tense would have been appropriate had it
been an independent allegation] an applicant about January 16,
1996. It is clear that paragraph 7(e) is a single allegation—that
Parlet, about January 16, 1996, solicited an employee to go and
interrogate an applicant. At trial that is the way the General
Counsel read the allegation (Tr. 2:365), and also the way Re-
spondent read it when LRE objected (Tr. 2:366). While LRE’s
objection may not be precise, it must be remembered that, at
trial, LRE, represented by its president, was functioning as a
pro se. Consequently, some leeway must be granted, and I
therefore find that LRE did not waive its objection. Thus, the
Government is restricted to the question of whether it adduced
evidence in support of the allegation as set forth in paragraph
7(e). Finding that it did not do so, and as the General Counsel’s
motion is only partial, I shall dismiss complaint paragraph 7(e)
in its entirety.
B. Overview
LRE is an electrical contractor in the building and construc-
tion industry. Headquartered in Little Rock, Arkansas, LRE
was engaged in this case as the electrical subcontractor at a
jobsite in Jackson, Mississippi. The Jackson jobsite is a 16-
store shopping center complex known as “The Junction” on the
north side of Jackson. (Tr. 2:208–209, 303–304.) The general
contractor was CDI Contractors. (Tr. 2:314.)
Art [the name he uses, Tr. 2:303] Parlet, currently employed
(Tr. 2:303) by Lynn Rogers Construction [the name is not clear
in the record], testified (Tr. 2:311) that he was LRE’s foreman
on The Junction project, and he reported to LRE’s project man-
ager, Willie Godwin. (Tr. 2:313.) Godwin is one of LRE’s
partners. (Tr. 2:307.)
Parlet apparently arrived at the jobsite from Arkansas about
early October 1995. (Tr. 2:304.) Although Parlet has no li-
cense from the city of Jackson (Tr. 2:304), Elton Smith [whose
supervisory status is in issue] has a master’s license from the
city and the city permit was issued under Smith’s license. (Tr.
2:305–306.) Parlet testified that Smith (who did not testify)
began working at the jobsite about October 9. (Tr. 2:305.)
Smith, Parlet testified, is “elderly” (“almost 70,” Tr. 2:331)

3 Teamsters Local 722 (Kaspar Trucking), 314 NLRB 1016, 1017
and fn. 9 (1994).
and, in the beginning, helped out but did not do the “heavy”
work. (Tr. 2:305.) The timecards in evidence show that even
in December 1995 Smith generally worked only 20 hours a
week. In January 1996, Smith began working, usually, 40
hours a week. (R. Exh. 4.) I discuss Smith’s status in more
detail later.
Union Representatives Divine (Tr. 1:27–28) and Yelverton
(Tr. 3:412) testified that, in early November 1995, they saw an
advertisement by Labor Finders (a temporary employment
agency) for electricians in the local newspaper, the Jackson
Clarion-Ledger. Although they left applications with Labor
Finders, they never received any response. They did learn from
Labor Finders, however, that LRE was one of the contractors
seeking electricians.
Parlet testified that he was responsible for receiving all job
applications for The Junction project (Tr. 2:309), and that he
did the hiring for the project. (Tr. 2:310, 313.) Consistent with
the parties’ stipulation that LRE is a nonunion contractor (Tr.
1:72), Parlet testified that, although LRE’s policy is to be non-
union, or open shop (Tr. 2:313, 319–320), LRE does not dis-
criminate (Tr. 2:320) but hires on merit (Tr. 2:314).
Project Manager Godwin’s instructions to him respecting
hiring, Parlet testified (Tr. 2:338–339), were to treat everyone
(that is, union and nonunion) equally. Parlet’s hiring process
consisted of reviewing the applications,4 the notes he made
during the interview process, reference checks, and an evalua-
tion of merit. (Tr. 2:309–311, 314–315, 322, 332, 341.) Union
Representative Divine (Tr. 1:38) and Foreman Parlet (Tr.
2:304–305, 331) agree that, under city regulations, the jobsite
had to have working at least one journeyman licensed by the
city of Jackson.
As the parties stipulated (Tr. 1:12–13), at all relevant times,
LRE operated under a written hiring policy, and this policy
applied to The Junction project. The written policy (attached to
many of the applications in evidence) consists of two pages.
(R. Exh. 6.) One page appears on a sheet bearing LRE’s letter-
head and is titled as LRE’s “Hiring Policies.” The second page
appears to be an independent, generic form, with lines for the
applicant’s signature and date. I use “first” and “second” page
only because the exhibit (R. Exh. 6) has them in that sequence.
As part of the application exhibits, they frequently are in the
reverse order. Clearly, the first, or letterhead, page (which has
no lines for signature or date) is expressly that of LRE. These
“Hiring Policies” read (R. Exh. 6 at 1):
HIRING POLICIES
We hire applicants solely based upon merit. We do
not discriminate on the basis of union affiliation, race, sex,
color, age, national origin, disability or any other protected
status.
No employee is required to pay dues to any labor or-
ganization to join Little Rock Electrical Contractors, Inc.
We accept job applications only when we know there
are jobs available and when we intend to fill the posi-
tion(s) from persons not currently employed by Little
Rock Electrical Contractors, Inc. When openings become
available, we reserve the right to review active applica-
tions on file, prior to hiring. Applications remain active
4 Earlier I had received the parties’ stipulation that LRE relied, in
part, on the applications in making its hiring decisions. (Tr. 2:146–
147.)
LITTLE ROCK ELECTRICAL CONTRACTORS 935
for fifteen (15) days. It is the applicant’s responsibility to
keep our hiring personnel informed on his/her availability.
We do not accept group applications or photocopied
forms. We hire based on personal contact with individuals
so that we can make sound business judgments as to the
most qualified applicants.
Any applicant who falsifies or omits information on
the application is disqualified from being hired. If the ap-
plicant has been hired before the falsification or omission
is discovered, he or she is subject to termination.
We base our hiring decisions in [on] a variety of fac-
tors, including skills and ability to perform the job, prior
employment with Little Rock Electrical Contractors, Inc.,
employment references as to character and willingness to
work, willingness to accept the offered salary, and per-
sonal interviews.
Full-time employees are expected to work only for Lit-
tle Rock Electrical Contractors, Inc. and must state that
they will not be employed by any other employer while
they work for Little Rock Electrical Contractors, Inc.

The last paragraph just quoted is generally duplicated in the
penultimate paragraph of the generic page, with the ultimate
paragraph there being a certification that all statements are
correct “to the best of my knowledge and any misrepresentation
or omission on my part is cause for rejection or termination.”
After receiving no word from the Labor Finders employment
agency, Divine launched a campaign to organize LRE at The
Junction jobsite. (Tr. 1:54.) The campaign included sending
out-of-work members, or members on strike elsewhere, to ap-
ply for work with LRE at The Junction. Some members were
sent as covert “salts,” while others—including both Divine and
Yelverton—went with union insignia openly displayed in eve-
rything but neon. As described by Divine at trial, his goal was,
in effect, to “organize the unorganized.”5
At trial, Divine was asked whether he wanted to apply for
work and organize in “good-faith [a protected purpose],” or for
the bad-faith purpose of gaining control of a substantial number
of LRE’s employees, calling a strike at a critical time, plus
using other tactics, such as advising LRE’s customers that
business with LRE would guarantee labor problems, all for the
[unprotected] goal of destroying LRE’s business endeavors in
Jackson and running it out of town. Divine’s answer to all such
questions was that his purpose was the former. If hired, he and
the others would do good electrical work and also organize by
seeking to educate nonmembers on the benefits of joining the
Union. Divine testified that he did not want to destroy LRE, or
to sabotage it, but instead wanted to organize the employees
and, in effect, reach a collective-bargaining agreement with
LRE. (Tr. 1:63–64, 78–79, 81, 85, 93–95, 97, 100–102, 104;
2:130–132.)
At trial (Tr. 1:23–24, 71, 76, 83–84, 96, 99), and fleetingly
on brief (Br. at 21), LRE argues that a May 1994 IBEW manual
of 65 pages, plus attachments, shows a “conspiracy” (Tr. 1:23)
between the International and its Locals, and their organizers,
to disrupt the job and to drive nonunion firms such as LRE out
of business, and that the “salts” were not, therefore, good-faith
job applicants. Although Divine acknowledges that he has

5 “‘Heed this cry that comes from the hearts of men. Organize the
Unorganized.’—John L. Lewis, 1935.” Pete Seeger and Bob Reiser,
CARRY IT ON! A History in Song and Picture of America’s
Working Men and Women 143 (1985, Simon & Schuster).
attended union seminars in which the 65-page document (R.
Exh. 1)6 was used for the purpose of training organizers, he
asserts that he actually has never read the document. (Tr. 1:70–
71, 81–82.) Divine testified that organizing by Local 480 is
controlled locally—by the Union’s business manager, the or-
ganizers, and by what methods fit the local situation. (Tr.
1:85.) The International’s 65-page manual is not a bible or
blueprint to be followed in detail, but “just basic guidelines” to
be interpreted and applied as local conditions dictate. Local
480’s methods may, or may not, match the IBEW’s suggested
methods. (Tr. 1:85–86, 88.) Divine does not use the document
on a “daily basis.” (Tr. 1:100.) Divine denies that he acted on
instructions from the IBEW, and asserts that he did his own
organizing. (Tr. 1:89.)
The facts in this case fall short of demonstrating that the or-
ganizing campaign of Local 480 and Union Representative
Divine was nothing but a bad-faith effort to put LRE out of
business—conduct unprotected by the Act. The methods de-
scribed in the IBEW’s 65-page manual (R. Exh. 1) no doubt
could be used in support of an unlawful objective, or in associa-
tion with unlawful means. But they also can be used (and gen-
erally read as if they are designed to be so used) with a lawful
objective. That lawful objective would involve using all lawful
means in applying all lawful economic pressures, including
covert and open “salts,” strikes when unfair labor practices
have been committed, and filing of NLRB charges, to fulfill the
“first obligation” of the members of the local union, as de-
scribed in the suggested Salting Resolution attached to the
IBEW’s 65-page manual (R. Exh. 1 at 9; Exh. A), to “organize
the unorganized.”
There is some language in the manual which appears to fo-
cus on a targeted employer’s customers in a dubious way. For
example, suggesting that some tactics may be effective in caus-
ing customers to switch to “signatory employers, or at least,
cause them to stop using XYZ.” (R. Exh. 1 at 15.) And, to
determine which tactics would “discourage future customers.”
Id. Also, “every customer or job switched to a signatory em-
ployer enhances the work opportunities and job security of
union craftsmen.” Id at 18. Thus, “Deny the contractor his
customers and/or his qualified manpower, and he immediately
ceases to be a factor in the industry.” Id. at 3, 23. In any event,
Divine credibly testified that he has never gone to an em-
ployer’s customers. (Tr. 1:99–100.)
While I credit Divine that he was not acting on any instruc-
tions or directives from the IBEW, and that he never actually
“sat down and read” (Tr. 1:81) the 65-page manual, such find-
ings are largely irrelevant. The material point is that, as Divine
acknowledges, he attended IBEW sponsored training classes at
which lecturers distributed, and discussed, copies of the very
manual in evidence (R. Exh. 1) here. The key question is what
did Divine and the union salts do here. And that would be the
question even if, contrary to Divine’s testimony, he consciously
followed the IBEW’s manual as a blueprint for the organizing
effort here. Although I credit Divine that he did not follow the
manual as a bible or blueprint, it is clear, and I find, that the
training classes in the organizing methods described in the
manual had a strong impact on Divine. As Divine essentially
concedes, he uses the manual’s suggested methods as guide-
lines which he adapts, or not, to fit the local situation.
6 “Union Organization in the Construction Industry” (May 1994,
IBEW special products department).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 936
The question, then, is what was done here. Do the events
here demonstrate that Divine and the others were not good-faith
job applicants? Do events here show that the applicants were
merely part of a scheme to shut down the job and run LRE out
of town if it did not sign a contract? As indicated a moment
ago, and later in this decision, in my view the evidence fails to
establish bad faith on the part of Union Representative Wayne
A. Divine or the salts he sent as job applicants. They wanted to
organize, and to get a contract, but they also wanted to do good
work. The evidence fails to show that the Union wanted to shut
down the job or run LRE out of town (by unlawful means) if it
did not sign a contract. That (the “running out of town”) is to
be distinguished from persistence, notwithstanding the em-
ployer’s expressions of disinterest. (Tr. 2:251.) As Divine
testified, the employees may be interested in joining the Union
regardless of LRE’s preference. (Tr. 1:95.) As already men-
tioned, the Union goes to the jobs “to spread the word about the
IBEW, and inform electricians of our wages and benefits, and if
they want to be a part of it, we welcome them in.” (Tr. 1:79,
85, 94.)
According to Divine (Tr. 1:95), if the employees are not in-
terested, the union leaves. Whether that is so was not litigated
here. There is some evidence that employees, apparently not
members of the Union, threw away authorization cards ten-
dered them about December 7 in the trailer in the presence of
Foreman Parlet. (Tr. 2:348–349; R. Exh. 7; 2:399.) Evidence
was not offered whether any nonmembers signed union cards.
So far as the record shows, the Union began its organizing
campaign by sending a covert salt, James T. Horn, to obtain a
job at LRE’s Jackson jobsite. (Tr. 1:29; 2:212–213; 3:413.) As
a covert salt, Horn testified, he would apply as if he were not a
union member and as if he had no union background or creden-
tials. In fact, Horn has been a member of Local 480 for 10
years (Tr. 2:212), and has attended the IBEW’s COMET
classes for methods on union organizing campaigns. (Tr.
2:246–247, 254.) Horn applied on November 10. (Tr. 2:212;
R. Exh. 3d3.) He wore no union insignia. The contractors he
listed on his application are nonunion—and he has never
worked for them. (Tr. 2:213.) Horn’s function as a covert salt
involved observing, and also trying to organize employees be-
fore and after work, at breaks, and at lunch. (Tr. 2:213, 242,
252.) During production time, Horn did his job as an electri-
cian. (Tr. 2:253.)
Horn possesses a journeyman electrician’s license (G.C.
Exh. 2) from the city of Jackson. (Tr. 2:211, 243.) This fact
prompted Parlet to proclaim that Horn was a “godsend” be-
cause the city inspector had shut him down on several occa-
sions for not having a Jackson-certified journeyman electrician
on the job. (Tr. 2:214.) Parlet’s recollection, that the city in-
spector had only threatened to do so but never did (Tr. 2:331),
does not conflict with Horn’s credited version because, I find,
Parlet merely exaggerated a bit in expressing his joy when hir-
ing Horn.
Divine’s next move (recall that he “orchestrated” the cam-
paign, Tr. 1:54) was to send a group of eight open salts to the
jobsite to be hired. The group of eight included the two staff
organizers, Assistant Business Agents Divine and Yelverton.
The eight members of the group are: Hewitt Barton Sr., Hewitt
Barton II, William Payne Barton, Wayne Divine, Marby Robert
Penton Jr., Michael Varner Pickett, Johnnie H. Smith Jr., and
Sammy Yelverton. Openly wearing big union organizer but-
tons (G.C. Exh. 3), and other union insignia, the eight went in
two cars to the jobsite where they completed and submitted
employment applications which openly identified them as un-
ion members or union organizers. Only Pickett’s application
(R. Exh. 2g1, 4) showed that he possessed (Tr. 2:194) a jour-
neyman’s license from the city of Jackson. According to Parlet
(Tr. 2:331, 346), the only electricians he was prepared to hire
were those with Jackson city licenses. He so informed Divine
as the two stood outside the jobsite trailer. (Tr. 2:317, 345.)
None of the eight ever heard from LRE concerning their job
applications. Parlet concedes that the only application he re-
viewed was Pickett’s, but when he called Phillips Electric, one
of the job references listed, he was told they would not give a
favorable recommendation. Phillips, Parlet testified, declined
to give any details other than to say that Pickett was not eligible
for rehire. Based on that report, apparently, Parlet rejected
Pickett. (Tr. 2:329–332.) [I overruled the General Counsel’s
hearsay objection to the report because it was offered, and re-
ceived, for the limited purpose of showing the basis, of what-
ever source, for Parlet’s decision to reject Pickett. That does
not require me to credit Parlet, although, noting the absence of
any rebuttal by Pickett, I do credit Parlet concerning the report.]
Divine and Yelverton next sent covert salts Ralph Brown
(Tr. 1:36, 107, 118), Thomas G. “Sonny” McCallum (Tr. 1:36–
37),7 Larry Joe Alting (Tr. 1:37), Tommy Dearing (TR. 1:37),
Orby C. “Sonny” Renfroe (Tr. 3:428), and David Gibson (Tr.
1:37; 2:352.) Yelverton, and possibly Divine, sent Stephen
Clay Hilton. (Tr. 1:35–36; 2:391.) Divine and Yelverton told
the covert salts to conceal the fact of their union membership.
(Tr. 2:39–40.)
Brown applied on December 1 (Tr. 1:107, 113; R. Exh. 3a3),
was hired on December 5, and began work on Wednesday,
December 6. (Tr. 1:108; 2:316; R. Exh. 4a,b.) A Jackson li-
censee, Brown tendered his journeyman’s license to Parlet who
made a copy (R. Exh. 3a8) of it. (Tr. 1:108; 2:135, 333, 347.)
Hilton, a fourth-year apprentice, actually was dispatched by
Yelverton as an open salt. (Tr. 2:391.) Hilton applied on Mon-
day, December 4. (Tr. 2:391, 404; R. Exh. 3c3.) Parlet said that
the Union could blackball Hilton for working nonunion and that
Hilton should think about it overnight. Hilton returned the next
day, December 5, said he was ready to work, and was put on
the payroll. (Tr. 2:320, 343–345, 392–393, 404–405; R. Exh.
4-1; R. Exh. 7.)
McCallum applied on Friday, December 8, and began work
on Monday, December 11. (Tr. 2:168, 171; R. Exh. 3e3; R.
Exh. 4b.) As McCallum testified (Tr. 2:304), as his application
reflects (R. Exh. 3d7), and as Parlet concedes (Tr. 2:317–318,
332), McCallum did not have a journeyman’s license from the
city of Jackson.
Alting applied on Tuesday, December 12 (R. Exh. 5a1), Par-
let hired him (Tr. 2:315), and Alting started work the next day,
December 13 (R. Exh. 4e).
Dearing, who possessed a journeyman’s license from the city
of Pearl, Mississippi, applied December 27. (R. Exh. 3b3,7–8.)
His first day on the payroll was not until Wednesday, January
17, 1996. (R. Exh. 4-o.) No direct testimony shows when
Dearing was hired. A handwritten note (apparently by Parlet,
Tr. 2:311) at the top of Dearing’s W-4 form (R. Exh. 3b10)

7 McCallum asserts that he was told of the job only by James Horn.
(Tr. 2:168.) Horn did recommend McCallum to Parlet. (Tr. 2:219,
246, 332.) The material point is that McCallum, a member of the Un-
ion (Tr. 2:167–168), was there, in part, to organize. (Tr. 2:246.)
LITTLE ROCK ELECTRICAL CONTRACTORS 937
states, in relevant part, “Start 1–2–96.” In light of all the evi-
dence, including Orby Renfroe’s application, which I discuss
next, I find that the reference means that Parlet hired Dearing
and gave him a reporting date of January 2. Thereafter, be-
cause of time problems with either Dearing or the job, Parlet
had to reschedule Dearing to start on January 17, 1996.
Orby C. “Sonny” Renfroe Jr. also applied on December 27.
(R. Exh. 3f3.) Parlet, I find, made notations at the top of sev-
eral of the application documents. Thus, “13,” I find, means a
hire-in rate of $13 per hour (Tr. 2:308, 311; R. Exh. 4i); the
“Jackson lic.” Refers to Renfroe’s journeyman’s license (R.
Exh. 3f7) from the city of Jackson (Tr. 2:333; R. Exh. 3f3,7),
and the “Start 1–2–96” means, I find, that Parlet hired Renfroe
with a starting date of January 2, 1996. As the payroll records
reflect, Renfroe’s first workday was Tuesday, January 2, 1996.
(R. Exh. 4i.)
David C. Gibson applied on January 16, 1996. (Tr. 2:352; R.
Exh. 2e1.) Divine, in answer to a question containing Gibson’s
name with others (Tr. 1:39–41), testified that he told all of them
to apply as covert salts, to conceal their union affiliation, not to
show any (union) apprenticeship training, and not to list any
union contractors. Gibson’s application shows his “JATC ap-
prenticeship school,” and the contractors he lists are union con-
tractors. (Tr. 2:354–355.) As Gibson recalls, he was not wear-
ing any union insignia. (Tr. 2:353.) Although Gibson noted on
his application (R. Exh. 2e1,4) that he possessed a master’s
license from the city of Jackson (Tr. 2:354), he was not hired
even though he needed a job and would have taken one at LRE
if offered (Tr. 2:373). When Divine and Yelverton dispatched
Gibson, they gave him a tape recorder, with cassette, to carry
with him to LRE. (Tr. 1:38–39; 2:355–357; 3:422; G.C. Exh.
6.) Gibson secretly recorded his interview by Foreman Parlet.
(Tr. 2:358–364.) Overruling LRE’s objection that the tape was
secretly made in LRE’s construction trailer without Foreman
Parlet’s knowledge or permission (Tr. 2:369, 372), I received
(Tr. 3:438) the cassette tape (G.C. Exh. 6) in evidence. I also
received (Tr. 2:370) in evidence a four-page transcript (G.C.
Exh. 7) of the tape. (Because many of the statements on the
transcript are no more than one line, with double spacing be-
tween the speakers, the amount of text is relatively small.)
Turn now to the alleged acts of coercion.
C. Alleged Coercion
1. Introduction
As amended at trial (Tr. 1:7), complaint paragraph 7(a) al-
leges that “Superintendent” Art Parlet, on December 4, 5, and
8, coercively interrogated employees concerning their union
membership. [I grant the General Counsel’s motion (Br. at 3,
fn. 5) to withdraw a fourth date of December 27.]
About December 4, complaint paragraph 7(b) alleges, Parlet
“solicited an employee to act as an agent of Respondent and
engage in surveillance of other employees in order to acquire
knowledge of their Union activities and sympathies.”
Complaint paragraph 7(c) alleges that, about December 7,
Parlet “assaulted an employee because of his Union activities,
membership and affiliation.”
Finally, about January 11, 1996, complaint paragraph 7(d)
alleges, Superintendent Parlet “insisted that employees remove
their Union buttons.”
The sole allegation pertaining to “Superintendent” Elton
Smith is that, about December 8, Smith “insisted that an em-
ployee remove his Union button.”
2. Foreman Art Parlet
a. Interrogation
(1) December 4 and 5, 1995
First, as LRE concedes (Tr. 2:366), Parlet admits (Tr. 2:319)
that he asked all the job applicants whether they were union.
As Parlet explains, he did so because LRE is “open shop.”
Expanding on this, Parlet asserts that LRE does not discrimi-
nate, but that if a person puts on his application that he has
hobbies or belongs to organizations “it helps us, you know, to
know who we’re hiring and who we’re not.” Asked whether
knowing the applicant is a union member helps LRE in that
regard, Parlet responded that he has been “involved in the un-
ion” for many years, and his question is “not a discriminatory
tactic.” Parlet goes on to assert that he has cautioned several
applicants, including Stephen Hilton, that they might have
problems with the Union if they, unknown to the Union,
worked at a nonunion shop. Moreover, Parlet asserts, he did
hire Hilton and the others. (Tr. 2:319–320.)
On brief, LRE argues that such a single question, under the
circumstances in each instance, was not coercive. (Br. at 19–
21.) The General Counsel cites cases such as Godsell
Contracting, 320 NLRB 871, 873 (1996), for the proposition
that, as many Board cases hold, such a question in the context
of a job interview is inherently coercive and therefore a
violation of Section 8(a)(1) of the Act. Agreeing with the
General Counsel, I find the violations, as alleged. Thus, when
Parlet so interrogated apprentice Stephen Hilton on December
4, and compounded it the next morning, after Hilton had been
hired, by asking him whether he was sent by the Union to salt
the job, and receiving a “No” on both days (Tr. 2:392–393,
400–401, 404–405), LRE violated the Act.
(2) December 8, 1995
The violation on December 8 occurred shortly after the noon
hour when Parlet asked Thomas “Sonny” McCallum, as the
latter was completing his application, whether he was associ-
ated with the Union. McCallum said, “No.” Later that after-
noon Parlet hired McCallum and McCallum began work the
following Monday. (Tr. 2:169–170.) McCallum, recall, was
sent as a covert salt, and his application does not mention any
union affiliation. Moreover, Parlet hired McCallum based
largely on the recommendation of covert salt James Horn. (Tr.
2:332.) I find the violation, as alleged.
b. Solicitation of surveillance
Although Parlet hired apprentice Hilton, at a rate of $10 per
hour (R. Exh. 4-1), Parlet was not sure he could trust him.
Thus, the day after Hilton was hired, or about December 6,
Parlet told James Horn that, while he did not think Hilton was a
union organizer, he wanted Horn to “keep an eye on” Hilton
and “see what he’s up to.” If Hilton is an organizer, Parlet said,
he had lied, and Parlet expressed his dislike of persons who lie
to him. Horn watched Hilton that day, observed that he
worked, and reported that fact to Parlet. (Tr. 2:227–231, 253–
254.) In his testimony, Parlet does not address this matter.
LRE does not brief the matter. Citing McClain of Georgia,
322 NLRB 367 (1996), the General Counsel argues that the
alleged violation of Section 8(a)(1) is established. I agree.
c. Assaulted an employee
Although the allegation here names Parlet as the manage-
ment person committing the violation, the evidence reflects that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 938
Parlet was not the actor. Instead, it was Elton Smith, the al-
leged supervisor and agent. I address the procedural aspect of
this is a moment.
As this allegation and complaint paragraph 8 (on December
8, Elton Smith insisted that an employee remove his union but-
ton) stem from the same incident, I treat them together.
On Thursday, December 7, Hilton reported to work openly
wearing a T-shirt announcing that he was a union salt. On see-
ing the shirt, Parlet told Hilton, “People like you give me a
complex.” Hilton asked about what, but Parlet never answered.
When Hilton entered the construction trailer for work the next
morning, December 8, Parlet, Elton Smith, and James Horn
were present. Hilton was openly wearing one of the big, 3-inch
diameter, buttons (G.C. Exh. 3) bearing the IBEW and Local
480 names and declaring, “I’m A Union Organizer.” Looking
at the button, Smith told Hilton to take it off because Hilton
worked for Little Rock Electrical, not the IBEW. Hilton re-
plied that he was their official union organizer. As Hilton
started toward the back of the trailer to get his hardhat and start
for work, Smith reached over and knocked the organizer button
off Hilton’s shirt. Hilton picked up the button, put it back on,
and went to work. (Tr. 2:235–237, Horn; 2:396–397, Hilton).
LRE does not address the matter on brief.
Offered only to show unalleged animus, evidence presented
by the Government establishes that on December 15 (a week
after Hilton announced that he was a union salt and began
wearing union insignia), and again on December 19, Parlet told
McCallum to ride Hilton and force him to quit because Parlet
could not fire him. (Tr. 2:173–177.) The implication, I find, in
Parlet’s instruction (which McCallum apparently did not fol-
low) is that Parlet wanted this done because of Hilton’s an-
nouncement that he was a union salt.
Recall from my earlier discussion, under the heading for
Procedural Matters, that the General Counsel, at the end of the
trial, had moved to conform the pleadings to match the evi-
dence. The motion was for minor matters where the evidence,
for example, supplied the correct date of the 9th for the 8th or a
name where the pleadings had stated “last name unknown.”
(Tr. 3:446.) The motion was not to add any new allegations or
to make any substantive corrections. LRE had objected when
the General Counsel first announced the Government’s motion
to conform (Tr. 3:446), but had no objection (Tr. 3:447) when I
summarized that the General Counsel’s motion was “merely to
correct variations in dates and names.” I granted the motion
“for those variations, not granted to any substantive correction
or modification or addition to the complaint; not for substance,
only for variations on dates and names, places.” (Tr. 3:447.)
Now the General Counsel argues (Br. at 7, fn. 11), emphasis
added:

Counsel for the General Counsel moved to conform the
pleadings with the evidence during the hearing and subse-
quently requested that Complaint paragraph 7(c) allegedly
committed by Parlet be conformed with the evidence that
Smith committed the violations as set forth. (3:447, Jeannette)
Smith did not testify at the hearing.

There was no express mention at transcript 3:447, or any-
where during the colloquy, that the motion was made, not to
correct the spelling of a name, but to substitute the name of a
different person from that of the name alleged. The latter is a
substantive change which, even if somehow the words of the
motion can be so construed, was definitely and specifically
excluded by the basis of my ruling granting the motion—“not
granted to any substantive correction or modification.” (Tr.
3:447.) I reject the General Counsel’s argument, and I am dis-
appointed that the General Counsel would make the argument
set forth in the Government’s brief.
Prudence suggests that I address the potential argument, not
made here by the Government, that the complaint was amended
by implied consent, under FRCP 15(b), when LRE failed to
object to the testimony describing Elton Smith’s conduct in
knocking Hilton’s “I’m A Union Organizer” button off his
jacket and to the floor. Certainly an argument could be made
that LRE waived any objection to a variance between the plead-
ing (assault by Parlet) and the evidence (assault by Smith) by
not objecting when the description focused on the unalleged
Smith. As stated earlier, however, LRE was representing itself
(by its president, who is not a lawyer (Tr. 1:44), George E.
Smith) as, in effect, a pro se. Some leeway must be accorded
nonlawyers who represent themselves before Federal Agencies.
It is not too burdensome on federal agencies to require that, if
they wish to depart substantively from allegations, that they at
least say so at the time so that the pro se not only is given ex-
press notice, but being so alerted, will have the opportunity to
state any objection he may have. Fundamental fairness requires
no less.
Because treating any waiver here as one of implied consent
would deny fundamental fairness to a pro se, I therefore find
that the matter was not tried by implied consent. There being
no evidence supporting complaint paragraph 7(c), as alleged, I
shall dismiss paragraph 7(c).8
Turn now to complaint paragraph 8 and Elton Smith’s insis-
tence that an employee (Hilton) remove his union button. The
unrebutted evidence, described above, shows that this incident
occurred as alleged. The General Counsel alleges and argues
that Smith is a statutory supervisor and agent. Were I to reach
the matter, I would find that the evidence fails to show any of
the primary indicia of supervisory status as set forth in the stat-
ute. Thus, I would find no supervisory status as to Elton Smith,
and would find that, particularly during 1995, he simply was an
experienced and skilled craftsman who on occasion gave direc-
tion on proper methods to those of lesser skill and experience.
Here, however, it is enough if Smith is shown to have been an
agent under the statute. Delta Mechanical, 323 NLRB 76, 78
fn. 7 (1997).
I find that Elton Smith was, during the relevant time, LRE’s
agent within the meaning of 29 USC § 152(13). Under 29 USC
§ 152(2), LRE is responsible for any unfair labor practice
committed by Smith as LRE’s agent.
First, Smith is the master electrician in whose name the city
of Jackson issued the permit for the electrical work. (Tr.
2:305–306, Parlet.) Second, Parlet told James Horn that Project
Manager Willie Godwin had instructed him to work Elton
Smith in a supervisory role. (Tr. 2:216.) Third, Horn observed
that Smith at times would be in the construction trailer with
Foreman Parlet working with the prints for the electrical work.
(Tr. 2:218.) Fourth, in the presence of employee James Horn,
Foreman Parlet had Smith review the applications of the eight
(open salts) who applied the day before, November 27, to see
whether he recognized any of the applicants. (Tr. 2:222–223.)

8 The General Counsel does not argue that a violation is shown, as
alleged, because, by failing to disavow Elton Smith’s conduct, Foreman
Parlet adopted it as has own.
LITTLE ROCK ELECTRICAL CONTRACTORS 939
Fifth, Smith was present on December 8 when Parlet inter-
viewed, and unlawfully interrogated, job applicant Thomas G.
“Sonny” McCallum. (Tr. 2:168–170.) Sixth, in keeping with
his position as the master electrician for the job, Smith was paid
$15 an hour—at least $2 per hour more than James Horn and
any of the other journeymen were paid during December 1995.
(R. Exh. 4a-1.) Finally, when Foreman Parlet did not disavow
Smith’s conduct on December 8 (accosting Hilton about his
union button, telling him to take it off, and it off when Hilton
declined to remove it), it demonstrated that LRE had placed
Elton Smith in a position whereby employees reasonably would
conclude that Smith was speaking and acting on behalf of LRE.
Finding agency status, I further find that LRE violated Sec-
tion 8(a)(1) of the Act by insisting, through its agent Elton
Smith on December 8, that apprentice Stephen Hilton remove
his union button, as alleged by complaint paragraph 8.
d. Insisting that employees remove their union buttons
When James Horn walked into the construction trailer the
morning of Thursday, January 11, 1996, he was wearing one or
more union buttons, apparently the big, 3-inch diameter, IBEW
“I’m A Union Organizer” buttons (G.C. Exh. 3). (Tr. 2:237–
238.) Ralph Brown and Thomas “Sonny” McCallum came in
behind Horn, and they, too, were wearing the IBEW organizer
badges and IBEW stickers and T-shirts. (Tr. 1:220; 2:139,
239.) Parlet asked Horn if the buttons were real, and Horn said
yes, that he was a union organizer and would organize before
work, at break, lunch, and after work. Parlet asked him how
long he had had the buttons. “For years,” Horn answered, ex-
plaining that he had been a union member for 10 years. (Tr.
2:238, 251, Horn.)
At that point, in a repetition of his December 8 conduct,
agent Elton Smith told Horn to take off the buttons. As he said
this, Smith reached for the buttons and jostled them, knocking
one to the floor. Horn picked it up, walked away, and, as it was
not yet worktime, began soliciting some employees to take
union cards. (Tr. 2:238–239.) When worktime began, Fore-
man Parlet told Horn that he would have to remove the union
buttons because they were a “safety hazard.” Horn said he
disagreed that they were a safety hazard, but that he neverthe-
less would comply. Parlet asked Horn to tell Ralph Brown and
“Sonny” McCallum to remove their union buttons. Horn went
to Brown and McCallum and told them that Parlet had said the
union buttons could not be worn on the job because they were
safety hazards. When they disagreed the buttons were safety
hazards, Horn told Brown, at least, to comply anyway. Horn
removed his union button. (Tr. 1:111, Brown; 2:239, Horn.)
McCallum apparently does not recall that Horn so told him (Tr.
1:178–179, 186), and removed his union button because Elton
Smith said that the general contractor did not want them worn
on the job. (Tr. 2:186–187, 191–192.)
LRE’s written safety policy (R. Exh. 3a14), which each em-
ployee signs, contains as item 2 (emphasis added):

Wear clothing suited for the job—no dangling or loose cloth-
ing or jewelry around moving machinery. Do not wear soft
soled shoes, shirts must be worn, boots, gloves, etc., must be
worn when working in concrete.

By questions during crossexamination of some witnesses
(Tr. 1:121, Brown; 2:185, McCallum), and by the representa-
tion of LRE’s representative at trial (Tr. 2:190), LRE implies
that it relied on item 2 as a valid basis for instructing the em-
ployees to remove the large union organizer buttons. However,
although I cautioned Representative George E. Smith Jr. that
such would require testimony (Tr. 2:190), no such testimony
was adduced. Moreover, there is no evidence that the electri-
cians here worked around “moving machinery.” Regardless of
LRE’s implied argument at trial, and on brief (at 17), the cred-
ited evidence shows that LRE’s employees, as standard prac-
tice, wore loose clothing, dangling gold necklaces, and a vari-
ety of tools hanging from a belt. (Tr. 2:185–186, 188–189.)
Indeed, there is no evidence that LRE has ever interpreted
safety rule 2 so as to tell employees that they could not leave
their shirt tails out (as some do), or wear gold chains around
their necks (as at least McCallum does). Finally, there is no
evidence as to what the term “moving machinery” includes or
whether there was any such on the job.
It is the employer’s burden to show that “special circum-
stances” exist which justify instructions for employees to re-
move union buttons. Raley’s, 311 NLRB 1244, 1244 fn. 2,
1246 (1993). Neither hearsay references by Elton Smith to
some unsupported directive by the general contractor, nor the
facially inapplicable safety rule 2, constitute any evidence of
the “special circumstances” necessary to justify LRE’s January
11, 1996 directive that employees must remove their union
organizer buttons. LRE, in an apparent effort to bolster its
position that the badges were prohibited because they were a
safety hazard (with no description of why the badges were a
safety hazard), also observes that there is no evidence that LRE
ordered employees not to wear union stickers or T-shirts. That
distinction possibly would have been a factor for consideration
had there been evidence as to why the badges would constitute
a safety hazard while dangling tools and gold chains would not.
Under the circumstances, including Parlet’s acquiescence in the
December 8 and January 11 assaults by agent Elton Smith, I
find that what infuriated LRE about the buttons, as distin-
guished from the other items, is that they were big, 3-inch di-
ameter badges, with an in-your-face announcement that “I’m A
Union Organizer.” That fact incensed LRE, and LRE then
seized on an unsupported pretext that the buttons somehow
constituted a safety hazard even when dangling items like jew-
elry, shirt tails, and tools do not. Accordingly, I find that, as
alleged, LRE violated Section 8(a)(1) of the Act when, on
January 11, 1996, it insisted that employees remove their union
buttons.
D. Alleged Discrimination
1. Introduction
Complaint part 9 (in conjunction with par. 10 and 12) alleges
that LRE violated Section 8(a)(3) of the Act by refusing to hire
the eight individuals who applied on November 27, 1995, and
David Gibson, who applied January 16, 1996. LRE denies.
Respecting failure-to-hire cases, the elements of a prima fa-
cie case (which the Government must establish) are:
1. Applications by qualified applicants were filed
while the respondent employer was hiring.
2. The respondent employer knew the job applicants
were affiliated with a union.
3. The respondent employer harbored union animus.
4. Acting on its animus, the respondent failed to hire
any of the applicants.

WestPac Electric, 321 NLRB 1322, 1346 (1996); Bay Control
Services, 315 NLRB 30 fn. 2 (1994); J. E. Merit Constructors,
302 NLRB 301, 303–304 (1991).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 940
Once the General Counsel has established a prima facie case
of a violation, the respondent employer must go forward and
demonstrate, as an affirmative defense, that it would not have
hired the applicants even absent their known or suspected union
status. WestPac Electric, supra, 321 NLRB at 1345–1346.
2. Facts
There is no dispute that the eight applied on November 27,
and that they openly were wearing union insignia. LRE’s hir-
ing policy (R. Exh. 6), quoted earlier, provides that job applica-
tions remain active for 15 days. The General Counsel relies, in
part, on the pay time records which show that, with those 15
days (counting November 28 as the first day), LRE hired four
electricians: Ralph Brown, Thomas G. McCallum, Don Talley,
and Larry Alting. As I described earlier, we know that, during
the 15-day time frame, Brown and McCallum were inter-
viewed, hired, and put to work. Also, Alting applied on De-
cember 12, was interviewed and hired that same day (Tr. 2:315,
Parlet), and started work the next day (R. Exh. 4e). Don Talley
first shows on the payroll on Tuesday, December 12. (R. Exh.
4c.) His application (R. Exh. f3,5,8) is dated December 8.
Thus, he, too, was hired within the 15 days.
Although Brown was licensed by the City of Jackson (R.
Exh. 3a7,8), McCallum, as I noted earlier, was not. Moreover,
McCallum, referred by covert salt James Horn, listed no union
contractors on his application. (Tr. 2:171.) Indeed, for the 16
years’ experience he stated on page 1 of his application (R.
Exh. 3e3), McCallum shows only one employer, and that for
the period of May 1992 to October 1995. (R. Exh. 3e4.)
Foreman Parlet asserts (Tr. 2:317) that he told Union Represen-
tative Divine on November 27 that he suspects there is a prob-
lem when an electrician has been in the trade for 10 years or so
and has no license from some city or State. Nevertheless, Par-
let hired McCallum even though McCallum specifically marked
on his application that he had no license. (R. Exh. 3e7.) Ac-
cording to Parlet, he gave heavy weight to Horn’s recommend-
ing McCallum. (Tr. 2:332.) No doubt Horn’s recommendation
made the decision easier for Parlet, but the real motivation, I
find, was that everything about McCallum appeared nonunion
to Parlet. And recommendation or not for McCallum, Parlet
had just told Divine, on November 27, that he would hire only
those licensed by the city of Jackson. (Tr. 2:317, 345, Parlet.)
As Parlet explains, although only one working is all that the
city required (Tr. 2:304–305), he (supposedly) wanted as many
as he could hire so that if one (or more) was off work because
of illness [or, presumably, for any other reason], the city in-
spector would not shut down the electrical work on the job.
(Tr. 2:331.) Nevertheless, although Larry Alting and Don
Talley listed licenses from, respectively, Miami, Florida (R.
Exh. 5a3), and Tennessee (R. Exh. 5f5), neither showed on his
application that he possessed a Jackson city license.
Parlet’s testimony rings hollow, and I do not believe him.
Aside from his poor demeanor, and hollow-sounding testimony,
his hiring record belies his asserted prescription for hiring. As
already noted, Horn had a city license (G.C. Exh. 2), and on
November 27 Parlet told Divine that he, Parlet, already had
three licensed electricians on the job. (Tr. 1:49, Divine.) It is
unclear whether the three included Elton Smith, who held a
Jackson city master’s license. This is not to say that Parlet did
not want Jackson city card holders. No doubt he wanted more.
But the point is that such a qualification was not the condition
of employment which Parlet described at trail as expressing to
Divine on November 27. Thus, that asserted condition was
false, and, I find, nothing but a pretext to avoid hiring any of
the seven (Pickett had a Jackson city card) open salts of No-
vember 27 whose applications showed, on average, that they
had 18 years’ experience as electricians at the journeyman
level. Moreover, as Parlet disregarded his asserted hiring con-
dition of a Jackson city card, I attach no significance to the fact
that (covert salt) Orby C. “Sonny” Renfroe Jr. (applied and was
hired on December 27 and started work on January 2) pos-
sessed a Jackson city card. That is, I count the vacancy which
Renfroe filled as a vacancy which could have been filed by one
of the open salts.
David Gibson, the other alleged discriminatee, applied on
January 16, 1996. As already noted, Gibson held a Jackson city
master’s license and so marked his application. With 30 years’
experience shown on his application, Gibson was not hired
even though, as the General Counsel observes on brief, other
began working thereafter. As the transcript (G.C. Exh. 7) re-
flects concerning Gibson’s interview with Parlet, Parlet as-
serted that he recently had hired some employees who were
scheduled to report later. One of those could have been Wil-
liam B. Darling, whose application is dated January 15. (R.
Exh. 5d1.)
Similarly, Carl R. England, whose application (showing a li-
cense from Pascagoula, Mississippi) is dated November 6 (R.
Exh. 5e1), began working on January 17. (R. Exh. 4-o.) LRE’s
hiring of England (whose application reports only 5 years’ ex-
perience as a journeyman) shows two additional things. First, it
shows that LRE’s hiring rule about applications being active for
only 15 days is largely a device to screen out unwelcome appli-
cants, and is disregarded by LRE at will. In England’s case, not
only does his application show, for work experience, that he
has been “Self Employed” for his 5 years’ experience as an
electrician, but his application also shows (R. Exh. 5e1) that he
had once been convicted of “carrying a concealed weapon.”
Thus, rather than hire any of the experienced eight from No-
vember 27, or David Gibson from January 16, Parlet reached
back to England’s November 6 application and brought to the
job a man with only 5 years’ experience (and no Jackson city
license) who had a conviction for the criminal offense (pre-
sumably a felony) of carrying a concealed weapon.
LRE suggested at trial that Gibson, with his master’s license,
was not needed, since it is undisputed that only one master’s
license per job is necessary, and also, by virtue of the master’s
license, that Gibson was “overqualified” for any work as (pre-
sumably) a journeyman. (Tr. 2:367.) Several times I told
LRE’s trial representative not to make statements of asserted
facts (Tr. 1:67; 2:255, for example), that his representations
were not evidence, and that it would require testimony to prove
the content of his representations (Tr. 2:190, 368, for example).
I therefore construe the remarks of LRE’s representative (its
president, George E. Smith) as an extension of LRE’s argument
on the issues. Argument, however, must be based on the re-
cord.
And that leads to the second point—there is no evidence that
Parlet, or any LRE official, rejected Gibson’s application for
any reason, and certainly not for being overqualified. Third,
Gibson’s application reflects that his experience was as a jour-
neyman. (R. Exh. 2e1,2.) Indeed, Gibson testified that he has
never, in the 20 years that he has held a master’s license, used
that license to “permit” a job. (Tr. 2:350–351.) There is no
doubt that Gibson was applying for work as a journeyman, and
LITTLE ROCK ELECTRICAL CONTRACTORS 941
his interview with Parlet implies as much even though he men-
tions that he has a master’s license. As Parlet concedes, a mas-
ter’s license (aside from the qualification of being able to per-
mit a job) means that the holder has more talent and experience.
(Tr. 2:318.) Although at one point in the taped interview Parlet
refers to Gibson’s qualifications, in a manner simply of ac-
knowledging them, it is clear that the concerns which Parlet
was expressing were whether the people he had hired would
show up and whether he would have enough helpers for his
journeymen. (G.C. Exh. 7 at 3–4.)
LRE hired others in January. James A. Conley applied on
January 9, 1996, with the experience of a 5-year apprentice.
(R. Exh. 5c1.) He started work the very next day at the jour-
neyman’s rate of $13 per hour. (R. Exh. 4m.) According to
Parlet, Project Manager Godwin, as Parlet was preparing to
leave for the Jackson job, had prearranged that Conley would
be hired on the job as a journeyman. (Tr. 2:318.) Even assum-
ing that is so, I find that to be true only in the sense that there
would have been an opening available. Had the November 27
eight been hired, there may not have been an opening. So far as
the record shows, the opening Conley filled would have been
filled by one of the eight from November 27.
Parlet also hired (covert salt) Tommy Dearing in, as I have
found, late December, although his first day was delayed until
January 17. After the Union salts began striking in January to
protest asserted unfair labor practices, LRE, still not calling any
of the eight, or David Gibson, hired additional employees. This
included Billy V. Burk (who applied on January 31) as an em-
ployee “loaned” from Lynn Rogers Construction from February
1 to 18 as a favor to the loaning company so that Burk would
have work as the other company ended one job and started
another. (Tr. 2:323, 337–338; R. Exh. 4r,v.) That may well be
true, but LRE could not, as it did, bypass the eight, plus Gibson,
for discriminatory reasons.
LRE also hired Roy Stephenson (who had worked on other
jobs for LRE) on January 29, but he only worked 2 days and
then never reported back for work and was terminated. (Tr.
1:16–18; R. Exh. 4q.) Similarly, a journeyman who had
worked on other jobs for LRE also was employed by LRE at
the Jackson jobsite beginning January 23 until about February
13, 1996, at which time he left for an LRE job in Georgia. (Tr.
1:18–19; R. Exh. 4n-t.)
3. Discussion
Taking, in turn, the elements of the Government’s prima fa-
cie case, it appears undisputed that the alleged discriminatees
applied during a time frame when LRE was hiring journeymen
electricians. Respecting LRE’s 15-day policy (for applications
to remain active), I have found that LRE observes and disre-
gards that policy as it suits LRE’s desires to remain nonunion.
As a consequence of that disparity in enforcement, I find that
the 15-day policy does not apply to the applications of the nine
alleged discriminatees.
Knowledge of prounion status, the second factor, is undis-
puted as to all nine. The eight who applied on November 27
came as open salts, and David Gibson, who applied on January
16, 1996, in addition to listing union contractors on his applica-
tion, was asked by Parlet, in the taped interview, whether he
was a member of the “IBEW,” to which Gibson answered yes.
(G.C. Exh. 7 at 3.) Moreover, Parlet admits to a practice of
asking all applicants (other than the open salts) whether they
are IBEW members. (Tr. 2:319, 366.)
Animus, the third factor, is well established and generally
uncontested. Parlet’s admitted interrogation of all applicants
(other than open salts) as to their union membership was done,
I find, as a blatant effort to screen out union members, espe-
cially those who might be union activists such as union salts.
Parlet may very well have hired some union members on other
jobs (as with Stephen Hilton here) when he thought the person
was working nonunion and without his union’s knowledge.
But that hiring, I find, was on the perception that such employ-
ees were, in effect, hiding from their local union and therefore
would not try to organize the job. As the credited evidence
demonstrates, Parlet has a very different attitude when it ap-
pears that an employee is a union salt.
As we have seen, when Elton Smith assaulted apprentice
Hilton on December 8, and James Horn on January 11, and
knocked their union badges to the floor, Foreman Parlet, who
was present, neither cautioned Smith nor said one word of dis-
avowal of Smith’s misconduct. By such acquiescence, Parlet,
and LRE, adopted the assaults. Note also that Parlet wanted
McCallum to “ride” Hilton until he quit—a request, I have
found, motivated by Parlet’s antiunion animus. Finally, relying
on a pretext that the union buttons of the union salts were a
safety hazard, LRE ordered them removed. All in all, the evi-
dence establishes that LRE harbors a virulent antiunion animus.
Action is the fourth category. Did LRE act on its animus
(that is, was the animus a motivating factor) so as to deny jobs
to the alleged discriminatees? The answer, I find, is yes—at
least as to six of the nine. The answer is no as to Assistant
Business Managers’ Divine and Yelverton and to applicant
Michael V. Pickett. As I have found, Parlet, on checking one
of Pickett’s former employer’s, received an unfavorable report.
As Parlet rejected Pickett on that uncontradicted basis, I shall
dismiss complaint paragraph 9 as to Michael V. Pickett.
I likewise shall dismiss as to Divine and Yelverton because
of LRE’s hiring rule that no applicant will be hired who simul-
taneously works for another employer. Such a rule is valid.
See Architectural Glass & Metal Co. v. NLRB, 107 F.3d 426,
432–433 (6th Cir. 1997); Willmar Electric Service, 303 NLRB
245, 246 fn. 2 (1991), enfd. 968 F.2d 1327 (D.C. Cir. 1992).
The situation of “loaned” employee Billy V. Burk does not
show disparity of enforcement because there is no evidence that
Burk remained on the payroll (even in name, much less in
money) of the loaning company, Lynn Rogers Construction,
during the 2 weeks or so that he worked temporarily for LRE.
As to the other six (the three Bartons, Marby R. Penton Jr.,
Johnnie H. Smith Jr., and David Gibson), the evidence shows
that each was denied employment even though another person
was hired. The others hired include covert salts Ralph Brown,
Thomas McCallum, Larry Joe Alting, Tommy Dearing, and
Orby C. “Sonny” Renfroe Jr. plus William B. Darling, Carl R.
England, and Don Talley. Of those eight only Brown and
Renfroe possessed Jackson city cards (a factor which, I have
found, Parlet did not follow in any event). Some of the eight
(in addition to union salts Brown, McCallum, Alting, Dearing,
and Renfroe), such as Don Talley with 24 years’ experience,
and William B. Darling with apparently some 15 years’ experi-
ence (since June 1980; R. Exh. 5d2), quite possibly were very
qualified electricians. But the six had applied first and, I find,
passed over because of their status as union salts.
Carl England (with only 5 years’ experience and a felony
conviction for carrying a concealed weapon) began work on
January 17—1 day after David Gibson, with 30 years’ experi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 942
ence, a master’s license, and a clean record, applied. England
possibly was hired before Gibson applied. But England should
not have been hired because his application, dated November 6,
was stale under LRE’s rules. Moreover, LRE never called
Gibson later in January when it hired still others. Even when
the strike exhausted LRE’s ranks of Jackson city journeyman
card holders (Tr. 2:333, Parlet), LRE stubbornly refused to call
David Gibson when Gibson possessed a Jackson city master’s
license. It so refused, I find, because it knew that Gibson was a
union member.
In light of the foregoing, I find that LRE violated Section
8(a)(3) and (1) of the Act when, on November 27, 1995, it re-
fused to hire Hewitt P. Barton Sr., Hewitt P. Barton Jr., William
P. Barton, Marby R. Penton Jr., and Johnnie H. Smith Jr., and
on January 16, 1996, when it refused to hire David Gibson.
The determination of backpay, reinstatement to other jobs, and
other benefits, shall be determined at the compliance stage.
CONCLUSIONS OF LAW
Respondent Little Rock Electrical Contractors is shown to
have violated Section 8(a)(1) and (3) of the Act in the particu-
lars and for the reasons stated above, and its violations have
affected and, unless permanently enjoined, will continue to
affect commerce within the meaning of Section 2(6) and (7) of
the Act. In certain particulars discussed, LRE did not violate
Section 8(a)(1) and (3) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The remedial formula is set forth in WestPac Electric, 321
NLRB 1322, 1322–1323 (1996). Because Respondent LRE
discriminatorily failed and refused to hire six named job appli-
cants, I shall order it to offer them employment to the same or
substantially equivalent positions for which they applied, with-
out prejudice to any seniority or any other rights or privileges to
which they would have been entitled in the absence of the Re-
spondent’s hiring discrimination. Additionally, I shall order the
Respondent to make the six whole for any loss of earnings or
other benefits which they may have suffered as a result of the
discrimination practiced against them, from the date they ap-
plied for employment to the date that the Respondent makes
them a valid offer of employment. Such amounts shall be
computed in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), and shall be reduced by net interim earn-
ings, with interest computed in accordance with New Horizons
for the Retarded, 283 NLRB 1173 (1987).
This Order is subject to resolution at the compliance pro-
ceeding of the issues outlined in Dean General Contractors,
285 NLRB 573 (1987). See Casey Electric, 313 NLRB 774
(1994). Although there is evidence here that Respondent trans-
fers employees to other jobs, the matter was not fully litigated.
Accordingly, consistent with Dean General Contractors, supra,
Respondent LRE will have the opportunity in compliance to
show that, under its customary procedures, the six job appli-
cants’ positions would not have been transferred to another
jobsite after the Jackson, Mississippi project (The Junction
shopping center) on which the discrimination occurred was
completed, and that therefore no backpay and reinstatement
obligation exists beyond the time when LRE finished The Junc-
tion project at Jackson, Mississippi. And, presumably, that job
is completed.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Respondent, Little Rock Electrical Contractors, Inc., Lit-
tle Rock, Arkansas, its officers, agents, successors, and assigns,
shall
1.Cease and desist from
(a) Coercively interrogating employees or job applicants
about their union membership or union activities.
(b) Soliciting employees to surveil other employees in order
to acquire knowledge of their union activities.
(c) Insisting that employees remove their union buttons
while working, unless special circumstances justify ordering
such removal.
(d) Discriminating against job applicants, such as by refusing
to hire them, because of their membership in or support of a
union.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act.
(a) Within 14 days from the date of this Order, offer to the
employees named below employment in jobs for which they
applied or, if such jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any other
rights or privileges to which they would have been entitled if
they had not been discriminated against.
(b) Make them whole, with interest, 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 decision.

Hewitt P. Barton Sr. Hewitt P. Barton Jr.
William P. Barton Marby R. Penton Jr.
Johnnie H. Smith Jr. David Gibson

(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful refusal to hire any of the
six applicants named above, and within 3 days thereafter notify
the employees in writing that this has been done and that the
discrimination will not be used against them in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its Lit-
tle Rock, Arkansas facility copies of the attached notice marked
“Appendix.”10 Copies of the notice, on forms provided by the

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, 29 CFR 102.46, the findings, conclusions, and
recommended Order shall, as provided in Sec. 102.48 of the Rules, 29
CFR 102.48, be adopted by the Board and all objections to them shall
be deemed waived for all purposes.
10 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-
LITTLE ROCK ELECTRICAL CONTRACTORS 943
Regional Director for Region 26, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained by it for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in this
proceeding, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and for-
mer employees employed by the Respondent at any time since
January 17, 1996, the date the charge herein was filed and
served.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official,
on a form provided by the Region, attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found,
including complaint paragraphs 7(b), 7(c), and 9 as to alleged
discriminatees Wayne A. Divine, Sammy Yelverton, and Mi-
chael V. Pickett.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT do anything that interferes with, restrains,
or coerces you with respect to these rights, and more specifi-
cally:
WE WILL NOT discriminate against you or job applicants
because of your (or their) membership in a local of the Interna-
tional Brotherhood of Electrical Workers, or because of your
(or their) activities on behalf of the IBEW or one of its locals.
WE WILL NOT coercively interrogate you or job applicants
about union membership, support, or activities.
WE WILL NOT solicit you to surveil other employees in or-
der to acquire knowledge of their union activities.
WE WILL NOT insist that you remove your union buttons
while working unless there are special circumstances justifying
our instructing you to do so.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Or-
der, offer to the employees named below employment in jobs
for which they applied or, if such jobs not longer exist, to sub-
stantially equivalent positions, without prejudice to their senior-
ity or any other rights or privileges to which they would have
been entitled if they had been hired.
WE WILL make them whole for any loss of earnings and
other benefits resulting from the discrimination against them,
less any interim earnings, plus interest.

Hewitt P. Barton Sr. Hewitt P. Barton Jr.
William P. Barton Marby R. Penton Jr.
Johnnie H. Smith Jr. David Gibson

WE WILL, within 14 days from the date of the Board’s Or-
der, remove from our files any reference to our refusal to hire
any of the six job applicants named above, and WE WILL
within 3 days thereafter notify each of them in writing that this
has been done and that the discrimination will not be used
against them in any way.

LITTLE ROCK ELECTRICAL CONTRACTORS,
INC.